By Tobias Thienel
A week ago, the Grand Chamber of the European Court of Human Rights decided the case of S and Marper v United Kingdom, holding that the practice of the UK in storing DNA data and tissue samples of people once suspected of a crime even after they have been cleared amounted to a violation of Article 8 of the Convention (the right to respect for private life).
The Court stressed in particular that the DNA profiles and samples in question contained a wealth of intensely personal data about the persons affected. That being so, they came within the notion of those persons’ ‘private life’, and retention of such data by the State constituted an interference with Article 8, such as to call for justification. This was the first point on which the Court disagreed not only with the Government’s submissions, but also with the views of the House of Lords, which had previously been called upon to apply the ECHR to those issues. The House had held by a majority (and the Government had submitted to the ECHR) that an interference did not arise simply from the storing of personal data (R (S) v Chief Constable of South Yorkshire Police [2004] UKHL 39, [2004] 1 WLR 2196, para 31). That has now turned out, on earlier ECtHR authority (Amann v Switzerland, para 69), to be quite wrong.
HT: ECHR Blog.
The Court pointed out that the different categories of data stored (DNY, tissue samples and fingerprints) did not raise precisely the same considerations, some of the information being more intensely private than other data, but it later reverted to a single review of all measures taken together. Indeed, the relevant considerations turned out to be the same for all categories.
The Court attached particular weight to the fact that the data of all former suspects would be stored, regardless of the gravity of the crime of which they were originally suspected, and without any restriction as to the time for which the data could be held. Interestingly, the Grand Chamber further noted that the data retention scheme was liable to make people feel that they were not quite being treated as innocent. It thus accorded relevance to an understandable feeling that the presumption of innocence was not being fully respected, even though it also acknowledged that the scheme did not actually throw doubt on the innocence of the persons affected.
In addition, it was, of course, relevant that there was no consensus among the member States of the Council of Europe even approaching the rigorous practice of England, Wales and Northern Ireland. Even Scotland showed more respect for the protection of private information. The Court did not exclude that one State might move ahead and do lawfully what no-one else had done before – as is patently obvious – but added that ‘any State claiming a pioneer role … bears special responsibility for striking the right balance.’
The Court unanimously held that the UK had failed to show such circumspection.
For now, English and Northern Irish law may well remain unchanged, unfortunate though that is. Parliament is somewhat unlikely to change the law authorising the retention of data (although the Grand Chamber has fired a warning shot in criticising the legislation as somewhat imprecise); for political reasons, Parliament may well prefer to let human rights law step in to limit any overly broad powers. However, English and Northern Irish human rights law won’t step in, or at least not for some time. The domestic courts will remain bound by the House of Lords case until the House itself decides to depart from it, even though the ECtHR has now decided that the case has been wrongly decided (Kay v Lambeth LBC [2006] UKHL 10, [2006] 2 AC 465, paras 40-45). Needless to say, the House should now depart from its earlier views. Even better, Parliament should now step in to correct its own mistakes.