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Current system ‘violates privacy rights’ but judges have not ordered immediate change, as new legislation is being passed The supreme court has declared that chief constables who refuse to delete the DNA profiles of more than 1 million innocent people on request are acting unlawfully. The ruling by the most senior judges in England and Wales says that the current police policy of indefinitely keeping DNA profiles of people arrested but never convicted is excessive and violates privacy rights. Chief constables have continued collecting the DNA profiles of everyone arrested, whether they are convicted or not, and keeping them indefinitely on a national database. This is despite a ruling by the European court of human rights more than three years ago that it was a breach of privacy rights. More than 200,000 new DNA profiles of innocent people have been added to the national police DNA database since the ruling that their blanket retention was unlawful in February 2008, bringing the total to more than 1.1 million. Association of Chief Police Officers (Acpo) guidelines say that chief constables have the discretion to destroy individual DNA profiles and fingerprints only in “exceptional circumstances”. While the Metropolitan police agreed to a request from Home Office minister, Damian Green, to delete his DNA profile, many other requests have been refused. In a majority judgment the supreme court said the Acpo guidelines were unlawful because they were incompatible with the right to privacy under the European convention on human rights. But the judges have pulled back from ordering any immediate change in the situation. They say this is because the government intends to bring new legislation into force later this year to take account of the Strasbourg judgment in the case of S and Marper . “Where parliament is seized of the matter, it is not appropriate to make an order requiring a change in the legislative scheme within a specific period or an order requiring the destruction of data,” says the ruling by the lord chief justice and four other supreme court judges. “It is, however, open to Acpo to reconsider and amend the guidelines in the interim.” Lord Dyson said in the ruling: “It is appropriate to grant a declaration that the present Acpo guidelines … are unlawful because, as clearly demonstrated by Marper, they are incompatible with the ECHR. “It is important that, in such an important and sensitive area as the retention of biometric data by the police, the court reflects its decision by making a formal order to declare what it considers to be the true legal position. But it is not necessary to go further.” Two of the seven judges in the case dissented, saying the appeals should have been dismissed. The ruling was brought following an appeal by GC, who was released without charge after being arrested for a suspected assault on his girlfriend in 2007 and C, who was acquitted of rape allegations in 2009. Their requests for the DNA profiles and fingerprints to be destroyed were refused by the Met commissioner. The new legislation is going through parliament in the protection of freedoms bill proposed by the home secretary, Theresa May. It would ban the police from retaining the DNA profiles of those arrested but not convicted of minor offences. It will also enable hundreds of thousands of such people already on the database to have their profiles destroyed. The DNA profiles of those charged but not convicted of serious sexual or violent offences will, however, be kept for an initial period of three years, with a possible further extension of two years. The DNA of convicted criminals will be kept on the database indefinitely. James Welch, legal director of Liberty, who intervened in the case, said: “Those who accuse the judges of trespassing on the role of parliament should take note of this judgment. “While our supreme court has endorsed the view of the European court of human rights that indefinitely keeping the DNA of almost all people who are arrested is excessive and violates privacy rights, it has properly left the question of how to remedy this to parliament.” DNA database Police European court of human rights Human rights UK supreme court Alan Travis guardian.co.uk