Human Rights Compatibility of Biometric Data Retention on Shared UK Databases

Abstract

Between 2018 and 2020 the UK National DNA Database reported 53,900 matches between subject profiles and crime samples, including 1331 for homicide, and 1309 for rape. The average match rate between crime samples, and subject profiles on the database, was 66.5%. Similarly, the UK Ident1 fingerprint database reports match rates in the order of 85,000 identifications per year. Such figures demonstrate the valuable contribution that biometric databases make to the prevention and prosecution of crime. However, all such database samples require to be held in conformity with a legal framework regulating the inclusion, use, and retention, of biometric material and data, in accordance with overarching human rights obligations. Furthermore, those responsible for maintaining biometric databases must offer a meaningful process for review. The possibility of review is an essential component of biometric regulation, given that the databases hold diverse classes of data, from samples linked to serious crime and national security concerns, to those taken from suspects arrested for minor offences, but not subsequently convicted. In order to meet the requirements for regulation and review, the three legal jurisdictions of the UK have created (or are creating) biometric commissioners to oversee the retention of samples. These commissions are intended to provide a legal safeguard, ensuring retention and use of biometric data, in compliance with the ECHR. However, research has revealed a population of data subjects which falls outwith the protective measures envisaged by domestic retention frameworks. This class of suspects, composed of individuals from Scotland and Northern Ireland, whose DNA and fingerprints are copied to the UK databases, numbers in excess of one million persons: a substantial population whose data is retained unlawfully, in breach of the clear protections guaranteed by Article 8 ECHR, and the stipulations laid down by the European Court of Human Rights in a series of cases. This article explores the regulatory lacuna which has given rise to widespread retention absent of legal oversight and review. It goes on to consider the implications of unlawful retention, and concludes by positing a solution which may re-establish the balance between citizen’s Article 8 rights, and the public interest in preventing and prosecuting crime, whilst safeguarding national security.