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

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However, Jacqui Smith's response to the JCHR, dated 2009-01-05, has an entirely different interpretation of the situation. Her letter doesn't answer the questions from Andrew Dismore and moves the deadlines further into the future - April for an initial response with a review by the ECtHR in June:

Technological developments and, in particular, the use of DNA in investigations has been one of the breakthroughs for modern policing in which we have led the world. It has contributed to convictions for serious crimes and also the exoneration of the innocent. However, I am conscious that we need to ensure that our policy enjoys public confidence. We need also, of course, to implement the judgement of the ECtHR. As you may be aware I announced on 16 December at the Intellect trade association* that we will consult via a White Paper on Forensics next year on bringing greater flexibility and fairness into the system, using a differentiated approach to the retention of samples, DNA profiles and fingerprints.

You will be aware that implementation of ECtHR's judgements are overseen by the Committee of Ministers. I am informed that the first substantive consideration of the Government's response will be at the June meeting for which papers will be circulated in early/mid April. We will send plans for implementation to the JCHR when we send them to the Committee of Ministers.

Things got further muddled last Friday, when the Government submitted an amendment to the Policing and Crime Bill, which it claims will implement the judgment of the European Court of Human Rights in the Marper case. Thanks to GeneWatch UK for spotting that amendment, which has otherwise not received much publicity. From a cursory reading, this amendment gives a blank cheque to the Secretary of State:

After section 64A of the Police and Criminal Evidence Act 1984 (c. 60) insert - "64B Retention and destruction of samples etc

(1) The Secretary of State may by regulations make provision as to the retention, use and destruction of material to which this section applies.

(2) This section applies to the following material - (a) photographs falling within a description specified in the regulations, (b) fingerprints taken from a person in connection with the investigation of an offence, (c) impressions of footwear so taken from a person, (d) DNA and other samples so taken from a person, (e) information derived from DNA samples so taken from a person.

<snip>

(8) The regulations may make provision amending, repealing, revoking or otherwise modifying any provision made by or under an Act (including this Act).

A delayed response, no consultation yet (though they're often not effective) and an amendment letting the Home Secretary change the law not only to comply with the ECtHR ruling - whichever way she interprets it - but possibly to authorise new uses of our DNA without any review is what's on the table. And there's another risk of re-creating a wide DNA database via another route, using the data sharing clause as currently in the Coroners and Justice Bill. Hopefully the Committee of Ministers and the JCHR will ensure the Government doesn't delay further any action and fully adhere to the spirit of the ECtHR ruling as well as its letter. To contrast, in Scotland, the Justice Secretary announced last week that DNA information will be held indefinitely by police only where a person has been convicted in the criminal courts.

* In her speech to the Intellect Trade Association, the one promise Jacqui Smith made was to take immediate steps to take off the NDNAD the records of around 70 children under 10. A month later, Jacqui Smith reiterated that she had said mid-December the 'the Government would take immediate steps'. She also explained that these statistics of 70 under 10 are subject profiles submitted by police forces in England and Wales, as of 30 September 2008. The Government and the police always mention a replication rate of about 13 per cent when estimating how many individuals are in the NDNAD from the number of profiles - not in this instance. There has been no confirmation that these profiles and associated records have been deleted, nor the samples destroyed, and I am awaiting a response to a Freedom of Information request querying this promise.

David Mery is a technologist and writer based in London. Two years ago he was one of 64 who asked the Metropolitan Police to have their DNA profiles purged and DNA samples destroyed. His request was one of 18 that were deemed exceptional enough to be granted. His website is gizmonaut.net.

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