Retention of Fingerprints and DNA Samples: Compatibility with the European Convention on Human Rights
| Author | Allison Clare |
| DOI | 10.1350/jcla.68.6.481.54147 |
| Published date | 01 November 2004 |
| Date | 01 November 2004 |
| Subject Matter | House of Lords |
House of Lords
Retention of Fingerprints and DNA Samples:
Compatibility with the European Convention on Human
Rights
R v Chief Constable of South Yorkshire, ex p. LS
R vChief Constable of South Yorkshire, ex p. Marper
[2004] UKHL 39
In 2001, Mr Marper, a man of good character, was arrested and charged
with harassment of his partner, as a result of which fingerprints and
DNA samples were taken from him. A few months later the case was
discontinued. Despite the request of Marper’s solicitors, the Chief Con-
stable refused to destroy the fingerprints and samples explaining that
there was a policy to retain them in all cases.
In the same year S, a 12-year-old of good character, was arrested and
charged with attempted robbery. Following his acquittal, S’s solicitors
were informed that, as per the above policy, the fingerprints and samples
taken from S would be retained.
Section 64 (1A) of the Police and Criminal Evidence Act 1984 (as
amended by the Criminal Justice and Police Act 2001) provides that:
1. Fingerprints and samples taken from a person in connection with
an investigation ‘may be retained . . . but shall not be used . . .
except for the purposes related to the prevention or detection of
crime, the investigation of an offence or the conduct of a
prosecution’.
2. However, if the fingerprints or samples are taken from a person
‘not suspected of having committed the offence’, such samples
(except in limited circumstances) must be destroyed as soon as
they have fulfilled the purpose for which they were taken.
This section represents a change from the previous rule that following
an acquittal such samples could not be retained at all. The restriction on
the retention of such samples now only applies, by virtue of s. 64(3), to
those who provided a sample in connection with an investigation but
were not suspected of having committed the offence (subject to certain
exceptions).
Both Marper and S unsuccessfully applied for judicial review of the
decision to retain the samples on the basis, inter alia, of the amended
section’s incompatibility with Articles 8 and 14 of the European Con-
vention on Human Rights ([2002] EWHC Admin 478, (2002) 66 JCL
296). The Court of Appeal dismissed their subsequent appeal on the
basis that the section did not contravene Article 14 and whilst it did
contravene Article 8, this was necessary and proportionate with the aim
of prevention of disorder and crime ([2002] EWCA Civ 1275, (2003) 67
JCL 23).
481
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