Error: I'm afraid this is the first I've heard of a "ht" flavoured Blosxom. Try dropping the "/+ht" bit from the end of the URL.
Strasbourg finds Home Office's DNA retention plans lacking
The Committee of Ministers (CoM) of the Council of Europe has the duty to supervise the implementation of European Court of Human Rights (ECtHR) rulings by respondent States. At its last meeting of the Ministers' Deputies, in September (1065-4.2), the CoM made a damning assessment of the progress of UK's implementation of the ECtHR ruling in S & Marper v. UK. Below is the section concerning the Home Office proposals for retaining DNA and fingerprints. (Read Sentenced to genetic probation for an analysis of the Home Office proposals, A response to the Home Office consultation on DNA retention for my response and GeneWatch UK for other responses to the consultation).
General measures: The European Court noted in particular “the blanket and indiscriminate nature of the power of retention” (§119). Observing: “ ... material may be retained irrespective of the nature or gravity of the offence ... or of the age of the suspected offender ...[and] the material is retained indefinitely.” (§119). The European Court also noted that there are “limited possibilities ... to have the data removed from the nationwide database [and] ... no provision for independent review of the justification for the retention according to defined criteria” (§119). The European Court also made reference to the provisions and principles in a number of other Council of Europe texts applying to retention of personal data including:
- Recommendation R(92)1 of the Committee of Ministers on the use of analysis of DNA within the framework of the criminal justice system
- Recommendation R(87)15 of the Committee of Ministers regulating the use of personal data in the police sector
- Article 7 of the Data Protection Convention
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4) Proposals set out in the public consultation:
a) Provisions for the taking of DNA and fingerprints:
The existing position will be retained. DNA and fingerprints will be taken on arrest from a person detained at a police station for a recordable offence (that is any offence punishable by imprisonment under the National Police Records (Recordable Offences) Regulations 2000). Recordable offences include inter alia begging, theft of a bicycle, public drunkenness, trespass and impersonating a policeman.
b) Retention of DNA samples:
A DNA sample is the actual, biological sample supplied, such as a mouth swab or blood. DNA samples would be destroyed automatically, within 6 months. The obligation to destroy would be set out under the proposed regulations.
• Assessment: the European Court noted the particular sensitivity of retaining samples (§120) and the reduced margin of appreciation available, given that most Council of Europe states require immediate destruction of samples (§112 and §120). This proposal for automatic destruction appears to reflect the terms of the judgment.
c) DNA profile retention and fingerprint retention for adults:
A DNA profile is the numerical information taken from the DNA sample and loaded on to the DNA database. Adults who are arrested and not convicted of any recordable offence will have their profiles retained for 6 years. The profiles will be automatically deleted after this period.
Adults who are arrested and not convicted for serious violent, sexual or terrorism-related offences will have their profiles retained for 12 years. The profiles will be automatically deleted after this period.
• Assessment: The European Court criticised the previous system for “the blanket and indiscriminate powers of retention” (§125). The application of two different detention periods based on the nature of the offence for which an individual is arrested, would appear to respond to the Court's criticism of an indiscriminate approach. However, the question remains whether the proposed retention of DNA profiles and fingerprints is proportionate and strikes a fair balance between the competing public and private interests, as required by the European Court’s judgment. In this respect, it should be noted that the European Court observed that the strong consensus that exists among contracting states in this sphere is of considerable importance and narrows the margin of appreciation in this field (§112). The Court noted in particular that “in the great majority of the Contracting States with functioning DNA databases, samples and DNA profiles derived from those samples are required to be removed or destroyed either immediately or within a certain limited time after acquittal or discharge” (§108). The Court referred also to Article 8 of Committee of Ministers Recommendation Rec(92)1 which states inter alia that: “measures should be taken to ensure that the results of DNA analysis are deleted when it is no longer necessary to keep it for the purposes for which it was used. The results of DNA analysis and the information so derived may, however, be retained where the individual concerned has been convicted of serious offences against the life, integrity or security of persons. In such cases strict storage periods should be defined by domestic law”.
The European Court stated in particular that the regime in Scotland which provides for retention of DNA for unconvicted adults only in cases of serious offences and then only for 3 years, was in accordance with Committee of Ministers Recommendation Rec(92)1. The Court also stated that “weighty reasons would have to be put forward by the Government before the Court could regard as justified such a difference in treatment of the applicants’ private data compared to that of other unconvicted people” (§123).
In the light of all the above, it seems that the proposed measures and in particular the proposal to retain profiles for 6 years following arrest for non-serious offences do not conform to the requirement of proportionality.
• The authorities’ comments in this respect would be useful.
d) DNA profile retention and fingerprint retention for children - aged 10-18:
Children arrested but not convicted for a recordable offence on one occasion only will have their profiles retained for 6 years. The profile will be deleted after 6 years or on their 18th birthday, whichever is sooner. Children arrested and not convicted for a recordable offence on more than one occasion will have their profiles retained for 6 years. Children arrested and not convicted for serious violent, sexual or terrorism-related offences will have their profiles retained for 12 years. With the exception of those children arrested only once for a recordable offence, the provisions for children are the same as those for adults. Therefore the assessment made in section c) above also applies here. In addition, the Court found that the retention of profiles for children is especially harmful (§124) and stressed theprovisions of Article 40 of the UN Convention on the Rights of the Child 1989 on the special treatment of minors in the criminal justice sphere.
• Assessment: Given the close similarities in the provisions for retaining profiles of children and adults, the European Court's specifications on the vulnerability of children as compared with adults and the particular importance on the treatment of minors in the criminal justice system, the proposed measures do not appear to respond to the requirements of the judgment.
• The authorities’ comments in this respect would be useful.
e) Review mechanism for destruction of profiles:
The current system will remain in place. As before, a request for a profile to be destroyed in exceptional circumstances (such as wrongful arrest/mistaken identity) is made to the Chief Constable of the relevant police force. The criteria against which such a review is to be considered may be codified.
• Assessment: In relation to the existing system, the European Court stated that “...there is no provision for independent review of the justification for the retention according to defined criteria.” (§119). Continuation of the existing system does not appear to respond to the Court's findings on this point. It is noted that a request for destruction will continue to be made to the Chief Constable of the police force that initially took the DNA sample and profile. This does not appear to correspond with the need for an independent review. It is noted that such a decision would be subject to judicial review. However, this is the same as the position considered by the Court in the judgment. In addition, the European Court has questioned the effectiveness of judicial review when considering proportionality in light of Article 8 (see McCann, Application No.19009/04). Thus continuation of the existing system, which was found to be in violation of the Convention – in particular in relation to the lack of independent review – does not appear effectively to execute the judgment. As the reference to “defined criteria” is highlighted by the Court along with the essential requirement for to have “clear, detailed rules” (§99), codification of such criteria would be welcome.
• The authorities’ comments in this respect would be useful.
f) Evidence relied upon to support the existence of the 6- and 12-year rules:
Research by the Jill Dando Institute is cited along with two US academic studies. There has also been a review of data held on the Police National Computer (PNC).
The approach of the authorities to the application of the academic studies is that “we ...believe that the risk of offending following an arrest which did not lead to a conviction is similar to the risk of reoffending following conviction.” (§6.10 of the consultation). This strongly contrasts with the Court's concern about “the risk of stigmatisation [and] ... the right of every person under the Convention to be presumed innocent includes the general rule that non suspicion regarding the innocence of an accused may be voiced after his acquittal.” (§122). In addition, in W. against the Netherlands (application No. 20689/08, decision of 20/01/2009.) retention of DNA material (for convicted persons) was accepted where it was retained fora “prescribed period of time dependent on the length of the statutory maximum sentence that can be imposed for the offence committed.” The approach of the authorities does not consider retention on the basis of any link with the maximum sentence but rather on possibility of future offending.
The European Court stated that “any State claiming a pioneer role in the development of new technologies bears special responsibility for striking the right balance in this regard.” (§112)
• Assessment: Given the United Kingdom’s claimed “pioneer role”, reliance only on academic studies, two of which do not relate to the United Kingdom and an approach to those studies which appears to rest on the principle that unconvicted individuals will commit criminal offences, do not appear sufficient to justify retention periods which do not appear to be in conformity with the Court’s judgment.
• The authorities’ comments in this respect would be useful.
g) Proposed action for samples and profiles taken prior to the judgment:
There is a total of around 850 000 “legacy” profiles on the database. For around 350 000 of those it is clear that individuals were convicted or acquitted. Of the profiles where the status of the individual is clear, the United Kingdom proposes to apply retrospectively the retention periods set out in the consultation paper (see sections c and d above). There are around 500 000 profiles for which it is unclear if the individual was convicted or acquitted. No decision has been taken yet on the fate of these profiles. The United Kingdom authorities believe it is possible that some of these profiles may be linked with criminal records but they are unable to check this easily. Further research is being done to establish whether it is in fact possible to cross-reference this information or whether all 500 000 profiles should be deleted.
• Assessment: as it seems that the proposed retention periods are disproportionate, particularly in relation to non- serious offences, the retrospective application of those retention periods to legacy profiles would be equally inappropriate.
• Further information is awaited on the measures proposed to deal with the 500 000 profiles which cannot be linked to a police record.
h) Proposals in relation to the retention of fingerprints:
The proposals for retention of fingerprints are the same as those for the retention of DNA profiles. Fingerprints will be retained for 6 years for any recordable offence and 12 years for more serious offences.
There is no mention in the consultation of any review procedure available in relation to the retention of fingerprints. The European Court stated that “...because of the information they contain, the retention of cellular samples and DNA profiles has a more important impact on private life than the retention of fingerprints. However, the court ... considers that ...in determining the question of justification, the retention of fingerprints constitutes an interference with the right to respect for private life“ (§86). Further, the Court’s finding of a violation relates equally to fingerprints as to DNA samples and profiles.
• Assessment: In the light of the above, the assessments set out in response to the proposals on retention of DNA samples and profiles are also applicable in relation to fingerprints.
The authorities' comments in this respect would be useful.
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The Deputies decided to resume consideration of this item at their 1072nd meeting (December 2009) (DH), in the light of information to be provided on general measures.
(The extract above comes from a document describing the current state of execution for all pending cases against the UK (pdf). Links to reference material have been added.)
What's next? The government will likely announce a new bill in the Queen's Speech on 2009-11-18. The ultimatum to the Association of Chief of Police Officers to withdraw its DNA retention guidance to chief constables, sent by the Equality and Human Rights Commission, expires next week as well. And, the Committee of Ministers will conduct another progress assessment at its December meeting, three days short of the first anniversary of the ruling in S & Marper v. UK.
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