Jeffrey O’Brien is a JD candidate at the University of Alberta.
In the recent case R v The Commissioner of the Police of the Metropolis, the Supreme Court of the United Kingdom decided that the police can never hold on to DNA evidence collected from suspects not subsequently convicted.
The press summary is available here. The Court ruled that police retaining such information is an invasion of privacy. Thus, when a person is arrested but not convicted in Britain, the police must – upon request – destroy all DNA evidence (fingerprints, blood samples, etc.) taken from that person.
Most North American law schools teach Moore v Regents of University of California (popularly known as the Spleenless in Seattle case) in first year property law classes. It (controversially) stands for the principle that individuals do not have property rights in their own discarded body parts. There is a strong dissent by Justice Mosk which is more like the Police Commissioner decision. Moore deals with the spleen removed from a leukemia patient, but presumably the principle applies to fingerprints and blood samples and the like. There appears to be some conflict here, but I believe the cases can be reconciled.
For the issue of a person’s rights in detached body parts the majority decisions in these cases took different approaches. Lord Dyson writing for the majority in the Police Commissioner case does not mention whether or not the complainants had property rights in their DNA. The ruling focuses on their right to privacy only. Conversely Justice Pinelli’s reasons in Moore deal only with property. He rejects (at heading III(B)(1)) the argument that Mr. Moore’s privacy had been violated. The fundamental difference between these cases is that in Moore the court found that what was taken from the complainant’s body was not unique to him (see under heading II(B)(1)), whereas DNA evidence of course is unique to the donor.
Neither case is binding in Canada – Moore was decided by the Supreme Court of California. Should an issue of property in body parts reach our courts, the two cases are reconcilable. Research done on a spleen cannot be traced back to the donor, but DNA evidence can be. Neither case grants a property right, but absence of a property right does not negate the right to privacy.