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The first considerations given to a number of these issues in the UK can be found in the Scottish Law Commission, Report on Evidence: Blood Group Tests, DNA Tests and Related Matters (Edinburgh: HMSO, 1989); and the Royal Commission on Criminal Justice, Cm 2263 (London: HMSO, 1993). There has been a continuous return to these issues over the ten years since the establishment of the National DNA Database of England and Wales (NDNAD) in 1995.Google Scholar

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Whilst “proportionality” is not a term found in the text of the ECHR, it has become a major resource for the formulation of arguments and judgements concerning the police uses of DNA in the light of the ECHR. Proportionality, as the Lord Chief Justice stated in his judgement of R v. Marper & ‘S’ supra note 17, 2002 b, is usually absorbed by the consideration of “balance” which the court is asked to make; that is, to judge an appropriate balance between an individual right and a collective or social good. Often in British jurisprudence a distinction is made between a “balancing test” and a “necessity test.” To judge necessity a court deliberates the possibility that the objective under consideration (in this case, the future prevention and detection of crime made possible by the NDNAD) could be met using different and less intrusive means. In R v. Marper & ‘S’ supra note 17, the necessity test has been contended by arguing that the current ‘blanket policy’ of the police in retaining all samples and profiles of those once charged with, but not subsequently convicted of, a recordable offense is incompatible with the actual wording of the legislative provision in PACE which states that the police may retain samples and profiles. The appellants have argued that the intrusiveness created by the retention of samples and profiles, should there be a proven necessity for such a practice in particular instances, would be reduced by a case-by-case consideration of retention. This has been consistently ruled against on the grounds that such a situation would be potentially more intrusive because it would rely on the police making decisions about the ‘character’ of individual suspects. As Lord Wolf argued: “It would be highly undesirable for members of the public to be treated differently on the basis of some scale of innocence derived by the police” (R v. Marper & ‘S’ 2002 b, supra note 17, at 12).Google Scholar

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There are certain problems in assessing proportionality in relation to the individual/society balance. As Lord Sedley notes “proportionality [is] an issue which, with respect, I do not think can ever be absorbed in a simple balancing exercise as between the individual and the public (an exercise which in a majoritarian democracy the individual will always lose, and which the [European Convention on Human Rights] is there precisely to redress)” (R v. Marper & S, supra note 17, 2002 b: paragraph 77).Google Scholar

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