Aaronovitch on that JRF report
Aaronovitch seems to ignore S & Marper v UK, which is cited by the FIPR’s report. What need for the FIPR report to repeat the detail?
Well, perhaps they should have because it seems Justice Ministers and journalists don’t do footnotes.
I quote from the judgement, with my emphasis in bold:
118. The question, however, remains whether such retention is proportionate and strikes a fair balance between the competing public and private interests.
119. In this respect, the Court is struck by the blanket and indiscriminate nature of the power of retention in England and Wales. The material may be retained irrespective of the nature or gravity of the offence with which the individual was originally suspected or of the age of the suspected offender; fingerprints and samples may be taken – and retained – from a person of any age, arrested in connection with a recordable offence, which includes minor or non-imprisonable offences. The retention is not time-limited; the material is retained indefinitely whatever the nature or seriousness of the offence of which the person was suspected. Moreover, there exist only limited possibilities for an acquitted individual to have the data removed from the nationwide database or the materials destroyed (see paragraph 35 above); in particular, there is no provision for independent review of the justification for the retention according to defined criteria, including such factors as the seriousness of the offence, previous arrests, the strength of the suspicion against the person and any other special circumstances.
Blanket, indiscriminate, irrespective of the offence, indefinite, limited possibility of removal, no provision for independent review.
That is what makes the system unlawful under the Convention.
Aaronovitch asks how the system should be improved.
The clues are surely implicit in the judgement: discriminate according to the nature of the (suspected) offender and the offence, time-limit the retention, improve the possibility of removal, provide for independent review.
The judges even gave us an example “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).”
And guess what, it’s in the UK: Scotland.
Not too far to go for some lessons on how to run a legal system.
36. Under the 1995 Criminal Procedure Act of Scotland, as subsequently amended, the DNA samples and resulting profiles must be destroyed if the individual is not convicted or is granted an absolute discharge. A recent qualification provides that biological samples and profiles may be retained for three years, if the arrestee is suspected of certain sexual or violent offences even if a person is not convicted (section 83 of the 2006 Act, adding section 18A to the 1995 Act.). Thereafter, samples and information are required to be destroyed unless a Chief Constable applies to a Sheriff for a two-year extension.
What’s wrong with discriminating between the innocent and those who have been found guilty of committing a crime? What’s wrong with discriminating between different offences?
Why would in Aaronovitch’s words, “a just society … surely regard it as “proportionate” to treat everyone in the same way”? Surely it is disproportionate to treat shoplifters the same as murderers?
A spent conviction is a conviction, which under the terms of Rehabilitation of Offenders Act 1974 can be effectively ignored after a specified amount of time.
The amount of time for rehabilitation depends on the sentence imposed not on the offence.
If you were 17 or under when found guilty the rehabilitation period is usually half the time if you were 18 or over.
What’s wrong with discrimination in this context?