The committee has been reviewing the Protection of Freedoms Bill for its compatibility with human rights (see our post: Protections of freedom bill under scrutiny and the Committee’s conclusions). The retention of DNA has long been a hot topic.
On the one hand, many people feel strongly that retention of something as personal as someone’s genetic code should never be done when the person has not been convicted of a crime. As DNA analysis gets more advanced, it can reveal increasingly large amounts of information about a person.
However, those in favour of the practice of retaining DNA point out that retained DNA is used to solve serious crimes, and those who do not go on to commit crime have nothing to fear.
Ethnic minorities are often most seriously affected by the retention of DNA, raising the question of whether the practice is itself discriminatory.
The Joint Committee has stated:
Under the Bill, DNA profiles and fingerprints taken from innocent people arrested but not charged will be retained in “prescribed circumstances” for up to 5 years. The committee concludes that in some cases this may create a significant risk of incompatibility with the right to privacy and calls for further evidence that this approach is justifiable.
As we have reported, in May 2011 the Supreme Court ruled in R (on the application of GC) (FC) (Appellants) v The Commissioner of Police of the Metropolis (Respondent). The majority found that they could interpret the DNA retention provision in the Police and Criminal Evidence Act (PACE) in such a way that it would be compatible with article 8 of the ECHR – see Rosalind English’s analysis.
Article 8 of the European Convention on Human Rights seeks to ensure respect for private and family life, and it is this right which the Joint Committee fears may be infringed. Whilst it welcomes many of the measures in the bill, on DNA it concluded:
Our predecessor Committee accepted that the Scottish model for retention of DNA samples and profiles taken from innocent people and children is more likely to be proportionate than the measures in the Crime and Security Bill 2010. We agree. In so far as these measures are designed, in comparison, to create a less intrusive mechanism for the retention of biometric material, we welcome the Government’s proposals. (Paragraph 10)
The Committee’s main issue with the proposals is that it provides too much discretion to Chief Officers:
We particularly welcome the decision to allow the Commissioner to overturn decisions on retention for national security purposes. Unfortunately, in the light of the proposed discretion being granted to Chief Officers in practice, we remain concerned about the limitations in these proposed new safeguards
- Protections of freedom bill under scrutiny
- The coalition’s quiet legal revolution?
- Protection of Freedoms Bill Published. Magna Carta Unfazed. – Dr Cian Murphy
- For a detailed analysis, see Obiter J: A look at the Protection of Freedoms Bill – No.1, No. 2 – Public Reading Stage, No. 3, No. 4, No. 5, No.6 and No.7
- DNA case analysis: the mystery of the missing purpose