Original URL: http://www.theregister.co.uk/2009/03/02/dna_dbase_stalling/

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

Carry on sampling...

By David Mery

Posted in Law, 2nd March 2009 12:21 GMT

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.

The Joint Committee on Human Rights (JCHR) has a similar understanding and is expecting proposals from the Government by March 4th. Following the lack of substantive response from Vernon Coaker at the oral evidence session of the JCHR on 2008-12-09 (see Q65), the same day, Andrew Dismore, MP and Chair of JCHR, sent a letter to Jacqui Smith "to ask for further information about the Government's response to the judgment of the Grand Chamber of the European Court of Human Rights in S and Marper v United Kingdom (App. No 30562/04 and 30566/04, 4 December 2008)."

This letter includes a series of specific questions:

I am writing to ask for further information on the Government's response to this judgment:

• What general measures does the Government consider are necessary in order to remove the breach of the Convention identified by the Grand Chamber?

• Does the Government now intend to destroy all fingerprints or samples currently held on the national DNA database, or otherwise held by the police, except those which were gathered during an investigation which led to the donor's conviction? If not, why not?

• Does the Government intend to amend the provisions of Section 64 (1A) PACE?

• Specifically, does the Government intend to bring forward proposals similar to those which currently apply in Scotland? If not, why not?

• If the Government considers that legislative changes are necessary to remove the breach, does the Government intend to (a) use the remedial order process provided for in the Human Rights Act; or (b) bring forward proposals in the expected Policing and Crime Bill.

• If the Government intends to use a remedial order, I would be grateful if you could explain whether the Government intends to use the urgent or non-urgent procedure.

• If the Government considers that legislative changes are necessary but does not intend to bring forward proposals in the Policing and Crime Bill or in a remedial order, I would be grateful if you could provide a detailed explanation for that view.

• If legislative reform is proposed, my Committee would be grateful for copies of the draft proposals as soon as they are available.

• If the Government does not consider that legislative changes are necessary, please provide a detailed explanation for that view.

Following the timetable we recommended in our earlier reports, we would expect the Government to write to us with their initial reaction to the judgment by 4 January 2008 and with their proposed response to the judgment, including any proposals for general measures which the Government considers necessary to remedy the breach before 4 March 2008.

[emphasis in the original]

Again on 2008-12-09, this time in the Lords, Lord West of Spithead gave the strong impression that the Government was already well prepared and could move soon, well in time for the deadline, so far believed to be early March:

My Lords, the UK Government are bound by international law to comply with the judgment of the European Court of Human Rights. The European Convention on Human Rights was established to protect the interests of us all. However, it will be for the UK Government and Parliament to consider how best to give effect to the judgment. We established a contingency planning group earlier this year to look at the potential implications of a violation judgment. The group has been dealing with a hypothetical situation up until four or five days ago, and it will now focus its planning on the implications of the judgment. [...]

Until we come up with changes to our recommendations - as I said, we must come up with proposals by March 2009 - nothing will change.

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.