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Police drag feet following DNA law change

Green's off - 850,000 to go

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The Met has agreed to destroy DNA and fingerprints taken from Tory Immigration spokesman Damian Green last December - and they will delete other police records too. This follows a four-month battle, much foot-dragging, and a statement by ACPO that sounds suspiciously like yet more "off the cuff" law-making by the Police.

The Met have agreed that Damian Green should count as an "exceptional case" – that is, he is entitled to be considered under the "exceptional cases procedure" which allows Chief Constables to order the destruction of data in certain cases.

He applied for removal of his details in April, following an announcement by the Director of Public Prosecutions that there was insufficient evidence to charge him or a Home Office civil servant, Christopher Galley, in respect of the leaking of confidential documents that had triggered a series of embarrassments for the government over a period of some two years.

According to the Met, some 231 people have asked that their DNA be removed from the database under this procedure since 1 January, but to date, just 31 requests have been agreed to.

This removal takes place against the background of a ruling by the European Court of Human Rights (ECHR) last December, in the case of "S and Marper" that the current UK position on retention of personal details breaches Human Rights. It is estimated that even after these removals, the details of some 850,000 other innocent people who have been arrested but never charged will remain on the police database.

Mr Green is reported as saying: "I am delighted the Metropolitan police has recognised that keeping the DNA records of someone who should not have been arrested in the first place is wrong. This is a small but significant victory for freedom.

"But this is only a first step. I want every innocent person who has been arrested and whose records are being wrongly held to be treated the same as me."

The ruling gives the Home Office approximately nine months to get its act together: a period of consultation closed earlier this month. A legislative response, expected in the autumn, seems likely to go along with the ECHR, and lead to an end to the taking of samples in respect of non-serious crimes.

Meanwhile, the Association of Chief Police Officers has been getting in on the act. In a letter to police chiefs, subsequently leaked to The Guardian, they appear to suggest that it is "vitally important" to resist requests to delete samples that are made on the basis of the Strasbourg ruling. El Reg spoke to ACPO, and they confirmed this point of view.

According to an ACPO spokeswoman, this letter did not contain any new guidance: "it merely reminds Chief Constables of the existing legal position and guidelines and urges that they stick with them until such time as the position is clarified by the Home Office". The guidelines referred to are in fact the retention guidelines drawn up by ACPO in the first place - in consultation with the Home Office.

This position is somewhat less controversial than that implied by The Guardian. However it is yet another example of police deciding for themselves when and how to interpret the law, and bypassing traditional legal structures in the process. Whilst the ACPO observations are strictly correct, when pressed, they were unable to provide precise details of the ECHR ruling or when it would apply. That, they said, "was a matter for the Home Office".

This therefore leaves hanging the question of why ACPO, a body with no formal legal standing when it comes to the law or policing, should be left in the position of having to put out guidance based on a partial reading of the ECHR ruling – whilst being forced to refer the tricky questions back to the Home Office.

Over the last year or so, The Register has reported on a growing number of instances where police interpretation of the law has turned out either to be inaccurate: or to provide a de facto basis for an extension of the law that is not actually present in statute. Just this week, we reported the case of TJ Morris Ltd, who claim to have been told by the local police that there would be no problems with their putting up pictures of suspected shoplifters on the web. Legal advice we have received suggests otherwise.

When it comes to CCTV and ID scanners, police support for blanket introduction of these devices has brought them into conflict with the Information Commissioner. In respect of searches, the Met and Kent police appear to have invented a new doctrine whereby individuals who lay claim to their legal right not to walk through a knife arch or to give out their personal details on request may now be considered suspicious – and therefore subject to arrest and, er, search anyway.

Last but by no means least are the IWF, whose interpretation of the law on indecent imagery - specifically, those images that are "potentially indecent" - is drawn first and foremost from the police, despite the occasional hiccup in police practice, as failed prosecutions in the case of noted artists such as Nan Goldin have shown. ®

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