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Thursday, December 04, 2008 

The European Court of Human Rights rides to the rescue, again.

It's indicative of how disjointed the debate in this country often is on crime and punishment that it's taken the European Court of Human Rights to tell us that the retention of the fingerprints, cellular samples and DNA profiles of those never charged or convicted of any crime is not just unwarranted and untenable but also immoral. The House of Lords, which usually acquits itself fairly well on such matters, rejected the appeal by the two men from Sheffield with little of its usual flair or insight. The ECHR's unanimous decision by 17 judges that the policy breaches Article 8 of our own HRA could hardly be more authoritative.

The difficulty with the keeping of such profiles has always been that no one argues with the potential that the DNA database has for solving crimes where justice has previously not been done. The case of Mark Dixie, to mention just one example, who was arrested after a disturbance in a pub and had his saliva and fingerprints taken as a result, led to his being convicted of the murder of Sally Anne Bowman, a case which might have otherwise remained in limbo. There is still more than justification, I feel, for all those arrested to provide samples which can then be checked against unsolved crimes. The question is what, if there are then no matches, should be done if no charges are brought or after a certain length of time has elapsed with the person not re-offending.

The review which the Home Office is having to set-up to provide an answer to the court, due to report back in March, might well begin to provide some answers. It ought, for example, to be fairly easy to remove the data of those who are either not charged or who are subsequently found not guilty from the database once the full facts become known, just as information from those under 16 ought to be dealt with in an entirely different matter. Yet as Afua Hirsch writes, the database and systems used are disparate and confused, where it can be impossible to learn whether simple requests for the destruction of the material held have actually been met. Likewise, with the information that is apparently held on the database, it ought to now be fairly easy to contact those who have their information held who have never been charged or subsequently acquitted and ask them whether they wish for it to be destroyed, or whether they have no problems with it being kept. Again, with the general incompetence that this government has involving both databases and the retention of information, it's impossible to imagine this happening.

Like with the way it has conducted itself on many other issues involving civil liberties, the government and the police have wanted to create an almost all encompassing database by relative stealth. The only individuals, for instance, to have advocated a full database of everyone's details have either been victims of crime or certain honest individual senior police officers and judges. The change to taking samples from everyone, whether they were charged or not, was the way of getting around a huge row which the government wasn't going to be about to have. This compromise kept everyone apart from Liberty and the Henry Porters of this world relatively happy, until they themselves had the misfortune to be arrested or come into contact with the police and they themselves were subject to the data harvesting, which we are informed even Damian Green underwent.

Recent developments in any event ought to have knocked the idea of the all encompassing database on the head: techniques are now used to match DNA to relatives rather than individuals, and with 33% of those under 35 having a criminal record outside of motoring offences, it's only a matter of time before such a database will have coverage of 80 to 100% of the population. Even less reason then for every innocent individual to have their personal samples stored.

If the government was anywhere near where it ought to be on such matters, it could adopt Germany's current model on the holding of samples: samples are destroyed if they are no longer required for criminal proceedings, those on the database are reappraised every 10 years to see if they are still relevant, and only federal state investigators rather than ordinary police forces have access. Instead, if the government decides not to try to legislate its way out its mess, and even that would be subject to challenge, it will probably grudgingly try to implement the more haphazard approach identified above. All we have to look forward to now are the screams from the Sun of unelected European judges interfering with our laws, yet again...

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The Sun's report was actually neutral on this decision and most of the readers' comments supported the decision.

Oddly the Sun doesn't mention it at all in their "Sun Says" coloumn.

One of the ironies regarding this is that in Scotland there has been a much more restrictive approach to retention of DNA. If convicted the DNA has been retained. If not, then the DNA sample has been destroyed. The government that implemented that policy? The Labour-Lib Dem coalition (initially under Jim Wallace, then under the subsequent LAbour justice ministers). The policy has been upheld by the SNP. That the Scottish labour party did not try to expand the database may be down to the operation of coalition politics, or down to the devolution framework itself. The Scottish government and Scottish Parliament is bound by the ECHR. Any act they take which is contrary to the ECHR is ultra vires and could be struck down. To that end the government lawyers take an ultra-cautious approach on a variety of issues to ensure the government does not run the risk of court actions and challenges.

Perhaps if we had a HUman Rights ACt with teeth (rather than the preposterous declaration of incompatibility), or a proper written constitution incorporating the convention, the legal advisers for UK government departments might take a similar approach.


D-Notice: They seem to have been distracted by putting the boot into Karen Matthews.

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