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Three months on, you still can't get off the DNA database

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Almost three months on from the unanimous ruling by the European Court of Human Rights (ECtHR) against the UK's mass retention of DNA of innocent people, the situation has turned worse. Although eventually the UK should become compliant with the ruling, police forces are adopting a wait and see attitude, while Jacqui Smith is pushing back any response.

Meanwhile, the Government has tabled an amendment giving sweeping powers on DNA retention, use and destruction to the Secretary of State.

At the end of last year, in Don't delay: Delete your DNA today, looking at the ECtHR ruling and at how few individuals had requested to be taken off the National DNA Database and how even fewer had succeeded, I wrote "If you are among the estimated 573,639 to 857,366 innocents whose DNA profile is on the National DNA Database (NDNAD), you should act now. Don't wait until the time the police will have to weed out these records and samples."

Individuals who wrote, since the ECtHR ruling, to the chief of police of the force which took their DNA received stock answers telling them to wait until the Home Office decides to issue further instructions. (Many thanks to all those who wrote to me with copies of the letters they received.) This is most unsatisfactory and possibly even illegal. From the wording of these letters and of some responses to Freedom of Information requests I made to all the police forces, it appears that chief constables are extremely reluctant to consider any case until new guidance arrives. The police are known to want to cling to any data they have. The five forces that were ordered by the information tribunal to the delete old criminal convictions 'held for longer than necessary' from the Police National Computer are also considering appealling against this decision.

They want to have their cake and eat it. If nothing has changed, then they still operate under the ACPO guidelines, and hence are under the obligation to consider the individual merit of each request, and whether they are exceptional enough. A judicial review in case of a negative decision would likely take into consideration the ECtHR ruling and hence put pressure on chief constables to grant requests from innocents - if they consider them. I would be interested to hear from anyone initiating a judicial review in such circumstances. Here are some of the stock answers currently sent out:

At the present time whilst the judgement in the European Court of Human Rights has gone against the UK it does not have any impact until UK law is changed by parliament, so at the present time no changes can be made to police procedures.

I can assure you that... Police will comply with whatever changes are made to the law. I know that the Home Office are dealing with the implications of this judgement but at the present time I do not know what these changes will be or when they will come into force.

From a different police force:

Since the case the Government has been preparing a response to this ruling, which is currently under consideration by their lawyers. It should be noted that whilst this judgement has gone against the Government, it does not have any impact on the current retention policy until the law is changed by Parliament. It therefore follows that the current legislation and procedures remain unaffected by this ruling.

In anticipation of receiving further guidance and the necessary changes in the law, your details will now be retained within my department and dealt with in the appropriate way as soon as possible.

And a more detailed one from yet another force:

On 4th December 2008 the European Court of Human Rights unanimously held in the case of S & Marper that the retention of fingerprints and DNA of all persons, suspected but not convicted of offences, constituted a disproportionate interference with the individual's right to respect for a private life and could not be regarded as necessary in a democratic society.

The Government is expected to provide a considered response to this ruling, which is currently under consideration by their Lawyers.

Whilst this judgement has gone against the Government, the current domestic legislation remains unaffected by the ruling and it does not therefore have any impact on the retention of fingerprint and DNA policy until the law is changed by Parliament.

Individuals who consider that they fall within the ruling in the S & Marper case are being advised to 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 issues on the matter.

Considering the ECtHR ruling and Jack Straw's intervention in the Commons the day of the judgment: 'We have an obligation to report initially to the Council of Ministers and the Council of Europe by March.', it would seem reasonable to expect the detail of the Government's plan, if not actions, to be announced before the end of March.

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