Both individuals were acquitted some months later and then applied to have their personal information destroyed. This was refused and the claimants brought judicial review proceedings in the UK courts, claiming that the retention of their data violated their right to privacy under article 8 of the European Convention on Human Rights. Their case went all the way to the House of Lords, where it was dismissed. They took the case to Strasbourg, where it was heard in February 2008.

Today’s European ruling overturns the UK courts’ decisions and has implications for thousands of individuals whose personal data is currently held on police databases, as well as future Government policy in this area. The Court pointed to the higher level of protection afforded to children through the UN Convention on the Rights of the Child, and outlined the particular harm caused to children by privacy infringements.

Katy Swaine, CRAE's Legal director, says:

"This judgment is a ‘wake up’ call for Ministers who are habitually disregarding children's privacy rights. Action must now be taken to remove the profiles of thousands of innocent children from police databases. The Government has proposed many more intrusions into individual privacy in its new legislative programme. We will use this ruling to oppose unjustified intrusions as well as claiming back privacy safeguards for children in contact with the police and courts."

The Criminal Justice Act 2003 gave the police additional powers to retain the DNA samples of anyone arrested for a recordable offence without the person’s consent. This covers most criminal offences. The sample is retained indefinitely regardless of whether the police take any further action or the person is subsequently acquitted by the courts of any offence.

The European Court noted that England, Wales and Northern Ireland ‘appear to be the only jurisdictions within the Council of Europe to allow the indefinite retention of fingerprint and DNA material of any person of any age suspected of any recordable offence’ and found that this ‘blanket and indiscriminate’ retention of data without any time limit violated article 8 of the ECHR.

The Court recognised the importance of biometric technology in the detection of crime but found that UK Government policy has not struck ‘a fair balance between the competing public and private interests’.

Referring to article 40 of the UN Convention on the Rights of the Child, the Court noted that ‘the retention of the unconvicted persons’ data may be especially harmful in the case of minors … given their special situation and the importance of their development and integration in society’ and emphasised ‘the need for the protection of their privacy at criminal trials’. The Court referred to research by the Nuffield Council of Bioethics and agreed with its findings that the risk of stigma associated with the retention of biometric data was ‘particularly detrimental to children … and to members of certain ethnic groups over-represented on the database’.

The Home Office has previously acknowledged that if this case succeeded the DNA database of 4.5 million samples could be affected by the removal of profiles of people without any criminal convictions.