DNA and the ECHR: rights, rules and technicalities

Liz Heffernan

Trinity College Dublin

Results and reasoning

Majority and individual judgments

Concurrences and dissents

Details, caveats and provisos

Precedents, ratio decidendi and obiter dicta

ECtHR held that the practice in England and Wales of indefinitely retaining the fingerprints, cellular samples and DNA profiles of persons suspected but not convicted of criminal offences violates Article 8 ECHR

Consensus among 17 judges

Robust nature of protection afforded to informational privacy

Article 8 – privacy

Article 14 – non discrimination

Article 6 – fair trial

1. Everyone has the right to respect for his private … life …

2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety … for the prevention of disorder or crime or for the protection of the rights of others.

1. Has there been an interference?2. Was the interference in accordance

with law?3. Did the interference pursue a

legitimate aim?4. Was the interference necessary in a

democratic society?

Cellular samplesDNA profilesFingerprintsOther forms of dataEU data protection regimeConcept of privacy

RetentionUseAutomated processing

Onus on respondent state to provide relevant and sufficient evidence that practice is proportionate to a pressing social need

Margin of appreciation

European practice and level of consensus

• Blanket, indiscriminate, open-ended nature of power of retention• Nature or gravity of offence• Age of offender• Indefinite retention – no time limit

• Failed to strike a fair balance between the competing public and private interests

• Only limited possibilities to have data removed and materials destroyed

• No independent review of justification for retention according to defined criteria• E.g. Seriousness of offence• E.g. Previous arrests and strength of suspicion• E.g. Other special circumstances

Technological leader

Practical benefit to policing – empirical evidence

Revision in law, practice and judicial thinking

Onus on national authorities to comply and to monitor compliance

Reflection on our conceptualisation of informational privacy◦ Types of data◦ Nature of activities and purposes◦ Governance of databasing

Taking of material and data for investigative purposes

Retention while persons remain suspects

Limited retention of data of former suspects in exceptional circumstances

RightsRulesTechnicalities

Legislative drafting

Implications of S & Marper for retention of fingerprints and for retention of DNA material under existing regime and proposed DNA database

People (DPP) v Boyce [2008] IESC 62