In the cases of S v. United Kingdom and Marper v. United Kingdom, App Nos 30562/04 and 30566/04, [2008] 25 B.H.R.C. 557, the Grand Chamber of the European Court of Human Rights (ECtHR) has unanimously held that the practice in England, Wales and Northern Ireland, of indefinitely retaining fingerprints and DNA samples and profiles of unconvicted persons, without their consent, is a violation of the right to private life guaranteed by Article 8 of the European Convention on Human Rights (ECHR).

S was an 11-year-old boy, with no previous convictions, reprimands or warnings, at the time of his arrest in 2001. Fingerprints and DNA samples were taken from him. He was charged with attempted robbery, but subsequently acquitted. He demanded the destruction of the fingerprints and samples but the South Yorkshire Police refused to do so. Marper, who was 38 years of age and of good character, was arrested and charged with harassment of his partner. The police took his fingerprints and DNA samples. His partner became reconciled with him and decided not to press the charges, and the case was formally discontinued. The police refused to destroy the fingerprints and samples. In both cases the police relied on the Criminal Justice and Police Act 2001, which allows the police to take and to retain indefinitely, without consent, fingerprints and DNA samples from a person of any age who has been arrested in connection with a “recordable” offence. In practice this bioinformation is used speculatively in the investigation of other offences. That was the legislation in force when S and Marper were arrested. Subsequently the Criminal Justice Act 2003 extended police powers even further by allowing the indefinite retention of samples and profiles of those arrested but not necessarily charged with any offence. The Serious and Organised Crime Act 2005 widened the powers of arrest to all recordable offences, however minor. These police powers underlie the growth of the National DNA Database into the biggest per head of population in the world, with 7.39 per cent of the UK population. England, Wales and Northern Ireland (but not Scotland) are alone in the 27 EU Member States and also in the 47 Member States of the Council of Europe in retaining indefinitely the DNA profiles and samples of those who have not been convicted of a crime.

The Divisional Court (R (on the application of S); R (on the application of Marper v. Chief Constable of South Yorkshire) [2002] EWHC 478 (Admin), [2002] All E.R. (D.) 367) upheld by a majority of the Court of Appeal (Lord Woolf C.J. and Waller L.J.) ([2002] EWCA Civ 1275, [2002] 1 W.L.R. 3233) dismissed applications for judicial review, and the House of Lords ([2004] UKHL 39, [2004] 1 W.L.R. 2196) rejected the appeals. The first issue raised was whether the retention of fingerprints, samples and DNA profiles is an interference with the right to respect for private life pursuant to Article 8(1) of the ECHR. A majority in the House of Lords was of the view that retention of fingerprints and DNA samples does not have an impact on the private lives of individuals and accordingly Article 8(1) is not engaged; alternatively, at most, it is, in Lord Steyn's words, a “modest” infringement of Article 8(1). However, Baroness Hale, dissenting on this issue, thought that “there can be little if anything, more private to the individual than the knowledge of his genetic makeup”. The ECtHR agreed with Baroness Hale holding that “an individual's concern about the possible future use of private information retained by the authorities is legitimate and relevant to the determination of the issue whether there has been an interference” with the right to private life.

The second issue was whether this infringement could be justified under Article 8(2) of the ECHR. The House of Lords was unanimously of the view that there was objective justification for any interference with the right to private life, concluding that this was proportionate considering the benefits of a large database in detecting serious crime and the limited purpose for which fingerprints and samples are retained. The English judges were, in effect, saying two things. The first, which is not controversial, is that the prevention and detection of crime and the exoneration of the innocent by the use of the revolutionary technology of DNA profiling is legitimate. The second and highly disputed point they made is that not only is the present regulatory framework effective, but also that the wider the DNA database the better the chance of detecting and deterring criminals. Their decision on this point reflects a rather unsophisticated form of utilitarianism embracing the new technologies as maximising aggregate social welfare: the benefits of an expanding DNA database to the common good outweigh the largely intangible costs to the individual and, in any event, no real harm to the individual, beyond possible distress and stigma, has been shown. On the other hand, the European judges' approach was strongly rights-based rather than utilitarian. They were far readier than the English judges to frame ethical values, such as privacy and autonomy, in the language of personal rights. While allowing a “margin of appreciation” to the competent national authorities in their assessment, the ECtHR decided that the discretion of Member States is narrower the more crucial a particular right is to the individual's existence or identity. “The protection of personal data”, they said, is “of fundamental importance to a person's enjoyment of his or her right to respect for private or family life”. What they disliked most of all was the “blanket and indiscriminate” powers given to the police. They made it clear that domestic law must afford “appropriate safeguards” particularly where the data is undergoing automatic processing. The issue was looked at from the viewpoint of the individuals who were innocent of any crime, and not whether the retention of the bioinformation “may in general be regarded as justified”. The ECtHR was influenced by a number of considerations, notably the strong consensus among other Member States, and in Scotland, that the indefinite retention of bioinformation without individual consent should not be allowed. Of particular concern to the ECtHR is the “risk of stigmatization” by treating unconvicted persons in the same way as convicted persons – everyone who is not convicted is entitled to the presumption of innocence. The ECtHR's conclusion was that the English legislation fails to “strike a fair balance between the competing public and private interests”.