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Retention of DNA profiles of people with convictions not illegal, supreme court rules

This was originally published in The Guardian

Court rules in test case involving drink driver that storing a man’s DNA profile is proportionate interference with his right to privacy

Retaining DNA profiles of convicted adults indefinitely is not an illegal breach of their privacy, the supreme court has ruled in a test case involving a Northern Ireland drink driver.

The judgment by the UK’s highest court sets a significant precedent in making a clear distinction between information that police forces may keep on those who have been convicted, as opposed to those who were merely suspects.

The claim against the Police Service of Northern Ireland (PSNI) was brought by Fergus Gaughran, 42, who was arrested for drink driving in 2008 and pleaded guilty at Newry magistrates court. He was disqualified from driving for a year.

By a majority of four to one, the supreme court justices ruled that storing his DNA profile – the information extracted from his DNA sample and held on a computer database – is a proportionate interference with his right to privacy under article 8 of the European convention on human rights.

“The potential benefit to the public of retaining the DNA profiles of those who are convicted is considerable and outweighs the interference with the right of the individual,” said Lord Clarke, who delivered the majority decision. “The retention may even benefit the individual by establishing that they did not commit an offence.”

Clarke added: “The United Kingdom has chosen recordable offences as the touchstone. Recordable offences include any offences punishable by imprisonment, together with a limited number of non-imprisonable offences.

“As the expression suggests, the police are obliged to keep records of convictions and offenders in relation to such offences on the Police national computer. I can see nothing unreasonable in the conclusion that such records ought to include any available DNA profiles.

“It is of course true that the appellant was only fined £50 and disqualified from driving for a year but driving with excess alcohol is a serious offence and can cause significant injury and damage. It may lead to up to six months’ imprisonment.”

If such a “blanket measure” is at odds with practices in some other European countries, Clarke continued, then it is nevertheless permitted because it is within the UK’s so-called “margin of appreciation” – the flexibility allowed for local differences in regulations.

The assertion of such a status reflects the intricate dialogue between the supreme court in London and the European court of human rights in Strasbourg over who should have final authority in certain categories of cases.

Gaughran’s appeal was rejected. Lord Kerr, however, who gave a dissenting judgment, said: “the stigmatising application of the indefinite retention policy, even to those whose convictions are spent, frustrates the purpose of rehabilitation”.


This content originated from: The Guardian (2015), Retention of offenders’ DNA profiles not illegal, supreme court rules

Available at [Last accessed 15th May 2015]

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