Last Thursday, the European Court of Human Rights made an important ruling on the privacy of a person’s unique genetic information. The European Court, citing a Supreme Court of Canada decision with approval, determined that it was an illegal violation of a person’s rights to keep a person’s DNA sample when they had no prior convictions.

This issue had already been addressed in Canada. In R v. RC [[2005] 3 S.C.R. 99, 2005 SCC 61], the Supreme Court stated that keeping someone’s DNA records would have a disproportionately negative impact on their privacy, compared to the benefit to criminal justice. In particular, Fish J. noted that DNA contains information of the highest privacy, since it is “capable of revealing the most intimate details of a person’s biological makeup.” Thus, taking and retaining a DNA sample was considered a “grave intrusion” on a person’s privacy.

The European Court encountered this issue after a complaint from two English suspects. Local police had retained their DNA samples after their arrest, even though they had been cleared of any criminal wrongdoing. This issue fell within the scope of article 8 of the European Convention on Human Rights, which protects the privacy of individuals, but makes allowances for the public interest such as security and crime prevention. The Court commented on the scope of the DNA records, noting that police retained a sample regardless of the gravity of the offense, for an indefinite amount of time, without any independent review of their decision-making processes. Thus, the European court’s conclusion was much like the SCC, focusing on an appropriate balance of interests:

“The Court finds that the blanket and indiscriminate nature of the powers of retention of the fingerprints, cellular samples and DNA profiles of persons suspected but not convicted of offences, as applied in the case of the present applicants, fails to strike a fair balance between the competing public and private interests and that the respondent State has overstepped any acceptable margin of appreciation in this regard. Accordingly, the retention at issue constitutes a disproportionate interference with the applicants' right to respect for private life and cannot be regarded as necessary in a democratic society.”

The influence of other jurisdictions cannot be discounted. Along with Canada, several member-nations of the Council of Europe were cited in contrast to England’s “indiscriminate” practices. England will likely change their system to retain a DNA sample only from suspects who have been convicted. This shows how democratic countries have a responsibility to one another. When setting policy in new and controversial areas, they are leading their peers by example.

A DNA database can have a potentially dangerous impact on privacy. The Council for Responsible Genetics notes that keeping an arrested person's DNA on record can threaten their presumption of innocence in future investigations. The council also highlights the disproportionate number of minority arrests in the U.S. and the UK, many of who are released due to a lack of evidence. Thus, keeping a record of every arrested person would have an imbalanced effect on the privacy of racial minorities. There is also the issue of expanding use (and potential misuse) of such samples. Alabama has already authorized the use of such DNA samples for medical research, and the report notes several other states with open-ended authorizations. With several other potential issues, it is reassuring that the European Court of Human Rights (and Supreme Court of Canada) has been so diligent in weighing the costs and benefits of DNA records.