HOWZAT

Once the proceedings had been terminated, both applicants unsuccessfully requested that their fingerprints, DNA samples and profiles be destroyed: see (The Times July 23, 2004; [2004] 1 WLR 2196).

Alleged violation of article 8

The Court noted that fingerprints, DNA profiles and cellular samples constituted personal data within the meaning of the Council of Europe Convention of 1981 for the protection of individuals with regard to automatic processing of personal data.

The Court indicated that the domestic law had to afford appropriate safeguards to prevent any such use of personal data as could be inconsistent with article 8. It added that the need for such safeguards was all the greater where the protection of personal data undergoing automatic processing was concerned, not least when such data were used for police purposes.

The interests of the individuals concerned and the community as a whole in protecting personal data, including fingerprint and DNA information, could be outweighed by the legitimate interest in the prevention of crime.

However, the intrinsically private character of that information required the Court to exercise careful scrutiny of any state measure authorising its retention and use by the authorities without the consent of the person concerned.

The issue to be considered was whether the retention of the fingerprint and DNA data of the applicants, as persons who had been suspected, but not convicted, of certain criminal offences, was necessary in a democratic society.

The Court took due account of the core principles of the relevant instruments of the Council of Europe and the law and practice of the other contracting states, according to which retention of data was to be proportionate in relation to the purpose of collection and limited in time.

Those principles had been consistently applied by the contracting states in the police sector, in accordance with the Data Protection Convention 1981 and subsequent recommendations by the Committee of Ministers of the Council of Europe.

As regards, more particularly, cellular samples, most of the contracting states allowed those materials to be taken in criminal proceedings only from individuals suspected of having committed offences of a certain minimum gravity.

In the great majority of the contracting states with functioning DNA databases, samples and DNA profiles derived from those samples were required to be removed or destroyed either immediately or within a certain limited time after acquittal or discharge. Some exceptions to that principle were allowed by some contracting states.

England, Wales and Northern Ireland appeared to be the only jurisdictions within the Council of Europe to allow the indefinite retention of fingerprint and DNA material of any person of any age suspected of any recordable offence.

Times Recommends

• BGC 'set aside £40m to lure Tullett brokers'
• Legal aid review to ensure value
• Fears as 21 magistrates' courts face closure