The DNA team is currently drafting a report for presentation to the Minister of Justice this year.
Here’s a quick quiz. If Police take a sample of your DNA, analyse it, and create a profile of you – when should they destroy that information?
- Never. They should keep it, even after I die.
- Soon. Once they’ve finished using it.
- Depends. If I’m a good person, they shouldn’t keep it.
This is an issue that jurisdictions across the globe are facing. Data can be valuable for law enforcement but should there not be limits on the length of time it is held? Very recently a case went to the European Court of Human Rights (ECHR) on this question. Even though the legal framework is different than in New Zealand, the case illuminates the clash of interests: should the State be able to retain DNA information for its own purposes indefinitely – or should an individual’s right to privacy trump that State interest?
Scientist working in a laboratory
Mr Gaughran’s DNA was taken by Northern Irish police after he pleaded guilty to an imprisonable offence of drunk driving. The physical sample was destroyed according to law but police refused to exercise their discretion to also dispose of Gaughran’s DNA profile.* The case worked its way through the UK Courts until finally the Supreme Court refused to order the profile be destroyed.
How the ECHR responded
Upon reaching the ECHR, the UK argued that there was a relevant connection between the amount of data retained by law enforcement and the level of crime prevented. Further, it claimed special circumstances for retention because the DNA profile could be used to investigate crime that occurred during ‘the Troubles’ in Northern Ireland.
The ECHR rejected these arguments and noted the following points:
- Indefinite retention lacks a link to the seriousness of the offence and the ongoing necessity of having the information on file.
- There are insufficient safeguards or processes for an individual to have the data deleted in light of changed circumstances.
- The UK’s argument for more data justifies collection of data on the whole population and is therefore untargeted and disproportionate.
- The special circumstances of ‘the Troubles’ is logically indistinct from any other justification based on solving cold cases.
Ultimately, the ECHR decision establishes that indefinite retention is a disproportionate interference with the rights of an individual to enjoy their private life.
In our review of DNA regulation, we have addressed difficult questions like this. Our goal is to recommend a new just, durable, accessible law that allows the State to use DNA to investigate crime but also promotes the right to privacy in genetic material.
*The current rules of retention for profiles and samples in Aotearoa New Zealand are contained in legislation. Unlike the UK, there is no discretion to keep DNA material. For more detail see our Issues Paper (Ch 14).