Big Brother or crime fighting? DNA evidence under the microscope
10 October 2011
A proposal to retain DNA samples taken from people who have been arrested but not charged with a crime for up to five years has come under criticism from the Joint Committee on Human Rights.
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
Read more:
- 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
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It’s a slippery and dangerous road that holds that “criminals” give up certain rights. For example, such a view could lead to criminals being used as compulsory experimental units by the medical profession as a means of repaying the debt they owe to Society. So-called criminals are human beings first and foremost. Attaching a label of “criminal” to them condemns them for life and denies them the opportunity to change.
Ownership (of DNA) is one thing, many would concur that being a criminal abrogates certain rights – yet the rest of the world manages with far fewer on it’s National DNA databases than Britain. 5 years is excessive, given that “cold hits” are long surpassed and the likelihood of catching notorious murderers long past. The main concern is with deletion. The process must be independently verified and transparent, who now believes the police?
Even those who have been convicted should have a right of respect for their private and family life. I say this despite he risk of being accused of being a “human rights zealot”.
Retention of DNA, whether or not someone is convicted, opens up the path to a totalitarian state. If DNA is taken following an arrest, once it has been checked against DNA found at cold case scenes of crime it should be destroyed. There is little logic for retaining the DNA of a convicted TV licence dodger on the ground that the same person is likely to commit serious crimes later on. Such an argument is paranoid and irrational.
It is difficult to see what can be more private than one’s DNA. What guarantees will there be that the State will not misuse or abuse this information? Will the Data Protection Act’s subject access provisions apply so that individual data subjects may retrieve details of their own DNA? Currently, the DPA is stacked against subject access in relation to personal data held for the detection and prevention of crime. The prospect of the State knowing more about me than it permits me to know about myself appals me. That inevitably alters the balance of power between individual and State in favour of the latter.