Supreme Court decision finds indefinite DNA retention unlawful

The debate surrounding the UK’s policy on the retention of DNA has received further attention following a recent Supreme Court decision.In a majority judgment in-line with the conclusions of the Council’s 2007 report on the forensic use of bioinformation, the Supreme Court – the highest court in the UK’s legal system – confirmed that the policy of indefinitely retaining DNA samples infringes Article 8 of the European Convention of Human Rights. This decision echoes that made by the European Court of Human Rights in Marper v. UK, which ruled that the retention of DNA samples of individuals who were arrested but later acquitted, or had their charges dropped, was a violation of their right to respect for their private life.

The Court considered guidelines published by the Association of Chief Police Officers (ACPO) in 2006 which state that the discretion of chief police officers to destroy DNA and fingerprints “should only be exercised in exceptional cases”, and found them to be incompatible with the European Convention on Human Rights. However, the Court stopped short of ordering any changes to be made to the ACPO guidelines due to the fact that the Government intends to bring new legislation relating to DNA retention into force later this year via provisions set down in the Crime and Security Act 2010. It therefore concluded that “[s]ince Parliament is already seised of the matter, it is neither just nor appropriate to make an order requiring a change in the legislative scheme within a specific period.” Despite this, the Court did indicate that, should Parliament fail to produce revised guidelines within a reasonable time, then the appellants in the case could “seek judicial review of the continuing retention of their data under the unlawful ACPO guidelines and their claims will be likely to succeed.”Find out more about the Council's work on the forensic use of bioinformation.