Supreme Court judgment - holding DNA of everyone arrested ‘unlawful’

18 May 2011

Today the Supreme Court declared the police policy of retaining the DNA of everyone arrested to be unlawful. However because of draft legislation in Parliament, the Court declined to order police to implement a lawful scheme until the Bill has passed.

Lord Dyson said in the judgment:

“….it is appropriate to grant a declaration that the present ACPO guidelines….are unlawful because, as clearly demonstrated by Marper ECtHR, they are incompatible with the ECHR.  It is important that, in such an important and sensitive area as the retention of biometric data by the police, the court reflects its decision by making a formal order to declare what it considers to be the true legal position.  But it is not necessary to go further.  Section 8(1) of the HRA gives the court a wide discretion to grant such relief or remedy within its powers as it considers just and appropriate.  Since Parliament is already seised of the matter, it is neither just nor appropriate to make an order requiring a change in the legislative scheme within a specific period.”

The ACPO guidance challenged allowed police to hold the DNA of everyone who was arrested, subject only to a very narrow test which permits destruction of the sample in ‘exceptional circumstances’.

James Welch, Legal Director for Liberty who intervened in the case said:

“These who accuse the judges of trespassing on the role of Parliament should take note of this judgment.  While our Supreme Court has endorsed the view of the European Court of Human Rights that indefinitely keeping the DNA of almost all people who are arrested is excessive and violates privacy rights, it has properly left the question of how to remedy this to Parliament.”   

The Protection of Freedoms Bill contains a new draft scheme on DNA retention and may get through Parliament by autumn of this year.  Until then, hundreds and thousands of people whose DNA – according to this judgment – is unlawfully retained will remain on the database.

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Notes to editors:

  1. S & Marper v United Kingdom, heard in the European Court of Human Rights on 27 February 2008, established that the automatic retention of DNA samples, profiles and fingerprints from those who are not convicted of any offence is a breach of the right to a private life under Article 8 of the European Convention on Human Rights.