DNA and the ECHR: rights, rules and technicalities Liz Heffernan Trinity College Dublin

Results and reasoning Majority and individual judgments Concurrences and dissents Details, caveats and provisos Precedents, ratio decidendi and obiter dicta Nuances of Legal Analysis

 ECtHR held that the practice in England and Wales of indefinitely retaining the fingerprints, cellular samples and DNA profiles of persons suspected but not convicted of criminal offences violates Article 8 ECHR S and Marper v UK

Consensus among 17 judges  Robust nature of protection afforded to informational privacy Grand Chamber ECtHR

 Article 8 – privacy  Article 14 – non discrimination  Article 6 – fair trial ECHR

1. Everyone has the right to respect for his private … life … 2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety … for the prevention of disorder or crime or for the protection of the rights of others. Article 8 ECHR

1. Has there been an interference? 2. Was the interference in accordance with law? 3. Did the interference pursue a legitimate aim? 4. Was the interference necessary in a democratic society? 4 lines of enquiry

 Cellular samples  DNA profiles  Fingerprints  Other forms of data  EU data protection regime  Concept of privacy Personal Information

 Retention  Use  Automated processing Government Actions

 Onus on respondent state to provide relevant and sufficient evidence that practice is proportionate to a pressing social need  Margin of appreciation  European practice and level of consensus Necessary in a democratic society

Blanket, indiscriminate, open-ended nature of power of retention Nature or gravity of offence Age of offender Indefinite retention – no time limit Failed to strike a fair balance between the competing public and private interests Proportionality

Only limited possibilities to have data removed and materials destroyed No independent review of justification for retention according to defined criteria E.g. Seriousness of offence E.g. Previous arrests and strength of suspicion E.g. Other special circumstances Safeguards: Remedial Regime

 Technological leader  Practical benefit to policing – empirical evidence Other UK arguments

 Revision in law, practice and judicial thinking  Onus on national authorities to comply and to monitor compliance  Reflection on our conceptualisation of informational privacy ◦ Types of data ◦ Nature of activities and purposes ◦ Governance of databasing Implications

 Taking of material and data for investigative purposes  Retention while persons remain suspects  Limited retention of data of former suspects in exceptional circumstances Limits of Judgment

 Rights  Rules  Technicalities  Legislative drafting Law

 Implications of S & Marper for retention of fingerprints and for retention of DNA material under existing regime and proposed DNA database  People (DPP) v Boyce [2008] IESC 62 Ireland