Title of Case comment: Whose DNA is it Anyway?

Completion date: 2 May 2002

This case is a further example of how the courts are approaching the European Convention on Human Rights in light of the Human Rights Act 1998. Depending upon philosophical and political perspective, a person will see it either as common sense jurisprudence, or as an example of modern utilitarianism in which the majority who never expect even to be suspected of a crime are protected against the minority criminal element. This is not the place to debate such issues, but they are important in understanding a case such as this, and to understand how other cases in future may be decided.

The case concerned the compatibility of Section 82 of the Criminal Justice and Police Act 2001, which amends Section 62 of the Police and Criminal Evidence Act by enabling the Police to retain fingerprints and samples containing DNA (both referred to herein as "samples") even where the subject was either not prosecuted or was acquitted. There are at least five issues in the case: a) does the retention of samples infringe Art. 8(1) of the ECHR? b) if so, does it come within the protection (to the Police) afforded by Art. 8(2)? c) is a blanket policy of retaining all such samples - when the legislation provides that the Police "may" retain them - an unlawful fettering of discretion? d) is it discriminatory within Art. 14? e) and finally, what is the effect of the provisions being retrospective?

Leveson J was far from convinced that retention engaged Art. 8(1) at all. The taking of samples clearly does, but is equally clearly protected by Art 8(2), not least because there must have been reasonable suspicion for the subject to be asked, or even required, to provide a sample. The question of retention has not been resolved in the European Court. This is largely because, as in this case, the Respondent’s best defence is usually Art. 8(2), so the courts have not felt the need to resolve definitively the position in relation to Art. 8(1). The question will have to be resolved at some stage, however. For example, what of the situation where members of a particular community voluntarily provide DNA samples because there has been a series of rapes in their area? Is the retention of those samples, after the offender has been convicted not an issue which ought properly to be embraced by Art. 8?

If it is permissible to keep samples of those who were not prosecuted or convicted, because it is within the ambit of Art. 8(2), why is it not also permissible for the Police to recover samples from any source available to them, and then to retain them? Any lawyer who represents defendants will visit prisons where his fingerprints are taken on the way in, so that the prison can ensure that he is the same person on the way out. Can the Police retain these samples? It may be that there is a difference in proportionality, which Leveson J said, surely correctly, was the real issue in relation to Art. 8(2). But, how is that difference to be identified when the acquitted subject is meant to be innocent until proven guilty, and when there is therefore supposed to be no qualitative difference between him and a person who has never even been arrested? As technology increases, these questions will become more complex.

Leveson J dealt with this very briefly. The Police represented that they had a policy, but that they would always be prepared to consider any "convincing distinguishing feature" in a case, which might lead them not to retain samples. This was sufficient to satisfy the Court that the policy was itself a proper exercise of discretion, rather than an invariable rule.

This was roundly rejected. Article 14 does not have an independent status; it must be invoked in conjunction with one of the other articles. Thus, in so far as the Court rejected the application in relation to Art. 8, it was likely to reject the application of Art. 14. In addition, the discrimination must be without reasonable and objective justification. The Court was able to say that those who had been through the criminal process could be so distinguished from those who had not. A question is begged, however: does this distinction not apply to the taking of the samples, rather than to the retention of samples?

The Court did not deal with the merits of any argument on retrospectivity, but did cite the Joint Committee on Human Rights, which considered the retrospective effect of the provisions and decided that any challenge based on retrospective effect would be unlikely to succeed. The implication may be that the Court agreed with those observations. It is difficult to see to what extent the matter was argued in this case. However, on the face of it, it is worthy of legal argument, because absent Section 82, the retention of the samples was unlawful; so much so, that any evidence which resulted from that retention was inadmissible: see Attorney-General’’s Reference (No. 3 of 1999) [2000] 3 WLR 1164.