THE great DNA debate rolled into Strasbourg last week with a hearing before a grand chamber of the European Court of Human Rights, which consists of 19 judges from all over the Continent.

Fuelled by recent press coverage of the Steve Wright and Mark Dixie trials, the hearing got down to whether the UK can justify its system of DNA retention of unconvicted people.

In England and Wales the police have the power to take and retain DNA samples whenever anybody is arrested. They are placed on a national database to be checked against new crime-scenes samples. Police practice is that samples are almost never destroyed even if someone is acquitted and this policy is now set out in official guidelines. The thinking is that the more samples on the DNA database, the better.

But practice differs widely in Europe and elsewhere in the world. In Scotland, for example, DNA material is retained in the absence of a conviction only for serious violent and sexual crimes, and then usually for only a limited period unless there is permission from a judge. Some countries have different rules for retention of children’s DNA, it being seen as important that a child should be able to start adult life with a clean slate. It is not uncommon for some countries not to keep DNA material at all unless someone has been convicted, and some countries do not have a DNA database.

The Wright and Dixie cases actually have very little to do with keeping the DNA material of unconvicted persons. Part of the evidence against Wright was the DNA links between him and the murdered women – but police already had his samples because he had been convicted of an offence some time earlier. Likewise, when Dixie was arrested for another offence after the murder of Sally Anne Bowman his sample was immediately run against the crime scene database and a match discovered.

Although some crimes will have been solved as a result of the retention on hundreds and thousands of unconvicted people since the law changed seven years ago, the Government has said on a number of occasions that it does not know how many. This makes it difficult to work out whether the balance between crime prevention and rights to respect to “informational privacy” for the individual has been correctly struck. The Nuffield Council on Bioethics last year said that it was not enough for the Government simply to say that “the innocent have nothing to fear” by retention and use of DNA samples. Rather the state had to actually justify retention of those not convicted.

The question for the European Court of Human Rights judgment, which will be delivered some time in the next few months, is whether the UK Government’s policy can match up to well-established human rights standards.

Stephen Cragg is a barrister specialising in public law at Doughty Street Chambers E-mail: s.cragg@doughtystreet.co.uk

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