Bills drawn to the attention of both Houses
1 Crime and Security Bill
| Date introduced to first House
Date introduced to second House
Current Bill Number
Previous Reports
| 19 November 2009
Bill 3
|
1.1 This is a Government Bill which was introduced in the
House of Commons on 19 November 2009. The Secretary of State for
Home Affairs, Rt. Hon Alan Johnson MP, has made a statement of
compatibility under s. 19(1)(a) of the Human Rights Act 1998.
The Bill received its Second Reading on 18 January 2010 and began
its Committee Stage on 26 January 2010.
Purpose of the Bill
1.2 The Crime and Security Bill covers reform of a number
of areas of criminal and civil law and procedure relating to crime
and security issues. It contains provisions to reduce reporting
requirements in relation to police stop and search powers;[1]
provisions to reform the way in which fingerprints and samples,
including DNA samples and profiles, are taken and retained by
the police;[2] and provisions
to introduce new domestic violence protection notices and orders
designed to remove a suspected perpetrator of domestic violence
from contact with a suspected victim.[3]
Although we focus on these three issues in this report, applying
a higher significance threshold in order to enable us to complete
our work before the General Election, the Bill also includes provision
in relation to gang related violence, anti-social behaviour orders,
private security and wheel-clamping, prison security and air weapons
which may have human rights implications.
Explanatory Notes and Human Rights Memorandum
1.3 The Explanatory Notes contain a basic explanation of the
Government's view that the proposals in the Bill are compatible
with the European Convention on Human Rights.[4]
We received a letter from the Minister of State, Rt Hon David
Hanson MP, on the day the Bill was introduced. Although this letter
contained some basic arguments justifying the Government's policy,
it did not provide any further information on the Government's
view on human rights compatibility.[5]
We wrote to the Minister on 18 January 2010 to ask a significant
number of questions designed to clarify the Government position.[6]
We are very grateful to the Minister and his officials for his
prompt reply, which we received on 1 February 2010.[7]
It is unfortunate that the Home
Office did not follow the positive example adopted by other departments
during this legislative session, by providing us with a free-standing
human rights memorandum designed to supplement the Explanatory
Notes accompanying the Crime and Security Bill. In the future,
we would encourage all Bill Teams to follow this practice, which
we find reduces the need for further correspondence and enhances
the transparency of the Government's approach to the Section 19
statement of the Bill's compatibility with the European Convention
on Human Rights.
Significant human
rights issues
1.4 We identified three issues
in this Bill likely to raise significant human rights concerns:
(a) Compatibility of the Government's
proposals for the treatment of DNA and fingerprints with the right
to respect for private and family life guaranteed by Article 8
ECHR;
(b) Whether the proposal to reduce reporting requirements
in relation to stop and search provide an adequate safeguard against
the arbitrary use of those powers; and
(c) Whether the Bill strikes the right balance between
the State's positive obligation to protect women and children
against violence (Articles 2, 3 and 8 ECHR), including within
the home, and the rights of a person suspected of domestic violence
to respect for their home (Article 8) and to a fair hearing in
the determination of their civil rights (Article 6(1) ECHR).[8]
(a) DNA and fingerprint retention
(Article 8 ECHR)
1.5 The provisions of the Bill deal with two
separate issues: reform of existing statutory provisions on the
retention, destruction and use fingerprints and samples, including
DNA samples, and changes to police powers to take those samples.
We consider these two issues in turn, below. While we focus on
these issues, we note that a number of other human rights concerns
have been raised in relation to the proposals in this Bill. We
have chosen to focus on the compatibility of the Government's
approach to the retention of samples taken from innocent people
and children with the recent decision of the Grand Chamber of
the European Court of Human Rights in the case of S & Marper
v UK ("Marper") as well as new powers to take samples.
Our focus on these issues should not be taken as implying any
view about the validity or otherwise of other human rights concerns
that have been raised.
RETENTION, USE AND DESTRUCTION OF
SAMPLES (S & MARPER V UK)
1.6 We have been involved in lengthy correspondence
with the Government concerning its response to the decision of
the Grand Chamber of the European Court of Human Rights in the
Marper case, that the current blanket retention
of DNA samples and profiles of innocent individuals and children
on the National DNA Database (NDNAD) is disproportionate and in
breach of the right to respect for private life guaranteed by
Article 8 ECHR.[9] In that
well-publicised case, the Grand Chamber accepted that the extension
of the NDNAD had contributed to the detection and prevention of
crime. It considered whether blanket retention was proportionate
and struck a fair balance between the competing public and private
interests and concluded:
The Court is struck by the blanket and indiscriminate
nature of the power of retention in England and Wales. The material
may be retained irrespective of the nature or gravity of the offence
with which the individual was originally suspected or of the age
of the suspected offender; fingerprints and samples may be taken
- and retained - from a person of any age, arrested in connection
with any recordable offence, which includes minor and non-imprisonable
offences. The retention is not time-limited; the material is retained
indefinitely whatever the nature or seriousness of the offence
of which the person was suspected. Moreover, there exist only
limited possibilities for an acquitted individual to have the
data removed from the nationwide database or the materials destroyed…;
in particular, there is no provision for independent review of
the justification for the retention according to defined criteria,
including such factors as the seriousness of the offence, previous
arrests, the strength of the suspicion against the person and
any other special circumstances.[10]
1.7 We previously expressed our concern at the
Government's proposal to deal with its response to this judgment
by means of secondary legislation.[11]
While we commend the Government's acceptance that the breach of
the ECHR identified by the Grand Chamber in Marper must
be removed speedily, we have expressed our view previously about
the need for full parliamentary involvement in scrutinising and
debating the Government's proposed response.[12]
The Government
decision to provide for a full parliamentary debate on their reform
of the regime for police retention, use and destruction of fingerprints
and samples, including DNA samples is welcome. It is important
that Government proposals designed to respond to adverse human
rights judgments affecting Government policy are subject to proper
parliamentary scrutiny, either through the introduction of a remedial
order, where appropriate, or through a full debate on legislative
proposals introduced promptly to remove the breach.
1.8 In the Public Bill Committee,
the Minister was asked whether the Government's provisions removed
the breach identified by the Grand Chamber, so as to avoid the
need for further litigation and subsequent reform. He said:
We have obviously considered the judgment
and how far we can push the boundary of the judgment in relation
to our wish to have protection for the public.[13]
1.9 We have, on numerous occasions,
recognised that the Government has a responsibility and a positive
human rights obligation, grounded in rights such as the right
to life guaranteed by Article 2 ECHR and the right to physical
integrity in Article 8 ECHR, to implement responsible and proportionate
measures for public protection from serious crime.[14]
However, we are concerned at the Minister's statement that the
Government's approach is designed to "push the boundary"
of the Marper judgment in order to protect the public.
The protection of the public from crime is a consideration of
which the European Court of Human Rights has already taken full
account in arriving at its view of the proportionality of the
interference with Article 8 rights.
1.10 We continue to have significant
concerns about the human rights compatibility of the Government's
approach, which we outline below. We consider that it would be
irresponsible and potentially incompatible with the Government's
duty under Article 46 of the European Convention on Human Rights
to implement the judgment in Marper in a way which removes
the risk of future violations, if its proposals were purposefully
designed in a manner which would risk further litigation and continuation
of a violation identified by the Grand Chamber.[15]
This would not only lead to breaches of individuals' rights,
but would unnecessarily incur further public costs and increase
the workload of the European Court of Human Rights. We consider
that it is unacceptable that the Government appears to have taken
a very narrow approach to the judgment by purposely "pushing
the boundaries" of the Court's decision in order to maintain
the main thrust of its original policy on the retention of DNA.
1.11 We will return to the Government's
approach to the implementation of the judgment of the Grand Chamber
in Marper in our next report monitoring the Government's
response to human rights judgments, which will be published shortly.
1.12 Clauses 14-20 of the Crime and Security
Bill contain the Government's proposed response to the judgment.
Broadly:
- A new rule will be introduced
to provide that all DNA samples (hair, saliva, blood etc) will
be destroyed within 6 months, or as soon as a DNA profile has
been obtained, whichever is sooner;[16]
- Any other samples taken should be destroyed within
6 months of having been taken;[17]
- Any data given voluntarily would need to be destroyed
as soon as it had fulfilled the purpose for which it was given.
Limited exceptions are where the volunteer is subsequently convicted
an offence following the investigation for which he had voluntarily
supplied a sample; had previously been convicted of another recordable
offence or provided his consent to retention;[18]
- Any DNA profile provided by a person subject
to a control order would be destroyed within two years after the
date on which the control order ceases to have effect;[19]
- DNA profiles of adults convicted of any recordable
offence will be retained indefinitely;[20]
- Children convicted of a single minor offence
will have their DNA profile destroyed after 5 years; children
convicted of two minor offences or one "qualifying offence"
(from a list of serious offences, including assault, sexual offences
and murder) will have their DNA profiles retained indefinitely;[21]
- DNA profiles of adults arrested in connection
with any recordable offence will be retained for 6 years;[22]
- DNA profiles of innocent children who have been
arrested will be retained for three years, [23]
unless they are aged 16 or 17 and have been arrested for a qualifying
offence, when their DNA profile will be kept for 6 years;[24]
- In all cases of DNA taken from innocent people,
the clock will restart if the person is re-arrested;[25]
- The Bill provides for a statutory "exceptional
case" procedure. Chief Officers[26]
may order the destruction of data if the arrest or the taking
of the data was unlawful, the arrest was based on mistaken identity,
or other circumstances relating to the arrest or the alleged offence
which means that it would be appropriate to destroy the material;[27]
- Chief Officers will retain a discretion to retain
DNA profiles and fingerprints beyond the statutory destruction
periods for the purposes of national security. It appears that
this extends to any and all DNA profiles and samples, including
samples given voluntarily and samples which would otherwise be
destroyed subject to the "exceptional case" procedure
because they have been gathered unlawfully. These determinations
have effect for 2 years, subject to renewal for subsequent 2 year
periods. The Bill does not provide for this renewal to be subject
to any upper limit;[28]
- The Secretary of State will be empowered to make
regulations for the destruction of "legacy" data that
has already been taken from innocent people, where their data
would have been deleted under the proposals in the Bill;[29]
- The Strategy Board for the National DNA Database
will be placed on a statutory footing.[30]
1.13 The Government proposes that the DNA of
all individuals arrested on suspicion of any recordable offence
should be retained for a period of six years, subject to particular
arrangements for children and exceptional cases. The Committee
of Ministers at the Council of Europe has responsibility for supervising
the Government response to the breach of the ECHR found by the
European Court of Human Rights in Marper. In December,
it considered the Government's approach set out in its consultation
paper (which proposed retention of DNA profiles for 6 or 12 years)
and concluded that:
a number of important questions remain as to how
the revised proposals take into account certain factors held by
the European Court to be of relevance for assessing the proportionality
of the interference with private life here at issue, most importantly
the gravity of the offence with which the individual was originally
suspected, and the interests deriving from the presumption of
innocence.[31]
1.14 Although the Committee of Ministers were
considering the earlier proposals in the Government consultation,
the Secretariat concluded that "it seems that the proposed
measures and in particular the proposal to retain fingerprints
and DNA profiles for 6 years following arrest for non-serious
offences do not conform to the requirement of proportionality".[32]
1.15 A number of witnesses wrote to us to share
their concerns that the Government's approach—being based
on the presumption that the DNA profiles of all adults arrested,
should be kept for 6 years—would not be proportionate.[33]
The Explanatory Notes accompanying the Bill explain the Government's
view that these proposals are compatible with the ECHR. In short,
the Government considers that the removal of DNA samples from
the database after six months (or as soon as a profile has been
obtained) reduces the interference with the right to respect for
private life by the retention of DNA profiles significantly.[34]
Broadly, the Government considers that its proposals for retention
will be proportionate to this "modest" interference,
because:
- Research produced by the Government
suggests that a person who is arrested is at a higher risk of
re-arrest for up to six years after the initial arrest than the
general population;[35]
- The Grand Chamber relied on a cross-Europe "consensus"
which did not appear to permit retention of DNA samples and profiles
for a significant period of time. The Government argues that these
other States have not had access to the "best available evidence"
about retention periods.[36]
- This research supports a single retention period
because it indicates that the type of offence which an individual
is first arrested for is not a good indicator of the type of offence
he may be arrested or convicted of in the future. The Explanatory
Notes explain:
Although [a single retention period] runs counter
to the steer in Marper that the seriousness of the offence
is a material criterion in determining whether retention is proportionate,
the Secretary of State submits that this approach is supported
by the best available evidence.[37]
1.16 We welcome the Government's
decision to respond swiftly to the judgment in Marper.
The proposed statutory scheme for retention addresses some of
the concerns of the Court and reduces the likelihood that DNA
samples and profiles will be retained in a manner which is incompatible
with individual rights. However, we are concerned that the proposal
for retention of the DNA profiles of people who are arrested but
not charged or convicted on the basis of a blanket retention period
remains disproportionate and potentially arbitrary. We consider
that there is a significant risk that these provisions will lead
to a further breach of the right to respect for private life as
guaranteed by Article 8 ECHR. We
asked a number of questions about the Government's approach in
our correspondence with the Minister:[38]
We consider our specific concerns in turn, below.
i) The Government's approach to proportionality
1.17 The Government argues that the interference
with the individual right to respect for private life caused by
retention of DNA profiles, as opposed to DNA samples, is "modest".
The Explanatory Notes explain:
A person's DNA profile can be accessed and used only
for very limited statutory purposes…It does not stigmatise
him as a past or future suspect in any public sense.
1.18 This approach appears to be somewhat in
tension with the reasoning of the Court in Marper, which
rejected very similar arguments made by the Government when attempting
to persuade the Court that the retention of DNA profiles either
does not fall within the ambit of the right to respect for private
life in Article 8 ECHR or, if it does, does not constitute an
interference with that right.[39]
The Court considered the information held in DNA profiles to include
"substantial amounts of unique personal data". It expressed
particular concern about the ability to ascertain genetic and
familial information from profiles, including information in relation
to ethnicity.[40] Although
the Grand Chamber expressed particular concern about cellular
samples, it did not indicate that the interference caused by retention
of profiles was minor but treated the retention of both samples
and profiles as an interference requiring justification.[41]
It stressed that information derived from DNA had an "intrinsically
private character" which required the court to exercise "careful
scrutiny" of any measure authorising its retention and use
by the State without consent.[42].
In relation to the operation of the scheme as a whole, the Court
considered that the individual's perception that he was "not
being treated as innocent" was increased because his or her
data was retained in the same way as data from convicted persons.[43]
The Government's position also appears to be undermined by the
results of its own public consultation on DNA retention, where
it was indicated that a "significant majority" of respondents
was opposed to any form of retention of DNA profiles taken on
arrest from innocent persons.[44]
1.19 The Minister told us that the interference
is likely to be "modest" because:
- There are existing safeguards
on the use of retained DNA which the Government considers will
ensure that the practical implications for an individual will
be limited. These include that access to the NDNAD is limited,
DNA profiles stored can only be used for defined purposes and
the fact of inclusion on the NDNAD is not publicly known.
- In the range of potential interferences with
Article 8 ECHR (including deportation and forced treatment, etc),
storage of a DNA profile is "relatively low in the spectrum".
- Four out of five Law Lords would have rejected
the inference that the retention of DNA samples and profiles was
an interference at all, and the fifth thought that the interference
was "very modest indeed".[45]
The Minister also noted that the Grand Chamber accepted that "the
level of interference with the applicant's right to private life
might be different for each of the three different categories
of personal data retained".
1.20 We note that the safeguards identified by
the Government were in place when the Grand Chamber reached its
decision in Marper. The Court accepted that DNA profiles
intrinsically include a "more limited" amount of personal
information, and their retention may therefore require a lesser
degree of justification, than is the case for biological material.[46]
While the Court considered that the retention of cellular material
was particularly intrusive, it does not necessarily follow that
the interference caused by the retention of DNA profiles is "modest".
The Government accepts that the judgment of the House of Lords
in Marper is superseded by the decision of the European
Court of Human Rights, but argues that it is still reasonable
to consider the assessment of the House of Lords in support of
its argument that the level of interference is at the lower end
of the spectrum. We do not disagree that the reasoning of domestic
courts may still be relevant even after a decision of the European
Court of Human Rights, but we would sound a note of caution about
the Government's continued reliance on the House of Lords judgment:
the Grand Chamber's decision took account of the decision and
reasoning of the House of Lords and came to a different conclusion
about the ambit of the right to private life in Article 8 ECHR
and what constitutes an interference with that right, and the
Government cannot now rely on the House of Lords decision to the
extent that it is inconsistent with the decision of the European
Court of Human Rights.
1.21 The Grand Chamber stressed
that a DNA profile included personal information from which sensitive
genetic and ethnic information may be derived. Similarly, although
the Court accepted that the presumption of innocence was not engaged
by the storing of data, it did consider that the stigma attached
to being included on a database on the same basis as convicted
persons was relevant for the purposes of assessing the impact
on the individual for the purposes of Article 8 ECHR.[47]
The Government rejects the relevance of this impact in the Explanatory
Notes, arguing that inclusion on the NDNAD does not stigmatise
an individual nor place him on "a list of usual suspects".
This neglects the conclusion of the Grand Chamber that the inclusion
of an individual on a list which treated him in the same way as
a convicted person, and differently from a person who has never
been suspected of an offence, would affect his own understanding
of how the State chose to perceive him and that this would be
relevant to the assessment of proportionality for the purposes
of Article 8 ECHR. The Court also concluded that weighty reasons
would be needed before the Government could justify the need to
treat a person who had been arrested differently from other unconvicted
people whose fingerprints and samples must be destroyed at their
request.[48] The Government
still intends to treat arrested people in the same way as people
who have been convicted for up to six years after their arrest.
During this period they will be treated in the same way as convicted
people and continue to be treated differently from other unconvicted
people, and in our view the Grand Chamber's call for weighty reasons
in justification of such differential treatment still stands.
1.22 This approach is in keeping
with the Recommendation of the Council of Europe on the use of
DNA in the criminal justice system R (92)1, which provides:
Measures should be taken to ensure
that the results of DNA analysis are deleted when it is no longer
necessary to keep it for the purposes for which it was used. The
results of DNA analysis and the information so derived may, however,
be retained where the individual concerned has been convicted
of serious offences against the life, integrity or security of
persons. In such cases strict storage periods should be defined
by domestic law. […]
Where the security of the state is
involved, the domestic law of the member state may permit retention
of the samples, the results of DNA analysis and the information
so derived even though the individual concerned has not been charged
or convicted of any offence. In such cases strict storage periods
should be defined by domestic law.[49]
1.23 We welcome the Government's
decision to require all biological samples to be destroyed within
6 months of their collection by the police. We agree with the
Government that this measure reduces the impact of retention in
relation to the category of personal information which the European
Court of Human Rights indicated caused the most significant interference
with the right to respect for private life. However, we are concerned
by the Government's description of the remaining interference
with private life caused by the retention of DNA profiles as 'modest'.
There is inadequate support for the Government's assessment in
the Grand Chamber decision in Marper and in the wider case
law of the European Court of Human Rights. We are particularly
concerned that the Government has discounted the stigmatising
effect of the inclusion of the samples of innocent people on the
National DNA Database, a factor which the Grand Chamber clearly
considered relevant to the assessment of proportionality. The
Council of Europe has made clear that the retention of DNA samples
or information derived from those samples after a person is acquitted
or no longer under suspicion of a criminal offence should only
permitted in truly exceptional cases. Our assessment of the proportionality
of the Government's proposals begins with the Court's conclusion
that the retention of DNA profiles - as opposed to DNA samples
- involves an interference with the right to respect for private
life which requires justification by being demonstrated to be
"necessary in a democratic society" for the prevention
of crime or for the protection of the rights of others..
1.24 We are concerned that the
Government's approach to the assessment of proportionality in
this case has been characterised by a degree of caution, which
by underestimating the impact of its proposals on individual privacy,
does not meet the standards required by the European Convention
on Human Rights. In Committee in the House of Commons, the Minister
consistently restated the Government position that the public
protection offered by the retention of DNA profiles was key to
the Government's analysis of the proportionality of the proposed
measures. When pressed to provide further evidence of the contribution
offered to criminal investigations by the retention of DNA profiles
of innocent people, he said:
From my perspective, if the DNA database
solved just one crime, I would be content with its operation…The
decisions we have taken on the Bill are about making judgments
about how we make it proportionate, transparent and give people
an understanding of their rights and what we understand by that.[50]
1.25 Giving the example of the
involvement of DNA evidence in the conviction of the killer of
Sally Anne Bowman, the Minister repeated a similar view:
[U]ltimately, I want a system in place
in which people such as the killer of Sally Anne Bowman…can
be brought to justice and will spend a long time in prison so
that families will have justice…Civil liberties are important…but
civil liberties also include the right not to be murdered randomly
on the street by an individual if it can be prevented.[51]
1.26 The Grand Chamber recognised
the importance of DNA technologies for the purposes of criminal
investigations but stressed that any interferences must be "necessary
in a democratic society". The Grand Chamber confirmed that
this would require an assessment of the proportionality of retention
and whether appropriate limits on retention were set in order
to strike a fair balance between the competing pubic and private
interests concerned. The Court recognised that, as a "pioneer"
in DNA technology, the UK would have a special responsibility
to strike a fair balance between these competing interests.[52]
We asked the Minister about the Government's approach to the assessment
of proportionality. He told us that the Government had recognised
that the Court had placed a constraint on its discretion by referring
to the need to exercise "special responsibility", but,
despite this constraint, the Government considered that the evidence
which it had produced placed them in a particularly well informed
position to reach a judgment on the appropriate balance between
the competing interests in play.[53]
1.27 We are concerned that
the Government's approach to the assessment of proportionality
fails to recognise that it must illustrate why the measures proposed
are necessary in order to meet the legitimate aim of the prevention
of crime and the protection of the rights of others. The assessment
of necessity must include an analysis of the contribution which
the proposed retention of DNA profiles will make to meeting those
legitimate aims. That contribution must be considered in the light
of the proposed interference, in this case the proposal to retain
the DNA profiles of innocent people for six years after most arrests.
While it is understandable that the Government should seek to
place a high value on the contribution of the DNA database to
the effective functioning of the criminal justice system, the
Government must provide specific evidence that the proposals in
this Bill strike a proportionate balance between that contribution
and the interference with individual rights. It must also consider
the availability and effectiveness of alternative techniques for
investigation and the potential for less intrusive means of reaching
the same goal (including alternative models for retention, such
as that adopted in Scotland). So far, the Government has not provided
the evidence we require to be satisfied that the proposals in
the Bill are proportionate to the interference with individual
rights.
ii) Evidence on risk of re-arrest
1.28 The Government argues that the blanket
application of a six year retention period for adults is based
on "research which suggests that a person who has been arrested
is for six years at a higher risk of re-arrest than the chance
of arrest in the general population" and that some criminals
would be likely to evade prosecution if DNA data from arrested
persons were not retained. The Explanatory Notes explain:
In proposing a single retention period, irrespective
of the seriousness of the offence for which an adult is arrested,
the Secretary of State is acting on research which points strongly
to the heterogeneity of criminality - in other words, the type
of offence a person is first arrested for or convicted of is not
a good indicator of the type of or seriousness of offence that
he is likely to be arrested for or convicted of…Although
this runs counter to the steer in Marper…the Secretary
of State submits that this approach is supported by the best available
evidence.
1.29 The Government's evidence base for a single
retention period for all adults arrested but not convicted has
already been widely criticised.[54]
Evidence commissioned by the Home Office and prepared by the Jill
Dando Institute for Crime Science, cited in the Government's initial
consultation was later undermined by the authors of that research
as having been ill-founded and based on figures which they were
not independently permitted to examine.[55]
We note that the Director of the Jill Dando Institute, commenting
on the research produced to support the retention periods of 6
to 12 years proposed in the Government consultation, said:
Their policy should be based on proper analysis and
evidence and we did our best to try and produce some in a terribly
tiny timeframe, using data we were not given direct access to.
That was probably a mistake with hindsight, we should have just
said 'you might as well just stick your finger in the air and
think of a number.[56]
1.30 The Government now relies upon Home Office
research published together with the Government's response to
the consultation, entitled DNA Retention Policy, Re-Arrest
Hazard Rate Analysis. We asked the Minister for further information
about this document. It was prepared by unnamed departmental officials
working in the Economics and Resource Analysis Group of the Home
Office, under the direction of the Home Office Chief Economist
and the Chief Scientific Adviser. The Minister told us that it
was informed by discussions with leading academics and that it
was undergoing peer review, which had not yet been completed.
The research was published by the Home Office on 11 November 2009,
a week before the Bill was published.
1.31 We note a number of conclusions
reached in the Home Office paper:
The research roughly estimates that
at the end of a six year period, two-fifths of individuals retained
on the database under these proposals will have been subsequently
convicted of an offence (40%). This research includes no analysis
of whether the subsequent conviction is likely to be related to
the retention of the individual's DNA. Three-fifths of all of
the profiles retained from people arrested but not convicted of
an offence are likely to be "false-positives", that
is, involving the retention of the DNA profiles of innocent people
with no further connection with the criminal justice system.
The researchers compare this degree
of risk against individuals in the general population which is
lower, at one tenth (10%). Again, this figure is described as
a rough estimate.
The principal research included in
the Home Office paper is not related to risk of conviction, but
risk of re-arrest. It places risk of re-arrest at 33.4%
immediately following arrest, falling to 16.6% after 1 year, 10.3%
after 2 years and 7.8% after 3 years. The risk of arrest applicable
to the general population is calculated as around 5%. For the
period between 4-6 years following arrest the risk that this category
of people will be rearrested is estimated to be less than 2% higher
than that posed by the general population.
The recommended retention period of
six years is based on the point when the researchers estimate
that the likelihood that an individual who has been arrested will
be re-arrested matches the risk posed by the general population.
A number of other findings are reached
in respect of the treatment of children and those suspected of
minor offences. We consider these particular issues below at paragraphs
1.38-1.48.
1.32 We have a number of concerns about the value
of this evidence:
(a) The research is based upon the risk of re-arrest,
not the likelihood of subsequent conviction. We note that the
Minister told members of the House of Commons Public Bill Committee
that "our evidence shows that like it or not, people who
have faced initial arrest and been charged, even if they are not
convicted, have a propensity to return before the courts and be
convicted within six years". Although the research acknowledges
that re-arrest is not an indicator of criminality, the research
is presented on the basis that this is adequate to provide support
for the Government's argument that the DNA of all persons arrested
should be retained for a set period.
(b) The data is based on three years of statistical
information drawn from the Police National Computer. This data
has been extrapolated into a "hazard curve" to provide
an estimated 8 years worth of information about the likely risk
of re-arrest after an initial arrest. We asked the Minister to
respond to allegations that this extrapolation was effectively
"guesswork". He told us that "hazard rate curves"
are a standard approach adopted in academic literature and that
"sensitivity analysis" had been applied to the statistics
in order to ensure that the results were a reliable basis to inform
policy development.[57]
We have no means by which to judge whether this is correct. We
note that even if the models used are academically accepted and
sufficiently reliable to inform policy, the statistics presented
by the Government are not based on the analysis of actual data
gathered from the operation of the NDNAD.
(c) The researchers have subjected their own research
to a number of caveats, including that since they had no access
to reliable data on conviction after arrest for an earlier unrelated
offence, they could only "roughly estimate" the relationship
between arrest and conviction.
(d) This document is an internal document, prepared
by Home Office officials, based on statistics which we understand
have not been made publicly available. In our view, this is particularly
important in the light of (a) the very limited independent research
to compare the Government's analysis against and (b) the Government's
earlier unsuccessful attempt to commission independent evidence
to support its policy position from the Jill Dando Institute for
Crime Science.
(e) When asked for further information on statistics
relating to individual cases, the Government has been unable to
provide it. For example, we asked the Government for more information
about the ACPO research which it states illustrates that 36 rape,
murder or manslaughter cases during 2008-09 involved matches to
innocent persons' DNA retained on the NDNAD which were of "direct
and specific" value to the investigation. Unfortunately,
the Government was unable to conduct this analysis within the
time that we asked for a response. In the light of the fact that
the Government has been relying on these statistics during debates
on the Bill, this is precisely the kind of detailed information
which the Government should be able to provide. We
recommend that the Government publish the details of these cases,
if necessary in a suitably redacted format, or it should stop
referring to them as support for its proposals.
1.33 This research has also been subject to criticism
by NGOs and others.[58]
Liberty criticises the research on a number of grounds, including
that it is based on only three years of data:
It is clear then that the data itself is incomplete
and the estimated likelihood of further arrest [is] derived from
simply guesswork…Disturbingly also the so-called statistical
evidence and extrapolation on which the six year basis is based
confuses the likelihood of future arrest with the likelihood of
future criminality…The risk of arrest is not the same as
a risk of future offending.[59]
1.34 Justice highlights similar flaws and argues
that the research does not support the Government's argument that
retention is necessary, because it does not address the risk of
conviction after re-arrest:
Even the Government's limited data does nothing to
show that there is a continuing risk of offending posed by people
who have been arrested. On the contrary, the only thing that it
shows is that once you have been arrested by the police, the more
likely you are in the future to be arrested by the police.
1.35 There is a significant
number of legitimate concerns about the quality and substance
of the research produced by the Government to support its proposals.
In particular, we are concerned about the language used by the
Minister which appears to equate risk of re-arrest with evidence
of future criminality. This is particularly disturbing in the
light of the attention paid by the Grand Chamber in Marper
to the stigma which can be associated with inclusion on a
database like the NDNAD and an individual's own perception of
the way that he or she is viewed by the State.
1.36 In any event, we consider
that the research in the Home Office paper, DNA Retention Policy,
Re-Arrest Hazard Rate Analysis, lends little weight to the
Government's arguments on proportionality. At most, it shows that
the retention of the DNA profiles of persons arrested for six
years following arrest will impact on the rights of a significant
number of innocent people (up to two-thirds of the profiles retained
will be "false positives" not connected to any further
criminal activity) in order to address a potentially very small
increase in the risk of re-arrest relative to the general population.
1.37 We are disappointed that
the Government argues that it can rely on this evidence in order
to depart entirely from the guidance of the Court in Marper
and the Council of Europe in its Recommendation on the use of
DNA in the criminal justice system. If cogent evidence were available
to support the Government's position, we agree that this would
be relevant to the analysis of the proportionality of the measures,
in that it would lend weight to any Government argument that the
measures were necessary and bore a rational connection to the
legitimate aim of the prevention and detection of crime and the
protection of the rights of others. However, it cannot be suggested
that the Home Office research so completely undermines the analysis
of the Grand Chamber as to suggest that it provides adequate justification
for a single retention period without further scrutiny of the
proportionality of the proposals. If the Government's reliance
on the statistical value of the retention of DNA were carried
to its logical conclusion, it would suggest that the retention
of the DNA of all young men aged 16 - 24 (or any other group considered
statistically more likely to be arrested) would be a proportionate
interference with Article 8 ECHR.
iii) Retaining DNA and samples taken from children
1.38 The Bill proposes to treat the DNA of children
convicted of qualifying offences in the same manner as if they
had committed their offences as adults. Children convicted of
a minor offence will have their DNA retained for five years. All
children arrested in connection with a recordable offence will
have their DNA profile retained for three years, children aged
16 - 17 arrested in connection with a qualifying offence will
have their DNA profile retained for six years.
1.39 The Grand Chamber in Marper said:
The Court…considers that the retention of unconvicted
persons' data may be especially harmful in the case of minors…given
their special situation and the importance of their development
and integration into society. The court has already emphasised,
drawing on the provisions of Article 40 of the UN Convention on
the Rights of the Child of 1980, the special position of minors
in the criminal justice sphere.[60]
The Explanatory Notes explain:
In proposing retention periods for children, the
Secretary of state has again acted on the basis of evidence which
shows that the earlier a criminal career starts, the longer it
is likely to last, while paying regard to the Strasbourg ruling
and results of the consultation exercise which supported a more
liberal policy for people aged under 18. The retention period
for children aged 16 or 17 who are arrested but not convicted
for a serious offence will be the same as for adults, reflecting
the fact that peak offending occurs at this age.
1.40 Article 40 of the UN Convention on the Rights
of the Child provides:
State parties recognise the right of every child
alleged as, accused of, or having infringed the penal law to be
treated in a manner consistent with the promotion of the child's
sense of dignity and worth, which reinforces the child's respect
for human rights and fundamental freedoms of others and which
takes into account the child's age and desirability of promoting
the child's reintegration and the child's assuming a constructive
role in society.
1.41 The retention of children's DNA on the NDNAD,
irrespective of the child's guilt or innocence, was noted with
concern by the UN Committee on the Rights of the Child in its
last report on the United Kingdom.[61]
1.42 We asked the Minister for further information
on the treatment of children's DNA. In particular, we asked for
further evidence to support the Government's view that these proposals
were proportionate and for details of the consideration that the
Government had given to the compatibility of the proposals with
the UN Convention on the Rights of the Child. The Minister told
us that the Government's intention in adopting its proposed retention
periods for children is to "balance the protection of the
public from those who may commit crime in the future with the
specific issues that arise from the special position of children
in society, including (but not limited to) the provisions of the
UN Convention on the Rights of the Child". The Minister told
us that the Government has taken the provisions of the ECHR and
the UN Convention into account in setting shorter periods of retention
for most children except those children convicted of qualifying
or multiple offences and for 16 and 17 year olds arrested but
not convicted of qualifying offences. We regret that the Minister
has not provided us with a more detailed analysis of the impact
which the UN Convention has had on the Government's rationale
in setting the retention periods for children in the Bill.
1.43 The Minister explains that the Government's
view on the proportionality of the proposed retention periods
is based on two strands of research. The first, relating to the
increased likelihood of re-arrest, was considered above. The second,
relates to research which illustrates that peak offending in children
occurs at ages 16-17.[62]
While research that supports the view that the likelihood of offending
peaks at a certain age is relevant to the likelihood that retention
would enhance public protection, it is not clear why the notion
that an individual is statistically more likely to commit an offence
justifies treating that person as an adult. As we outlined above,
cogent statistical evidence may lend weight to the Government's
argument that the proposals are more able to meet their aim, but
this does not automatically render the proposals proportionate.
While this research may lend some weight to the Government's argument
that those young people suspected of serious offences should be
treated differently from others, we are not persuaded that it
is significant enough to justify the treatment of young people
aged 16-17 as if they were adults. Nor does it explain why the
Government has chosen to retain the DNA of all children arrested
for all recordable offences for at least three years. Similarly,
we are not persuaded that the Government has provided adequate
evidence that children convicted of more than one minor offence
should have their profiles retained indefinitely in the same way
as adults. For example, this could mean that a child convicted
of two offences of shoplifting or minor criminal damage at respectively,
ages 11 and 12, could have his or her DNA profile retained indefinitely.
We are concerned that this approach is inconsistent with the special
position of children in the criminal justice system recognised
by the UN Convention on the Rights of the Child.
1.44 The Government has a particular
responsibility to justify the taking and retention of DNA samples
and profiles from children. In the absence of further evidence
to support the Government's position, we consider that the proposed
retention periods for the DNA profiles of children may be disproportionate
and inconsistent with the requirements of the UN Convention on
the Rights of the Child. We recommend that the Government should
provide further information on its justification for taking DNA
samples from people convicted of offences committed when they
were children and the retention of DNA profiles obtained from
children arrested but not subsequently in contact with the criminal
justice system. In particular, we recommend that the Government
provide justification for its proposed retention periods and publish
its analysis of the compatibility of the proposals with the UN
Convention on the Rights of the Child.
iv) Retaining DNA and samples of innocent people
arrested in connection with minor offences
1.45 The Government considers that it would be
inappropriate to distinguish between arrest for minor and more
serious offences, arguing that research points "strongly"
to there being no appropriate link between the seriousness of
an offence for which an individual is first arrested and any future
criminality.[63] We wrote
to the Minister to ask for further information on the Government's
approach. We were referred back to the Home Office research and
two supporting academic articles, including one Home Office published
paper. The Minister told us:
There is little (to our knowledge) formal evidence
of individuals offending in an intermittent or specialised way,
suggesting no strong case for a longer retention period for more
serious crimes.
1.46 We are concerned that the Government's approach
departs both from the guidance in Marper and from the recommendations
of the Council of Europe. The research produced in the Home Office
paper cites general research about a lack of distinction between
types of crime conducted over a career of criminality, and concludes
that there is "no evidence that a person [who has been arrested
previously in connection with a serious offence] will have a noticeably
higher risk of committing a similarly serious crime than any other
… individual".[64]
However, it then cites evidence produced in 2001-02 which showed
a slightly elevated risk that individuals convicted of sexual
and violent offences were more likely to be convicted again for
a similar type of offence within a year.[65]
1.47 Again, while this evidence provides relevant
background information to the Government's approach, we do not
consider that it is sufficiently robust to justify the decision
of the Government to ignore the guidance of the Court in Marper
and the Council of Europe in its recommendation, that discrimination
between serious and other offences would be relevant to the assessment
of proportionality. We note in particular, that:
- the Council of Europe Recommendation
indicates that retention of DNA samples and profiles will only
be proportionate, even after conviction, in the case of more serious
offences;[66]
- the research cited by the Government relates
to conviction data and not the likelihood that a person arrested
in connection with a serious violent or sexual offence might subsequently
be convicted of another offence of that type;[67]
- while the Government's research on the face of
it supports the public protection argument for keeping more people
on the database, it does not illustrate that the interference
posed to individual rights is proportionate and necessary to the
threat posed by individuals arrested in connection with an offence
and subsequently released;[68]
- the recent review of acquisition and retention
of DNA and fingerprint data in Scotland concluded that the retention
of the DNA profiles of those individuals charged with serious
violent and sexual offences but not convicted for 3 years was
considered fit for purpose.[69]
We return to the Scottish model below.
1.48 It is disappointing that
the Government has chosen not to draw any distinction between
arrest in connection with serious violent and sexual offences
and less serious offences. Under the proposals in the Bill, an
individual arrested in connection with the investigation of a
minor criminal damage or a public order offence will be treated
in the same manner as an individual who is charged but not convicted
in relation to a serious violent or sexual offence. We consider
that this failure is likely to increase the likelihood that these
proposals will be considered disproportionate and incompatible
with the right to respect for private life as guaranteed by Article
8 ECHR.
v) Retention of DNA and samples for 'national
security' purposes
1.49 The Bill provides for Chief Officers to
have the power to determine that particular DNA profiles or fingerprints
should be retained beyond the retention periods that would otherwise
apply where they determine that retention is "necessary"
for the "the purposes of national security". Further
retention can be authorised on this basis for two year periods,
which can be renewed on a rolling basis. The Bill makes no provision
for any definition of "national security" for these
purposes, nor does it provide for any judicial or other oversight
of the decisions of the Chief Constable in these cases.
1.50 We asked the Minister for further information
about how this power would operate in practice. In particular,
we asked what "national security" grounds would justify
additional retention and whether individuals would be notified
that their profiles were being exceptionally retained. The Minister
told us:
- The Government considers that
"the nature and severity of the threat posed by terrorism
and other threats to national security, justifies a longer retention
period than in other cases".
- "The retention of DNA
material and fingerprints of persons of national security interest
should be reviewed on a case-by-case basis rather than by the
determination of a period of time based on criminal recidivism
rates."
- National security would include but not be limited
to "counter-espionage, counter-proliferation as well as counter-terrorism
cases".
- The power to retain a profile for "national
security" reasons will not be limited to those persons arrested
in connection with terrorism related offences, as during the six-year
period of retention after an arrest for an unconnected offence,
that person may become of national security interest. In those
circumstances, the Government consider that it would be proportionate
to retain that person's DNA profile;
- Retention for the purposes of national security
could apply to individuals who have given their DNA profile voluntarily,
but could not be applied where an individual's DNA should be destroyed
following the application of the exceptional cases procedure (for
example, after an unlawful arrest).
- Individuals whose profiles have been retained
will not be informed. The Minister explained that it would not
be in the interests of national security to inform individuals
that they were of national security interest.
- As individuals will not be aware their profile
is retained, they will not be able to challenge the decision of
the chief Constable. The Minister explained that such a challenge
could "compromise methodology and in some circumstances place
lives at risk".
1.51 We asked the Minister whether it would be
more appropriate for Chief Officers to be required to apply to
a court for approval of the decision to retain any DNA profile
which should otherwise be destroyed. The Minister told us that
this would not be appropriate because Chief Officers have the
"knowledge and expertise of the situation and will consult
with stakeholders such as the security service where appropriate".
1.52 The Council of Europe recognises that state
security could justify exceptional retention of DNA samples and
profiles. However, even in these circumstances, it is recommended
that retention must be subject to strict storage periods defined
by law.[70] Although
the Bill defines exceptional storage by reference to necessity
on the grounds of national security and by two year increments,
we are concerned that the lack of independent, effective, judicial
oversight of the discretion of Chief Officers reduces the value
of even these limited safeguards. We are concerned that it is
not clear what samples are included or excluded from this exceptional
power, or what "national security" must mean in this
context. We note that during debates in the House of Commons Public
Bill Committee, the Minister committed to consider whether further
safeguards could be added to this section of the Bill, including
by requiring review of these powers by the Reviewer of Terrorism
Legislation.[71] However,
the work of the Reviewer provides only a very limited safeguard
against abuse of broad discretionary powers. Notably, the European
Court of Human Rights has recently held that the discretionary
powers of stop and search in Section 44 of the Terrorism Act 2000
are insufficiently defined to be prescribed by law and have been
operating in a manner incompatible with Article 8 ECHR.[72]
The Reviewer had previously criticised the operation of these
provisions, but to no avail.[73]
1.53 We consider that the breadth
of the power to retain DNA profiles and fingerprints for the purposes
of national security proposed in the Bill, combined with the lack
of any effective or independent oversight of the decision making
process, will mean that it could be exercised in a manner which
would contravene the right to respect for private life, without
any real opportunity for effective challenge. We recommend that
this power is overly broad and should be more closely circumscribed
by defining more precisely the circumstances in which it can be
used and providing for some form of independent oversight.
The following amendments to the Bill are suggested
to give effect to this recommendation:
Page 36, Line 41, [Clause 14], at end
insert-
"(4A) For the purposes of subsection
(1), "for the purposes of national security" means for
the purposes of investigating significant threats to the security
of the United Kingdom arising from-
(a) terrorist activities;
(b) nuclear weapons and other weapons
of mass destruction;
(c) trans-national organised crime;
(d) global instability and conflict;
(e) civil emergencies; or
(f) state-led threats to the United
Kingdom."
1.54 This amendment would introduce a definition
of "national security" based on the key threats to national
security outlined in the UK national security strategy.[74]
This is presented as an exhaustive list, and covers each of the
threats outlined by the Minister in correspondence. It implements
the recommendation in paragraph 1.53, that the Bill should more
closely circumscribe the circumstances when retention for national
security purposes will be possible. We also recommend that amendments
with identical effects are tabled to Clause 15,[75],
Clause 16,[76] and Clause
18[77]
Page 36, Line 41, [Clause 14], at end
insert-
"64ZKA Approval required for retention
for the purposes of national security
(1) This section
applies where a chief officer determines that retention for the
purposes of national security is necessary.
(2) Subject to subsection
(3), the determination shall not take effect until such time (if
any) as—
(a) the determination
has been approved by the Information Commissioner; and
(b) written notice
of the Commissioner's decision to approve the determination has
been given, in accordance with subsection (3), to the chief officer
who made the original determination.
(3) Where subsection
(2) applies—
(a) the Information
Commissioner shall give his approval under this section to the
authorisation if, and only if, he is satisfied that there are
reasonable grounds for believing that the requirements of section
64ZK(1) are satisfied in the case of the determination; and
(b) the Information
Commissioner shall, as soon as reasonably practicable after making
that decision, give written notice of his decision to the Chief
Constable.
(4) Any determination
under paragraph (1) includes a decision that a determination should
be renewed pursuant to Section 64ZK(3)."
1.55 This amendment introduces a requirement
for authorisation by the Information Commissioner of exceptional
retention of DNA profiles and fingerprints for the purposes of
national security. This follows the mechanism for approval by
the Surveillance Commissioners of authorisations for intrusive
surveillance by police and other security agencies under the Regulation
of Investigatory Powers Act 1998 (See Section 36).
1.56 This amendment implements our recommendation
in paragraph 1.53 that the powers related to national security
in the Bill are not currently subject to adequate independent
oversight. This amendment is proposes oversight by the Information
Commissioner for the purposes of debate, given the determination
involves the exceptional retention of personal information. We
also recommend that amendments with identical effects are tabled
to Clause 15,[78], Clause
16,[79] and Clause 18[80].
National DNA Database Reviewer
To move the following new clause-
"(1) Within
12 months of the coming into force of this Part, the Secretary
of State shall appoint a Reviewer to be known as the National
DNA Database Reviewer.
(2) Subject to subsection
(4), the National DNA Database Reviewer shall keep under review—
(a) the exercise
and performance, of the powers and duties conferred or imposed
by Section 64ZI(5) of the Police and Criminal Evidence Act 1984;
(b) the exercise
and performance of the powers conferred by Section 64ZK of the
Police and Criminal Evidence Act 1984;
(c) the exercise
and performance, of the powers and duties conferred or imposed
by Section 64ZI(5) of the Police and Criminal Evidence (Northern
Ireland) Order 1989;
(d) the exercise
and performance of the powers conferred by Section 64ZK of the
Police and Criminal Evidence (Northern Ireland) Order 1989;
(e) the exercise
and performance, of the powers and duties conferred or imposed
by paragraph 14(F)(5), Schedule 8, Terrorism Act 2000;
(f) the exercise
and performance, of the powers and duties conferred or imposed
by paragraph 14(G), Schedule 8, Terrorism Act 2000; and
(g) the exercise
and performance, of the powers and duties conferred or imposed
by Section 18(3E) Counter-Terrorism Act 2008.
(3) Within 12 months
of his appointment, and every 12 months thereafter, the National
DNA Database Reviewer must lay a report of the findings of his
review before both Houses of Parliament.
(4) Each report of
the National DNA Database Reviewer must include consideration
of:
(a) the number of
decisions taken during the preceding 12 month period under each
of the powers in subsection (2);
(b) the grounds for
any decisions taken during any preceding 12 month period under
each of the powers in subsection (2);
(c) an equality impact
assessment of the exercise of the powers in subsection (2) over
the preceding 12 month period; and
(d) an assessment
of the operation of each of the powers in subsection (2)."
This amendment is based on the role played by the
Reviewer of Terrorism Legislation. It provides that the exceptional
powers granted to chief officers by the Bill - in relation to
immediate destruction of material in individual cases and exceptional
retention on the grounds of national security - will be subject
to review. It requires annual statistics to be provided to Parliament,
with an assessment of the operation of each of the relevant powers.
This amendment relates to our recommendations in paragraphs 1.53
and 1. 56, which recommend respectively that each of the exceptional
powers be subject to more independent oversight.
vi) Oversight of retention decisions
1.57 In December, the Committee of Ministers
highlighted the lack of provision for independent oversight of
individual retention decisions. The Bill does not provide for
any independent right of appeal in respect of retention decisions
in individual cases. In addition to our concern about the lack
of independent oversight in cases involving retention on 'national
security' grounds, the Bill makes no provision for statutory appeal
in respect of the decisions of Chief Officers under the exceptional
cases procedure. This procedure provides that if it "appears"
to the Chief Constable that certain criteria are fulfilled, then
any material gathered (including DNA samples and profiles) must
be destroyed. These criteria include: (a) that the arrest was
unlawful; (b) that the taking of the samples was unlawful; (c)
that the arrest was based on mistaken identity; or (d) any other
circumstances relating to the arrest or the alleged offence which
mean that it is appropriate to destroy the material.[81]
The Nuffield Council on Bioethics have recommended that "an
independent body, along the lines of an administrative tribunal,
should oversee requests from individuals to have their profiles
removed from bio-information databases".[82]
1.58 The Explanatory Notes do not deal in any
detail with the Court's concern that there should be independent
review and oversight of individual retention decisions. We noted
that the Committee of Ministers had expressed concern about the
lack of provision for independent oversight and asked the Minister
for more information. He explained that the Government considered
that judicial review would be a sufficient measure of review of
the decisions of Chief Officers. The Government relies on case-law
of the European Court of Human Rights which supports the view
that in some cases involving allegations of a breach of the right
to a fair hearing by an independent and impartial tribunal, judicial
review can remedy a lack of independence on the part of an initial
decision maker (Article 6 ECHR).[83]
We note that the Government does not refer to the decision of
the Court in Tsfayo v United Kingdom which held that judicial
review could not resolve a lack of independence in those cases
where decisions were fact sensitive, as judicial review would
not guarantee a merits review of the original decision on the
facts.[84] We consider
that each of the decisions of the Chief Constable under the exceptional
procedure are likely to be highly fact sensitive and that this
means that judicial review alone cannot be adequate as a form
of independent oversight.
1.59 The Minister also told us that the Government
considered that the Court's reference to a lack of "independent"
review was in the context of a blanket and indefinite retention
policy, where there were no defined statutory criteria. While
we agree that the Court's analysis stopped short of requiring
independent oversight as a prerequisite for any retention regime,
we disagree with the Government's analysis of the importance of
independent oversight. As we explain above, the Government's proposals
include the treatment of the DNA profiles of innocent people and
children, in the same way as convicted people for up to six years.
The only way that a person arrested, but subject to no further
action, can have their DNA profile removed from the database before
the presumed retention period has expired is through the operation
of the exceptional procedure. We consider that the fairness of
this procedure will play a significant part in the assessment
of the proportionality of the overall package of Government proposals
and its compatibility with Article 8 ECHR. At present, it is proposed
that a significant degree of discretion remains with individual
Chief Officers who may be perceived to have a vested interest
in the continued retention of the relevant DNA profiles. We
recommend that the Bill is amended to provide a statutory form
of appeal from decisions of Chief Officers under the exceptional
procedure to an independent tribunal. Given that the determination
involves the retention of personal information by the State, we
suggest that the Bill could provide for an appeal to the Information
Commissioner with a further appeal to the Information Tribunal.
Right of appeal
To move the following new clause-
"(1) Any person from whom relevant
material has been taken may request that the chief officer order
the immediate destruction of that material for the following reasons:
(a) the arrest was unlawful;
(b) the taking of the fingerprints,
impressions of footwear, or DNA sample concerned was unlawful,
(c) the arrest was based on mistaken
identity, or
(d) other circumstances relating to
the arrest or the alleged offence mean that it is appropriate
to destroy the material.
(2) Following a relevant determination
by a chief officer that relevant material should not be destroyed,
that decision must be communicated to the person from whom the
relevant material has been taken ("P").
(3) P may appeal to the Information
Commissioner against the decision of the chief officer.
(4) If on appeal the Information Commissioner
considers that there are reasonable grounds for immediate destruction
of the material, the Information Commissioner shall allow the
appeal.
(5) On such an appeal, the Commissioner
may review any determination of fact on which the chief officer's
decision was based.
(6) Following a decision of the Information
Commissioner under subsection (3), either the chief officer or
P may appeal to the Information Tribunal in relation to any error
of fact or law.
(7) Any party to an appeal to the Tribunal
under section 48 may appeal from the decision of the Tribunal
on a point of law to the appropriate court; and that court shall
be—
(a) the High Court of Justice in England,
(b) the Court of Session in Scotland,
and
(c) the High Court of Justice in Northern
Ireland.
(8) For the purposes of this section
"relevant material" includes material falling within-
(a) Sections 64ZD - 64ZH of the Police
and Criminal Evidence Act 1984;
(b) Section 64ZD - 64ZH of the Police
and Criminal Evidence (Northern Ireland) Order 1989; and
(c) paragraph 14(B)-(E), Schedule 8,
Terrorism Act 2000.
(9) For the purposes of this section
"relevant determinations" are determinations within-
(a) Section 64ZI(5) of the Police
and Criminal Evidence Act 1984;
(b) Section 64ZI(5) of the Police and
Criminal Evidence (Northern Ireland) Order 1989;
(c) paragraph 14(F)(5), Schedule 8,
Terrorism Act 2000.".
This purpose of this amendment is to provide a statutory
route of appeal to the Information Commissioner against decisions
of the relevant chief officer not to exercise his power to destroy
material which would otherwise be retained under the Government's
proposals for the retention. It makes clear that individuals will
be able to request that chief officers consider immediate destruction,
followed by a right of appeal against any refusal. It gives effect
to our recommendation in paragraph 1.56.
vii) Legacy samples retained on the NDNAD
1.60 Clause 19 of the Bill requires the Secretary
of State to make regulations for the destruction of samples and
profiles held under the previous scheme which would have been
destroyed had the new rules been in force at the time the sample
had been taken. The Explanatory Notes explain:
This will enable the Secretary of State to ensure
that the retention and destruction regime set out in this Bill
is applied to existing material, while recognising that this exercise
may take some time to complete; there are some 850,000 profiles
of unconvicted persons on the National DNA Database.
1.61 Under the existing regime, samples and profiles
may be destroyed at the discretion of Chief Officers, following
ACPO Guidance (Guidelines for Nominal Records on the Police National
Computer). Between January 2008 and December 2008, 272 records
were destroyed following this procedure.[85]
The figures for 2009 show that 377 records were removed.[86]
ACPO has written to Chief Officers to indicate that they should
not change their practice in light of the judgment in Marper
until domestic law is revised.[87]
1.62 The Bill does not indicate an appropriate
time-scale for the Secretary of State to make an Order to deal
with legacy profiles and fingerprints. We wrote to the Minister
to ask for an indication of the Government's approach to legacy
samples. He told us that the Government considered that "DNA
profiles that would fall to be deleted under the Bill would be
deleted within a few months of the provisions coming into force,
while the task of destroying the 5 million plus biological samples
currently held is likely to take somewhat longer - the forensic
science suppliers advise that this task should be completed within
two years." While this is a helpful indication of the timescale
likely after the Secretary of State exercises his duty under Clause
19, we have seen no indication of the likely timeframe for that
Order to be laid. We are concerned by the Government's earlier
explanation, in its consultation paper, that the reluctance to
provide a time-frame for treatment of legacy samples and profiles
may be due to existing administrative difficulties. Not least,
the Government is concerned that there appear to be almost 500,000
profiles on the NDNAD which are not linked to any record on the
Police National Computer. The Government has said that the cheapest
way to deal with these profiles would be to delete them all, but
that it is concerned that this would be a "high risk option".
[88] The likelihood
of significant delay is disappointing when it is clear that some
samples and profiles are being retained in breach of the ECHR
following Marper. We asked for the Government's view on
the fact that delay in dealing with legacy profiles could lead
to further human rights challenges and associated litigation costs.
The Minister told us that the Government wished to give effect
to the decision in Marper as soon as "practically
possible". He noted that the decision did not require the
deletion of all profiles previously retained and that the Government
thought it would be inappropriate to prejudge the decisions of
Parliament on its proposals by beginning to delete profiles which
could not be retained pursuant to the provisions in the Bill.[89]
1.63 While we agree that the
Government should be careful not to pre-empt Parliament's decision
on its proposals, we are concerned that administrative difficulties
may lead to some significant delay in dealing with the legacy
profiles of innocent people and children on the National DNA Database.
The Government should provide more details on how it intends to
approach the duty in Clause 19 to require the destruction of legacy
samples, profiles and fingerprints. In particular, a timetable
for compliance with those requirements should be provided. We
propose an amendment to the Bill to require an Order to be laid
within 1 year of Royal Assent, for the purposes of securing a
fuller debate on this issue.
Page 60, Line 19, [Clause 19], at end
insert-
"(6) A statutory instrument containing
an order under this section must be laid before Parliament within
12 months of Royal Assent to this Act."
This amendment is recommended for the purposes of
debate and gives effect to our recommendation in paragraph 1.60
on the treatment of legacy samples on the National DNA Database.
Although the Minister has explained that the Government expects
all legacy samples which it intends to delete to be deleted within
2 years of an order pursuant to Clause 19, we recommend that the
Government explain when it expects to lay such an order. This
amendment would require an order to be laid within one year of
Royal Assent.
viii) Alternatives: the Scottish Approach
1.64 The Grand Chamber specifically drew attention
to the model adopted in Scotland. This provides that, in general,
DNA samples and profiles should be destroyed if individuals are
not convicted or if they are granted an absolute discharge. Exception
is made for samples of individuals charged in relation to certain
sexual or violent offences, which may be retained for three years.
This period may be extended for a further two years if authorised
by a judge.[90] The Court
noted that this approach appeared consistent with the Council
of Europe Recommendation on the use of DNA in the criminal justice
system (R (92) 1).
1.65 This model was proposed by Baroness Neville-Jones
in an amendment to the Policing and Crime Bill in the 2008-09
session. Although support was expressed by both the opposition
parties, the Government resisted this approach and Baroness Neville-Jones
withdrew her amendment.[91]
We asked the Minister to explain the Government's objection to
the Scottish approach. He said:
- The model was not based on
any evidence of the "likely impact of lost detections"
or on the nature of criminality.
- The Scottish approach does not "recognise
that people who commit minor offences also commit more serious
offences"
- The Scottish model does not provide sufficient
protection to the wider public from the increased risk of offending
from those arrested for more minor offences who would not have
their DNA retained under the Scottish model.
1.66 During evidence to the Public Bill Committee,
Sir Hugh Orde, on behalf of ACPO indicated that the Scottish model
was administratively more complex and that the operation of the
Scottish part of the NDNAD could not be appropriately compared
to its operation in England and Wales because it formed a very
small part of the overall database:
Although the judgment refers to the Scottish system
as one that would fulfil the criteria that they were looking for,
the big complexity that concerns us is that the Scottish legislation
is 4.5 per cent of the total database and it is a bureaucratic
system.[92]
1.67 An amendment based on the Scottish model
was narrowly defeated during Committee stage in the House of Commons
(5 votes to 7).[93] During
this debate, the Minister referred to the difference between the
number of matches to DNA samples that the Government considered
would be retained under the Scottish model and the approach in
this Bill.
1.68 We are concerned that the
Government's reasons for rejecting the Scottish approach appear
to be based on the desire to maintain as large a number of people
on the NDNAD as possible. Its principal criticism is that the
model fails to adopt a broader approach which would afford greater
benefits of public protection from crime. The Minister argues
that this broader approach is appropriate and legitimately supported
by evidence. Unfortunately, as we explain above, we have serious
concerns about the strength of the evidence produced by the Government
to justify its approach. As to the administrative difficulties
which ACPO considers are associated with the Scottish model, we
do not consider that any such difficulties would be enough to
warrant a broader and more indiscriminate approach through the
introduction of a single retention period. After a recent review
of the Scottish model conducted by Professor Fraser, Director
of the University of Strathclyde Centre for Forensic Science and
Chair of the European Academy of Forensic Science, the Scottish
Government concluded that there was no need for reform.
1.69 In our correspondence with
the Minister, he told us that there had been only 8 matches in
Scotland, but none of these offences related to a subsequent serious
offence. He confirmed that the Government considers that 23 matches
in serious cases would have been lost over the past year if the
Scottish model were preferred over the proposals in the Bill.
We asked for further information about these 23 cases, including
the relevance of the DNA match in the case, but no further information
was provided to us.[94]
Again, the Government's approach to these statistics has been
to argue for the "best possible" case from a public
protection argument, not the most proportionate given the corresponding
interference with the rights of individuals' to respect for the
personal information contained in the DNA profile. While cogent
statistical and other evidence of the benefit of retention to
public protection could, in principle, support the Government's
case on proportionality, we reiterate that the statistical evidence
in this case has been provided by the Government, is untested
and the Government has so far been unable to provide further details
about the relevance of the DNA match in each of these cases.
1.70 In his review, Professor Fraser
accepted that forensic data to support the three year retention
period is limited, but he did consider data on cases where individuals
were charged with a sexual or violent offence but not convicted,
then later convicted of a subsequent unrelated offence. These
figures show that within one year, just under half of the individuals
were convicted of a separate offence and within three years 60%
of the individuals were convicted of an offence. After five years,
this figure rose only slightly to 65%. Professor Fraser argues
that although this data would include individuals who had been
previously convicted of other entirely unrelated offences (and
so, their data would already be on the NDNAD), the figures support
the conclusion that the highest risk of "re-offending behaviour
(regardless of conviction) is likely to arise within a comparatively
short period".[95]
Despite our doubts about the new Government research, based on
risk of re-arrest, we note that the most significant risk of re-arrest
falls within the first three years following an initial arrest
and that, thereafter, the additional risk is low in comparison
with the general population.
1.71 We note that, taking into
account the conclusions of the Fraser Review, the Scottish Government
concluded in 2009 that there was no need for reform. It based
this conclusion on the "need to strike a balance between
protecting the public from the risk of sexual and violent offending
behaviour and protecting the rights of the individual".[96]
1.72 In the light of each of
our conclusions above, we remain concerned that the Government's
proposals risk being indiscriminate and disproportionate. Without
further concrete evidence to support the Government's argument
for a blanket six year single retention period, there is a real
risk that these provisions will lead to further judgments finding
the United Kingdom in violation of the right to respect for private
life. While the Government waits for a new case where the Court
can consider whether it has "pushed" the boundaries
in the Marper judgment or whether it has broken them, further
violations of individual rights will accrue and further litigation
will follow, with an associated cost to the taxpayer.
1.73 In our view, various approaches
could comply with the Marper judgment - from no retention
of DNA of those not ultimately convicted to the Scottish model,
where DNA is retained for those charged but not convicted of serious
offences. The Bill could be amended to adopt the Scottish model,
which complies with the guidance of the Grand Chamber in Marper
and the Council of Europe in its Recommendation on the use
of DNA in the criminal justice system (R (92) 1). The Scottish
Government does not consider that this approach has undermined
the ability of Scottish police to investigate criminal offences.
While the Government argues that its approach has greater value
for the purposes of the investigation and prevention of crime,
the Scottish model is more likely to strike a proportionate balance
between this important public interest and the right to respect
for private life of those individuals whose samples are taken
on arrest but who are subsequently not charged or convicted.
1.74 Amendment 26, moved in the Commons Public
Bill Committee would replace the Government's proposals with provisions
based upon the Scottish model for retention of DNA samples, and
provides that DNA profiles may be retained from people who have
been charged with serious violent or sexual offences but not convicted,
for three years. This period can be extended by two years following
judicial authorisation. We
recommend that an amendment in the same terms is tabled at Report
stage. This should be accompanied equivalent amendments to Clause
15 and consequential amendments to Clauses 14, 15, 16 and 18.
The purpose of this group of amendments
would be to remove each of the sections of the Bill which provide
for the retention of samples taken from people arrested but not
convicted of an offence, including children arrested but not convicted
of any offence.
NEW POWERS TO TAKE SAMPLES FROM CONVICTED
PERSONS (ARTICLE 8 ECHR)
1.75 The Bill extends the power of the police
to take and retain DNA samples and profiles of individuals previously
convicted, including where their DNA could not lawfully have been
taken at the time of their arrest and conviction. For qualifying
offences, there is no time-limit proposed for the time frame in
which DNA samples can be taken. The Explanatory Notes explain
that the Government considers that it is necessary to extend the
existing provisions (which currently limit police powers to a
short time after conviction and do not permit the police to take
DNA which could not have been gathered at the time of arrest)
because "these people may still pose a significant risk to
the public".[97]
The Notes go on to state:
The police may only become aware of the continued
risk posed by the offender some time after their conviction, for
example, once they exhibit behaviour following their release from
prison but not sufficient to merit arrest.[98]
1.76 There are no such limitations on this power
in the Bill. DNA samples may be sought when an officer of the
rank of inspector is satisfied that it is necessary to take samples
in order to "assist in the prevention and detection of crime".
The Explanatory Notes explain the Government's view that this
is adequate to ensure that these powers will only be applied to
those individuals who "continue to represent a risk to the
public".
1.77 The decision in Marper did not address
the retention of the DNA samples and profiles of people with previous
convictions. However, the Council of Europe Recommendation R (92)1
recommends that where DNA is retained beyond conviction, the storage
period should be strictly limited and defined and regulated by
law. The Recommendation provides little guidance on the proportionality
of post-conviction collection of DNA samples. Its only guidance
on DNA sampling is that it should take place in circumstances
determined by domestic law. We consider that, in the light of
the reasoning in Marper (which considered the innocent
status of the applicants and the stigma attached to their inclusion
on the NDNAD), it is likely to be easier for the Government to
justify the taking and retention of the samples of people already
convicted of crimes. However, it remains for the Government to
illustrate that its proposals are proportionate in the circumstances.
In W v Netherlands, the European Court of Human Rights
considered the proportionality of the Dutch law governing the
taking and retention of DNA samples from children who have been
convicted of an offence. The Dutch law makes distinctions on periods
of retention based on the seriousness of the offences committed
and it provides a route of independent review. The Court held
that as there were adequate safeguards provided in the law on
taking and retention of convicted persons' DNA samples and profiles,
that the applicant had no grounds for challenge:
The Court notes however that, contrary to the S
and Marper case, the present case deals with the issue of
storing and retaining DNA records of persons who have been convicted
of a criminal offence. Furthermore the Court considers that, pursuant
to the provisions of [the Dutch DNA law], DNA material can only
be taken from persons convicted of an offence of a certain gravity,
and that the DNA records can only be retained for a prescribed
period of time that is dependent on the length of the statutory
maximum sentence that can be imposed for the offence that has
been committed. The Court is therefore satisfied that the provisions
of the Act contain appropriate safeguards against blanket and
indiscriminate retention of DNA records.[99]
1.78 We asked the Minister to provide a fuller
explanation of the Government's position. The Minister told us
that
- The extended powers to sample
DNA from individuals previously convicted of qualifying and other
offences would extend to offences committed when the person was
a child;
- The provisions would apply regardless of whether
an offender had served his sentence or his conviction was spent;
- "Any potential unfairness of the retrospective
nature of the provisions applying to people whose DNA could not
lawfully be gathered at the time of conviction is outweighed by
the competing public interest in preventing past, and possibly
serious, offences from continuing to go undetected and unpunished
and future crimes to be committed without detection, in cases
where the person has already shown themselves to be capable of
committing very serious crime".
- "It must be borne in mind that offenders
are not always rehabilitated for all purposes, such as vetting…The
law already recognises that some preventative measures should
apply to people, even after their convictions are spent, in order
to protect the public from the future harm they may cause, the
sex offenders register being one such example".
- The police will only be able to take DNA (and/or
fingerprints) from such individuals where an officer of at least
the rank of inspector is satisfied that taking the sample is necessary.
Necessity is a high test in law and in the Government's view that
provides a valuable safeguard.
- The Minister explained that it is unlikely that
this test will not be satisfied when a person does not pose a
risk to the public. He added that it would be clear that the inspector
considering whether to take a sample would "need to consider
the individual case and the specific risk posed by the individual
rather than simply asserting that it is necessary to fulfil the
general aim of preventing or detecting crime".
- There may be circumstances where the police suspect
that a person "may have committed similar offences in the
past even though they do not consider him a suspect in any specific
case".
- PACE Codes will make it clear to the police that
where there are reasonable grounds to suspect a person of committing
a specific past offence, police should use their power of arrest
in connection with that investigation, rather than relying on
these new powers.[100]
1.79 Justice raise concerns over
the breadth of these proposals:
Although we consider that it may sometimes
be justified for police to seek to take DNA samples of those convicted
of serious crimes, even where convictions are very old, we are
concerned that such a substantial power lacks any safeguard against
misuse. For example, a 60 year old man who was convicted of an
offence of serious violence when he was 18 may have been fully
rehabilitated in subsequent decades. In such a case, it would
be irresponsible to require the man to attend a police station
for the taking of a DNA sample unless they had reasonable grounds
for believing that it would assist in the investigation of a particular
offence.[101]
1.80 We consider that there
is stronger evidence to support the Government's case that new
powers to take DNA samples are proportionate to the risk posed
to the right to private life of previously convicted people. However,
we are concerned that the power to take DNA samples from people
previously convicted of a qualifying offence is entirely open-ended.
The greater the period of time which has passed since the relevant
conviction took place, the more significant the justification
for returning to the convicted person for a DNA sample. Equally,
we consider that the risk of disproportionality increases if this
power is applicable to offences committed by children. We recognise
that DNA may only be sampled in cases where it is necessary to
assist in the prevention and detection of crime. However, we note
that this important safeguard is not limited to circumstances
where the sample is necessary for the prevention and detection
of crime, but only where the relevant Inspector considers it necessary
to assist in such prevention and detection.
1.81 We welcome the Government's
acceptance that this test will require the assessment of individual
risk in each case and that DNA cannot be sampled for the purposes
of meeting the general aim of preventing and detecting crime.
However, we are concerned by the Minister's explanation that this
power might be exercised in circumstances where police "suspect"
an individual of having committed similar offences, but have inadequate
evidence to suspect him in an individual case. The police already
have powers to arrest an individual suspected of a specific offence
and then to take a sample of his DNA in connection with that arrest.
We are concerned about the blurring of the degree of suspicion
warranted in relation to offending behaviour, particularly in
relation to individuals whose sentences have been served and any
relevant prior convictions spent, and the implications which this
may have for the presumption of innocence in these cases. We welcome
the Government's acceptance that there will be guidance in the
PACE Codes to make clear that these provisions should not be used
in order to gather DNA in cases where the police suspects an individual
in connection with a specific offence. However, we are concerned
that guidance must also be given about the circumstances when
it will be appropriate to seek a sample without such specific
suspicion that an individual has committed an offence. We recommend
that the Government also explain whether guidance will address
the treatment of very old convictions and the treatment of convictions
in relation to childhood offences, and, if so, how.
(b) Stop and search
(i) Reporting requirements
1.82 The Bill reduces the reporting requirements
on stop and search forms in order to reduce police red tape, whilst
retaining important ethnicity monitoring oversight.[102]
The human rights issue this raises is whether the reduced reporting
requirements provide an adequate safeguard against the arbitrary
or disproportionate use of powers to stop and search which are
extremely widely drafted. As we recently stated when welcoming
the introduction of recording and reporting requirements in relation
to the use of force in schools,[103]
the requirement
to record and report, and the data which such requirements make
available, are important safeguards against the arbitrary use
of widely worded powers to interfere with the right to respect
for private life and physical integrity (Article 8 ECHR), because
they facilitate independent monitoring of the use of that power.
The removal of such requirements therefore requires very careful
scrutiny.
1.83 The requirement on the police to record
the ethnicity of a person stopped and searched, already required
by the PACE Code of Practice A, is made into a statutory duty
by the Bill.[104]
1.84 The Children's Rights Alliance for England
("CRAE") pointed out in evidence to us that in 2008
2,331 stop and searches were carried out by the Metropolitan Police
on under-15s under s. 44 of the Terrorism Act 2000, and 58 of
those involved children under the age of nine.[105]
There have recently been some high profile cases concerning
the stop and search of children by police, including one in which
a child as young as 6 was stopped and searched.[106]
1.85 We asked the Government why, given the growing
public concern about the use of police stop and search powers
on children, it is not a statutory requirement that the officer
conducting the stop and search record whether or not the subject
of the stop and search was a child and, if so, their age. The
Government's response is that the people most likely to be present
on the street at such a place and time where stop and search powers
are most likely to be used, are predominantly between the ages
of 14 and 25, and that it is therefore unclear that recording
whether the person was a child, and if so, their age in all cases
would tell us anything particularly new about the use of stop
and search powers, or at least, anything which could not be discovered
from focused field research into stop and search. The Government's
view is that recording the stopped person's age will increase
the bureaucracy around stop and search without adding significantly
to the confidence of communities in how the power is exercised.[107]
1.86 We also asked the Government whether it
has any plans to update the guidance to police officers on the
use of stop and search powers in relation to children and whether
it will undertake to ensure that such guidance makes full reference
to the relevant human rights framework, including the UN Convention
on the Rights of the Child. The current guidance to police officers
on stop and search under the Terrorism Act 2000 makes no reference
to children.[108] The
Government replied that it does not have any plans to update the
guidance to police officers on the specific use of stop and search
powers in relation to children. CRAE has argued that clear and
specific guidelines are needed on the stopping and searching of
young children.[109]
1.87 We welcome the Bill's strengthening
of the reporting requirement in relation to ethnicity which will
help to ensure proper monitoring of, and accountability for, the
exercise of a power which has historically been exercised in a
way which has a disproportionate impact on ethnic minorities.
We regret, however, that the opportunity has not been taken at
the same time to make it a statutory requirement that the officer
conducting a stop and search of a person also record that person's
age where it appears to the officer that the person is under the
age of 18. In our view there is sufficient public concern about
the inappropriate use of the power to stop and search in relation
to children to justify the introduction of such a requirement,
which would facilitate independent monitoring of the use of the
power on children. We recommend that the Bill be amended to introduce
such a requirement.
1.88 We also recommend that
specific guidance be introduced on the use of stop and search
powers in relation to children, after consulting children and
their representatives on a draft, and making full reference to
relevant human rights standards, including the UN Convention on
the Rights of the Child.
1.89 A number of other reporting requirements
are removed by the Bill. One of the requirements which the Bill
would remove is the requirement to record whether anything was
found during the search and whether any injury or damage was caused.
We asked the Government for its justification for removing these
requirements. It said that where items are found as a result of
a stop and search, such as drugs or offensive weapons, the Government
would expect officers to record this information as part of the
custody record (as finding such items is almost always going to
result in arrest). Similarly, a person who is arrested is likely
to have any injury or damage to property noted on the custody
record. There is also nothing preventing an officer noting additional
information where applicable.
1.90 We accept the Government's explanation in
relation to items found during a search. However, we
consider that the requirement to record whether any injury or
damage was caused during the search is a valuable safeguard, both
for the person being searched and for the officer conducting the
search. We recall during a visit to Paddington
Green police station being told by officers that rigorous requirements
to record the results of a detainee's medical examinations were
an important safeguard for officers against subsequent ill-founded
allegations of mistreatment. Although clearly less serious, we
consider that the same reasoning applies to the requirement to
record whether any injury or damage was suffered during a stop
and search. We regard it as a valuable safeguard for all concerned
and recommend that it be
retained.
(ii) Counter-terrorism power to stop and search
without reasonable suspicion
1.91 In our work both on Policing and Protest
and on Counter-Terrorism Policy and Human Rights, we have often
commented adversely on the apparent abuse of the power in s. 44
of the Terrorism Act 2000 ("TA 2000") to stop and search
without reasonable suspicion. In our report Demonstrating Respect
for Rights? we expressed concern about the inappropriate police
use of s. 44 TA 2000 on peaceful protestors and we recommended
that new guidance on the use of the s. 44 stop and search powers
should make clear that counter-terrorism powers should not be
used against peaceful protestors.[110]
In our follow-up report on policing and protest, we noted the
dramatic increase in the number of s. 44 stops and searches and
deplored the obvious over-use of that power in recent years.[111]
We noted the statements of both the police and the Government
that counter-terrorism powers such as s. 44 should not be used
on peaceful protestors, but in the light of continuing accounts
of this happening, such as on environmental protestors sitting
in a café during the G20 protests, we pointed out the discrepancy
between those statements of intention and the reality on the ground.
In our work on counter-terrorism policy we also noted concerns
about the disproportionate use of the s. 44 power to stop and
search against members of ethnic minority communities and we commented
on the risk of thereby alienating the very communities whose co-operation
the authorities require to help counter or prevent resort to terrorism.
1.92 On 12 January 2010 the European Court of
Human Rights held, in a unanimous Chamber judgment, that the powers
of stop and search under s. 44 TA 2000 violate the right to respect
for private life in Article 8 ECHR because they are neither sufficiently
circumscribed nor subject to adequate legal safeguards against
abuse.[112] The Court
held that searches under s. 44 TA 2000 constitute interferences
with the right to respect for private life under Article 8 ECHR.[113]
To be justified in a democratic society, such interferences must
be "in accordance with the law", as well as necessary
in pursuit of a legitimate aim. For a measure to be "in accordance
with the law", the Court held:
it must afford a measure of legal protection against
arbitrary interferences by public authorities with the rights
safeguarded by the Convention. In matters affecting fundamental
rights it would be contrary to the rule of law, one of the basic
principles of a democratic society enshrined in the Convention,
for a legal discretion to be granted to the executive to be expressed
in terms of an unfettered power. Consequently, the law must indicate
with sufficient clarity the scope of any such discretion conferred
on the competent authorities and the manner of its exercise.[114]
1.93 The Court considered the various constraints
on the possible abuse of the power to stop and search under s.
44 TA 2000, but concluded that "the safeguards provided by
domestic law have not been demonstrated to constitute a real curb
on the wide powers afforded to the executive so as to offer the
individual adequate protection against arbitrary interference."[115]
In coming to this view the Court was influenced by a number of
considerations, including:
- The lack of any requirement
at the authorisation stage that the stop and search power be considered
"necessary", or any requirement of an assessment of
the proportionality of the measure;[116]
- The ineffectiveness of judicial review as a check
on the exercise of the powers of authorisation and confirmation
due to the width of the statutory powers;[117]
- The failure of the temporal and geographical
restrictions provided by Parliament to act as any real check on
the issuing of authorisations by the executive;[118]
- The limited powers of the statutory reviewer,
who is confined to reporting on the general operation of the statutory
provisions;[119]
- The breadth of the discretion conferred on the
individual police officer.[120]
1.94 The Court was particularly concerned by
the clear risk of arbitrariness in the grant of such a broad discretion
to the individual police officer.[121]
It observed that not only is it unnecessary for the police officer
to demonstrate the existence of any reasonable suspicion, but
he is not even required subjectively to suspect anything about
the person stopped and searched. Although the purpose of the search
must be to look for articles which could be used in connection
with terrorism, the officer does not even have to have grounds
for suspecting the presence of such articles. The risk of the
discriminatory use of such wide powers against ethnic minorities
was "a very real consideration", and such a widely framed
power also carried the risk that it could be misused against demonstrators
and protestors in breach of Articles 10 and 11 of the Convention.
The Court also observed that in the absence of any obligation
on the part of the officer to show a reasonable suspicion, it
is likely to be difficult if not impossible to prove that the
power was improperly exercised, and therefore opportunities to
challenge a stop and search by way of judicial review or an action
in damages are very limited.
1.95 The Government has indicated that it intends
to request that the case be referred to the Grand Chamber of the
European Court of Human Rights, which it hopes to persuade to
take a different view and to uphold the compatibility of s. 44,
and that the police will continue to have these powers pending
a final judgment of the European Court of Human Rights.[122]
The Prime Minister confirmed this in his evidence to the Liaison
Committee on 2 February 2010.[123]
1.96 We accept of course the Government's right
under the Convention[124]
to request that the case be referred to the Grand Chamber of the
European Court of Human Rights and that the judgment of the Chamber
in Gillan does not become final until either that request
is rejected by the Grand Chamber or, if it is accepted, the Grand
Chamber itself gives judgment. However, we
would urge the Government to accept that the Court's judgment
reflects the longstanding concerns of many about the lack of adequate
safeguards on the scope of the power to stop and search under
s. 44 of the Terrorism Act 2000, and to act now to make the necessary
amendments to the law. In our view of the merits, the prospects
of the Government succeeding before the Grand Chamber are remote.
It would be preferable to take the opportunity that presents itself
in this Bill to introduce the necessary safeguards,
thereby saving the public the expense of a further round of litigation
and the UK the potential embarrassment of another adverse judgment
of the Grand Chamber finding an important part of the UK's counter-terrorism
laws to be "contrary to the rule of law, one of the basic
principles of a democratic society."[125]
1.97 We also note that in the Public Bill Committee
the Minister appeared to suggest that the judgment was out of
date and had been superseded by developments in practice since
the date of the events in that case.[126]
He said "the judgment against us is based on the historical
use of section 44, and the case itself is from 2003. There have
been significant changes since then, not least of which is that
the blanket use across every borough in the Metropolitan police
area has ended and been replaced by specific, targeted use of
the power in certain areas." It is important for parliamentarians
to be clear that if this is the Government's position, it is based
on a misunderstanding of the judgment in Gillan. The source
of the violation of Article 8 which was found in that case was
s. 44 itself, not the way in which the law was being interpreted
or applied in practice. The challenge, as the Court recognised,[127]
was to the compatibility of the terms of the statutory stop and
search powers with the Convention, not to the way in which those
powers were applied in the particular case. As we have explained
above, the powers in sections 44 to 46 TA 2000 were found to be
neither sufficiently circumscribed, nor subject to adequate legal
safeguards against abuse. The
deficiency identified by the Court lies in the statutory provisions
themselves. It is a finding of a violation which requires the
law itself to be amended in order to remedy the breach, not mere
changes in practice or policy.
We therefore recommend that the
opportunity be taken in this Bill to amend sections 44 to 46 TA
2000 to meet the criticisms of the European Court of Human Rights,
both by circumscribing the power of stop and search more clearly
and by introducing stronger safeguards against its possible abuse.
We recommend amendments which
(1) substitute "necessary"
for "expedient" as the relevant condition for authorisation
and require an assessment of proportionality to be carried out
before an authorisation is given;
(2) tighten the geographical limits
on an authorisation;
(3) impose stricter limits on the
duration of an authorisation and prevent its indefinite renewal;
and
(4) introduce a requirement that
the police officer has reasonable grounds for suspecting that
the person stopped is carrying articles which could be used in
connection with terrorism.
The following amendments to the Bill are suggested
to give effect to this recommendation:
Power to stop and search under Terrorism
Act 2000
To move the following new clause-
(1) Section 44 of the Terrorism Act
2000 (authorisations) is amended as follows.
(2) In subsection (3), for "expedient"
there is substituted "necessary".
(3) After subsection (3) there is inserted
"(3A) The area specified under
subsection (2) shall not exceed one square kilometre"
(4) In subsection (4), for "the
whole or part of a police area" (wherever occurring) there
is substituted "in a police area".
(5) Section 45 of the Terrorism Act
2000 (exercise of power) is amended as follows.
(6) For subsection (1)(b) there is
substituted
(b) may only be exercised where the
constable has reasonable grounds for suspecting the presence of
articles of that kind.
(7) Section 46 of the Terrorism Act
2000 (duration of authorisation) is amended as follows.
(8) In subsection (2) for "28"
there is substituted "7".
(9) In subsection (7) after "is
renewed" insert "but the same authorisation shall not
remain in effect for more than 28 days".
(c) Domestic violence notices
and orders
1.98 The Bill provides for Domestic Violence
Protection Notices (DVPN or "Go orders"), allowing police
to bar a suspected perpetrator of domestic violence from their
homes for up to 48 hours even if they are not charged, enabling
suspected victims of domestic violence to remain in their own
homes rather than to seek refuge elsewhere. After 48 hours, police
are required to apply to the magistrates courts for a Domestic
Violence Protection Order (DVPO) which, if the court considers
the order is necessary for the protection of a suspected victim
of domestic violence, may bar a suspected perpetrator from their
home for a minimum of 14 days up to a maximum of 28 days. The
magistrates will apply the civil standard of proof. Any person
breaching a DVPN may be subject to arrest, pending application
for a DVPO and any person breaching a DVPO will be subject to
arrest and may be in contempt of court (which is subject to a
penalty of up to a £5,000 fine or 2 months imprisonment).[128]
1.99 We wrote to the Minister to ask for further
information on two significant human rights issues:
(i) Whether the proposals struck a proportionate
balance between the positive obligation to protect women and children
against violence (Article 8 ECHR ) including within the home and
on the other hand the rights of a person suspected of domestic
violence to respect for their home (Article 8 ECHR)?
(ii) Whether the Bill makes adequate provision for
the rights of the person suspected of domestic violence to the
right to a fair hearing by an independent and impartial tribunal
(Article 6 ECHR)?
i) Domestic violence notices and orders: proportionate
and necessary?
1.100 The Explanatory Notes explain that the
Government accepts that these provisions engage the right to respect
for private life (Article 8 ECHR) and the right to respect for
possessions (Article 1, Protocol 1) but the Government considers
that they are justified as they pursue the legitimate aim of protecting
the victims of domestic violence:
This is because a DVPN/DVPO can have the effect of
excluding [the alleged perpetrator] from [his or her] place of
residence and from having contact with members of [his or her]
family. However, the Secretary of State considers that any interference
with these rights is justified as it would be prescribed by law,
and proportionate in pursuit of a legitimate aim…A DVPN/DVPO
will only be issued where there is clear evidence of past violent
behaviour and in circumstances where it is necessary to act to
prevent future violent behaviour and can only last for a limited
period of time.[129]
1.101 It is well-recognised in human rights law
that the State has a positive obligation to take appropriate steps
to protect vulnerable people—including women and children
affected by domestic violence—from threats which pose a
risk to their lives, their right to be free from inhuman and degrading
treatment and their physical integrity (Articles 2, 3 and 8 ECHR).[130]
It is well accepted that the burden of this positive obligation
becomes heavier, the more significant and immediate that the relevant
risk becomes. This positive obligation to protect individuals
from violence caused by others includes the obligation to have
effective criminal and investigatory procedures but may also include
positive obligations to take civil or other measures to prevent
harm. So, while it is clear that the exclusion of an individual
from his or her home will be an interference with his or her right
to respect for home, private and family life and the right to
enjoy personal possessions, the measures in the Bill are clearly
not only designed to meet a legitimate aim, but to meet a positive
human rights obligation on the part of the Government. The key
question is whether the proposed interference is proportionate
when balanced against the positive benefit to the protection of
victims of domestic violence offered by the DVPN/DVPO regime.
The Explanatory Notes which accompanied the Bill did not address
the positive obligation on the state to protect victims. In his
response to our letter, the Minister accepted that the State has
positive human rights obligations "to protect women and children
from violence, including in their home, although there is a broad
discretion as to how these duties are fulfilled". We
commend the intention behind these proposals which, in so far
as they are designed to protect victims of domestic violence and
their children from the threat of further violence, are potentially
human rights enhancing measures. We consider below whether the
detail of the measures strike a proportionate balance with the
interference posed to the right of individuals to respect for
their home, private and family lives. However, we recommend that
where Government proposals are designed to meet positive human
rights obligations, or support those obligations, that the departments
should be encouraged to acknowledge these obligations and the
positive steps which they are taking to meet them in the Explanatory
Notes or any freestanding Human Rights Memoranda.
1.102 A number of witnesses wrote to us to support
the approach in the Bill. The Equality and Human Rights Commission
told us:
The Commission believes that the relatively short
length of the DVPN (48 hours), the requirement for the police
to obtain a DVPO at court within 48 hours and the opportunity
for the alleged perpetrator to make their case in court against
a DVPO provide safeguards that limit the negative impact on alleged
perpetrators.[131]
1.103 However, a number of human rights organisations
have expressed concern about a lack of safeguards in the Bill.
Liberty argues that while the positive obligations on the State
require action to protect those at risk of domestic violence,
the current proposals go too far, particularly in the light of
existing provisions in family law for civil orders for occupation
and non-molestation orders to be sought by those who have suffered
from or who are in fear of domestic violence:
While we support a great deal of the Government's
recent effort in this area we have concerns about the scope of
this most recent proposal….an occupation order can grant
or take away the right to occupy a property and the Act sets out
various factors that the courts must consider when making such
an order. A non-molestation order can be made ex parte and prohibits…molestation
in general or particular acts of molestation. A non-molestation
order can last a specified period or until a further order is
made….For these reasons we are unsure as to exactly the loophole
that the Government is seeking to plug with the new proposed "Go"
orders. […]
We also have concerns that the proposed order may
be used as an inappropriate alternative to the criminal justice
system…We do not…think that the new civil order proposed
would be an effective or appropriate substitute for any current
failings in the operation of the criminal justice system.[132]
1.104 Liberty recommend a number of amendments
to the Bill to further define the conditions for DVPN/DVPO and
to limit the timeframe of both to a maximum of 48 hours. They
also propose amendments to prevent further extension of the orders
by the operation of adjournments by the magistrates courts. They
argue that the Government's principal justification for these
orders is intended to be the need for "a cooling-off period"
for victims of domestic violence. They understand that with additional
safeguards, this could provide adequate justification for the
short DVPN, but not for the longer proposed DVPO. They argue that
DVPO should only be imposed for a 48 hour period, in circumstances
when the suspect breaches the initial DVPN. They argue that during
this short period of 2 - 4 days, the suspected victim should be
supported to enable him or her to decide which further action
that they wish to take, whether through pursuit of further civil
orders or criminal proceedings.
1.105 We wrote to ask the Minister for further
information about non-molestation orders and criminal prosecution
and the proportionality of the proposals in the Bill. The Minister
told us that criminal proceedings in domestic violence cases were
complicated by the private nature of the crimes concerned:
Domestic violence…is largely committed in private
behind closed doors. As a result, investigators often do not have
access to the usual plethora of corroborating evidence to support
a prosecution. This means that even where the police have repeatedly
been called to the same address and have reason to believe that
there is repeated violence or a risk of violence - though they
might be able to arrest the perpetrator - they are unable to collect
enough information to bring a charge.[133]
1.106 The Minister explained that in these circumstances,
there was often little option to prevent the suspected perpetrator
from returning home on release. Without any other protective measures,
the only option in such a case would be to remove the victim and
any children to a refuge for their protection. The Minister also
considered that there was a gap in relation to the protection
offered by civil injunctions. He told us that there was at present
no power to offer victims protection in the immediate aftermath
of an incident before any application for an injunction can be
made. The Minister explained that the Government hopes that in
practice the DVPO will "dovetail" with existing powers
of injunction under the Family Law Act 1996, including occupation
and non-molestation orders.
1.107 We also asked for further information on
the circumstances in which an order might be made and the likely
evidence sought. The Minister told us that guidance would be issued
after Royal assent after consultation. It would include guidance
on:
- The scope of the DVPN/DVPO;
- Role of the caseworker and measures to protect
and support victims and children or other dependents;
- When it would be appropriate to consider a DVPN/DVPO;
- Collection of evidence and the standard of proof;
and
- Considerations for magistrates considering a
DVPO.
1.108 We questioned the need for a DVPO to last
for 14-28 days and the guidance that would be available to police
officers and magistrates on the availability of alternative accommodation
for people subject to DVPN or DVPO. The Minister told us that
this time frame was "important to maintain the immediate
protection put in place by the DVPN, to provide the victim with
the 'cooling off period' or breathing space away from the situation
to assess her options and to ensure that subsequent protective
measures can be put in place". The Minister added that this
time-frame took into consideration the fact that it was crucial
that further protection measures should be in place before the
expiry of any DVPO and that evidence suggests that it can take
"up to several weeks" to secure an appointment with
a solicitor, seek legal aid if appropriate, gather supporting
evidence, demonstrate a need for the injunction, and to secure
a court hearing and have the order in place.
1.109 Whether the proposals for DVPN and DVPO
will operate in proportionate way will depend significantly on
the facts of each case and how the proposals in the Bill operate
in practice. In each case, the degree of risk faced by the suspected
victim, the evidence to support that risk and the impact on the
suspected aggressor will vary. We note that there are a number
of safeguards in the Bill, which increase the likelihood that
these measures will be considered proportionate. For example,
in relation to DVPN:
- Only an officer of the rank
of superintendent may issue a DVPN;
- He must have reasonable grounds to believe that
the individual to be subject to the order has been violent or
threatened violence already before the order can be made;
- An order can only be made if there are reasonable
grounds to believe that the DVPN is necessary to protect the person
who the violence was directed towards;
- Before making a DVPN, the officer must consider
relevant representations, including from the person who would
be subject to the order;
- A DVPN will last until the application for a
DVPO is made, usually within 48 hours.
1.110 It is clear that the facts
of each case where a DVPN is considered - including the seriousness
of violence or threat of violence involved and the evidence available
to support the need for protection - will impact upon its proportionality.
With this in mind, we consider that appropriate guidance to officers
on the evidence required to support a DVPN and on the effects
of a DVPN for both the suspect and the victim will be crucial.
We welcome the Government's commitment to ensure that guidance
is made available. We recommend that this should also cover guidance
for those subject to DPVN on appropriate alternative accommodation,
if necessary. However, in the light of the short time frame for
these orders, and the justification for the orders in terms of
providing "breathing space" for suspected victims of
domestic violence, we consider that these proposals do not pose
a significant risk of incompatibility with either the right to
respect for home, family and private life or the right to respect
for the peaceful enjoyment of possessions (Article 8 and Article
1, Protocol 1 ECHR).
1.111 We note that the Bill
provides for a DVPN to remain in force during any adjournment
of the hearing of an application for a DVPO. The longer that a
DVPN remains in force without full consideration of the case by
an independent and impartial tribunal, the greater the risk that
the a longer eviction from the home coupled with a lack of judicial
oversight could be disproportionate and in breach of the right
to respect for private life and potentially, the right to a fair
hearing by an independent and impartial tribunal (Article 6 and
Article 8 ECHR).
1.112 The DVPO lasts for a significantly longer
time-frame and has the potential to impact significantly on the
home, family and private life of both the victim and the suspect.
We share the concern of Liberty, that the Government does not
appear to have provided evidence for the need for a "Go"
order which lasts for up to a month. We note that the time-frame
for these orders in other jurisdictions appears to be much shorter.[134]
We consider that this time-frame is exacerbated by the fact that
the hearing of a DVPO may be adjourned indefinitely while an individual
remains subject to an earlier DVPN. The Government's explanation
for the time-frame envisaged for DVPO refers to the difficulties
which victims may face in securing adequate support and legal
advice. We are concerned that the failure to provide adequate
victim support services or speedy effective access to civil law
protection measures should not be used to support the proportionality
of a measure which may impact significantly on the home, private
and family life of an individual suspected of domestic violence
but who may be entirely innocent. We
consider that the Government should be required to provide further
evidence to support its case that an DVPO which lasts up to a
month is appropriate, in the light of the availability of alternative
civil law protection for victims of domestic violence.
ii) The right to a fair hearing
1.113 The Explanatory Notes accept that the making
of a DVPO will engage Article 6 ECHR but argue that adequate safeguards
are provided for that right by the provisions in the Bill. The
Government considers that the making of a DVPN does not engage
Article 6 because it does not involve the determination of a civil
right, but is an interim measure to allow a substantive DVPO hearing
to proceed.
1.114 Both a DVPN and DVPO can be made either
against the wishes of the alleged victim or when the alleged victim
refuses to support either the DVPN or the DVPO and the alleged
victim is not a witness who can be compelled to give evidence
by the alleged perpetrator of the violence or threats of violence.
The Explanatory Notes explain that the magistrates will ensure
a right to a fair hearing in such cases by assessing whether the
hearing is fair in all the circumstances, despite the non-compellability
of the alleged victim.
1.115 The Bill proposes that the civil standard
of the balance of probabilities will apply to the grant of DVPO.
A court must be satisfied (1) on the balance of probabilities
that the person subject to the order ("P") has been
violent or threatened violence against a person and (2) that it
is necessary to grant the DVPO to protect that person from further
violence or threat of violence by P.
1.116 The Bill does not make any specific provision
for breach of a DVPO. However, the Minister has explained that
breach of a DVPO will be treated as contempt of court, punishable
by a fine of up to £5,000 or imprisonment. Breach must be
proved to the criminal standard of beyond reasonable doubt, although
no criminal conviction flows from it.[135]
1.117 In the leading ASBO case of R (McCann)
v Crown Court at Manchester, the House of Lords upheld the
Government's argument that proceedings leading to the making of
an ASBO do not involve the determination of a criminal charge
for the purposes of Article 6 ECHR. It held that proceedings for
ASBOs were civil, not criminal;
(a) There was no formal accusation of a breach of
criminal law;
(b) They were initiated by a civil complaint;
(c) It was unnecessary to establish criminal liability;
(d) The true purpose of the proceedings was preventive;
(e) The making of an ASBO was not a conviction or
condemnation that a person was guilty of an offence;
(f) Hearsay evidence was admissible.
1.118 Although the House of Lords held that proceedings
for an ASBO were civil not criminal, they also held that they
should carry the criminal standard of proof. In all cases in which
an ASBO was applied for, magistrates should apply the criminal
standard of proof: that is, they must be sure that the
individual in question has acted in an anti-social manner before
they can make an order.[136]
We had particular concerns about the Government's proposed civil
standard of proof for a DVPO and we asked the Minister to explain
why it did not consider that the criminal standard is appropriate.
1.119 In reply, the Minister noted that the proposed
DVPO were civil, and that the burden of proof should therefore
be the civil balance of probabilities. The Minister cited subsequent
House of Lords authority, R (D) v Life Sentences Review Commissioners,[137]
that held that there was "only one civil standard of proof".
The more serious the allegation concerned, and the more serious
the consequences if the allegation was proved, the stronger the
evidence must be have to be before a court would find the allegation
proved on the balance of probabilities, however the standard of
proof remains "on the balance of probabilities". In
that case, the court accepted that although there was one single
standard of proof, that in ASBO cases, the civil standard was
virtually indistinguishable from the criminal one and it was appropriate
that magistrates should continue to apply the criminal standards.
The Government accepts that the authority cited by the Minister
did not disapprove of the substance of the judgment in McCann,
that the standard of proof in ASBO cases must be indistinguishable
from the criminal standard. Indeed, in that authority, Lord Brown
of Eaton-under-Heywood accepted that this line of authority appeared
inconsistent with his approach in this case (although he did not
say that it should be departed from) and questioned whether in
the case of ASBOs, "it would not have been more logical and
appropriate to have decided that the making of the various orders
calls for the criminal standard of proof to be satisfied in the
first place".[138]
1.120
The Minister argued that DVPNs were distinguishable
from ASBOs as breach of a DVPN was not a criminal offence, and
the imposition of an ASBO could last for significantly longer
and have a wider range of conditions.
1.121 We consider that the effects
of a DVPO can be similar in certain respects to that of anti-social
behaviour orders (ASBOs). The breach of a DVPO can lead to significant
penalties, as we recognised in or earlier report on gangs injunctions
(gangs injunctions are civil orders, which are similar in effect
to an ASBO, where breach may result in civil contempt). Although
an ASBO may last longer, it will not necessary do so. Equally,
although the conditions which may apply in an ASBO may be wider,
the conditions in a DVPO will have a significantly broad impact
and could evict an individual from his or her home for a period
of up to a month. The person will be required to make provision
for alternative accommodation during that time, including incurring
additional costs and is unlikely to be able to access social housing
during this period. It is possible that an application for a DVPO
will have at least as serious an impact as an application for
an ASBO and whether characterised as the application of an enhanced
civil standard indistinguishable from the criminal standard or
otherwise, the requirement that the violence or threat of violence
must be proved beyond reasonable doubt is in our view necessary
in order to satisfy the right to a fair hearing and to ensure
that these proceedings are considered proportionate.
1 Clause 1 Back
2
Clauses 2-20 Back
3
Clauses 21-30 Back
4
EN, paras 217-270 Back
5
Ev 10 Back
6
Ev 11 Back
7
Ev 20 Back
8
Press Notice 6, Legislative Priorities for 2009-2010, 4 January
2010. Back
9
App No 30562/04, Judgment, 4 December 2008. See also Twenty-seventh
Report of 2008-09, Retention, use and destruction of biometric
data, HC 1113/HL 182. Back
10
Marper, Para 119 Back
11
Tenth Report of Session 2008-09, Legislative Scrutiny: Policing
and Crime Bill, HL Paper 68, HC 395, paragraphs 1.111 to 1.119. Back
12
Ibid Back
13
PBC Deb, 26 Jan 2010, Col 71 Back
14
See for example, Fifth Report of 2008-09, Counter-Terrorism
Policy and Human Rights (Fourteenth Report): Annual Renewal of
Control Orders Legislation 2009, HL Paper 37/HC 282,
para 9 Back
15
For further details on the obligations of the United Kingdom under
Article 46 ECHR, see Sixteenth Report of Session 2006-07, Monitoring
the Government's Response to Court Judgments Finding Breaches
of Human Rights, HL Paper 128/HC 728, paras 5 - 8. Back
16
See Clause 14, New Section 64ZA, Police and Criminal Evidence
Act 1984; Clause 15, New Section 64ZA Police and Criminal Evidence
(Northern Ireland) Order 1989, Clause 16, New paragraph 14A, Schedule
8, Terrorism Act 2000, Clause 17, New paragraph 8 (2), Schedule
4, International Criminal Court Act 2001; Clause 18, New Section
18(3A), Counter-Terrorism Act 2008 Back
17
Ibid Back
18
See Clause 14, New Section 64ZB, Police and Criminal Evidence
Act 1984; Clause 15, New Section 64ZB Police and Criminal Evidence
(Northern Ireland) Order 1989. Back
19
See Clause 14, New Section 64ZC, Police and Criminal Evidence
Act 1984; Clause 15, New Section 64ZC Police and Criminal Evidence
(Northern Ireland) Order 1989. Back
20
No provision is made for the destruction of DNA profiles of this
category of persons by the Bill, so the Explanatory Notes explain,
their retention will be indefinite. Back
21
See Clause 14, New Section 64ZH, Police and Criminal Evidence
Act 1984; Clause 15, New Section 64ZH Police and Criminal Evidence
(Northern Ireland) Order 1989. Back
22
See Clause 14, New Section 64ZD, Police and Criminal Evidence
Act 1984; Clause 15, New Section 64ZD Police and Criminal Evidence
(Northern Ireland) Order 1989. See also Clause 16, New Paragraph
14B, Schedule 8, Terrorism Act 2000. See also Clause 18, New Section
18(3C). Back
23
See Clause 14, New Section 64ZE-F, Police and Criminal Evidence
Act 1984; Clause 15, New Section 64ZE-F Police and Criminal Evidence
(Northern Ireland) Order 1989. See also Clause 16, New Paragraph
14C-E, Schedule 8, Terrorism Act 2000. See also Clause 18, New
Section 18(3B) Back
24
See Clause 14, New Section 64ZG, Police and Criminal Evidence
Act 1984; Clause 15, New Section 64ZG Police and Criminal Evidence
(Northern Ireland) Order 1989. See also Clause 16, New Paragraph
14 D-E, Schedule 8, Terrorism Act 2000. See also Clause 18, New
Section 18(3B-3C) Back
25
Clauses 14-15 Back
26
The Bill defines responsible chief officers as the chief officer
of police for the police area in which the relevant samples were
taken (where a DNA profile is concerned, this will be the chief
officer for the area where the DNA sample was taken). In Northern
Ireland, this is always the Chief Constable for Northern Ireland. Back
27
See Clause 14, New Section 64ZI(5)-(6), Police and Criminal Evidence
Act 1984; Clause 15, New Section 64ZI (5) Police and Criminal
Evidence (Northern Ireland) Order 1989, Clause 16, New paragraph
14F(5), Schedule 8 Terrorism Act 2000 Back
28
See Clause 14, New Section 64ZK, Police and Criminal Evidence
Act 1984; Clause 15, New Section 64ZK Police and Criminal Evidence
(Northern Ireland) Order 1989, Clause 16, New paragraph 14A, Schedule
8, Terrorism Act 2000; Clause 18, New Section 18(3A), Counter-Terrorism
Act 2008 Back
29
Clause 19 Back
30
Clause 20 Back
31
1072nd (DH) Meeting, 1 -3 December 2009, Decisions adopted at
the meeting, CM/Del/Dec (2009) 2072, 7 December 2009. Back
32
1072nd (DH) Meeting, 1 -3 December 2009, Annotated Agenda and
Decisions, CM/Del/OJ/DH(2009)1072 Section 4.2 PUBLIC, 21 December
2009, Section 4.2 Back
33
GeneWatch UK, Ev 39, Dr CNM Pounder, Amberhawk Training Ltd, Ev
49; Black Mental Health UK, Ev 34. Back
34
EN, paras 228-239 Back
35
Ibid, para 234 Back
36
Obid, para 235 Back
37
EN, para 236 Back
38
Ev 11-20 Back
39
Marper, paras 63-65. Back
40
Ibid Back
41
Paras 74 - 76. See also paragraph 120 and 123. Back
42
Para 104 Back
43
Para 122. Back
44
Home Office, Keeping the right people on the DNA database:
Summary of Responses, November 2009, para 2.1 Back
45
Ev 20-34 Back
46
Marper, para 120 Back
47
Marper, para 122.We note that the Committee of Ministers
Secretariat expressed similar concerns about the Government's
failure to take on board the effect of stigmatisation recognised
by the Court. In December 2009, it commented: "The approach
of the [UK] authorities to the application of the academic studies
is that "we …believe that the risk of offending following
an arrest which did not lead to a conviction is similar to the
risk of re-offending following conviction." (§6.10 of
the consultation). This strongly contrasts with the Court's concern
about "the risk of stigmatisation", and the Court's
observation that "the right of every person under the Convention
to be presumed innocent includes the general rule that no suspicion
regarding the innocence of an accused may be voiced after his
acquittal." (§122 of the judgment). In addition, in
W. against the Netherlands (application No. 20689/08, decision
of 20/01/2009.) retention of DNA material (for convicted persons)
was accepted where it was retained for a "prescribed period
of time dependent on the length of the statutory maximum sentence
that can be imposed for the offence committed." The approach
of the authorities does not consider retention on the basis of
any link with the maximum sentence but rather on possibility of
future offending." See 1072nd (DH) Meeting, 1 -3 December
2009, Annotated Agenda and Decisions, CM/Del/OJ/DH(2009)1072 Section
4.2 PUBLIC, 21 December 2009, Section 4.2 Back
48
Marper, para 123 Back
49
Recommendation No R (92) 1 on the use of analysis of NDA within
the framework of the criminal justice system, adopted 10 February
1992. Back
50
PBC Deb, 28 Jan 2010, Col 128 Back
51
PBC Deb, 4 Feb 2010, Col 244 Back
52
Marper, para 112. See also 113 - 125. Back
53
Ev 24 Back
54
See for example, Mr Justice Beatson, Forensic Science and Human
Rights: The Challenges, June 2009, p19, 25. Back
55
BBC News, DNA Storage Proposal Incomplete, 25 September 2009.
We note that the Committee of Ministers Secretariat considered
this evidence and concluded that its basis, being based on the
risk of future criminality, appeared inconsistent with the guidance
of the court on the stigma attached to the retention of the DNA
of individuals on a database where they are treated in the same
way as convicted persons, rather than those who have never been
under suspicion. See 1072nd (DH) Meeting, 1 -3 December 2009,
Annotated Agenda and Decisions, CM/Del/OJ/DH(2009)1072 Section
4.2 PUBLIC, 21 December 2009, Section 4.2 Back
56
BBC News, DNA Storage Proposal Incomplete, 25 September 2009. Back
57
Ev 22 Back
58
See for example, Ev 49-50 Back
59
Liberty, Second Reading Briefing on the DNA provisions,
January 2010. Justice raise similar concerns see Crime and
Security Bill: Briefing on Second Reading House of Commons,
January 2010. Back
60
Paragraph 124 Back
61
UN Committee on the Rights of the Child, 49th Session, Concluding
Observations on the United Kingdom, 20 October 2008, para 36. Back
62
Ev 24-25; EN para 237 Back
63
EN, para 236 Back
64
DNA Retention Policy-Re-arrest Hazard Rate Analysis (Herein "Home
Office Research Paper") Back
65
Ibid, See Figure A4. Back
66
Recommendation R92(i), Section 8 Back
67
Home Office Research Paper Back
68
Ibid Back
69
See Press Release, Scottish Government, Strengthening Scotland's
Forensic Regime, 24 February 2009. The Scottish Government,
Acquisition and Retention of DNA in Scotland, Consultation Report,
2009 Back
70
Recommendation R (92) 1, Section 8. Back
71
PBCDeb, 4 February 2910, Cols 261-262 Back
72
Gillan V UK, App No 4158/05, Judgement, 12 January 2010 Back
73
Ibid Back
74
Cm 7291, The National Security Strategy of the United Kingdom,
Cabinet Office, March 2008. Back
75
Page 46, Line 36 Back
76
Page 53, Line 27 Back
77
Page 58, Line 3 Back
78
Page 46, Line 36 Back
79
Page 53, Line 27 Back
80
Page 58, Line 3 Back
81
New Section 64ZL (5) Police and Criminal Evidence Act 1984, inserted
by Clause 14(2). Back
82
Ev 48 Back
83
Crompton v UK, App No 42509/05. Back
84
Tsfayo v UK, App No 60800/00, Judgement, 14 November 2006.
In Crompton v UK, the court specifically recognised the
limitations of judicial review in fact-sensitive cases, see paras
78-79 Back
85
HC Deb, 3 Feb 2009, cc 1048 - 1052W Back
86
The Independent, DNA profiles removed at rate of one a day,
14 January 2009 Back
87
See letter from Ian Readhead to Chief Constables, July 2009. Twenty-seventh
Report of 2008-09, Retention, use and distribution of biometric
data: Correspondence with Government, HL Paper 182/HC 1113. Back
88
Home Office, Keeping the right people on the DNA database,
May 2009, paras 6.25 - 6.31 Back
89
Ev 27 Back
90
See Section 18A, Criminal Procedure (Scotland) Act 1995,as inserted
by Section 83, Police, Public Order and Criminal Justice (Scotland)
Act 2006. Back
91
HL Deb, 20 Oct 2009, Cols 664-669. Back
92
PBC Deb, 26 Jan 2010, Col 55 Back
93
Amendment 26, PBC Deb, 4 February 2010, Cols 226-254. Back
94
Ev 14-15 Back
95
Acquisition and Retention of DNA and Fingerprinting Data in
Scotland, Professor Fraser, June 2008, p 14. Back
96
See Fn 90, above Back
97
EN, para 223 Back
98
Ibid Back
99
Application No 20689/08, 20 January 2009. Back
100
Ev 29 Back
101
Justice, Briefing on the Crime and Security Bill, Second Reading,
January 2010, para 25. Back
102
Clause 1, amending s. 3 Police and Criminal Evidence Act 1984
("PACE"). Back
103
Fourteenth Report of Session 2008-09, Legislative Scrutiny:
Welfare Reform Bill; Apprenticeships, Skills, Children and Learning
Bill; Health Bill, HL 78/HC 414 at paras 2.31-2.35. Back
104
Clause 1(x). The provision was welcomed by the Equality and Human
Rights Commission in its memorandum submitted in response to our
call for evidence on our legislative scrutiny programme for 2009-10:
XX Report, Ev 53. Back
105
CRAE, 8th report of 2009-10, HL Paper 57/HC 369, Ev 41-42, para
11. Back
106
See e.g. Independent Police Complaints Commission press release,
10 September 2009. Back
107
Ev 31 Back
108
Practical Advice on Stop and Search in relation to the Terrorism
Act, National Policing Improvement Agency, (November 2008). Back
109
CRAE, above n.105, para. 12 , Ev 44. Back
110
Seventh Report of 2008-09, Demonstrating Respect for Rights?
A Human Rights Approach to Policing and Protest, HL 47-I/HC
320-I, paras 86-93. Back
111
Twenty-Second Report of 2008-09, Demonstrating Respect for
Rights? Follow up, HL 141/HC 522, paras 46-49. Back
112
Gillan and Quinton v UK (App. No. 4158/05, 12 January 2010)
at para. 87. Back
113
Ibid at para. 65. Back
114
Ibid. at para. 77. Back
115
Ibid. at para. 79. Back
116
Ibid. at para. 80. Back
117
Ibid. Back
118
Ibid. at para. 81. Back
119
Ibid. at para. 82 Back
120
Ibid. at para. 83. Back
121
Ibid. at paras 83-86. Back
122
Ev 24; David Hanson MP, PBC, 2 Feb 2010 col. 173. Back
123
Qs 78-80. Back
124
ECHR Article 44(2). Back
125
Gillan v UK, para 77. Back
126
PBC 28 Jan 2010 col 118 Q224 (David Hanson MP). Back
127
Gillan v UK, above, at para. 52. Back
128
See PBC Deb, 28 January 2010, Col 234 (Rt Hon David Hanson MP) Back
129
EN, para 243 Back
130
MC v Bulgaria, App No 39272/98; Osman v UK, App No 23452/94,
Judgement, 28 October 1998 Back
131
EHRC, Eighth Report of 2009-10, above n.105, Ev 52, para 34. Back
132
Liberty, Committee Stage Briefing, February 2010. See also Justice,
Second Reading Briefing, January 2010. Back
133
Ev 32 Back
134
For example, in their report on domestic violence, the Commons
Home Affairs Committee considers the scheme in Austria, which
is valid for 10 days, and one scheme in Germany which operates
for 10-14 days. How2ever, we note that these schemes are in effect
police matters, not court orders. See Home Affairs Committee,
Sixth Report of 2007-08, HC 261-1, para 335. Back
135
See PBC Deb, 28 January 2010, Cols 133-134. Back
136
R v Manchester Crown Court-[2002] ukhl 39. Back
137
[[2008] UKHL 33 Back
138
Ibid para 48. We note that the administrative court has recently
adopted the approach in McCann in relation to Sexual Offences
Prevention Orders, under s.104 Sexual Offences Act 2003. In Chief
Constable of Cleveland v Haggas, [2009] EWHC 3231 (Admin), the
Court emphasised that the approach in Mc Cann required that the
court must require proof beyond reasonable doubt that the person
subject to the order had done what he or she was alleged to have
done. Thereafter, it would be for the relevant court to consider
whether an order was necessary or not. So, by analogy in this
case, the magistrates would have to be satisfied beyond reasonable
doubt that the person to be subject to a DVPO had been violent
or threatened violence to P. It would then have to consider whether
an order was necessary for the protection of P. Back
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