Comparing the European Court of Human Rights’ (ECtHR) 2008 decision in S. and Marper v. the United Kingdom with the U.S. Supreme Court’s 2013 decision in Maryland v. King provides a window on the very different legal status of criminal records in the Europe and U.S.  S. and Marper also illuminates the growing chasm between the U.K. and continental Europe when it comes to informational privacy and police records.  As illustrated in prior posts, many criminal justice practices that are common in the U.S. are regarded as a serious invasion of privacy in Europe, and therefore a human rights violation.  As evidenced by the caselaw discussed below, this includes the blanket and indefinite retention of DNA and fingerprint information.

In Maryland v. King, the Supreme Court held that taking a DNA sample from a person arrested for serious offenses did not violate the Fourth Amendment.  The Court held, per Justice Kennedy, that taking a cheek swab from the arrestee’s mouth constitutes a reasonable search incident to arrest because it provides accurate identification that may link the arrestee to past crimes or may be useful in future investigations. The Court did not have to consider the constitutionality of keeping records of defendant’s DNA profile in a permanent database after an acquittal or dismissal, but there is little doubt from the tenor of the decision that this too would be approved based on decisions upholding retention of fingerprint data.  The retention of fingerprint information is common practice, held not to be stigmatizing.

S. and Marper, two Englishmen whose criminal cases had been resolved, respectively, by acquittal and dismissal, challenged the indefinite retention of their DNA profiles (i.e. numeric codes based on “junk DNA”) in the U.K.’s national DNA database. They argued that retention of identity data in the national database violated Article 8 of the European Convention of Human Rights which guarantees “everyone the right to respect for his private  life.”  S. and Marper argued that the retention of fingerprints, cellular samples and DNA profiles violates respect for private life. They argued further that retention of cellular samples more seriously infringes privacy than retention of DNA profiles and fingerprints, but that all three put into the hands of the government personal information that Article 8 entitles them to keep confidential.  The government’s countervailing interests in linking crime scene DNA and fingerprints to identifiable people did not outweigh individual privacy interests.

The ECtHR agreed with the complainants’ arguments, holding that Article 8 prohibits the “blanket and indefinite” retention of fingerprints and DNA samples from defendants who have not been found guilty. The court pointed out that the U.K.’s retention practices made it an outlier among the members of the Council of Europe, and the only member state “expressly to permit the systematic and indefinite retention of DNA profiles and cellular samples of persons who have been acquitted or in respect of whom criminal proceedings have been discontinued.”  The court recited the retention policies of the other member states:

Five States (Belgium, Hungary, Ireland, Italy and Sweden) require such information to be destroyed ex officio upon acquittal or the discontinuance of the criminal proceedings. Ten other member States apply the same general rule with certain very limited exceptions: Germany, Luxembourg and the Netherlands allow such information to be retained where suspicions remain about the person or if further investigations are needed in a separate case; Austria permits its retention where there is a risk that the suspect will commit a dangerous offence and Poland does likewise in relation to certain serious crimes; Norway and Spain allow the retention of profiles if the defendant is acquitted for lack of criminal accountability; Finland and Denmark allow retention for one and ten years respectively in the event of an acquittal and Switzerland for one year when proceedings have been discontinued. In France, DNA profiles can be retained for twenty-five years after an acquittal or discharge; during this period the public prosecutor may order their earlier deletion, either on his or her own motion or upon request, if their retention has ceased to be required for the purposes of identification in connection with a criminal investigation. Estonia and Latvia also appear to allow the retention of DNA profiles of suspects for certain periods after acquittal.

As to people who have been convicted, the U.K. was also the only member state that allowed indefinite retention of DNA profiles:

The retention of DNA profiles of convicted persons is allowed, as a general rule, for limited periods of time after the conviction or after the convicted person’s death. The United Kingdom thus also appears to be the only member State expressly to allow the systematic and indefinite retention of both profiles and samples of convicted persons.

The ECtHR held that because cellular samples contain a significant amount of personal information, their indefinite retention without regard to the nature of the crime at issue interferes with “the right to respect for private life.” This conclusion is not altered by the fact that only a limited information is actually extracted or used by the state and that no immediate detriment is caused in a particular case. The DNA profile (numerical code based on junk DNA), according to the court, contains substantial amounts of unique personal data. “Their processing through automated means allows the authorities to go well beyond neutral identification . . . .”   DNA profiles could be, and indeed have in some cases been used for familial searching. They also provide a means of identifying genetic relationships between individuals.

THE ECtHR also struck down retention of S.’s and Marper’s fingerprints because fingerprints “allow identification with precision in a wide range of circumstances. They are thus capable of affecting his or her private life and retention of this information without the consent of the individual concerned and cannot be regarded as neutral or insignificant.”  Thus, the ECtHR concluded that “the retention at issue constitutes a disproportionate interference with the applicants’ right to respect for private life and cannot be regarded as necessary in a democratic society.”

The court observed that other member states had “set limits on the retention and use of such data with a view to achieving a proper balance with the competing interests of preserving respect for private life.”  It observed further that “the protection afforded by Article 8 of the Convention would be unacceptably weakened if the use of modern scientific techniques in the criminal-justice system were allowed at any cost and without carefully balancing the potential benefits of the extensive use of such techniques against important private-life interests.”  It used as an example the case of Scotland, which it thought especially significant because a part of the U.K. itself:

[T]he Scottish parliament voted to allow retention of the DNA of unconvicted persons only in the case of adults charged with violent or sexual offences and even then, for three years only, with the possibility of an extension to keep the DNA sample and data for a further two years with the consent of a sheriff.

In the Court’s view,

the strong consensus existing among the Contracting States in this respect is of considerable importance and narrows the margin of appreciation left to the respondent State in the assessment of the permissible limits of the interference with private life in this sphere. The Court considers that any State claiming a pioneer role in the development of new technologies bears special responsibility for striking the right balance in this regard.

The court criticized the particulars of the “blanket and indiscriminate nature of the power of retention in England and Wales.”

The material may be retained irrespective of the nature or gravity of the offence with which the individual was originally suspected or of the age of the suspected offender; fingerprints and samples may be taken – and retained – from a person of any age, arrested in connection with a recordable offence, which includes minor or non-imprisonable offences. The retention is not time-limited; the material is retained indefinitely whatever the nature or seriousness of the offence of which the person was suspected. Moreover, there exist only limited possibilities for an acquitted individual to have the data removed from the national database or the materials destroyed . . . ; in particular, there is no provision for independent review of the justification for the retention according to defined criteria, including such factors as the seriousness of the offence, previous arrests, the strength of the suspicion against the person and any other special circumstances.

The question, therefore, was whether the above-described retention policy “is proportionate and strikes a fair balance between the competing public and private interests.”  The court held that it was not.