Comment: Human rights and the retention of DNA samples, profiles and fingerprints: S and Marper v United Kingdom

JurisdictionSouth Africa
Date16 August 2019
Citation(2010) 23 SACJ 107
Published date16 August 2019
AuthorLirieka Meintjes-Van der Walt
Pages107-121
Human rights and the retention
of DNA samples, proles and
ngerprints: S and Marper v United
Kingdom
LIRIEkA MEINTJES-VAN DER WALT
University of Fort Hare
1. Introduction
The judgment by the European Court of Human Rights, S and Marper
v United Kingdom [2008] ECtHR 30562/04 [Grand Chamber] (4 Decem-
ber 2008), discussed below, has been described in the accompanying
Amicus Curiae brief by Privacy International as ‘one of the most im-
portant privacy developments in recent years. The outcome of this case
will determine the course of policy not just in the UK, but also across
Europe and around the world.’
South Africa is in the process of drafting database legislation, in
which one of the issues is the retention of f‌ingerprints, samples and
DNA prof‌iles.
There is no doubt that in essence both versions of South Africa’s
Criminal Law (Forensic Procedures) Bills, B01/2008 and B02/2009,
have fundamentally been inf‌luenced by the United Kingdom (England,
Wales and Ireland) legislation. The f‌irst Criminal Law (Forensic Proce-
dures) Amendment Bill and the statutory dispensation in the United
Kingdom at the time of the S and Marper judgment had the following
in common:
i) non-intimate samples could be taken without consent by a police
off‌icer;
ii) speculative searching (a speculative search is a search that is
carried out when DNA samples are submitted to the DNA data-
base laboratory and they are compared against all other samples
held);
iii) the powers of the police in obtaining samples were retroactive;
iv) DNA samples, DNA prof‌iles and f‌ingerprints could be re-
tained indef‌initely and used regardless of the outcome of the
investigation;
v) there was no requirement that f‌ingerprints, cellular samples
and DNA prof‌iles should be destroyed after an investigation has
ended;
107
(2010) 23 SACJ 107
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