Anyone interested in this subject must read and understand the House of
Lords decision in the case of MARPER. It is the legal underpinning of
all the Government's data retention arguments (e.g. communications
data). I attach a reference and the main reason why Marper is important
to data retention whether it be DNA database, ID Card database or
otherwise. Note that a Fifth Principle argument is still a possibility
as Marper only discussed HRA angles.

Marper is key to understanding retention policies

The House of Lords Decision in the case of Marper is important ([2004]
UKHL 39) in any consideration of policies which relate to data retention
by public authorities for policing and national security purposes. The
philosophy is a simple one: the privacy problems arise when personal
data are used or disclosed and these processing operations are far more
a threat to privacy than the processing operation of retention. For
instance, if personal data are retained in archive but are not used or
disclosed, then there are minimal privacy concerns because the personal
data lie dormant. It follows that personal data can be retained
universally and any privacy debate can be focussed on what happens when
personal data are subsequently used or disclosed.

The Marper judgment related to an individual (Mr. Marper) who was
arrested following a domestic disturbance but was not subsequently
charged with an offence. DNA samples and fingerprints were taken but
when charges were not pressed, Marper wanted the DNA samples and
fingerprints deleted. The Chief Constable for South Yorkshire resisted
this request and the case eventually ended up in the House of Lords
which determined that the retention of Marper's DNA did not amount to an
interference with his Article 8 right.

In reaching this judgment, the House of Lords was satisfied that the use
of the DNA and related database was limited to policing purposes - and
indeed, the judgement contains obiter remarks about wider collection and
retention of DNA data for policing use in the database as being
consistent with Human Rights (i.e. the judgment supports further
retention of DNA data for "carefully defined limited use" - paragraph
86). Indeed, one of the judges stated that a comprehensive DNA database
serves to protect civil liberties as those who are innocent would not be
accused if their DNA failed to match that found at the scene of a crime.

The House of Lords thus dismissed the "wider possible use" concerns of
groups like Liberty (i.e. these concerns related to how the database
could potentially be used) on the grounds that only the actual use of
the database and samples were relevant to the Appeal. Paragraph 28 of
the main judgement, for example, states this clearly:

	"28. That brings me to the concerns of Liberty. They centre on
the retention of DNA samples. To the extent that Liberty
expresses fears about the misuse of retained samples, Dr. Bramley has
shown the extent of the rigorous safeguards in 	place (para 12.1-12.5).
In any event, the trial process ought to weed out such abuses. Liberty's
fears of what may happen in 	the future in the light of the expanding
frontiers of science is not relevant in respect of contemporary use of
retained 	samples in connection with the detection and prosecution
of crime. If future scientific developments require it, judicial
decisions can be made, when the need occurs, to ensure compatibility
with the ECHR"..

The essence of Marper is that the mass retention of these data is
justified if the future uses of those data are for limited purposes
(e.g. policing matters) where there is a legitimate reason for
interference as defined in Article 8(2). The Marper decision thus
provides a prescription for the emphasis on data retention. If personal
data are retained on everybody (e.g. telecommunications, fingerprints
etc) but are only subsequently used for limited to crime prevention and
say national security purposes then there should be no difficulty with
human rights law. Following Marper, if there is not a match on the
fingerprint/DNA data base the data have not been used and because the
data lie dormant there is no interference with the Article 8 right,
whereas if the fingerprint/DNA data are matched, the interference would
be justified in relation to a policing and national security purposes as
set out in Article 8(2).

In summary, retention of personal data is not a human rights problem -
any problem would relate to the subsequent use or disclosure of the data
so retained.


MARPER REFERENCES
Regina v. Chief Constable of South Yorkshire Police (Respondent) ex
parte LS (by his mother and litigation friend JB) (FC) (Appellant)
Regina v. Chief Constable of South Yorkshire Police (Respondent) ex
parte Marper (FC) (Appellant)

SESSION 2003-04-  [2004] UKHL 39

on appeal from: [2002] EWCA Civ 1275 and [2002] 1 WLR 3223

-----Original Message-----
From: This list is for those interested in Data Protection issues
[mailto:[log in to unmask]] On Behalf Of Ian Welton
Sent: 05 January 2006 12:09
To: [log in to unmask]
Subject: Re: [data-protection] DNA database


I look forward to listening to the BBC Radio 4 item.

As I understood it you merely have to be arrested to enable a DNA
sample to be taken.

Charging for any offence occurs at a later stage following arrest.

Whilst that may seem a mute point there are significant implications as
some separate judgement on the validity of any arrest as measured
against defined legal criteria occurs within a custody suite when a
custody sergeant either accepts or refuses the charge when determining
the validity of the arrest/charge.

Once taken the police can retain DNA samples even if no crime is
subsequently shown to have been committed by either a refused charge or
a not guilty verdict.

Simple measurements of growth in the size of the DNA database against
the number of actual convictions should provide a method of identifying
a level of the more intrusive or unnecessary collection, whilst looking
at the relevance of DNA to any crime(s) committed, or their detection,
could provide other measures of adequacy, relevance and
proportionality. Just as logical would be using arrest figures as a
measure to determine how many tests were not taken. As with many
matters progress can be measured in various ways.

Not being up to date or looking in any logical or measured way at any
implications of detail, especially affects created by the HRA, I may
need to be corrected in time by the more knowledgeable members of the
group.

Ian W

> -----Original Message-----
> From: This list is for those interested in Data Protection issues 
> [mailto:[log in to unmask]] On Behalf Of Ibrahim Hasan
> Sent: 04 January 2006 10:39
> To: [log in to unmask]
> Subject: DNA database
>
>
> There was an item on Today on Radio 4 about the very wide use of the 
> DNA database. Apparently you can be asked for a DNA sample even if you

> have committed/been arrested for a very minor offence.
>
> Just caught the last bit. Simon Davies from Privacy International was 
> on.
>
> Fits in nicely with the previous discussion about the surveillance 
> society.
>
> The BBC radio listen again function may well have it on soon.
>
> http://www.bbc.co.uk/radio4/today
>
> Ibrahim Hasan
>
> Act Now Training
> www.actnow.org.uk
> Information Law Training for the Public Sector
> Please check out our new 2006 course program
--
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