If, in the course of their investigation of crime, the police obtain an individual’s DNA profile why, if at all,
does the retention by the state of that profile constitute an interference with the individual’s privacy, and on
what basis should it be retained on a national database of such profiles?
The UK National DNA Database (NDNAD) has been implemented in 1995 and is today the oldest and today one of
the most important DNA database in the world which continue to growth. In September 2017, the national database
contained more than six millions of DNA profiles. The aim of this database is to enable police to identify unknown 1
and known suspects through their DNA samples which have been collected during investigations to link them to past
or present criminal offences. These DNA are gathered both from crime scene or individuals body. DNA databases
represent hence an important resource for police in their investigations by storing DNA profiles. Despite its
usefulness, it is a very controversial area due to its interference with rights of individuals especially privacy rights
because of the individuals informations contained in DNA. This retention of personal data arise a new form of privacy,
the genetic privacy. Privacy is a major principle of human rights of individuals and a wide notion highly protected by
the European Court of Human Rights. Further, as ECtHR held in the case Leaden v Sweden, the mere retention of
personal data about individuals is an interference with privacy right under article 8 of the European Convention on
Human Rights. The retention of DNA is a human rights challenge particularly because it represents an interference 2
to privacy right of individuals in the use and retention of human DNA which contains the most sensible genetic and
personal characteristics of individuals and there are risks of significant impact on lives of individuals.
In order to explore the individuals concerns that DNA retention represents on privacy, this essay will first explore the
interference with this right to privacy because of the information stored in the database concerning individuals which
is very intrusive. Finally, this essay will argue the justification of this retention in such a national database even if it is a
threat to individuals privacy right through the benefits for the society as a whole.
DNA retention in a NDNAD is highly criticized due to the ethical, social and legal concerns related to the human right
issues involved. The most significant human right problem is the interference with privacy right of individuals due to
sensitive personal and genetic information about individuals which constitutes a disproportionate invasion of
informational and genetic privacy of those individuals. Privacy is today a fundamental human right for individuals it
can be considered the right to control the use and retention of personal data. It is recognized by both international
treaties and domestic law. At international level, the Universal Declaration of Human Rights in article 12 and the
European Convention on Human Rights (ECHR) in article 8 have consecrated this principle. It has been adopted in
the UK through the Human Right Act in 1998 enabling the protection of privacy in domestic law through article 8 of
the Convention. With this article, there shall be none interference to this right of privacy by a public authority, even
during the exercise of its power. The use and retention of DNA in national database arise today social and legal
debates because of its interference with privacy right of individuals. Indeed, DNA is a fundamental part of individuals
personality and it is unique, except for twins. It represents a source of sensitive information about individuals such as
their medical or genetic characteristics, but also about their identity, address or relatedness and family history. Thus,
DNA database can be seen as an intrusion into individual bodily integrity. Because of these information given and
stored into the NDNAD, this database is like a surveillance tool. It is problematic because people could be then on a
list of suspects, even if they are innocents and it can conduct to a reversal of the innocence principle. Hence there is
a development of biological tracking or biosurveillance of people. There is a loss of civil liberty for those individuals
because NDNAD is very intrusive. However, the issue concerns especially innocents and victims who can see their
DNA stored in such a database like other suspects. However they do not have to be treated as suspects or in the
same way as convicted people. Moreover, there can be a misuse of this database by the police, indeed, NDNAD can
be used to identify or tracking suspects via family researches or unknown paternity, thus the surveillance is then
extended to his or her relatives and these people see their privacy breached. In the same way, NDNAD can also have
an impact on lives of individuals. Individuals have legitimate concerns beyond the privacy right, indeed, this database
can be linked to other database and individuals information can be accessed by potential employers or insurance
companies for instance, by having their DNA stored in a national database, people can see their ask for a visa
refused, for example. Thus, there is a risk with the retention in a such database because it can also be infiltrated by
hackers who can access and diffuse these information about individuals or even to track them or their relatives.
There is, here, a shift towards genetic surveillance.
Aaron Opoku Amankwaa and Carole McCartney, ‘The UK National DNA Database: Implementation of the Protection 1
of Freedoms Act 2012’ (2017) accessed 20
February 2018
Leander v Sweden (1987) 9 EHRR 433 §482
Through these concerns about privacy, regime governing DNA retention has evolved, particularly with the influence
of the European Court of Human Rights (ECtHR). The most notable decision which has given the turning point in the
legislation of DNA retention is S and Marper v United Kingdom in 2008 where the ECtHR held that the retention of 3
DNA of individuals were suspected, but not convicted of offence was a violation of Article 8 of the Convention and a
disproportionate interference with privacy right. The UK Supreme Court has confirmed the principle of ECtHR in 4
2011 in R (GC) v Commissioner of Police of the Metropolis where it has been affirmed that the retention of DNA 5
data without exceptional circumstances from persons who have been acquitted was de facto unlawful and so an
interference with Article 8 of the Convention. Following the decision of ECtHR in 2008, there has been important
changes in the regime ruling the retention of DNA with the introduction of the Protection of Freedoms Act 2012
(PoFA) which has impacted numerous of past legislative provisions such as the Police and Criminal Evidence of 1884
(PACE). Prior to this act, under section 64 of PACE, police was allowed to keep DNA profiles indefinitely, whether the
person was convicted or innocent, without its consent for future investigations. With the 2012 Act, DNA profiles of
convicted persons could be kept indefinitely by the police. DNA profiles from innocent people arrested for minor
offence must be destroyed as soon as they were acquitted, but can be retained up to three years in case of serious
offence. The 2012 Act has changed the law of DNA retention in differentiating individuals according to their status; 6
convicted or innocents. For instance, in Belgium, Ireland and Italy, DNA profiles are removed as soon as the person is
acquitted. Many critics about the retention of DNA have conducted to the conclusion that, maybe, NDNAD should be
restricted only to the DNA profiles of individuals who have been convicted of a criminal offence. The aim of the 2012
Act was to redress the balance between the duty of the State concerning the security of the society and the
individuals’ rights particularly their privacy. However, it is arguable that this act solve entirely the interference with
privacy issue. Indeed, innocent people would see their DNA still kept six months, so the issue still remain and maybe
we can argue that the Act may do not go far enough in protecting privacy and guarantee this right to individuals.
Despite the concerns of individuals, retention of DNA in such a national database can be justified and even
necessary. In effect, it is helpful in responding to a society concern in reducing crimes and it presents benefits for the
police in criminal investigations. There is no doubt that NDNAD is today an essential part and resource for police in
crime investigation and in fighting against crimes. In criminal investigations, it plays an important role and it is very
useful in the resolution of past and present criminal offences and in the prevention of future crimes such as murders,
rapes, assaults. Likewise, with the globalization, there is today a development of international criminality, which has
conducted to a proposition to extend the NDNAD to all citizens. However, such a measure would be a violation of
article 8 and privacy in creating a nation of suspects. DNA retention is also a part of police duty to take DNA during
investigations, with databases, DNA samples collected during criminal investigations are compared through a search
with DNA profiles which already are in the database in order to see if there is a match between them to establish if
the individual may be suspect of a criminal offence. But this help of DNA in investigation of crime can be
nevertheless arguable. According to the Home Office, over 13 years until March 2014, there are only 471,000
matches between suspects and crimes from the database. However, DNA is not only useful for the conviction of 7
guilt of criminal of an offence. It is also helpful to exonerate suspects, as Lord Clarke has stated in Gaughran’s case
that, it is beneficial for innocent individuals in order to establish they did not commit an offence and so acquitted
them. Individuals understood that retention is necessary in order to get the truth or bring evidence to trial and for 8
the criminal justice system to work efficiently. Lord Clarke, in the same case, added that these benefits
counterbalanced the interference with individuals rights. This had already stated by the House of Lords stated in R 9
(S) v Chief Constable of Yorkshire (2004) that the interference of that procedure with privacy right under article 8 was
justifiable and proportionate because it represented benefits for society and help for crimes investigations and
prosecutions.
10
S and Marper v UK (2008) ECHR 15813
Claire De Than, Human Rights (Law Express, 4th end, Pearson 2017) p 604
R (on the application of GC) v Commissioner of Police of the Metropolis (2011) UKSC 215
Protection of Freedoms Act 2012, ss 1-25 6
Danny Shaw, ‘Can we still rely on DNA sampling to crack crime?’ (2015) accessed 4 March 2018
Gaughran v Chief Constable of the Police Service of Northern Ireland (2015) UKSC 298
ibid (6)9
R (S) v Chief Constable of Yorkshire (2004) UKHL 3910
The NDNAD and the retention of DNA even if it constitutes an interference with privacy is justified due to its
legitimate aim such as the national security, the public safety or the prevention of disorder or crime. The ECtHR even
recognized the importance of fighting crimes in a society and the particular aid of retention of DNA profiles in such a
database.
11
Nevertheless, the usefulness is not the only argument in order to justify the retention of DNA in such a database.
Indeed, it is important for individuals to have guarantees on the protection of their personal data essentially because
they are used by the police for investigations and cannot exceed the purposes why there are stored. Moreover, it is
important to safeguard these data. The possibility for individuals to ask for their removal, especially when they are
innocents, and that the retention is now limited for these individuals is now a better protection of their personal data
and their privacy rights. Moreover, privacy right is a qualified right, meaning that an interference in that right can be
justified in certain circumstances as stated in article 8(2) of ECHR. Indeed, any interference must be necessary in a
democratic society. In order to be necessary, the interference must respond to the proportionality principle. The aim
is to find a fair balance between the individual right and the society interests. Then the interference must be in 12
accordance with the law, meaning that the interference by the State must be clear, precise and predictable. 13
However, in order to justify the retention of DNA in a database, it is important in its use to do it in a proportionate and
balanced way in order to guarantee in the best way the protection of rights of individuals. The DNA retention is based
upon this fair balance between the private interests in the privacy right and the public interests in the security of the
society and the reduction of crimes. However, it is important to bear in mind that these interests in prevention of
crime cannot always justified a such interference to privacy right of individuals especially for those who are innocent.
Hence, the new regime governing DNA retention make an important difference upon the status of individuals in order
to protect in the best way the privacy of individuals.
Although to a wide extent, DNA retention in a national database is today one of the major human right issue due to
its disproportionate interference with individuals privacy. Indeed, it treats the safeguard of their personal genetic
informations. This retention of DNA rises risks for the privacy of individuals and have consequences on their lives in
that these information can be make known or through a misuse by the police of these data. Nevertheless, these
concerns about privacy can be outweigh with the helpful resource that NDNAD represents for the police
investigations and the benefits it brings for the society in its interests of reduction of crimes. Therefore, the retention
of DNA in national database is a legal challenge because the important question is how made a fair balance between
the society interests in reducing and preventing crimes with the important need to protect privacy of individuals.
There must be an equality between the protection of these datas and the society security. The decisions of the courts
and following, the evolution of the regime governing the retention of DNA notably with the 2012 Act have tried to
keep a fair balance between the benefits in criminal investigations and the privacy concerns. The 2012 Act can be
seen as very effective. It has reinforced the protection of privacy and particularly the genetic privacy of individuals
while maintaining its use for the benefits it represents for criminal investigations and society interests. The new
regime follows the principle of necessity and proportionality in differentiate the status of individuals. It appears
important to guarantee the privacy of individuals without compromise the usefulness of such a retention of DNA in
solving and fighting crimes. However, we can consider that there still are an interference with privacy of convicted
individuals. Maybe it should be considered a proportionate retention period of DNA profiles of convicted people
according to the type and seriousness of the criminal offence committed. As the CEDH held in Ayçaguer v France in
2017 that convicted individuals should also have the possibility to ask for the removal of their DNA profiles.
14
Stephen Cragg, Peter Mahy, ‘European Court judgement on DNA retention’ (2009) accessed 25 February 2018
Bernadette Rainley, Human Rights Law Concentrate (4th edn, Oxford University Press 2018) p. 10812
ibid 13
Ayçaguer v France (2017) ECHR 58714
BIBLIOGRAPHY
Cases :
- UK cases
R (on the application of GC) v Commissioner of Police of the Metropolis (2011) UKSC 2
Gaughran v Chief Constable of the Police Service of Northern Ireland (2015) UKSC 29
R (S) v Chief Constable of Yorkshire (2004) UKHL 39
- ECHR cases
S and Marper v UK (2008) ECHR 1581
Ayçaguer v France (2017) ECHR 587
Legislations :
- UK legislation
Human Rights Act, 1998 (section privacy?)
Protection of Freedoms Act 2012
- European Union and International legislation
European Convention on Human Rights 1950
Universal Declaration of Human Rights 1948
Books
Rainley B, Human Rights Law Concentrate (4th edn, Oxford University Press 2018)
De Than C, Human Rights (Law Express, 4th end, Pearson (2017)
Costigan R, Stone R, Civil Liberties and Human Rights (11th edn, Oxford University Press 2017)
Journal articles
Wallace H.M, Jackson A.R, Gruber J, Thibedeau A.D, ‘Forensic DNA databases - Ethical and legal standards: A
global review’ Egyptian Journal of Forensic Sciences (September 2014) accessed 1 March 2018
Amankwaa A, McCartney C, ‘The UK National DNA Database: Implementation of the Protection of Freedoms Act
2012’ Forensic Science International (December 2017) accessed 20
February 2018
Doyle J, ‘DNA database marches help solve one crime in 1,300’ Independent (8 March 2010)
accessed 2 March 2018
Williams R, Johnson P, ‘Inclusiveness, Effectiveness and Intrusiveness: Issues in the Developing Uses of DNA
Profiling in Support of Criminal Investigations’ J Law and Med Ethics (17 February 2006) accessed 2 March 2018
Bowcott O, ‘Retention of offender’s DNA profiles not illegal, supreme court rules’ The Guardian (13 May 2015)
accessed 2 March 2018
Internet sources
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Shaw D, ‘Can we still rely on DNA sampling to crack crime?’ (2015)
accessed 4 March 2018
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court-police-dna/> accessed 1 Mars 2018
MPA Civil Liberties Panel ‘Protecting the innocent: The London experience of DNA and the National DNA
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2018
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June 2017) accessed 7 March 2018
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‘DNA Databases and Human Rights’
accessed 6 March 2018
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a-national-dna-database> accessed 20 Feburary 2018
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accessed 2 March 2018
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February 2018
Human Rights and English Law
Surname : POIROT
Surname : Claire
Seminar Group : 03
Student Number : 17917692
Required Words counts : 2,500
Actual Word Count : 2,575
