The UK government is today to announce its planned curtailment of its DNA Database in response to the European Court of Human decision in S and Marper v. UK (2008) In that case the Court found that through the retention of DNA profiles of all individuals suspected (not charged or convicted) of criminal offences the UK was breaching Article 8. The Court found the ‘blanket and indiscriminate nature’ of retention in the UK to be most problematic and indicated that the Scottish system of retaining for three years (with potential for extension by judicial authorisation) profiles of individuals suspected of serious sexual or violent offences was a justifiable interference with Article 8. The lack of independent review for retention was also questionable. This was particularly ‘harmful’ where minors were considered, given the potential labelling effects of being placed on the database.
BBC News reports that the proposals from the UK government to be announced today will permit retention of profile’s suspects for up to 6 years, with no suggestion of limitation to serious offences. Different rules will apply for individuals under the age of 18. It is difficult to see how this complies with the European Court’s judgement and the Equality and Human Rights Commission has stated as much.
This is of particular concern in Ireland where the General Scheme of the Criminal Justice (Forensic Sampling and Evidence) Bill 2007 provides powers in Ireland for retention of samples of suspects arrested under, as outlined in Head 8:
a. section 30 of the OAS Act 1939,
b. section 4 of the CJ Act 1984
c. section 2 of the CJ (Drug Trafficking) Act 1996.
d. section 42 of CJ Act 1999
While this may seem to provide some limitations, the breadth of application of s.4 of the CJAct 1984 (arrest without charge for any offence meriting 5 years imprisonment) still looks to run foul of the Marper decision for not providing sufficient justification. Further, the lack of time limits on retention, the minimal safeguard of consent of a guardian for young people aged 12-18 and the failure to provide independent review are highly problematic. The full draft Bill is expected imminently and while it might be hoped that the Marper decision will be accounted for within that, this is unlikely. What is more likely is that both the UK and Irish governments, aware of the approval for the limited retention in Scotland, will attempt to push that approval to its limits in the hoping of retaining samples from as many individuals as possible. Given that the UK statistics indicate that DNA evidence assists in the investigation of crime in just 0.68% of cases, this intrusion on Article 8 is not justifiable.