S and Marper V United Kingdom - Facts - Submissions

Submissions

When the matter was before the European Court of Human Rights' Grand Chamber, the non-governmental organizations Liberty and Privacy International were granted permission to file third-party submissions and submitted scientific evidence on the private nature of genetic material and information contained in DNA samples. Liberty stressed that general principles of European human rights law dictated that interference by a member state with an individual's rights under the Convention must be “necessary in a democratic society” and have a legitimate aim to answer a “pressing social need"; even then an identified interference must be proportionate and remains subject to review by the Court (Coster v United Kingdom (2001) 33 EHRR 479)).

The applicants stressed that the nature of DNA samples, which included a myriad highly personal data pertaining to an individual’s unique identity, susceptibility to certain medical conditions and was linked to genetic information of their relatives, meant that not only the taking of the data, but its storage, retention and constant automatic corroboration against other samples taken from current criminal investigations, caused them to suffer unwanted stigma and adverse psychological consequences. This was especially so in the case of S, as he was a child at the time of having his samples taken and relied on Article 40 of the UN Convention on the Rights of the Child of 1989, which states that it is the right of every child alleged to have infringed a penal law to be treated in a manner consistent with the promotion of the child’s dignity and worth, reinforcing the respect for the child’s human rights and fundamental freedoms.

In response, the United Kingdom submitted that the use of the DNA samples was permitted under the Police and Criminal Evidence Act 1984 and did not fall under the scope of Article 8 of the Convention. According to the United Kingdom's government, retention of the data did not impair the physical or psychological integrity of a person, restrict personal development, inhibit ability to establish personal relationships, or the right of self-determination. The DNA profile was merely a sequence of numbers which provided a means of identifying a person against bodily tissue and was not materially intrusive; the retention of data was a legitimate aim because it assisted in the identification of future offenders.