Facts:
The first applicant, Mr S, was arrested at the age of eleven in January 2001, charged with attempted robbery and subsequently acquitted in June 2001. The second applicant, Mr Marper, was arrested in March 2001 and charged with harassment of his partner but the couple became reconciled and the case was discontinued in June. In both cases the police took the applicants’ fingerprints and DNA samples and refused to destroy them on request of the applicants after the cases were closed.

The Administrative Court rejected their application for judicial review and the Court of Appeal upheld the decision. In July 2004 the House of Lords dismissed an appeal by the applicants.

The applicants complained under Articles 8 and 14 of the Convention about the retention by the authorities of their fingerprints, cellular samples and DNA profiles after their acquittal or discharge.

Law:
The Court found that the retention of DNA and fingerprint data of persons that were suspected but not convicted for criminal investigation purposes constituted a violation of article 8 (right to respect for private and family life) of the Convention.

Interference with article 8(1)
The Court held that in the case of DNA and cellular samples, given the highly personal nature of the information retained and the amount of personal information which it contained, the retention per se constituted an interference with article 8(1). The retention was all the more sensitive as it provided a means of tracing genetic relationships and identifying ethnic origin, which were very susceptible of affecting the right to private and family life.

The Court admitted that the retention of DNA samples constituted a greater interference with the right to private life than fingerprints. It held nonetheless that the unique and personal information contained in the fingerprints made their non-consensual retention an interference with article 8 as well.

Justification for the interference under article 8(2)
The Court examined whether the retention of DNA samples and fingerprint data of persons that were suspected but subsequently acquitted was justified under article 8(2).

It held that the retention of DNA and fingerprints by the police had a clear and sufficiently certain basis in UK law. It however added that it was essential to have clearer rules providing safeguards preventing any such use of personal data as it could be inconsistent with the guarantees of Article 8.

It accepted that the prevention of crime was a legitimate purpose for the interference.

The Court then examined whether the interference was legitimate in a democratic society. The retention of data had to be proportionate in relation to the purpose and limited in time.

The Court recognised that the use of DNA techniques was necessary for the prevention of terrorism and crime. However, in all Contracting States, personal data retained by the police were removed or destroyed after acquittal of the suspect. The Court noted that England, Wales and Northern Ireland appeared to be the only jurisdictions within the Council of Europe to allow the indefinite retention of fingerprint and DNA material of any person of any age suspected of any recordable offence.

The Court was struck by the blanket and indiscriminate nature of these powers, which contained no limitations in time regardless of the gravity of the offence, of the criminal history of the subject or the degree of suspicion against him. The fact of storage in itself constituted interference regardless of whether the information was actually used. Moreover, the risk of stigmatisation, residing in the fact that the innocent suspects were treated like convicted persons, denied them the presumption of innocence to which every individual is entitled under the Convention. The Court further considered that the retention of unconvicted persons’ data could be especially harmful in the case of minors such as the first applicant, given the importance of their development and integration in society.

The Court thus concluded that the retention of DNA samples and fingerprint data of persons that were suspected but subsequently acquitted was disproportionate for the purpose of article 8(2). This was in contradiction to the House of Lords decision which found the powers to be in compliance with the Convention.

No separate issues arose under article 14 of the Convention.

The Court awarded the applicants 42,000 euros (EUR) under article 41 of the Convention, less the EUR 2,613.07 already paid to them in legal aid.