DNA Databases – A Challenge to the Law

This entry is cross-posted from pirateparty.org.uk.

The Supreme Court, Crown Copyright

Today the Supreme Court gave a long-awaited ruling on the subject of DNA databases and the ability of the police to store DNA samples of innocent people indefinitely. In a majority judgment (with two of the seven judges disagreeing) the Court ruled that the police practices were unlawful. Due to changes in the law being discussed by Parliament the judges did not go as far as ordering the police to change their practices within a certain time-frame or awarding compensation. It was, however, suggested that if changes were not made soon, further cases could be brought which were likely to succeed.

While this ruling does not mark the end of excessive police profiling, or of the police DNA databases, it is clearly a step towards a more balanced and proportionate system, and should be welcomed by all those who seek a fair and just policing system

PACE, Gathering Evidence and the ACPO Guidelines

The basic rules for what the police can and cannot do were set out by Parliament in the Police and Criminal Evidence Act 1984 (“PACE”), which received Royal Assent only weeks after DNA profiling was first reported to be possible. Section 64 (as enacted) of the Act made it clear that any fingerprints or samples taken by the police in connection with an investigation had to be destroyed “as soon as is practicable” after the suspect was released (either due to being acquitted, no charges being pressed or charges being dropped).

However, this restriction created some problems for the police, particularly in a high-profile rape case in 1998 where the defendant was initially acquitted as the crucial DNA evidence should have been destroyed before it was used to identify him. While the House of Lords reversed this decision this contributed to a change in the law. In 2001 the Criminal Justice and Police Act amended PACE to allow the police to keep samples indefinitely, at their discretion. Following this change in the law, the Association of Chief Police Officers (“ACPO”) released guidelines making it clear that DNA samples should be kept and only deleted in “exceptional cases”.

The First Round of Hearings

In 2001, “S”, a 12-year-old boy with no previous convictions, cautions or warnings, was arrested and charged with an attempted robbery. During his arrest fingerprints and DNA samples were taken, but following his acquittal, requests to have the samples destroyed were refused. Later that year, a 38-year-old “of good character” was arrested and charged with “harassment of his partner”. While the partner decided not to press charges and the CPS discontinued the case, the samples were again retained, despite requests to destroy them.

Both sought judicial review of the decisions to retain their samples, complaining that keeping them violated their right to respect for private life under Article 8 of the European Convention on Human Rights. The High Court and Court of Appeal both found that while there may have been an interference with their Article 8 rights, it was necessary and proportionate, so there had been no violation. In 2004, the House of Lords went further and ruled that there was not even an interference in the first place.

Eventually these cases went before the Grand Chamber of the European Court of Human Rights, which strongly disagreed. In its judgment the Court criticised “the blanket and indiscriminate nature of the powers of retention”, ruled that the UK had “overstepped any acceptable margin of appreciation” and made it clear that retaining the date was a “disproportionate interference” in individuals’ rights and could not be regarded as “necessary in a democratic society”. The Court awarded €42,000 in costs but refused to go any further.

A Change in the Law

Following this ruling, and reflecting the general attitude of the public, the Labour government attempted to change the law. The Crime and Security Act 2010 allowed for the creation of a “National DNA Database” and a “National DNA Database Strategy Board” to oversee it, including issuing compulsory guidelines about destroying samples of innocent people. However, these were never implemented and the Coalition Government made it clear that it had other plans.

These plans are reflected in the Protection of Freedoms Bill currently before Parliament, Part I of which currently introduces strict controls on the retention of DNA samples and fingerprints, bringing the situation more closely into line with the existing rules in Scotland. It is likely that this scheme will be implemented within a few months and will be compatible with the ECHR and Human Rights Act. However, this desire for change has not prevented the police from continuing to take and keep samples.

The Second Round of Hearings

In 2007, Gc voluntarily attended a police station where he was arrested or common assault on his then girlfriend. He claimed he was acting in self-defence and no injury had been caused. He was released without charge, but DNA samples and fingerprints were taken. In 2009, C, a “man of good character”, was arrested “on suspicion of rape, harassment and fraud”, allegedly on the basis of accusations by “a former girlfriend and members of her family”. All but the rape charge were dropped, and he was acquitted of that when no evidence was presented against him. In both these cases, the DNA samples and fingerprints were retained, despite requests otherwise.

In 2010, the High Court refused their applications for judicial review of the decision not to destroy the samples. In its ruling the Court noted that, despite the more recent judgment from the ECtHR, it was required to follow the binding decision of the House of Lords. However, in the circumstances they quickly allowed an appeal to the Supreme Court, which heard the case earlier this year, with the judgment being handed down today.

The Final Judgment

Unsurprisingly, there was little question of whether or not there had been a violation of Article 8 this time. The Supreme Court accepted the ECtHR’s ruling and all that was left was to decide how to act on this. Under the Human Rights Act, where a Court finds there has been a violation they have a number of options, including declaring the relevant law incompatible with the ECHR or finding a way to interpret the law in a compatible manner.

The police, and government, argued that the law – in this case, PACE, was incompatible and that the police were merely following the law, given them a complete defence. If the Court issues a declaration of incompatibility (as has been done in several cases), a process begins whereby Parliament can rapidly change the relevant law to bring it into line with the ECHR, but are under no obligation to do so. The claimants, despite winning their case, receive no compensation (as the defending public authority was acting in accordance with the law) and are only left with the option of taking their case to the Strasbourg Court – an expensive and time-consuming process.

However, in this case, the Court firmly rejected this option (with two of the judges dissenting). While PACE did allow for the indefinite retention of all DNA samples, the police and ACPO, as public authorities, are required to use this power in a manner compatible with the ECHR, something that is perfectly possible as the law says that they may retain samples, not that they must. Given that the law could be interpreted compatibly and it was not possible that Parliament could have intended otherwise when passing the law, it must have been that the ACPO guidelines were unlawful and they were declared to be so. Although ACPO and the police had some discretion, the guidelines went far beyond what was proportionate.

Despite this declaration, the Court declined to go any further, either in ordering samples to be destroyed or ordering that the guidelines be changed as it was for Parliament to decide what guidelines or level of retention was appropriate, not the Court (or the police). In concluding, however, Lord Dyson (giving the leading judgment) made it clear that “[i]f Parliament does not produce revised guidelines within a reasonable time”, further claims to have samples destroyed are “likely to succeed”.

Conclusion

While this may seem like an unimportant ruling, the Supreme Court has made it clear that, whatever may happen to the Protection of Freedoms Bill, the mass profiling of innocent people is on its last legs. If the police do not stop retaining large numbers of samples, without good reason, they will face increasing numbers of challenges in the Courts. Once again we have seen the vital role the Human Rights Act and European Convention on Human Rights play in protecting our freedoms from encroachment by either the police, or the government.

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