Last December the European Court of Human Rights decided in S and Marper v The United Kingdom that the retention by the State of DNA profiles is a breach of Article 8 of the European Convention on Human Rights. That is because information about people arrested for, or charged with, an offence but not subsequently convicted, is kept on the national DNA database for an unlimited period of time. The Government has accepted the judgment of the European court and announced that it will change the law to ensure compliance. But its proposed method of doing so is unsatisfactory and needs reconsideration.
The Government published a consultation paper on May 7 suggesting that the DNA profiles of people charged but not convicted should in future be kept for six or twelve years, depending on the seriousness of the alleged offence. The consultation period runs until August 7. The Government has rightly emphasised that this is a context, like so many others under the convention, where it is necessary to strike a balance between the rights of the individual and the protection of the public. The right to privacy may make it more difficult to detect dangerous criminals. There will inevitably be disagreements about where the balance lies, having regard to the point made by the House of Lords Constitution Committee that DNA profiles provide the State with large amounts of personal information about citizens that could, in the future, be used for malign purposes.
The immediate problem is that Clause 96 of the Policing and Crime Bill contains a provision that would confer power on the secretary of state to make regulations governing the retention, use and destruction of DNA and other material, such as fingerprints. If ministers are given a power to regulate these matters by secondary legislation, there would be a much reduced opportunity for parliamentary debate and scrutiny. There would be a short debate, after which the regulations could either be approved or rejected. It would not be possible for members of Parliament to table amendments for discussion and for such amendments to be put to a vote.
The committee stage of the Policing and Crime Bill began in the House of Lords last week. When peers debate whether the DNA database is a matter that ministers should be able to regulate by secondary legislation, they will wish to bear in mind that there are three particular aspects of the Government’s substantive proposals as set out in the consultation paper that will need the most careful debate.
The first is that the Government now suggests that the State should retain for up to six years the DNA profiles of adults who were arrested for, but not convicted of, an offence that was not serious or violent or terrorist-related. In Scotland there is no power to retain DNA material when a person is arrested but not convicted unless the offence is a serious one. The consultation paper does not refer to any evidence that this has caused any detriment to the fight against serious crime in Scotland.
The second matter of concern is that the Government proposes a 12-year period for retention of the DNA profiles of those arrested but not convicted in relation to serious, violent, or terrorist offences. That is much longer than the three-year period (and a possible two-year extension if a sheriff consents) that is authorised in Scotland. The evidence presented in the consultation paper to justify a period as long as 12 years is weak. Again, Parliament will need to debate this.
The third point is that the consultation paper proposes that in exceptional circumstances the DNA profile could be destroyed before the expiry of the six or twelve years period, on application to a chief constable, for example in cases of mistaken identity. Parliament should have the opportunity to debate whether there should be a right of appeal to an independent judicial body for deletion of the DNA profile.
The Joint Committee on Human Rights understandably concluded in a report published in April that it was “alarmed” that the substance of the Government’s proposals would not be contained in primary legislation and so subject to full parliamentary scrutiny. The joint committee “strongly urged” the Government to reconsider. The House of Lords Constitution Committee has also reached the similar conclusion that Clause 96 is unacceptable because unamendable delegated legislation will not provide a sufficient opportunity for parliamentary oversight and control. The Government should think again.
The author is a practising barrister at Blackstone Chambers in the Temple, a Fellow of All Souls College, Oxford, and a crossbench peer in the House of Lords