In a recent case of S & Marper v the United Kingdom, the European Court of Human Rights gave their judgment, ruling unlawful the provisions the Police and Criminal Evidence Act 1984 which expressly allowed the systematic and indefinite retention of DNA profiles and cellular samples of persons who had been found not guilty or in respect of whom criminal proceedings had been discontinued.

The court looked at whether this constituted unjustified interference with Article 8 of the European Convention on Human Rights which confirms that everyone has the right to respect for his or her private life and in particular whether the interference of this right by PACE was jusitified.

The court considered all of the issues in this case but commented on the “blanket and indiscriminate nature of the power of retention in England and Wales” which related even to minor or non-imprisonable offences.  It concluded that the law failed to strike a fair balance between the competing public and private interests of the state and the individual and accordingly there was a violation of Article 8 of the Convention.

Stephen Harrett, solicitor in the criminal law department, comments:

“It was common practice years ago for solicitors to write to the police to request their clients’ samples be destroyed after acquittal or discontinuance.  In light of this ruling innocent persons can now ask for destruction of samples and if the police fail or refuse to do so they may lend themselves open to Judicial Review proceedings.  It will be interesting to see whether the Government tries to amend the law to allow retention of this material for more serious offences, whilst accepting that it should not be retained for others.”