In December 2008, the European Court of Human Rights (ECtHR) found the UK was was in breach of the human rights of innocents when keeping their DNA and associated records. For the million or so innocents on the National DNA Database, the situation is still the same. Police and the courts can ignore the ECtHR ruling. To get off the DNA database, innocents have to follow the exceptional case procedure with limited chance of success. New legislation, which may eventually put an end to the breach and prevent any further violation in the future, is now scheduled for late 2011.
Two years ago, a unanimous grand jury at the ECtHR concluded:
[T]he Court finds that the blanket and indiscriminate nature of the powers of retention of the fingerprints, cellular samples and DNA profiles of persons suspected but not convicted of offences, as applied in the case of the present applicants, fails to strike a fair balance between the competing public and private interests and that the respondent State has overstepped any acceptable margin of appreciation in this regard. Accordingly, the retention at issue constitutes a disproportionate interference with the applicants' right to respect for private life and cannot be regarded as necessary in a democratic society.
This judgement was final and the UK must abide by ECtHR judgements by (as succinctly put by the Joint Committee on Human Rights):
The previous government dealt immediately with the obligations of reparation and to make just satisfaction, but there still has been no effective progress on the obligations of cessation and non-repetition. For some more details about these obligations see Don't delay: Delete your DNA today. For more on the previous government's response see Home Office still wants your DNA profile, and your PNC record; its last proposals received royal assent in the Crime and Security Act 2010 but none have come into force.
The current government promised it will follow the Scottish approach (explained in Adopting the Scottish approach to DNA retention) to change the rules for DNA retention.
Domestic law unchanged until changed
A recently-published High Court ruling from July ( EWHC 2225 (Admin)) explored whether the police and courts are bound by the Strasbourg ruling or whether they should follow the earlier House of Lords ruling:
It is contended that the continuation of the policy upheld in the House of Lords but successfully impugned in Strasbourg is itself proportionate and legitimate. That temporary maintenance of the policy, so it is contended, affords a legitimate period of time in which the domestic law can be changed. But as the claimants point out, neither the Commissioner nor the Secretary of State as members of the executive can speak for the legislature. There can be no certainty as to when or what, or even whether legislation will be passed or, if it is passed, what it will contain by way of measures relevant to the retention of biometric samples and the time during which those samples can be held. This case must be judged, so the claimants contend, on the basis of the policy as it has been applied to them. Certainly, this case must be judged in the light of the question as to whether the decision of the House of Lords binds this court in the conclusion it reaches.
Lord Justice Moses ruled that 'this court is bound by the decision of the House of Lords. The doctrine of precedent and the legal certainty which that doctrine protects demands that this court follows the decision in S and Marper.' Until something changes domestically, nothing changes for all those on the DNA database.
Chief constables have continued to follow the Association of Chief of Police Officers (ACPO) guidance about DNA retention, the 'exceptional case procedure', which applied before the decision of the ECtHR. Chief constables will continue to do so until new legislation is introduced. A flow chart illustrating how a case is deemed exceptional is included in Innocents are exceptional.
Lord Justice Moses granted permission to appeal directly to the Supreme Court. In the ruling he has 'not expressed any view on the underlying merits' and the outcome of the case when it goes back to the House Lords (now the Supreme Court) is 'far from a foregone conclusion':
No one can properly predict the conclusion that the Supreme Court might reach. It is far from a foregone conclusion. In particular the Supreme Court will have to consider the relevance of the government's contention that continuing the policy at the moment is merely temporary, pending the introduction of new legislation, which will take into account the decision of the European Court of Human Rights and their contention that time should be given to make such changes in an area of great public concern, where legitimate views as to retention and use of biometric data may differ.
Political reform and campaigning
In July as well, the government announced in its Political reform draft structural reform plan (pdf) that it will use its Freedom Bill to implement its agenda to '[r]estore the rights of individuals in the face of encroaching state power, in keeping with Britain’s tradition of freedom and fairness'. Changing the law on DNA retention is part of this civil liberties agenda:
Implement Freedom Bill to adopt the protections of the Scottish model for the DNA database, outlaw fingerprinting of children at school without parental permission, further regulate CCTV, restore rights to non-violent protest, and consider additional areas in response to ideas from Your Freedom website
Start: Jun 2010. End: Nov 2011. Lead: Home Office. Milestones: Freedom Bill passed Nov 2011
November 2011 is later than many campaigners had hoped for. That gives you, dear reader, plenty of time to lobby your MP. Of particular concern is whether when a DNA profile will be deleted, the associated Police National Computer (PNC) record will be deleted as well. This has happened so far under the exception case procedure, however the police had successfully lobbied the previous government to change this practice. The position of the coalition government on this issue remains unclear.
A response from the Ministry of Justice to the Joint Committee on Human Rights (pdf) dated from July (busy month) suggests, for the first time, that the government may in the interim bring into force some of the sections of the Crime and Security Act 2010, which received royal assent under the previous government:
The Government also intends to bring the retention of historic samples and profiles into line with the judgment of the Court as soon as possible. A number of potential options to do this as soon as possible are being explored, including commencing some or all of the DNA provisions of the Crime & Security Act 2010 where that would assist us in achieving early implementation of our policy objectives and the judgment in S & Marper.
One uncontroversial section, which could be commenced immediately, is section 64ZA about the destruction of the physical DNA samples stored in private labs' freezers as soon as a DNA profile has been derived from the sample, or if sooner, before the end of the period of 6 months beginning with the date on which the sample was taken. Such a measure would be welcomed by anyone on the DNA database and would reduce some of the costs. The only voice I have every heard opposed to this measure has been from someone working for a private lab having a direct financial benefit in the status quo.
While successive governments work out their intentions, the law and policies have remained the same and it continues to be extremely difficult for innocents to get off the National DNA Database. For help to get off, check out the Reclaim Your DNA website created by GeneWatch UK and other organisations as official help is lacking.
Bootnote Hat tip to Matthew Hill and Adam Wagner at the UK Human Rights Blog for their respective posts Courts entitled to ignore European Court decision on DNA and fingerprint retention and Courts entitled to ignore European DNA and fingerprints ruling… for now on the High Court case.
Correction: The number of innocents who have their DNA profile on the DNA database was incorrect when first published. (Thanks to ML for spotting this mistake.)
First published on 2010-09-01; last updated on 2010-09-02.