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European rights court rejects British law on DNA storage

Landmark ruling could result in data's destruction

By Paisley Dodds
Associated Press / December 5, 2008
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LONDON - Europe's top human rights court yesterday struck down a British law that allows the government to store DNA and fingerprints from people with no criminal record - a landmark decision that could force Britain to destroy nearly 1 million samples on its database.

Rights groups say the ruling could have even wider implications for the storage of other sensitive and personal data.

The case originated when British police refused to destroy DNA samples of two Britons whose cases were closed.

Seventeen judges on the European Court of Human Rights ruled unanimously that keeping DNA samples and fingerprints was in violation of people's right to a private life - a protection under the Human Rights Convention to which Britain is a signatory. The court also criticized Britain's use of "blanket and indiscriminate" storage.

Britain cannot appeal the ruling. It has until March to submit plans for destroying samples or to make a case for why some should be kept. Many European countries allow for temporary storage of DNA in sex crimes or other offenses but samples are usually destroyed after the cases are closed.

"It's a fantastic result after a 7-year, hard-fought battle," said Peter Mahy, a lawyer who represented the two Britons.

Britain has one of the world's largest DNA databases with more than 4.5 million samples, usually collected with a cheek swab.

In England and Wales, more than 850,000 DNA samples from people with no criminal record are stored on the national database. Samples have come from anyone who has been arrested, regardless whether they were charged, convicted or acquitted. Even the DNA of crime victims has been stored on occasion.

"DNA and fingerprinting is vital to the fight against crime, providing the police with more than 3,500 matches a month, and I am disappointed by the European Court of Human Rights' decision," said Britain's Home Secretary Jacqui Smith. "The existing law will remain in place while we carefully consider the judgment."

Human rights advocates have long claimed that storing the DNA of innocent people is a disproportionate invasion of privacy when weighed against actual convictions using DNA.

The European court complaint was brought by Michael Marper, 45, and a 19-year-old named only as "S" because he was 12 when he was arrested.

Both were arrested in 2001 - Marper for harassing his partner and "S" for attempted robbery. Charges were dropped against Marper, and "S" was acquitted. Their cases were unrelated.

The two first appealed to the police to have their DNA and fingerprints removed from the database. South Yorkshire Police refused, saying the details would be retained "to aid criminal investigation."

The men then appealed to the House of Lords, which ruled in favor of the police, saying that keeping the information was legal and did not breach their human rights.

The European court based in Strasbourg, France, disagreed, ordering British authorities to pay $53,000 in legal fees. Its rulings are binding on all EU nations.

"Sweeping up the innocent with the guilty does not help fight crime," said Anna Fairclough of the London-based rights group, Liberty.

Police, however, pointed to recent cases solved by using DNA.

Prosecutors used DNA evidence this year to convict a man with the murders of five prostitutes.

Chris Sims, a forensics specialist from Britain's Association of Chief Police Officers, said 200,000 DNA samples were retained from 2001 to 2005 from people charged but not convicted of offenses.

"Of these, about 8,500 profiles of individuals have been linked with crime scene profiles involving nearly 14,000 offenses, including 114 murders, 55 attempted murders, 116 rapes, 68 sexual offenses, 119 aggravated burglaries and 127" drug cases, he said.

The core complaint to the European court centered on retaining DNA, not collecting it to solve crimes.

"The court was struck by the blanket and indiscriminate nature of the power of retention in England and Wales," it said in its ruling. "The data in question could be retained irrespective of the nature or gravity of the offense with which the individual was originally suspected or of the age of the suspected offender."

Britain's current policy is to retain samples until the individual dies or reaches 100 years old. Scotland, which has its own legislature, destroys DNA samples taken during criminal investigations that are dropped.

DNA samples are also destroyed upon acquittal in Finland, Germany and Sweden.

The US government announced plans this year to begin collecting DNA samples from anyone arrested by a federal law enforcement agency. It also plans to collect DNA samples from foreigners who are detained, whether they have been charged or not - a departure from current practice that limits DNA collection to convicted felons.

If a person is arrested but not convicted, they can ask the Justice Department to destroy the sample.

In France, police can take DNA samples from people before they are formally charged and those samples can be kept for 25 years. People acquitted or not charged can ask to be removed from the database but it's "a complex process," said Jeanne Bossi of the CNIL, France's independent privacy watchdog.

A key part of the European court's ruling said people "were entitled to the presumption of innocence."

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