Europe to rule on whether police can keep DNA of innocent people

Police could lose the power to keep DNA samples taken from suspects who have been cleared of any wrongdoing, in a landmark case which is to be decided by the highest court in Europe.

A ruling against the British Government could lead to the destruction of tens of thousands of DNA and fingerprint materials as well as deal a severe blow to any plans to create a universal genetic database.

The challenge at the European Court of Human Rights is being brought by a teenager, known as S, who was arrested and charged with attempted robbery aged 11 in 2001, and Michael Marper, from Sheffield, who was arrested on harassment charges, aged 38, in the same year. Both were cleared and have no criminal records.

But the Court of Appeal ruled in 2002 that they cannot ask for their DNA and fingerprint evidence to be destroyed. One of the judges hearing the appeal was Sir Stephen Sedley, who this week called for a national database to include DNA samples taken from every British citizen and any foreign visitors to this country. His comments provoked outrage from the human rights group Liberty, which called his proposal "chilling".

European judges in Strasbourg believe the issue is so important that they have decided to fast-track the case to go before the grand chamber, where all the Strasbourg justices will sit to determine the matter.

The decision has been taken because the court decided that the case raises a serious question affecting the interpretation of the European Convention on Human Rights or because its resolution might have a result inconsistent with a previous judgment of the court.

In both cases, the clients asked that their fingerprints and DNA samples be destroyed – but the requests were refused by South Yorkshire Police.

Mr Marper and the juvenile argued that keeping fingerprints and especially DNA samples was an unjustified breach of their right to respect for private life protected by Article 8 of the European Convention on Human Rights. They are especially concerned about the future uses to which the DNA samples might be put, and the lack of independent oversight in the national DNA database.

They are represented by Peter Mahy, a civil liberties specialist at Sheffield-based Howells, and one the country's most respected human rights barristers, Richard Gordon QC. Mr Mahy said:"This decision by the European Court of Human Rights gives us significant hope that these cases will finally result in a massive change in the law – providing protection for those acquitted of crimes against their fingerprints and DNA samples being kept, putting them on a level footing with those not previously accused of any crimes."

He added: "We think this will be one of the most important human rights challenges the court has grappled with in recent years."