Quick answer
In S. and Marper v. the United Kingdom (Grand Chamber, 4 December 2008, applications nos. 30562/04 and 30566/04), the European Court of Human Rights held unanimously that the indefinite retention of the fingerprints, cellular samples and DNA profiles of people who had been arrested but not convicted violated Article 8 of the Convention. The Court was struck by the “blanket and indiscriminate” nature of the English retention regime and found it a disproportionate interference with the right to respect for private life.
Background and facts
The case was brought by two British nationals. The first applicant, referred to only as “S.” (his identity was withheld because he was a minor), had been arrested at the age of eleven and charged with attempted robbery; he was later acquitted. The second applicant, Michael Marper, had been arrested and charged with harassment of his partner; the proceedings were discontinued after the couple were reconciled.
In both cases the police had taken the applicants’ fingerprints, cellular samples and DNA profiles. Although the criminal proceedings ended in an acquittal or were discontinued, the authorities continued to retain that biometric data indefinitely, relying on section 64(1A) of the Police and Criminal Evidence Act 1984 (PACE), which permitted indefinite retention of the fingerprints and samples of persons who had not been convicted of any offence. The applicants asked for their data to be destroyed; the police refused. In the domestic proceedings the House of Lords, in a lead judgment by Lord Steyn, upheld the retention as proportionate.
The complaint
The applicants complained under:
- Article 8 (right to respect for private life) — that the continued retention of their fingerprints, cellular samples and DNA profiles after the end of the proceedings interfered disproportionately with their private life; and
- Article 14 (prohibition of discrimination) read with Article 8 — that they were treated less favourably than the general population, whose data was not held in this way, despite having been acquitted or having had the proceedings discontinued.
The Court’s reasoning
Biometric data and private life
The Grand Chamber first confirmed that the retention of all three categories of data engaged the right to respect for private life under Article 8. Cellular samples and DNA profiles were treated as particularly sensitive: they contain, or can reveal, substantial amounts of personal and genetic information, including about a person’s health and ethnic origin and about their relatives. The mere storage of such data by the authorities amounted to an interference with private life, irrespective of whether it was later used.
Legitimate aim, but a failure of proportionality
The Court accepted that the retention pursued a legitimate aim — the detection and prevention of crime. The decisive issue was proportionality: whether the interference was “necessary in a democratic society” and struck a fair balance between the individual’s rights and the general interest.
Here the Court was “struck by the blanket and indiscriminate nature of the power of retention” in England and Wales. The data could be kept regardless of the nature or gravity of the offence originally suspected and regardless of the age of the suspect; it was retained indefinitely; and there was no independent review or realistic possibility of having the data destroyed. The Court also noted that England, Wales and Northern Ireland appeared to be the only jurisdictions within the Council of Europe to permit the indefinite and blanket retention of the data of unconvicted persons, which weighed against the United Kingdom in the proportionality analysis.
The Court attached particular importance to the position of the first applicant, a minor, given the special situation of young people and the importance of their development and integration in society. It concluded that the blanket and indiscriminate retention regime failed to strike a fair balance and constituted a disproportionate interference with the applicants’ right to respect for their private life. Having reached that conclusion under Article 8, the Court held that it was not necessary to examine the complaint separately under Article 14.
The judgment
The Grand Chamber held unanimously:
- that there had been a violation of Article 8 of the Convention;
- that it was not necessary to examine separately the complaint under Article 14;
- that the finding of a violation constituted in itself sufficient just satisfaction for the non-pecuniary damage sustained; and
- that the respondent State was to pay the applicants EUR 42,000 in respect of costs and expenses (less legal aid already received).
Why this case matters
S. and Marper is the leading Convention authority on the retention of biometric and genetic data, and a cornerstone of data-privacy case law. Its lasting significance lies in several points:
- DNA and biometric data are protected private-life information. Their mere storage engages Article 8, whether or not the data is ever used.
- Blanket, indiscriminate and indefinite retention is disproportionate. A regime that keeps data regardless of the offence, the outcome, or the person’s age — with no meaningful review — will not survive the fair-balance test.
- It reshaped domestic law. The judgment led the United Kingdom to overhaul its retention rules, culminating in the Protection of Freedoms Act 2012, which required the destruction of the DNA and fingerprints of most people not convicted.
The ruling continues to be cited across Europe in cases concerning DNA databases, biometric identification and the retention of personal data by the State.
What this means for applicants
If a state authority holds your biometric or personal data even though you were never convicted, S. and Marper is the key authority. In practical terms:
- Retention itself is an interference. You do not need to show that the data was used against you; storage alone engages Article 8.
- Proportionality is the battleground. Indefinite, automatic retention with no distinction by offence or outcome, and no route to deletion, is the hallmark of a disproportionate regime.
- The position of children carries extra weight. Retention of a minor’s data attracts particularly close scrutiny.
This page summarises a leading judgment and is not legal advice on any individual case. Whether a retention regime breaches Article 8 depends on its specific safeguards, scope and duration.
Frequently Asked Questions
What did S. and Marper v. UK decide?
The Grand Chamber held unanimously that the indefinite retention of the fingerprints, cellular samples and DNA profiles of people arrested but not convicted violated Article 8 of the Convention. The regime was “blanket and indiscriminate” and therefore disproportionate.
Why was retaining DNA a problem if the applicants had nothing to hide?
The Court held that storing biometric and genetic data is itself an interference with private life, regardless of use. The violation arose from the indiscriminate, indefinite nature of the retention of data belonging to people who had not been convicted, not from any actual misuse.
Did the case ban DNA databases?
No. The Court accepted that retaining data to prevent and detect crime pursues a legitimate aim. What it condemned was a regime that retained the data of unconvicted people indefinitely and without distinction, with no realistic possibility of deletion.
What changed in the UK after the judgment?
The United Kingdom reformed its rules, culminating in the Protection of Freedoms Act 2012, which required the destruction of the DNA profiles and fingerprints of most individuals who were arrested but not convicted.
Does it apply to convicted people?
The case concerned people who were acquitted or whose proceedings were discontinued. The retention of data of convicted persons raises different considerations and was not the subject of the violation found.
Convention Articles engaged
Cases against this state
Related ECHR cases
- D.H. and Others v. the Czech Republic
- Biao v. Denmark
- Nachova and Others v. Bulgaria
- Marckx v. Belgium
- Bărbulescu v. Romania
- Von Hannover v. Germany
Facing a similar case?
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