Questions and answers on retention of samples in light of recent ruling
The Telegraph does OK except for a couple of points:
Can the Government ignore the judgement? Yes – but it is highly unlikely to do so as it will invite thousands of challenges from others on the database. English courts are likely to copy the precedent set by the judges in Strasbourg.
The Government is legally obliged to comply with the judgement – as David Mery has pointed out, “the judgment of the Grand Chamber is final (article 44 in Protocol No 11) and the UK by being a signatory of the European Convention of Human Rights (ECHR) undertakes to abide by the final judgment (article 46 in Protocol No 11).”
Can it order the DNA to be taken from everyone in the country? Yes. Taking the DNA of everyone over the age of 10 (the age of criminality) would stop discriminating against the innocents. This would be highly unpopular though.
the 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. [my emphasis in bold]
So I have no idea why the writer thinks the retention of samples from every innocent individual in the UK would be any less “blanket”, “indiscriminate”, “balanced”, “disproportionate”, and more “necessary”, than the current situation. If anything, surely it would be even worse, in the eyes of the court?
How the Government will comply remains to be seen. But Jack Straw said yesterday,
[the judgement] goes on to suggest that distinctions should be made between the nature of offences for which samples have been taken, and discusses whether they should be time-limited and whether there should be an independent review. Those matters will be considered by my right hon. Friend the Home Secretary in consultation across Government. We have an obligation to report initially to the Council of Ministers and the Council of Europe by March.
Although as the Guardian says,
The implications are not yet clear. However, the fact that the violation has been caused by legislation in England and Wales – in this case the Criminal Justice Act 2001, which provides for DNA to be taken from all suspects of crime – suggests legislative change will be required to comply with the judgment.
It is easier to comply with judgments when they involve policy. In Smith and Grady v UK in 2000, the Ministry of Justice ban on homosexuals joining the armed forces was found to be a violation of their rights. The policy was changed by a new code of conduct, introduced the same year, which outlawed dismissals on the sole ground of sexual orientation.
However, in cases where the law was the problem, the government’s response has been varied. 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.