THE announcement this week that the European Court of Human Rights has come down on the side of the anti-DNA lobby is very significant.
It is unfair to characterise everyone against this particular system as being opponents of the use of DNA in general – it is like saying someone is a pacifist if he opposes a particular war.
What opponents want is a fair system with some basis in law, not something that retains samples indiscriminately, indefinitely, and stores information about them on a database without a statutory footing.
The judges have said keeping the information of people not already convicted of a crime “could not be regarded as necessary in a democratic society.”
Of course it is not ‘necessary’ but it is highly desirable to the forces of law and order and to all potential victims of crime, that is, all of us.
But “desirability” isn’t enough, in law. We (the UK) are a signatory to the European Convention on Human Rights and that means that when we interfere with someone’s rights we have to satisfy the tests of “necessity” and “proportionality”. And, if you think about it, that makes perfect sense – otherwise the state could do what it liked, when it liked, with impunity, just because some people think it desirable.
Precedent suggest it’s a bad idea – indeed that is why we helped write the Convention.
The judges in this particular case found, in a 141 paragraph judgement, “that the that the 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.”
So the Government has been told to go away and make some changes. The court noted that,
109. The current position of Scotland, as a part of the United Kingdom itself, is of particular significance in this regard. As noted above (see paragraph 36), the Scottish Parliament voted to allow retention of the DNA of unconvicted persons only in the case of adults charged with violent or sexual offences and even then, for three years only, with the possibility of an extension to keep the DNA sample and data for a further two years with the consent of a sheriff.
110. This position is notably consistent with Committee of Ministers’ Recommendation R(92)1, which stresses the need for an approach which discriminates between different kinds of cases and for the application of strictly defined storage periods for data, even in more serious cases (see paragraphs 43-44 above). Against this background, England, Wales and Northern Ireland appear to be the only jurisdictions within the Council of Europe to allow the indefinite retention of fingerprint and DNA material of any person of any age suspected of any recordable offence.
Back to our correspondent:
As a result of the ruling a large number of people who were charged but not convicted, ie got away with an offence due to technical or other reasons,
Um, that’s an extraordinary thing to write: not convicted does not mean “got away with an offence”!
will enjoy the freedom to offend again without being detected as they might otherwise have been.
Of course, why bother with the courts at all? Obviously everyone who is charged is guilty… oh, except S, of course, in this case, and Marper, against whom the case was dropped. And hundreds of thousands of other people.
It is undeniable, therefore, that many people, who need not have become victims, will be hurt by crime committed by people who could have been caught through DNA records now to be destroyed. This is a sacrifice which must now be made to the modern deity of personal privacy.
So where do we go from here? The government must surely now consider introducing a universal DNA database to avoid the charge of discrimination.
Again, someone who hasn’t understood the judgement. The court found against the UK (well, the DNA database in England and Wales, as the Scottish system is different) because the sample retention is so indiscriminate, and “blanket”: samples are retained irrespective of the nature of the offence; they are retained indefinitely irrespective of the nature of the offence; they are retained if the suspect is acquitted or if the case is dropped; there is no provision for independent review; use of the samples is not regulated by statute (that is, there isn’t a law saying what can and cannot be done with them), except in limited cases.
(Also, while there is a statutory basis for taking and retaining samples, there is no statutory basis for the DNA database.)
Furthermore, it’s pretty clear from the judgement that a national database, with no changes relating to periods of retention or natures of offences, is out of the question.
Obviously there is little hope of that in the present economic and political climate but it should come about eventually because it would make such a difference to our personal safety and peace of mind. It is the only way another Yorkshire Ripper episode can be preempted.
To deny the police any DNA records, however obtained, is a retrograde step because the strongest deterrent to criminal behaviour is the likelihood of being caught.
But what is the likelihood of an offender being caught, and what is the likelihood of an innocent person being caught by mistake? To what uses can the samples be put, now and in the future?
It is all very well banging on about individual serial rapists and murderers, but hard cases make bad law, and we should have a reasonable evidence-based debate about any samples database: who should be on it, how to get off it, what we want it to do, what we don’t want to do, and who has access to it.
A recent article, written after the ECHR ruling on the DNA database, quoted a Guardian article that briefly outlined the approaches taken by the Government to human rights judgements that go against it, in particular contrasting Hirst v UK with Aslef v UK.
In Hirst v UK the court found that the general ban on prisoners voting in the UK was a violation of their rights. The government has made various proposals but, more than three years on, the law has still not been changed.
Legislative change happens more quickly when it is in tune with political will. Last year in Aslef v UK the court ruled that legislative change was needed to permit trade unions to expel members who belonged to the BNP or other political parties. Less than one year later amendments were linked to the employment bill, which is still going through the Commons.
The Joint Committee on Human Rights recently published a report, Monitoring the Government’s Response to Human Rights Judgements: Annual Report 2008, which looks at issues like this – and notes, disturbingly, that “there are a number of cases against the United Kingdom which have been outstanding for longer than five years”.
It seems that political expediency determines how and when a judgement will be responded to.
The Government published a response to the JCHR (318 Kb PDF) in January 2009. With regard to Hirst,
The Government remains committed to taking appropriate steps in respect of the judgement in Hirst, and to carrying out a second, more detailed, public consultation that takes account of the findings of the first stage consultation. The Government acknowledges that there has been a delay to the timetable originally envisaged for the conduct of that second consultation. The current intention is that the results of the first consultation will be published together with a second stage consultation document.
Since the judgment, [handed down in October 2005] the Government has kept the Committee of Ministers updated, including a detailed note in April of last year. A further brief update noting the Government’s position was submitted in October ahead of the December meeting of the Committee of Ministers’ Deputies. We will continue to keep the Committee of Ministers updated on our progress on this case, and have undertaken to submit further information in due course on the form and timing of a further consultation.
In implementing the judgment, the Government will need to take account of the wide spectrum of opinion on the issue, as well as the practical implications for the courts, for prison authorities and for the conduct of elections. The solution that we reach must respect the Court’s judgment, and must also respect the traditions and context of the United Kingdom. As noted in the April update, the Government will consider the outcome of the consultation and will bring forward legislation to implement its final approach as soon as Parliamentary time allows.
So far they have had three years and three months.
I am surprised that nobody has spotted the basic legal error in Assistant Commissioner Robert Quick’s letter to the Home Secretary, sent on Wednesday and published yesterday.
As I reported here on Wednesday, the police indicated on Thursday November 27 that they had been granted a warrant to search Damian Green’s office at the House of Commons. We then learned that no such warrant had been issued.
Why not? Either officers were advised that the district judge who granted the three other warrants had no power to permit a search of the House of Commons, I suggested. Or they had applied for a fourth warrant and were turned down by the court.
No, Mr Quick would have us believe. In his letter to Jacqui Smith, the assistant commissioner says officers did not seek a warrant because they thought that the Serjeant at Arms, Jill Pay, would allow Mr Green’s office to be searched.
This makes no sense at all, either as a matter of timing or as a matter of law. …