In the S and Marper v. UK case, compliance by the UK government with the European Court of Human Rights ruling is supervised by the Committee of Ministers (CoM) of the Council of Europe. (See Sentenced to genetic probation for a complete recap of what happened in the six months since the ruling.) In January, the Home Office provided information to the CoM about the general measures it intends to implement to prevent new violations, similar to that which happened to S and Marper, from occurring and end 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".
This article introduces the full text the Home Office sent to the CoM about the general measures, the meeting notes of the CoM meeting that reviewed this information as well as an excerpt from the information sent by non governmental organisations (NGOs) to the CoM. The tone and level of details of these three documents is very different.
The Home Office's letter is very brief and high-level. The one information it reveals is the composition of the implementation group established by the Home Office to advise it on these general measures. Unsurprisingly, there's a strong presence from both government and police, and no-one from NGOs. More peculiar is that there's no representation from either the National DNA Database Strategy Board (at least from its independent members), which provides governance and oversight of the operation of the NDNAD, or the National DNA Database Ethics Group, an advisory Non Departmental Public Body (NDPB), established to provide independent advice on ethical issues related to the NDNAD to Home Office Ministers and the strategy board.
The minutes from the CoM mostly takes note of what it was sent by the Home Office but also adds some salient data. The minutes record that the CoM will postpone decisions to later this year when it will receive more information on the outcome of the Keeping the right people on the DNA database consultation and on the progress of the Policing and Crime Bill. The letter from the NGOs is the most extensive and practical, suggesting some immediate interim steps.
When we requested from the Home Office the document describing its response to the general measures, it initially failed to respond and then wrote that this document is in the public domain as the CoM has the authority to publish it. The Home Office has since apologised for these mistakes. The Secretariat of the Committee of Ministers was prompt in sending us a scan (TIF) of the one page document. Here's a text version converted with OCR:
Deputy Permanent Representative of the United Kingdom to the
Council of Europe
NOTE FOR COMMITTEE OF MINISTERS: S AND MARPER CASE
3. Publication: the full text of the judgment is available on the Home Office webpage for police powers and procedures
A Summary of the Case has been published in The Times Law Report on 8 December 2008
A summary of the case has been reported on Lawtel (an online legal information service) with reference LTL 411212008, document no AG 0003290, also containing a link to the judgment
An article Reversal of fortune by Timothy Pitt-Payne is in the New Law Journal (N.L.J. 2009, 159(7352), 5253).
A link to the case is also available on the website of the British and Irish Legal Information Institute. See: http://www.bailii.org/cgi-bin/markup.cgi?doc=/eu/cases/ECHR/2007/110.html&query=marper&method=boolean
4. Dissemination: the link to the judgment has been circulated to chief officers of police and to chief crown prosecutors.
5. Other general measures: The Government intends to hold a public consultation on the retention policy for biometric information taken in criminal investigations and the measures and options available to implement the Court's judgment.
The Government has established an Implementation Group to consider the measures required to implement the judgment, the options available and the impact of those options, which will inform the public consultation exercise. The Group consists of representatives from Government Departments at the Home Office, the Ministry of Justice, the Northern Ireland Office, the Attorney General's Office and the Crown Prosecution Service; representatives from the Scottish Government; representatives from the Association of Chief Police Officers, the Police Federation and the National Policing Improvement Agency; and representatives from the Association of Police Authorities.
The Group will report their findings to Ministers for consideration of the content of the public consultation exercise. It is aimed to conduct the public consultation during summer 2009 over a period of three months.
Steps have been taken to remove samples and profiles for persons under the age of 10 years old from the National DNA Database.
Policing Powers and Protection Unit
19 January 2009
The information sent by the Home Office was initially scheduled to be reviewed at the March meeting of the CoM, but this was rescheduled to its June meeting:
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
1) The DNA database: The United Kingdom authorities confirmed that steps have been taken to remove the samples and profiles for children under the age of 10 from the National DNA database (10 being the age of criminal responsibility in the UK).
• Information from the House of Commons Library - Standard Note SN/HA/40409 of 09/04/2009 [pdf]: As at 01/01/2009 there were 5 140 940 profiles on the National DNA database for an estimated 4 457 195 individuals. Of those, 96 profiles belonging to children aged under 10 were deleted. As at 05/03/2009 there were no profiles of children under 10 on the database.
As at 31/03/2008, 857,366 people with profiles on the National DNA database had no record of a criminal conviction according to police records.
2) Public consultation: The United Kingdom authorities confirmed that they will hold a public consultation on the measures and options available to implement the European Court’s judgment. The consultation will be open for three months during the summer of 2009.
The government has established an Implementation Group to consider the measures required to implement the judgment, the options available and the impact of those options. The Group consists of representatives from the Home Office, the Ministry of Justice, the Northern Ireland Office, the Attorney General’s Office, the Crown Prosecution Service, the Scottish Government, the Association of Chief Police Officers, the Police Federation, the National Policing Improvement Agency and the Association of Police Authorities. The Group will report their findings to government ministers for consideration in relation to the content of the public consultation.
• Information is awaited on the progress of the consultation.
3) Policing and Crime Bill: The Policing and Crime Bill was debated in the House of Commons, in Committee (a select group of MPs) on 26/02/2009. The Bill is not yet law. In that debate, the government proposed the inclusion of three new clauses which would amend the Police and Criminal Evidence Act 1984 and the Police and Criminal Evidence (Northern Ireland) Order 1989 to give the Secretary of State the power to make regulations governing the retention of fingerprints and DNA. These clauses will be the legal basis for any regulations that the government makes following the public consultation. During the debate, the clauses were strongly criticised by MPs as the powers they create mean that any regulations made following the consultation will be passed as secondary legislation under the “affirmative resolution procedure”. This means that parliament will not be able to debate the content of the regulations but only vote to adopt or reject them in their entirety without time allocated for a full parliamentary debate.
• Information is awaited: on the progress of the relevant clauses in the Policing and Crime Bill.
4) Publication and dissemination: The judgment was widely published in the legal press and on the Home Office website. It was reported inter alia in The Times Law Reports on 08/12/2008, Lawtel Ref LTL 4/12/2008 and the British and Irish Legal Information Institute. The judgment was disseminated to chief police officers and to chief crown prosecutors.
The Deputies decided to resume consideration of this item at the latest at their 1072nd meeting (1-3 and 4 (morning) December 2009) (DH), in the light of information to be provided on general measures.
Non governmental organisations GeneWatch UK, Liberty, Privacy International, Actions on Rights for Children, and No2ID sent a detailed five-page joint letter to the CoM in April (.doc). It concludes with the following suggestion:
We note that the Committee of Ministers may adopt interim resolutions, notably in order to provide information on the state of progress of execution or, where appropriate, to express concern and/or to make suggestions with respect to the execution of the judgment (Rule 16). We also note that where supervision of the execution of a final judgment is hindered by a problem of interpretation of the judgment, the Committee may refer the matter to the Court for a ruling on the question of interpretation (Rule 10).
In the light of our concerns, we respectfully urge the Committee to consider adopting an interim resolution covering the following matters:
- The need for the implementation of minimum safeguards in primary legislation in a timely manner, providing for immediate automatic removal of records from the majority of unconvicted persons;
- The need for strict time limits on retention following acquittal for data from any category of persons considered to be exceptional, alongside clear justification for such exceptions, judicial oversight, and a procedure for appeal;
- The need for a presumption in favour of removal of the data of unconvicted persons, not a requirement for individuals to petition for removal case-by-case;
- The need for clear rules which avoid the potential for abuse and arbitrariness;
- The importance of the Court’s particular concerns in relation to minors;
- The need for consultation on more detailed rules and safeguards.
In our view, the setting of minimum safeguards to protect the right to privacy in a timely manner would not preclude or obviate the need for timely consultation on more detailed matters. Large numbers of innocent people with records on the relevant databases are currently awaiting deletion of their data, and are looking to the Council of Europe to assist the UK Government in its interpretation of this important judgment.
The CoM decided not to adopt an interim resolution at this meeting and will reconsider how the Home Office complies with the European Court ruling later this year. You have until 2009-08-07 to respond to the Home Office consultation.