Police told to ignore human rights ruling over DNA database

Chief constables across England and Wales have been told to ignore a landmark ruling by the European court of human rights and carry on adding the DNA profiles of tens of thousands of innocent people to a national DNA database.

Senior police officers have also been "strongly advised" that it is "vitally important" that they resist individual requests based on the Strasbourg ruling to remove DNA profiles from the national database in cases such as wrongful arrest, mistaken identity, or where no crime has been committed.

European human rights judges ruled last December in the S and Marper case that the blanket and indiscriminate retention of the DNA profiles and fingerprints of 850,000 people arrested but never convicted of any offence amounts to an unlawful breach of their rights.

Britain already has the largest police national DNA database in the world, with 5.8m profiles, including one in three of all young black males. Thousands more are being added each week.

So far the Home Office has responded to the judgment by proposing a controversial package to keep DNA profiles of the innocent for six to 12 years, depending on the seriousness of the offence. The official consultation period ended today.

The advice to senior officers comes in a letter from the Association of Chief Police Officers criminal records office. The letter, seen by the Guardian, tells chief constables that new Home Office guidelines following the ruling in the case of S and Marper are not expected to take effect until 2010.

"Until that time, the current retention policy on fingerprints and DNA remains unchanged," it says. "Individuals who consider they fall within the ruling in the S and Marper case should await the full response to the ruling by the government prior to seeking advice and/or action from the police service in order to address their personal issue on the matter.

"Acpo strongly advise that decisions to remove records should not be based on [the government's] proposed changes. It is therefore vitally important that any applications for removals of records should be considered against current legislation."

Chris Huhne, the Liberal Democrats' shadow home secretary, said it was clear from the letter that the government intends to string out its response to the European court ruling that they should not keep the DNA of innocent people.

"It is unacceptable that new guidance won't be provided to police until 2010. In that time thousands more innocent people will have been added to the database, where they will remain for years.

"It is not up to police forces to ignore court judgments because they or their masters do not like them."

The tone of the letter is in sharp contrast to what the Home Office told the House of Lords in June when peers sharply criticised the government's intention to push through their plan to keep innocent people's DNA for up to 12 years by using "back door" secondary legislation to get it through parliament. The Home Office told peers that they could not afford the delay that would be involved in making the changes in primary legislation that would allow MPs and peers to fully debate the changes.

Home Office officials said they face a possible "surge of pressure" from individuals seeking deletion of their data from the relevant databases. Ministers have already received some legal challenges.

But the Lords committee on delegated powers and regulatory reform has told ministers that provision "about this important and complex subject should be in primary legislation".

Source: The Guardian

DNA of thousands of innocent people held by police

MORE than ten people have their DNA recorded and stored by Redbridge Police every day, the Guardian can reveal.

A total of 3,654 samples of genetic material were taken in the borough last year - with only 368 of these subsequently being destroyed, a Freedom of Information request as found.

And 2,201 samples have been taken on under-18s since the beginning of 2006 – the vast majority of whom innocent of any crime - prompting fierce complaints from parents.

Elizabeth Canavan, 39, of Merlin Road, Aldersbrook, said she would not want any of her children’s DNA on record.

The mum-of-four said: “I think it’s a bit intrusive and there’s sort of the assumption of guilt there.

“It’s a bit Big Brother when the Government knows even your children’s intricate body chemistry.”

The European Court of Human Rights ruled last December that all DNA samples of innocent people held by police must be destroyed as holding such information “could not be regarded as necessary in a democratic society”.

However, the British Government has since been fighting this ruling.

Paul Donovan, of Dangan Road, Wanstead, told the Guardian that readers were right to be concerned.

The 46-year-old said: “It seems rather worrying as it seems like they are trying to build up some sort of database of youth in the area.

“If a person is convicted of a crime then the police should be able to keep their DNA on record for a specific time but if the charges are dropped or they are found innocent in a court of law then these records must be destroyed.

“Again, it’s the creeping hand of the Big Brother state. We all want to be safer but it’s the old equation of give us your liberty and we’ll give you security and it depends how much liberty we are willing to part with.

“The basic assumption in this country is that you are innocent until proven guilty and this is heading towards the other way around. We shouldn’t be lying back and taking it.”

Borough Commander Chief Supt Peter Terry said: “Since its introduction DNA has provided the police with approximately 400,000 leads to the possible identity of offenders.

“In 2007 – 2008 over 17,000 crimes were detected in which a DNA match was available.

“People cannot be arrested purely to obtain DNA and although samples obtained following arrest can help detect crimes, we do not actively seek to obtain DNA for this purpose.

“These figures relate to all DNA that has been taken on the borough, not just from Redbridge residents or indeed for Redbridge crimes.”

Source: RINF News

The UK DNA database needs proper scrutiny

Last December the European Court of Human Rights decided in S and Marper v The United Kingdom that the retention by the State of DNA profiles is a breach of Article 8 of the European Convention on Human Rights. That is because information about people arrested for, or charged with, an offence but not subsequently convicted, is kept on the national DNA database for an unlimited period of time. The Government has accepted the judgment of the European court and announced that it will change the law to ensure compliance. But its proposed method of doing so is unsatisfactory and needs reconsideration.

The Government published a consultation paper on May 7 suggesting that the DNA profiles of people charged but not convicted should in future be kept for six or twelve years, depending on the seriousness of the alleged offence. The consultation period runs until August 7. The Government has rightly emphasised that this is a context, like so many others under the convention, where it is necessary to strike a balance between the rights of the individual and the protection of the public. The right to privacy may make it more difficult to detect dangerous criminals. There will inevitably be disagreements about where the balance lies, having regard to the point made by the House of Lords Constitution Committee that DNA profiles provide the State with large amounts of personal information about citizens that could, in the future, be used for malign purposes.

The immediate problem is that Clause 96 of the Policing and Crime Bill contains a provision that would confer power on the secretary of state to make regulations governing the retention, use and destruction of DNA and other material, such as fingerprints. If ministers are given a power to regulate these matters by secondary legislation, there would be a much reduced opportunity for parliamentary debate and scrutiny. There would be a short debate, after which the regulations could either be approved or rejected. It would not be possible for members of Parliament to table amendments for discussion and for such amendments to be put to a vote.

The committee stage of the Policing and Crime Bill began in the House of Lords last week. When peers debate whether the DNA database is a matter that ministers should be able to regulate by secondary legislation, they will wish to bear in mind that there are three particular aspects of the Government’s substantive proposals as set out in the consultation paper that will need the most careful debate.

The first is that the Government now suggests that the State should retain for up to six years the DNA profiles of adults who were arrested for, but not convicted of, an offence that was not serious or violent or terrorist-related. In Scotland there is no power to retain DNA material when a person is arrested but not convicted unless the offence is a serious one. The consultation paper does not refer to any evidence that this has caused any detriment to the fight against serious crime in Scotland.

The second matter of concern is that the Government proposes a 12-year period for retention of the DNA profiles of those arrested but not convicted in relation to serious, violent, or terrorist offences. That is much longer than the three-year period (and a possible two-year extension if a sheriff consents) that is authorised in Scotland. The evidence presented in the consultation paper to justify a period as long as 12 years is weak. Again, Parliament will need to debate this.

The third point is that the consultation paper proposes that in exceptional circumstances the DNA profile could be destroyed before the expiry of the six or twelve years period, on application to a chief constable, for example in cases of mistaken identity. Parliament should have the opportunity to debate whether there should be a right of appeal to an independent judicial body for deletion of the DNA profile.

The Joint Committee on Human Rights understandably concluded in a report published in April that it was “alarmed” that the substance of the Government’s proposals would not be contained in primary legislation and so subject to full parliamentary scrutiny. The joint committee “strongly urged” the Government to reconsider. The House of Lords Constitution Committee has also reached the similar conclusion that Clause 96 is unacceptable because unamendable delegated legislation will not provide a sufficient opportunity for parliamentary oversight and control. The Government should think again.

The author is a practising barrister at Blackstone Chambers in the Temple, a Fellow of All Souls College, Oxford, and a crossbench peer in the House of Lords

David Pannick, QC

Source: RINF News