The UK Supreme Court has ruled that a provision allowing police to retain a DNA profile for an indefinite period was not in violation of the right to respect for private life under Article 8 of the European Convention on Human Rights (ECHR).
The case concerned the Police and Criminal Evidence (Northern Ireland) Order 1989 which allowed police to keep a DNA profile on a forensic science database for an indefinite period after the profile had fulfilled the purpose for which it was taken, as long as it was used for specified policing purposes. The appellant in question was convicted of drunk driving and, at the time of arrest, fingerprints, a photograph and DNA swab were taken. The Court had to decide whether or not the indefinite retention of his DNA profile satisfied the principle of proportionality under Article 8.2.
The majority judgment of 4:1 dismissed the appeal. Lord Clarke, delivering the judgment, distinguished S & Marper v UK on the basis that it concerned the “blanket and indiscriminate” data retention of suspected, non -convicted persons. The appellant in this case was not a suspect, as he had already been convicted.
In making its decision, the Court noted that the provision in question only applied to adults who had committed recordable offences. It also acknowledged that a DNA profile contains less information than that of a DNA sample and that the provision applied to adults only. The Court was very much of the view that a broader range of approaches can be accorded to individual States in imposing legislation concerning the retention of data of convicted persons than to that of non-convicted persons.
Interference under Article 8.2 was ultimately justified on the basis that the provision of retaining the DNA profile is of considerable benefit to the public in solving crime and that it may also benefit the accused individual by establishing that they did not commit the offence charged.
DNA profiles in Ireland are governed by the Criminal Justice (Forensic Evidence and DNA database system) Act 2014. Section 80 states that a DNA profile should be removed from the system no later than the expiration of a period of 3 months from the date on which certain actions occur. The list of actions includes the acquittal of an accused or the discontinuance of proceedings. Former offenders can apply to the Garda Commissioner to have their profiles removed from the system.
Click here to read the judgement in full.
Click here to read the Criminal Justice (Forensic Evidence and DNA database system) Act 2014.