UK: Police can keep DNA of innocent people indefinitely

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  • The law lords have set a dangerous precedent by backing the demands of the state over individual privacy

The highest court in the land, in the House of Lords, ruled on 22 July that DNA samples taken from people who are not charged with an offence or who are acquitted can still be held indefinitely by police.

The court was hearing two test cases. The first by a boy from Sheffield who was 11 years old when he was arrested for attempted burglary in 2001. His lawyers asked for his fingerprints and DNA samples to be destroyed after his acquittal. The second case involved a man from Sheffield who gave a DNA sample when he was charged with harassing his partner - the case never came to court as the couple came together again and the woman decided not to press charges.He asked the South Yorkshire police to destroy the sample and fingerprints.

Peter Mahy, the solicitor representing the two people, said he was surprised that four of the five law lords found no breach of privacy (under Article 8.1 of the European Convention on Human Rights). He said that his clients hope to challenge the judgement in the European Court of Human Rights.

In July the UK Forensic Science Service announced that the number of DNA profiles on the national database had reach two million.

A history of non-compliance by police leads to changes in law

Before looking at the judgement in this case it is worth taking a look at the history of police powers to take and retain DNA samples.

Under the Police and Criminal Evidence Act 1984 (PACE) police could take body samples (DNA from mouth swabs) where people were suspected of having committed a "serious arrestable offence". The same law stipulated, in PACE, Section 64, that DNA samples taken from a "person who is not suspected of having committed an offence or is not prosecuted or is acquitted of the of the offence, the sample must be destroyed" and "cannot be used in evidence against that person or for the purposes of any investigation of an offence".

The first change to the law on DNA came in the Criminal Justice and Public Order Act 1994 which removed the test of "serious arrestable offence" for the taking of samples without consent. Instead samples could be taken from; i) those "in police detention or held in custody" if there were "reasonable grounds for suspecting involvement of that person in a recordable offence" (a much lower standard); ii) any person charged with a recordable offence; and iii) any person convicted of a recordable offence.

Although the scope of the law was widened in 1994 it was still based on the simple proposition that if a person was innocent - never charged or found not guilty of charges brought against them then fingerprints and DNA samples taken should be destroyed.

The next change came in 2001 when the Criminal Justice and Police Act amended Section 64 of PACE to allow fingerprints and DNA samples to be retained indefinitely where they "were taken from a person in connection with the investigation of an offence".

This change was prompted because it transpired that many police forces were not complying with the law as it stood by failing to destroy the fingerprints and DNA samples of those not charged with any offence or who were acquitted.

In the run-up to the new Act the Prime Minister, Tony Blair said: "I believe the civil liberties argument is completely misplaced. This is using technology to catch criminals" (31.8.00).

However, according to a report prepared for Her Majesty's Inspector of Constabulary (HMIC) published in July 2000, "Under the Microscope", "urgent action" was needed to remove from the national database those who had been arrested but not charged and those who were subsequently acquitted. The report estimated that: "perhaps as many as 50,000 may be being held on the database when they should have been taken off". This estimate was based on a 20% non-conviction rate but the report then admitted that in reality the figure "falling within ACPO's CJ sampling guidelines" was "over 45% not convicted" and the overall figure for those charged but not convicted for all offences was 33%. The true figure for the number of DNA samples which should have been removed was therefore not 50,000 but somewhere between 82,500 and 112,500 (evidence presented to the appeal in this current case suggested that between 128,517 and 162,433 DNA profiles are now being held where the parent PNC record has been deleted).

Under Home Office Circular no 16/95 and the Data Protection Act 1998 police forces were required to notify the National DNA Database (NDNAD) of all acquittals and "discontinuances" (where no charge is made). The report concluded that in the short term forces should comply with the law - which they never did - and that:

"perhaps the time has come to revisit the legislation to consider whether all samples.. should be retained on the NDNAD to provide a useful source of intelligence to aid future investigations."

The government acted to remove this embarrassing situation through the changes in Criminal Justice and Police Act 2001 by amending Section 64 of PACE. Where the scope for taking DNA was widened in 1994 the retention of all DNA samples from those innocent of any offence was made lawful in 2001.

The judgement by the "Lords of Appeal"

The appeal heard in the House of Lords on 22 July was based on the contravention of Articles 8.1 and 14 (discrimination) of the European Convention on Human Rights by retaining fingerprints and DNA samples.

Article 8: Right to respect for private and family says:

"8.1: Everyone has the right to respect for his private and family life, his home and his correspondence

8.2: There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others."

The main reasons for dismissing the appeal were given by Lord Steyn who opened by saying that:

"It is of paramount importance that law enforcement agencies should take full advantage of the available techniques of modern technology and forensic science... It enables the guilty to be detected and the innocent to be rapidly eliminated from enquiries... Making due allowance for the possibility of threats to civil liberties, this phenomenon has had beneficial effects"

In the Court of Appeal prior to this judgement Liberty had argued that DNA samples "potentially contain very much greater, more personal and detailed information about an individual" such as latent genetic illness or behavioural tendencies. In Lord Steyn's view this was not relevant as DNA was only used for criminal investigations with "rigorous safeguards" and that "the trial process ought to weed out such abuses" feared by Liberty.

Lord Steyn cites forensic expert Dr Bramley who gave evidence that the prevention and detection of crime is:

"not interpreted so widely as to allow general testing of the retained CJ scrapes (criminal justice) for medical conditions or susceptibilities and linking the results to a specific known individual"

While this is clearly the official police position on the use of forensics it might be asked in current climate of security fears whether in other circumstances the security and intelligence agencies have access to DNA profiles and whether they use them for different purposes?

Lord Steyn concludes that Article 8.1 of the ECHR is "not engaged" and:

"If I am wrong in this view, I would say any interference is very modest indeed"

When considering the legislation he concludes that:

"It is true that the taking of fingerprints and samples involves an interference with the individual's private life within the meaning of article 8(1) of ECHR. On the other hand, such interference for the limited statutory purposes is plainly objectively justified under article 8(2)"

In the previous decision by the Court of Appeal Lord Justice Sedley argued that:

"The power of a Chief Constable to destroy data which he would ordinarily retain must in my judgement be exercised in every case, however rare such cases may be, whether he or she is satisfied on conscientious consideration that the individual is free from any taint of suspicion"

Lord Steyn rejected this idea of a case by case evaluation as it would counter:

"the benefits of a greatly extended database and would involve the police in interminable and invidious disputes (subject to judicial review of individuals decisions) about offences of which the individual has been acquitted"

and he cites the contrary opinion of Lord Justice Waller in the same Court of Appeal who said that for DNA to be retained in no way stigmatises the individual as it is:

"simply that samples lawfully obtained are retained as the norm, and it is in the public interest in its fight against crime for the police to have as large a database as possible"

The appeal against discrimination, under Article 14, was also dismissed by the law lords. Here Lord Steyn cites Lord Justice Sedley approvingly where he says that:

"The line between those unconvicted people who have faced charges and those who have not, while not a bright line, is not arbitrarily drawn. It does not tarnish the innocence of the unconvicted in the eye of the law. But it recognises that among them is an indeterminate number who are likelier than the rest of the unconvicted population to offend in the future or to be found to have offended in the past."

The validity of this assertion is open to question, namely, that innocent people who come into contact with the criminal justice system are more likely to offend that the rest of the population and it is therefore legitimate to keep their DNA on file as a "suspect" group.

The other law lords sitting on the case gave their views too. Lord Rodger doubted whether there was a "greater cultural resistance in Britain than in other European countries to the collection and retention of data about individuals". However, he observed that:

"it may well be that, with their bitter experience of life under totalitarian regimes, people in some other European countries would nowadays be more concerned than people here about official files on individuals"

However, it might be observed that the reason people in central and eastern European countries would be "concerned" is that:

"Privacy is one of the basic values of human life and personal data is the main gateway enabling entry into it. The citizens of countries that experienced a period of totalitarian regimes have that a hard experience - when privacy was not considered of value and was sacrificed to the interest of the state" (Hana Stepankova, Czech Office for Personal Data Protection, 11.12.03)

And as the Canadian Privacy Commissioner, cited by Baroness Hale (below), says:

"The measure of our privacy is the degree of control we exercise over what others know about us"

Baroness Hale dissented from Lord Steyn’s view arguing that the "retention and storage of fingerprints, DNA profiles and samples" was an interference with Article 8.1. However, she concludes that this is overridden by Article 8.2:

"The whole community, as well as the individual whose samples are collected, benefit from there being as large a database as it is possible to have"

While Lord Brown said that:

"I find it difficult why anyone should object to the retention of their profile (and sample) on the database once it has been lawfully placed there"

The objections to this he found "entirely chimerical" (meaning a "fanciful conception" according to the Oxford dictionary) for example, the:

"fear of an Orwellian future, in which retained samples will be re-analysed by a mischievous State in the light of scientific advances and the results improperly used against the person's interest"

and he goes on to say:

"no such abuse is presently threatened and if and when it comes to be them will be the time to address it. Sufficient unto the day is the evil thereof"

and he goes on:

"it seems to me that the benefits of the larger database... are so manifest and the objections to it so threadbare that the cause of human rights generally... would inevitably be better served by the databases's expansion than its proposed contraction. The more complete the database, the better chance of detecting criminals, both those guilty of crimes past and those whose crimes are yet to be committed. The better chance too of deterring from future crime those whose profiles are already on the database"

Slide into authoritarianism?

Tony Bunyan, Statewatch editor, comments:

"This is a classic instance of the slide into authoritarianism where the privacy of the individual is subsumed, allegedly in the "interests of all", to the demands of the state. When the privacy of the individual is weighed against the interests of the state all five law lords come down on the side of the latter. Thus all want as large a DNA database as possible which, by extension, would be best served by covering the whole population.

Their lordships do not address the implications of their decision on the planned, "blanket" and compulsory, collection of biometric data for ID cards, passports and driving licences.

This case demonstrates the fundamental shortcoming of the law in protecting liberties and privacy. Providing data is "lawfully" collected there can be no objection whatsoever - but what if the laws themselves are contrary to the standards of a democratic society? What if the cumulative collection of personal data is such that democracy slides into authoritarianism and authoritarianism into totalitarianism?"

Sources: Guardian, 1 & 2.9.00; Independent, 1.9.00; "Under the Microscope", report for Her Majesty's Inspector of Constabulary, July 2000; Lords of Appeal, 22.7.04; Forsensic Science Service, July 2004; Daily Telegraph, 23.7.04. This "Viewpoint" first appeared in Statewatch bulletin, vol 14 no 3/4. Filed 5.9.04.

See also: UK: "Sleepwalking into a surveillance society?" - Information Commissioner

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