In the European Court of Human Rights 2008 decision S and Marper v the United Kingdom, in the course of finding unanimously against the UK, the court rejected the legitimacy of this country’s policy of indefinite retaining DNA samples taken from individuals that had not been convicted of any offence.
It was acknowledged that DNA profiles can of course help law enforcement, but, rightly,
"The only issue to be considered by the Court is whether the retention of the fingerprint and DNA data of the applicants, as persons who had been suspected, but not convicted, of certain criminal offences, was justified...”
The court went on to say that “weighty reasons” would have to be put forward by the UK before the enormous difference in treatment of the private data of suspected but unconvicted people, and that of other unconvicted people, would be justified. Having found that the UK had failed to provide such reasons, the court concluded that such retention is a disproportionate interference with the right to respect for one’s private life and cannot be regarded as necessary in a democratic society.
Typically, the UK government has made a show of accepting the validity of these criticisms and made some proposals in response, including allowing for the destruction of samples once they have been converted to digital profiles for storage. As the Court noted: "The retention of cellular samples is particularly intrusive given the wealth of genetic and health information contained therein."
However, on the key issue – the retention of profiles taken from unconvicted individuals, i.e. people vindicated by acquittal or even never charged in the first place – the proposals are entirely inadequate. By retaining profiles of unconvicted individuals for 6 or 12 years (the current “response” on offer), England, Wales and Northern Ireland would still be a much more intrusive environment than other Council of Europe members. Just over the border in Scotland, the state retains profiles only of those suspected of violent or sexual offences, for a period of 3‐5 years. When there is a strong consensus amongst the States contracting to the court’s judgments, it is always the view of the court that the margin of appreciation left to the respondent State is narrowed. Most other states already agree that what the UK does is entirely wrong. But our government seems determined to keep on doing it.
The current proposals would allow the Government to continue to treat innocent individuals as suspects by retaining their DNA profile for much longer than those, for example, who voluntarily provide samples to rule themselves out of enquiries. The Government attempts to provide some justification for this on the basis of a study by the Jill Dando Institute that made the startling claim that "the risk of offending following an arrest which did not lead to a conviction is similar to the risk of reoffending following conviction."
Unfortunately, as everyone will have seen last week, the much-maligned study (Cambridge statistician Professor Sheila Bird called it “a travesty of both statistical science and logical thinking”; the Guardian's science columnist, Dr Ben Goldacre, thought it "possibly the most unclear and badly presented piece of research I have ever seen in a professional environment") has been effectively disowned by the Institute. Quite right too. The Institute’s director, Gloria Laycock, stated that the research was not ready when it was published, and that they had had to produce it “in a terribly tiny timeframe, using data we were not given direct access to. That was probably a mistake with hindsight, we should have just said 'you might as well just stick your finger in the air and think of a number'.” There is something quite disarming about her honesty, but the poor quality of the work is really quite striking. The study makes 25‐year extrapolations from six years of reconviction data, and fails to take into account both the high percentage of crimes committed by a small number of persistent offenders and the possibility that the rate of arrest could be related to an individual being already present on a police database.
Anyway. We are now a year on from the decision and no fixed position has been reached by the UK Government. A pragmatic suggestion from Big Brother Watch would be the adoption of the Scottish system (which at least the court thinks is lawful) and then the Government can take even more time to research the area - if that time really is required.
