Case of European Court of Human Rights, December 04, 2008 (case CASE OF S. AND MARPER v. THE UNITED KINGDOM)

President:missible by a Chamber of that Section composed of the following judges: Josep Casadevall
Defense:the United Kingdom
Resolution Date:December 04, 2008
 
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GRAND CHAMBER

CASE OF S. AND MARPER v. THE UNITED KINGDOM

(Applications nos. 30562/04 and 30566/04)

JUDGMENT

STRASBOURG

4 December 2008

This judgment is final but may be subject to editorial revision.

In the case of S. and Marper v. the United Kingdom,

The European Court of Human Rights, sitting as a Grand Chamber composed of:

Jean-Paul Costa, President,

Christos Rozakis,

Nicolas Bratza,

Peer Lorenzen,

Françoise Tulkens,

Josep Casadevall,

Giovanni Bonello,

Corneliu Bîrsan,

Nina Vajić,

Anatoly Kovler,

Stanislav Pavlovschi,

Egbert Myjer,

Danutė Jočienė,

Ján Šikuta,

Mark Villiger,

Päivi Hirvelä,

Ledi Bianku, judges,

and Michael O'Boyle, Deputy Registrar,

Having deliberated in private on 27 February 2008 and on 12 November 2008,

Delivers the following judgment, which was adopted on the last mentioned date:

PROCEDURE

  1. The case originated in two applications (nos. 30562/04 and 30566/04) against the United Kingdom of Great Britain and Northern Ireland lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms ("the Convention") by two British nationals, Mr S. ("the first applicant") and Mr Michael Marper ("the second applicant"), on 16 August 2004. The President of the Grand Chamber acceded to the first applicant's request not to have his name disclosed (Rule 47 § 3 of the Rules of Court).

  2. The applicants, who were granted legal aid, were represented by Mr P. Mahy of Messrs Howells, a solicitor practicing in Sheffield. The United Kingdom Government ("the Government") were represented by their Agent, Mr J. Grainger, Foreign and Commonwealth Office.

  3. The applicants complained under Articles 8 and 14 that the authorities had continued to retain their fingerprints and cellular samples and DNA profiles after the criminal proceedings against them had ended with an acquittal or had been discontinued.

  4. The applications were allocated to the Fourth Section of the Court (Rule 52 § 1 of the Rules of Court). On 16 January 2007 they were declared admissible by a Chamber of that Section composed of the following judges: Josep Casadevall, President, Nicolas Bratza, Giovanni Bonello, Kristaq Traja, Stanislav Pavlovschi, Ján Šikuta, Päivi Hirvelä, and also of Lawrence Early, Section Registrar.

  5. On 10 July 2007 the Chamber relinquished jurisdiction in favour of the Grand Chamber, neither party having objected to relinquishment (Article 30 of the Convention and Rule 72).

  6. The composition of the Grand Chamber was determined according to the provisions of Article 27 §§ 2 and 3 of the Convention and Rule 24 of the Rules of Court.

  7. The applicants and the Government each filed written memorials on the merits. In addition, third-party submissions were received from Ms Anna Fairclough on behalf of Liberty (the National Council for Civil Liberties) and from Covington and Burling LLP on behalf of Privacy International, who had been granted leave by the President to intervene in the written procedure (Article 36 § 2 of the Convention and Rule 44 § 2). Both parties replied to Liberty's submissions and the Government also replied to the comments by Privacy International (Rule 44 § 5).

  8. A hearing took place in public in the Human Rights Building, Strasbourg, on 27 February 2008 (Rule 59 § 3).

    There appeared before the Court:

    (a) for the Government

    Mrs E. Willmott, Agent,

    Mr Rabinder Singh QC,

    Mr J. Strachan, Counsel,

    Mr N. Fussell,

    Ms P. Mcfarlane,

    Mr M. Prior,

    Mr S. Bramble,

    Ms E. Rees,

    Mr S. Sen, Advisers,

    Mr D. Gourley,

    Mr D. Loveday, Observers;

    (b) for the applicants

    Mr S. Cragg,

    Mr A. Suterwalla, Counsel,

    Mr P. Mahy, Solicitor.

    The Court heard addresses by Mr S. Cragg and Mr Rabinder Singh QC as well as their answers to questions put by the Court.

    THE FACTS

    1. THE CIRCUMSTANCES OF THE CASE

  9. The applicants were born in 1989 and 1963 respectively and live in Sheffield.

  10. The first applicant, Mr S., was arrested on 19 January 2001 at the age of eleven and charged with attempted robbery. His fingerprints and DNA samples[1] were taken. He was acquitted on 14 June 2001.

  11. The second applicant, Mr Michael Marper, was arrested on 13 March 2001 and charged with harassment of his partner. His fingerprints and DNA samples were taken. Before a pre-trial review took place, he and his partner had become reconciled, and the charge was not pressed. On 11 June 2001, the Crown Prosecution Service served a notice of discontinuance on the applicant's solicitors, and on 14 June the case was formally discontinued.

  12. Both applicants asked for their fingerprints and DNA samples to be destroyed, but in both cases the police refused. The applicants applied for judicial review of the police decisions not to destroy the fingerprints and samples. On 22 March 2002 the Administrative Court (Rose LJ and Leveson J) rejected the application [[2002] EWHC 478 (Admin)].

  13. On 12 September 2002 the Court of Appeal upheld the decision of the Administrative Court by a majority of two (Lord Woolf CJ and Waller LJ) to one (Sedley LJ) [[2003] EWCA Civ 1275]. As regards the necessity of retaining DNA samples, Lord Justice Waller stated:

    "... [F]ingerprints and DNA profiles reveal only limited personal information. The physical samples potentially contain very much greater and more personal and detailed information. The anxiety is that science may one day enable analysis of samples to go so far as to obtain information in relation to an individual's propensity to commit certain crime and be used for that purpose within the language of the present section [Section 82 of the Criminal Justice and Police Act 2001]. It might also be said that the law might be changed in order to allow the samples to be used for purposes other than those identified by the section. It might also be said that while samples are retained there is even now a risk that they will be used in a way that the law does not allow. So, it is said, the aims could be achieved in a less restrictive manner... Why cannot the aim be achieved by retention of the profiles without retention of the samples?

    The answer to [these] points is as I see it as follows. First the retention of samples permits (a) the checking of the integrity and future utility of the DNA database system; (b) a reanalysis for the upgrading of DNA profiles where new technology can improve the discriminating power of the DNA matching process; (c) reanalysis and thus an ability to extract other DNA markers and thus offer benefits in terms of speed, sensitivity and cost of searches of the database; (d) further analysis in investigations of alleged miscarriages of justice; and (e) further analysis so as to be able to identify any analytical or process errors. It is these benefits which must be balanced against the risks identified by Liberty. In relation to those risks, the position in any event is first that any change in the law will have to be itself Convention compliant; second any change in practice would have to be Convention compliant; and third unlawfulness must not be assumed. In my view thus the risks identified are not great, and such as they are they are outweighed by the benefits in achieving the aim of prosecuting and preventing crime."

  14. Lord Justice Sedley considered that the power of a Chief Constable to destroy data which he would ordinarily retain had to be exercised in every case, however rare such cases might be, where he or she was satisfied on conscientious consideration that the individual was free of any taint of suspicion. He also noted that the difference between the retention of samples and DNA profiles was that the retention of samples would enable more information to be derived than had previously been possible.

  15. On 22 July 2004 the House of Lords dismissed an appeal by the applicants. Lord Steyn, giving the lead judgment, noted the legislative history of section 64 (1A) of the Police and Criminal Evidence Act 1984 ("the PACE"), in particular the way in which it had been introduced by Parliament following public disquiet about the previous law, which had provided that where a person was not prosecuted or was acquitted of offences, the sample had to be destroyed and the information could not be used. In two cases, compelling DNA evidence linking one suspect to a rape and another to a murder had not been able to be used, as at the time the matches were made both defendants had either been acquitted or a decision made not to proceed for the offences for which the profiles had been obtained: as a result it had not been possible to convict either suspect.

  16. Lord Steyn noted that the value of retained fingerprints and samples taken from suspects was considerable. He gave the example of a case in 1999, in which DNA information from the perpetrator of a crime was matched with that of "I" in a search of the national database. The sample from "I" should have been destroyed, but had not been. "I" had pleaded guilty to rape and was sentenced. If the sample had not been wrongly detained, the offender might have escaped detection.

  17. Lord Steyn also referred to statistical evidence from which it appeared that almost 6,000 DNA profiles had been linked with crime-scene stain profiles which would have been destroyed under the former provisions. The offences involved included 53 murders, 33 attempted murders, 94 rapes, 38 sexual offences, 63 aggravated burglaries and 56 cases involving the supply of controlled drugs. On the basis of the existing records, the Home Office statistics estimated that there was a 40% chance that a crime-scene sample would be matched immediately with an individual's profile on the database. This showed that the fingerprints and samples which could now be retained had in the previous three years played a major role in the detection and prosecution of serious crime.

  18. Lord Steyn also noted that the PACE dealt separately with the taking of fingerprints and samples, their retention and their use.

  19. As to the Convention analysis, Lord Steyn...

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