2 Retention of fingerprints, DNA samples
and profiles and the right to respect for private life (Article
8 ECHR)
Introduction
6. Part One of the Bill contains provisions designed
to implement the commitment in the Coalition Agreement to reform
the law on the retention of fingerprints and DNA samples and profiles
in England and Wales with a new approach to retention based on
the model operated in Scotland ("the Scottish Model").[4]
These provisions are designed to respond to the judgment of the
European Court of Human Rights in Marper v UK that existing
provisions in the UK which permit the indefinite retention of
DNA samples and profiles taken from innocent people, including
children, pose a disproportionate interference with the right
to private life, in violation of Article 8 ECHR.[5]
7. These measures will replace earlier reforms in
the Crime and Security Act 2010, which have not yet come into
force.[6] Our predecessor
Committee criticised the proposals in the Crime and Security Act
2010 and regretted that the previous Government had set out to
take a very narrow approach in its response to the judgment of
the European Court of Human Rights in Marper.[7]
8. In so far
as these proposals are designed to introduce a more proportionate
response to the judgment in Marper v UK, we welcome
their introduction. We consider the
proportionality of these proposals in more detail, below. By way
of summary, we consider that the measures in the Bill are likely
to be a significant improvement on the measures in the Crime and
Security Act 2010. However, we are concerned that without fuller
information, including statistics, on the operation of the National
DNA Database, we cannot reach a firm conclusion on the proportionality
of these measures. We call on the Government to collect better
records on the contribution made to the prevention and detection
of crime by the retention and use of biometric material in the
future. We have a number of specific concerns about the proposals
in the Bill, which we consider may undermine some of the significant
safeguards for individual privacy which the Government intends
to introduce. These include concerns about proposals in the Bill
which would create a discretionary power for the Secretary of
State to designate some circumstances when biometric material
taken from people arrested but not charged would be retained and
broad discretionary powers to retain biometric material when Chief
Officers consider it in the interests of "national security".
"The Scottish Model"
and proportionality
9. In its Human Rights Memorandum, the Government
explains its view that these new measures are more likely to be
compatible with the right to respect for private life (Article
8 ECHR) than the measures in the Crime and Security Act 2010.
In particular, the Government notes:
- The proposals are significantly
less broad that the existing regime for retention (considered
in Marper) and those in the Crime and Security Act 2010;
- Both our predecessor Committee and the European
Court of Human Rights referred to the operation of the Scottish
system in their consideration of Marper;
- The new measures will have been subject to significant
parliamentary debate, which may lead to a wide margin of appreciation
to be afforded to the UK in this area; and
- The new measures make the seriousness of the
offence which an individual is connected with a "material
criterion in determining if retention is appropriate".[8]
10. Our
predecessor Committee accepted that the Scottish model for retention
of DNA samples and profiles taken from innocent people and children
is more likely to be proportionate than the measures in the Crime
and Security Bill 2010. We agree. In so far as these measures
are designed, in comparison, to create a less intrusive mechanism
for the retention of biometric material, we welcome the Government's
proposals.
11. Any mechanism for retention of biometric material
creates an interference with the right to respect for private
life and must be justified as being both necessary and proportionate
to a legitimate aim. The European Court of Human Rights has accepted
that the use of DNA evidence can make a valuable contribution
to the prevention and detection of crime and the protection of
the rights of others.[9]
We reiterate that the Government has a responsibility and a positive
obligation, grounded in rights such as the right to life guaranteed
by Article 2 ECHR and the right to physical integrity under Article
8 ECHR, to implement responsible and proportionate measures for
the protection of the public from serious crime. However, the
retention of biometric information remains an interference with
the right of individuals to private life and such retention must
be limited to circumstances where it is justified, proportionate
and necessary for the prevention and detection of crime or the
protection of the rights of others.[10]
The stigmatisation which attaches to the inclusion of information
about children and the innocent on a database of information primarily
gathered from offenders for criminal justice purposes and the
sensitivity of the material held both play an important part in
the assessment of the proportionality of these measures.[11]
The European Court of Human Rights has noted that the UK has a
special responsibility to provide justification for the operation
of the National DNA Database, since it is operating at the forefront
of the development of this technology and the use of profiles
in criminal justice.[12]
This is a developing area of law and technology and developments
in the UK are closely observed. Subject
to a few specific concerns, which we outline below, there are
a number of welcome measures in the Bill, which in our view make
it more likely that the operation of the National DNA Database
will be compatible with the right to respect for private information.[13]
These include improvements in the following
areas.
(A) DESTRUCTION OF DNA SAMPLES
12. The Bill proposes that all DNA samples (as opposed
to DNA profiles) will be destroyed as soon as a DNA profile as
been produced (or within 6 months, whichever is earlier).[14]
This reflects provisions in the Crime and Security Act 2010. The
genetic material contained in DNA samples was recognised as particularly
sensitive by the European Court of Human Rights in Marper.[15]
We welcome
the proposal that DNA samples should be destroyed within six months
or less.
(B) NEW LIMITS ON RETENTION OF BIOMETRIC
INFORMATION TAKEN FROM INNOCENT PEOPLE
13. The Bill proposes a more closely proscribed regime
for retention of biometric material taken from innocent people
on arrest than that in the Crime and Security Act 2010. Under
the Crime and Security Act 2010, biometric material taken on arrest
would generally be held for six years.[16]
Under the new proposals, a distinction is drawn between persons
who are arrested and persons who are charged, but not convicted.
The Bill also introduces a new distinction between qualifying
and non-qualifying offences. It provides that, in the case of
qualifying offences (generally more serious violent or sexual
offences), the biometric material of all persons charged but not
convicted will be retained for three years. This period may be
renewed on application for a single further period of two years.
14. The Bill provides for the biometric material
of persons arrested but not charged to be subject to this scheme
only in prescribed circumstances. Subject to the specific concerns
we have below, we welcome the decision to introduce clear distinctions
based on the decision to charge and the type of offence concerned.
This narrower approach is more likely to be justifiable than a
blanket approach. Firstly, the threshold for charging involves
a significantly higher degree of suspicion than is associated
with the decision to arrest. Secondly, the offences listed in
the Bill are more likely to relate to those where biometric material
may be relevant to the investigation. This approach is more likely
to accord with the guidance of the European Court of Human Rights
in Marper which noted the lack of distinction based on
the seriousness of the relevant offence concerned as a relevant
consideration in their assessment of the proportionality of the
retention of biometric material taken from innocent people and
children.[17]
15. We highlight our concern about the lack of evidence
and statistics available on the operation and effectiveness of
the National DNA Database, below. We asked for further information
about the Government's evidence to support a retention period
of 3-5 years. The Government pointed to earlier evidence criticised
by our predecessor Committee and others and the outcome of a recent
review in Scotland.[18]
The Council of Europe Committee of Ministers has also asked for
further information about the evidence base for this decision.[19]
The recent review of the Scottish model concluded that the forensic
data available to support retention for three years was limited.[20]
Although previous research was flawed, our predecessor Committee
noted that the research that was available was more likely to
support retention for around 3 years, as opposed to 6 years.[21]
We regret that no new research has been forthcoming. However,
we welcome the Government's
decision that a narrower approach to retention is appropriate
to show due respect to the right of innocent people to respect
for the sensitive personal information associated with biometric
material. We consider that this approach is more likely to be
justifiable and compatible with Article 8 ECHR.[22]
(C) NO "BACK-DOOR" INDEFINITE
RETENTION?
16. The Explanatory Notes and the Human Rights Memorandum
accompanying the Bill make it clear that the Government intends
that there should only be one opportunity to extend retention
from 3 years to 5 years maximum, explaining that the "retention
period cannot be further extended" under Clause 9.[23]
17. This approach is in contrast with the Scottish
Model with provides for rolling renewals subject to the supervision
of the Sherriff Court. This could in effect perpetuate indefinite
retention in some cases.
18. We welcome the limits proposed by the Government.
In our view, this limit will provide a significant safeguard and
is more likely to be a proportionate interference with the private
life of the innocent person whose data is retained. Unfortunately,
there is an ambiguity in the drafting of Clause 3 which has created
some confusion for readers and commentators. Clause 3, New Section
63F (9) makes clear that any order of the Court may only last
up to 2 years from the expiry of the "retention period".
The retention period is defined in the Bill and lasts 3 years.[24]
However, the Bill also provides for the retention period to be
"extended" by Order.[25]
This creates confusion over whether a further Order may run for
2 years from the date of expiry of any previously extended "retention
period" and so, be renewed indefinitely by two year increments.[26]
We welcome the decision
of the Government to adopt a maximum 5 year limit on retention
of biometric material taken from innocent people and children,
other than for national security purposes. We consider that removing
the possibility of rolling renewals leading to indefinite retention
significantly reduces the potential for the disproportionate interference
with individual rights in practice. While this policy intention
is clear from the Explanatory Notes and the associated materials
which accompany the Bill, including the Human Rights Memorandum,
an ambiguity in the drafting may create some difficulties in interpretation.
We propose a simple amendment to resolve this problem, below.
If the Bill is not amended, we recommend that the Minister give
assurances on the floor of either House to the effect that it
is the Government's intention that only one renewal will be possible
under Clause 3 of the Bill.
19. The purpose of the following amendments is to
place beyond doubt that the three year retention period proposed
in the Bill may only be extended once, by a further two years,
in accordance with the Government's stated intention.
Clause 3, Page 4, line 1, insert "original"
before "retention period"
Clause 3, Page 4, line 13, insert "original"
before "retention period"
Clause 3, Page 4, line 16, insert "original"
before "retention period"
Clause 3, Page 4, line 18, insert "original"
before "retention period"
20. However, there are a number of significant, outstanding
human rights issues in the Bill which may create a substantial
risk of violations of individual rights and associated litigation.
We raise our concerns in connection with seven priority issues.[27]
We also address two general concerns about the lack of reliable
statistical information available on the operation of the National
DNA Database and the failure of the Government to take interim
steps to limit the ongoing impact of the existing law on the retention
of fingerprints, DNA samples and profiles.
(i) Retention of biometric material
on arrest
21. A significant difference between the proposals
in the Bill and the Scottish model is the treatment of the profiles
of people arrested, but not charged. In Scotland, biometric material
taken from people who are arrested but against whom no further
action is taken are not retained, since the mechanism for retention
only takes effect once proceedings are brought.[28]
However, this Bill provides for a special mechanism whereby profiles
from those not charged may be retained in "prescribed circumstances"
where the Biometrics Commissioner consents.[29]
The Human Rights Memorandum explains the Government's approach:
[I]n limited circumstances it will be possible to
retain fingerprints and DNA profiles if a person is arrested for
a qualifying offence, but is not charged [...] However, the cases
where retention without charge will be possible will be restricted
to those where the circumstances make it particularly pressing
to retain material for the purposes of the prevention or detection
of crime. [...] They might include, in particular, cases where
the victim of the suspected offence was under 18, or was a vulnerable
adult or was in a close relationship with the arrested person
[...].
The Government considers that it is well within [...]
the margin of appreciation to conclude that this is where the
"fair balance between the competing public and private interests"
lies. In reading this conclusion it has taken into account the
fact that there are many reasons why a person might not be charged,
including poor prospects of a conviction because of intimidation
or disappearance of witnesses. Its proposed approach thus recognises
the particular public protection issues that arise from the difficult
nature of proving some of the offences listed as qualifying offences.[30]
22. The retention of biometric material by the State
must be justified by reference to a clear legal framework justified
by a contribution to the prevention and detection of crime which
is necessary and proportionate to the interference with the relevant
individual's private life. Although the Minister has given an
indication of the "prescribed circumstances" in which
the current Government intends to retain biometric material taken
from innocent people who have been arrested but not charged, the
Bill provides for any circumstances to be prescribed by Order.
The proportionality of any proposal can only be assessed at the
time a particular Order is introduced. This approach reduces the
capability of Parliament to scrutinise the circumstances in which
the mechanism will apply, in light of the limited opportunity
for debate and amendment of such Orders.
23. The European Court of Human Rights in Marper
stressed that the stigma attached to inclusion on the National
DNA Database could have a significant impact upon the private
life of an individual, even when the fact of inclusion was not
generally public knowledge:
Of particular concern [...] is the risk of stigmatisation,
stemming from the fact that persons in the position of the applicants,
who are entitled to the presumption of innocence, are treated
in the same way as convicted persons. In this respect, the Court
must bear in mind that the right of every person under the Convention
to be presumed innocent includes the general rule that no suspicion
regarding an accused's innocence may be voiced after his acquittal
[...] It is true that the retention of the applicants' private
data cannot be equated with the voicing of suspicions. Nonetheless,
their perception that they are not being treated as innocent is
heightened by the fact that their data are retained indefinitely
in the same way as the data of convicted persons.
24. The awareness of the fact of inclusion could
in itself impact upon the private life of an individual by influencing
his relationship with the State and its perception of him.[31]
With this in mind, while we welcome the Government's intention
to limit the circumstances in which arrested persons' DNA can
be retained, we are concerned that the introduction of these safeguards
may themselves increase the adverse impact on an individual of
the proposed retention, requiring weightier justification for
the retention of this category of material. The retention of biometric
material in these cases, on a category by category basis may be
capable of justification if clear evidence exists that there is
value in retaining it. Including certain innocent individuals
in a particular category for retention may well create a greater
stigma by suggesting that legitimate doubt remains about his innocence
of the specific offence in question. While retention of the data
does not create a stand-alone threat to the presumption of innocence,
it is clear that the proposed authorisation by the Biometrics
Commissioner and any subsequent appeal will need to be very closely
managed and designed to safeguard the presumption of innocence.[32]
The assessment of risk and the justification for exceptional retention
of biometric material could very easily stray close to becoming
a comment on the likely guilt or innocence of the individual and
could endanger the presumption of innocence guaranteed by Article
6 ECHR and the common law.[33]
Without further information about the Biometrics Commissioner
and his role in relation to these retentions, Parliamentarians
are unable to assess the significance of any degree of risk. In
our view, this is a significant issue which has not yet been addressed
by the Minister.
25. While, on the one hand, oversight by the Biometrics
Commissioner introduces an additional safeguard of objectivity,
this may require an assessment of justification and associated
risk of future criminality on a case by case basis. This exercise
in itself could significantly increase the stigma associated with
retention, by implication that an individual assessment has been
conducted and the conclusion is that the individual concerned,
although innocent, poses a higher risk of future criminality than
the general population. We welcome the Minister's assurance in
his response to our letter that these assessments will be conducted
in private. However, even if these assessments are conducted in
camera and the individual invited to make representations,
following the analysis in Marper the stigma associated
with inclusion may still be significant and, in our view, will
still require weighty justification.
26. Without further information about these prescribed
circumstances in which biometric material will be capable of retention—or
any associated evidence to support the need for retention in those
cases—it is impossible to assess whether the value to the
prevention of detection of crime is proportionate to justify this
degree of interference with the right to respect for private life.
We are concerned that the
proposal to continue the retention of biometric material taken
on arrest in some cases may create a significant risk of incompatibility
with the right to respect for private life (Article 8) ECHR. Without
a clearer picture of the broad "prescribed circumstances"
in which retention will be permitted, it is impossible for us
to reach a conclusive view. However, on the material provided
by the Government during earlier debates, we are not yet persuaded
that these proposals will be capable of justification.
(ii) Retention of material for
"national security" purposes
27. The Bill provides for Chief Officers to make
"national security determinations" in connection with
material that they consider must be retained for reasons of national
security. These determinations will last for two years, but are
indefinitely renewable. These provisions follow the proposals
in the Crime and Security Act 2010. Our predecessors, in their
Report on that Bill, criticised the breadth of discretion in those
proposals:
[T]he 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 could contravene the right to respect
for private life, without any real power 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.[34]
28. This recommendation reflects the recognition
in Council of Europe Recommendation 92(1) that extended retention
for state security reasons may be justifiable if "subject
to strict storage periods defined by law".[35]
29. The Human Rights Memorandum explains that the
Government has introduced oversight by a new Biometrics Commissioner.
Each national security determination will be subject to
review by the Biometric Commissioner, who will be appointed by
the Secretary of State. The Commissioner may quash a determination
because it is not necessary for the purposes of national security.
The Commissioner will report to the Secretary of State on the
application of these powers and this report will be laid before
Parliament. This report may be redacted for national security
reasons. The Minister explains:
The intention being that the justification for the
interference with Article 8 rights in those circumstances will
be independently reviewed in every case. The Government considers
that this will add a further layer to the protection afforded
to individuals where national security interests are said to be
engaged. There is to be no blanket retention of material in the
interests of national security, and instead both the responsible
officer and the Commissioner will independently evaluate the case
for retention on national security grounds. By establishing a
review function, the proportionality of the interference will
be closely assessed, and the individual's Article 8(1) rights
safeguarded as closely as possible.[36]
30. The Bill provides no detailed definition of "national
security" or the factors which will be considered by the
Chief Officers or the Biometric Commissioner when considering
a determination. Guidance will be issued subsequently by the Secretary
of State on the making of national security determinations. This
will be statutory guidance which must be subject to affirmative
resolution of Parliament. In making the guidance, the Secretary
of State must consult the Commissioner and the Lord Advocate.
We asked the Minister about the lack of detail on the face of
the Bill and the breadth of the discretion afforded to the police.
This approach is an improvement on the Crime and Security Act
2010, which provides no definition of national security and makes
no provision for statutory guidance. The Minister explained the
Government view that to define national security in statute was
insufficiently flexible. He said in his response:
The Government considers that it is appropriate for
mandatory guidance to be issued to persons responsible for making
national security determinations to ensure that decisions concerning
such determinations are taken on a consistent basis. Although
the decision will be that of the chief officer or responsible
officer, the availability of guidance will ensure a national approach.
The decision to use guidance rather than legislation for this
purpose reflects the likelihood that decisions about the retention
of material for the purposes of national security will be fact-specific
and will more readily be informed by general principles and illustrative
examples rather than rigid rules. The Secretary of State will
also have the power to make revisions to the guidance which will
allow it more flexibly to respond both to changing circumstances
and to the observations of the Commissioner.
31. We
welcome the decision of the Government to introduce a number of
additional safeguards absent in the Crime and Security Act 2010,
in connection with national security determinations, including
provision for statutory guidance and oversight by the Biometrics
Commissioner. We particularly welcome the decision to allow the
Commissioner to overturn decisions on retention for national security
purposes. Unfortunately, in the light of the proposed discretion
being granted to Chief Officers in practice, we remain concerned
about the limitations in these proposed new safeguards.
32. We are concerned that the provisions in the Bill
create an exceptionally broad delegated power which will be exercised
by the police. This power will allow any sample or profile which
would otherwise have been destroyed or deleted to be retained
on the broad basis that the chief officer has determined that
it is "necessary" that the material is retained for
the "purposes of national security". This could include
material given voluntarily, material taken from children and material
which may have been taken unlawfully. While we welcome the introduction
of mandatory statutory guidance to which individual decision makers
must have regard, we consider that potentially very broad discretion
must be justified by particularly weighty reasons and accompanied
by adequate safeguards.
33. Clause 18 of the Bill makes clear that the general
provisions in the Bill will not apply to material gathered under
Schedule 8 of the Terrorism Act 2000 or Schedule 2 Immigration
Act 1971 or Section 20 of the Immigration and Asylum Act 1999.
Schedule 1 of the Bill creates specific provision for material
gathered pursuant to Schedules 7 and 8 of the Terrorism Act 2000
and under Section 18 of the Counter-Terrorism Act 2008 or under
the International Criminal Court Act 2001.[37]
Following each of the specific mechanisms laid out in Schedule
1 relating to counter-terrorism, specific provision is made for
extended retention subject to a national security determination
(as above). The Terrorism Prevention and Investigation Measures
Bill provides for the retention of biometric material taken from
people subject to TPIMs. Unless those people have been convicted
of an offence, the relevant material must be destroyed 6 months
after the end of the relevant TPIMs Order.[38]
This period is subject to specific provision for extension by
national security determination (as above). The Crime and Security
Act 2010 made specific provision for the retention of the biometric
material of people subject to control orders for two years following
the expiry of an order (these provisions are not yet in force).
34. We make no
comment about the likely proportionality of the different approaches
taken in connection with each of these specific contexts. However,
the proliferation of specific regimes designed to deal with specific
threats to national security begs the question why a "catch-all"
national security provision is necessary in connection with retention
of biometric information more generally. Similarly, it seems odd
that the specific provisions outlined above should provide for
a specific period of retention for a particular purpose (for example,
in connection with the making of a TPIMs Order), but that renewal
or extension of the original period of retention is justifiable
on the basis of a generic risk to national security, not necessarily
linked to the original reason for retention. At least, in the
light of the breadth of the proposals recommended, we consider
that the existence of specific provisions related to specific
threats is relevant to the assessment of the necessity of the
provision for national security determinations to be made.
In the light of the various existing statutory provisions for
the extraordinary retention of biometric information in connection
with specific issues connected with national security threats,
the need for an extremely broad residual power of the type set
out in the Bill requires better justification. In our view, exceptional
powers of this type should generally be circumscribed by reference
to a specific aim and accompanied by tailored safeguards. A generic
power of this type becomes more difficult to justify when such
specific powers already exist. We are concerned that the Minister
does not appear to have justified why this type of generic power
is necessary or proportionate, beyond a Government desire to maintain
flexibility for the police to address perceived threats to "national
security". We recommend that the Minister should explain
why these provisions are strictly necessary or these provisions
should be removed from the Bill in their entirety. Subject to
further justification being provided, we propose the following
amendment which would remove the provisions in the Bill which
relate to national security determinations.
35. This amendment would omit the power to retain
after a national security determination has been made. Similar
amendments would need to be made to the provisions in the Bill
which relate to Northern Ireland and other consequential amendments.
Clause 9, page 8, leave out lines
1-15.
36. We consider that, in principle, review by an
independent Commissioner with the power to quash the initial determination
could provide a significant safeguard. However, we have two concerns.
Firstly, the independence and expertise of the Commissioner is
by no means guaranteed by the drafting in the Bill. Although the
Minister argues that the Commissioner will be expected to perform
his functions robustly and that his or her "independence
is firmly set out", we have very little information about
the likely terms and conditions of service for any Commissioner.[39]
This in itself undermines the value of the office and its functions
as a safeguard. The Bill provides little information other than
the appointment must be made by the Secretary of State who will
set the Commissioner's terms and conditions in secondary legislation.
In addition, the Secretary of State will fund and staff the office
according to what he considers necessary for the performance of
the functions of the role. The Secretary of State will also have
the power to direct the Commissioner to report on specific issues
in connection with the retention of biometric information. This
approach is at odds with the other provisions in the Bill designed
to bolster and enhance the independence of the Information Commissioner,
including by providing clearer terms for the appointment of the
Commissioner, a single term of appointment without renewal and
removing certain powers of the Secretary of State in connection
with that office. [40]
37. We are concerned
that without further definition on the face of the Bill to clarify
the independence of the role of the Biometrics Commissioner, the
value of this role as a safeguard in connection with national
security determinations (and in connection with exceptional retention
of DNA collected from people arrested but not charged) will be
significantly undermined. We consider that
the Bill should be amended to enhance the independence of the
Biometrics Commissioner. We consider that the starting point
for the protection of the independence of posts of this kind should
be the appointments model used for the Information Commissioner,
including statutory minimum terms for appointment and clear limitations
on removal from office. In particular, we consider that the power
of the Secretary of State to staff the office of the Commissioner
and to direct the Commissioner to report on specific matters should
be removed.
38. Secondly, it is clear that in connection with
most national security determinations, individuals will not know
that their biometric information is being retained. In his response
to our request for further information, the Minister explains
the Government's view that disclosure of the decision to retain
would automatically undermine national security, by informing
the individual that the Government considered them a national
security risk. However, this creates the difficulty we have examined
in numerous other national security contexts, notably counter-terrorism
assessments made in connection with the review of control orders,
that a decision is being made without any input from the individual
concerned, who may be able to rebut the evidence produced by the
Secretary of State. While the retention of biometric material
does not create as serious an interference with individual rights
as some other counter-terrorism measures, the lack of information
and input from the individual who is considered a national security
risk that will be available to the Biometrics Commissioner in
reviewing the initial decision will undermine his or her ability
to conduct a credible review. We
are concerned that the Minister has not yet explained how the
Biometrics Commissioner will be able to scrutinise the assessment
of the police that an individual's DNA must be retained for the
purposes of national security without any information from that
individual or elsewhere which might challenge the facts or judgment
involved in the decision-making exercise.
39. We wrote to the Minister to ask for further information
on the alternatives to review by the Biometrics Commissioner.
We noted the overall recommendation of the counter-terrorism review,
favouring an increased role for judicial oversight in connection
with extraordinary measures such as the proposal for Terrorism
Prevention and Investigation Measures (TPIMS).[41]
The Minister explained the Government's view that judicial oversight
of this type of decision would not be appropriate:
The Government does not consider that prior judicial
approval is appropriate in this context since it would require
the courts to assess whether something is or is not in the interests
of national security something they have consistently declined
to do on the basis that it is a question of judgment and policy,
not law. Moreover, the court process would likely introduce an
unnecessary barrier to the timely making of determinations by
both the police and other law enforcement authorities permitted
to retain material on national security grounds.
40. We
are not persuaded that the review of this type of decision could
not legitimately be undertaken by a Court, subject to an application
based on an initial assessment by the Government of the degree
of risk to national security. Courts regularly review decisions
about national security in the context of counter-terrorism decisions
(for example, in the making of control orders or in the new TPIMs
proposals) and in the making of public interest immunity decisions.
The Secretary of State accepts that if the original decision maker
does not accept the decision of the Commissioner on review that
decision could be subject to judicial review. We are not therefore
persuaded that there is any reason why national security determinations
for the purposes of retention should not be subject to prior judicial
authorisation or subsequent review. Similarly, there appears
to be no reason why a determination should not be subject to prior
authorisation by the Commissioner on application. We propose alternative
amendments to the Bill with these effects for the purposes of
debate.
41. We propose the following alternative amendments.
The first would introduce a requirement for prior approval by
the Biometrics Commissioner of any national security determination
and the second would provide for prior approval by the High Court.
Amendment (1):
Clause 9, page 8, leave out lines 4-15and insert:
"63L Application for retention of section
63D material for purposes of national security
(1) A chief officer of police may make a national
security determination that it is in the interests of national
security that Section 63D material should be retained other
than in accordance with the provisions in this Act.
(2) If a chief officer of police makes a national
security determination under this section, he may apply to the
high court for an Order that section 63D material may be retained
under this section.
(3) An Order under this section:
(a) shall be made if the court is satisfied that
there are reasonable grounds that it is necessary for section
63D material to be retained for the purposes of national security;
(b) will have effect for a maximum of 2 years
beginning with the date on which it is made; and
(c) may be renewed. [42]
Amendment (2) (Alternative):
Clause 9, Page 8, Line 16, at end insert—
"63LA 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
Commissioner for the Retention and Use of Biometric Material;
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 Commissioner shall give his approval under
this section to the authorisation if he is satisfied that retention
under section 63L is necessary; and
(b) the Commissioner shall, as soon as reasonably
practicable after making that decision, give written notice of
his decision to the chief officer.
(4) Any determination under paragraph (1) includes
a decision that a determination should be renewed pursuant to
Section 63L(3)."
(iii) Speculative searches
42. The Bill provides that nothing in its text will
prevent a speculative search being conducted against the biometric
material held by the police, where any responsible Chief Officer
considers such a search "desirable". So, where material
ought to be destroyed, even in those circumstances when it has
been gathered unlawfully or where consent is withdrawn in connection
with material gathered voluntarily, the Bill would authorise Chief
Officers to conduct a final search of the relevant database before
the destruction of the relevant material takes place. The test
for such activity is that it is "desirable" and takes
place in the time reasonably required for a search. During evidence
to the Public Bill Committee, ACPO indicated that it would be
standard practice to conduct a speculative search before any material
was destroyed.[43]
43. In principal, each individual use of personal
biometric material—each search—constitutes a separate
interference with the right to respect for private life, which
must be justified as necessary and proportionate in light of the
contribution the search makes to the prevention and detection
of crime and the protection of the rights of others. However,
in light of the technical operation of the National DNA Database
(and other similar databases in other countries), the general
approach to the analysis of the justification for processing personal
biometric material has related to the retention of that material
for the purposes of uploading it to a national database of this
kind. These databases are then routinely searched as and when
crime scene material is added, in order to exclude or associate
known individuals with material which may aid in the detection
and punishment of criminal offences. The assessment that has
been conducted by the Court is whether the ongoing retention of
material as part of the database is itself justifiable, rather
than concentrating on whether each individual search can be justified.
44. If there are safeguards in place which render
retention justifiable, it seems unlikely to us that the scrutiny
of individual decisions to run any individual comparative search
while the material is retained will be determinative. However,
a separate question arises about the processing of material which
should otherwise be destroyed under the framework identified in
the Bill. The justification for the retention of this material
falls away when it is due for destruction. On the one hand, it
is arguable that a final search against the relevant databases
would pose a relatively minor additional interference with the
right to respect for private life. Unfortunately, due to the lack
of available statistical information, we are unable to assess
with accuracy the likely benefit to the criminal justice system
of the conduct of such final speculative searches. Without this
information, it is very difficult to assess whether speculative
searches undertaken after the criteria for destruction are met
would be proportionate. On the other hand, by indicating to Chief
Officers that, even if material is gathered unlawfully or given
voluntarily for one purpose, that material may then be subject
to any speculative search, the Bill may significantly undermine
the safeguards introduced for the protection of those individuals
whose material is voluntarily submitted to the police or from
whom material has been taken in error and without authority.
45. We consider
that, if the measures in the Bill are assessed as proportionate
with the right to respect for private life, then the possibility
of an additional final search before destruction is unlikely to
pose such an additional interference to create a separate violation
of Article 8 ECHR which could not be justified. However, we are
particularly concerned about the scope of the provision in New
Section 63D(5), particularly in connection with its application
to material unlawfully gathered (New Section 63D(2)) or given
voluntarily for a distinct purpose (New Section 63M). We consider
that the introduction of a residual power for the Chief Officer
to conduct speculative searches in connection with this material
after it should otherwise be destroyed in accordance with the
provisions in the Bill significantly undermines the safeguards
in the Bill against the unlawful taking and retention of biometric
material and to protect the private life interests of individuals
who help the police by providing biometric material for a specific
purpose. We recommend that the Bill should be amended to make
clear, that in these circumstances, data should not be processed
further, including for the purposes of any speculative search,
once it has been ascertained that it was gathered unlawfully or,
in the case of voluntarily given material, consent has been withdrawn
or the material has already been used for the limited purpose
for which consent was granted.
46. This amendment limits the use of speculative
searches to circumstances when the police consider a search is
justified in the interests of the prevention and detection of
crime, rather than "desirable".
Clause 1, page 2, Line 37, leave out "desirable"
and insert "justified in the interests of the prevention
and detection of crime"
This amendment rules out any speculative search using
material which has been determined to have been taken or retained
unlawfully or in circumstances where consent has been withdrawn
for the retention of material given voluntarily or for a specific
purpose.
Clause 1, page 2, Line 37, at end, insert, "except
where:
(a) Section 63D material has been determined
to have been taken or retained unlawfully, or taken in connection
with an unlawful arrest or based on mistaken identity;
(b) Material given voluntarily under Section
63M has fulfilled the purpose for which it was taken or derived;
(c) Consent for the retention of material
retained under Section 63N has been withdrawn."
(iv) Destruction of fingerprints
and biometric material
(A) DESTRUCTION AND LEGACY SAMPLES
47. We wrote to the Minister to ask for further information
on the removal and destruction of legacy samples and profiles
on 9 September 2010.[44]
This was a live issue in light of the proposal to delay the coming
into force of the Crime and Security Act 2010 (in order that the
provisions in this Bill might be introduced) and as a result of
administrative difficulties with destruction highlighted during
the passage of that Act. Since the completion of House of Commons
Committee Stage of the Protection of Freedoms Bill, the Minister
has written to the Chairs of the Public Bill Committee, indicating
that destruction of profiles will not be possible in all legacy
cases.[45] He has explained
that there are no technical reasons to prevent the destruction
of all existing and future DNA samples as the Bill requires.
However, the situation for DNA profiles is more difficult.
DNA profiles are held by forensic laboratories in bundles of 96
(samples are processed in batches to make processing more cost
effective). This makes destroying some profiles from the bundled
batch difficult without destroying others which, under the Bill's
proposals, should be retained. The Government proposes to remove
names and other identifying information held by the forensic science
service and has consulted the Information Commissioner's Office
on this issue. The Government considers that this step will make
the information sufficiently anonymous that it should be considered
deleted. The records will, however, continue to be marked with
their original barcode. This bar code is used by the police to
track the profile in the system.
48. The Minister accepts that:
It is therefore theoretically possible that a laboratory
could identify an individual's profile from the barcode, but only
in conjunction with the force which took the original sample,
by giving the details of the barcode to the force and asking for
the individual's name.
49. The Minister explained that the Government considered
that this risk of identification was minimised because such action
by the forensic science service or the local force would be: (a)
in breach of the requirements of the Bill; (b) an offence of misconduct
in public office or under the Data Protection Act and (c) unhelpful,
since Clause 16 of the Bill would prevent any material being used
in evidence or as part of a criminal investigation. In the future,
forensic science providers will identify DNA by a different system
which will physically prevent the re-linking of a profile and
its owner.
50. In short, it is clear that DNA profiles will
never be destroyed, but instead will be anonymised. The Government
has admitted that there will be significant difficulties associated
with anonymising existing legacy samples as a result of the methods
used by forensic laboratories.
51. After the Minister's letter was published, the
Information Commissioner's Office (ICO) published a statement
clarifying its advice to the Government. A spokesman for the ICO
said their evidence on the Protection of Freedoms Bill made clear
"that the deletion of all DNA profiles should be the norm
and retention in an anonymised form the exception". The ICO
added: "There must be no practical way of linking back to
an individual. Anything that falls short of this in practice would
be unacceptable."[46]
52. Unfortunately, the information provided by the
Minister is far from clear. For example, it is unclear why the
bar code attached to a legacy profile cannot be removed either
from the records held by the forensic laboratory or by local police
forces, in order to truly anonymise information held as part of
a bundle of 96 other profiles. Similarly, the Minister has not
explained why it would not be appropriate for information to be
processed differently in the future in order to ensure that profiles
which were no longer held lawfully could be destroyed completely.
Without any further information, it appears that the rationale
for the need to anonymise rather than destroy information which
is no longer held lawfully is administrative convenience and cost
saving. In effect, the Government's proposal is that, once created,
a DNA profile will be held by the State in some format in perpetuity,
albeit, when there is no longer a legitimate purpose for the retain
that information, it will be anonymised and the corresponding
information removed from the National DNA Database. The
Minister should be required to give further information on technical
or other reasons for the approach which the Government proposes
to take in connection with the destruction and deletion of DNA
profiles.
53. We agree with the ICO that destruction of profiles
and samples of DNA which are no longer lawfully held should be
the norm. We also consider that if a data profile (not a sample)
is truly anonymised and untraceable, but cannot be destroyed for
administrative reasons, the continued retention of this material
is unlikely to create a significant risk of a violation of Article
8 ECHR. However, this analysis does not stand when information
is available, albeit separately held, by the State and its contractors
which could identify an individual and link him or her to a profile
which should have been destroyed. In the circumstances described
by the Minister, we are concerned that the proposed approach of
retaining certain profiles will not entirely remove the violation
identified by the Court in Marper and could give rise to
further challenges under Article 8 ECHR. We accept, that if linking
a barcode to a profile and other identifying information were
an offence, this would be a significant safeguard. However we
are concerned that, the State as an entity will continue to hold
identifiable DNA profiles which may engage the individual right
to privacy, but which serve no justifiable purpose. We
recommend that the Minister should be asked to explain why the
indentifying bar code cannot be deleted from the records of the
Forensic Science Laboratories and/or from the records held by
local police. If DNA profiles cannot be truly anonymised, we consider
that there remains an outstanding risk of a violation of the right
to respect for private life (Article 8 ECHR).
(B) DESTRUCTION OF MATERIAL GATHERED
UNLAWFULLY AND IN OTHER CIRCUMSTANCES
54. The Crime and Security Act 2010 makes provision
for a residual duty on Chief Officers to destroy material held
where it was gathered unlawfully or as a result of an unlawful
arrest or as a result of mistaken identity (although the Bill
clearly provides a statutory duty on Chief Officers to do so).
It also provides a duty to destroy material in any other circumstances
where "circumstances relating to the arrest or the alleged
offence mean that it is appropriate to destroy the material".
A similar provision exists in this Bill, but the duty is limited
to circumstances when the material has been taken unlawfully or
as a result of mistaken identity. ACPO has welcomed the decision
to remove this broader discretion which would allow the destruction
of biometric material which would otherwise be retained. This
does however remove the only opportunity for individuals to argue
that in the circumstances, the general rules on retention would
operate unfairly and would not be justified. In the light of the
importance placed by the European Court on Human Rights on the
opportunity for independent review of retention decisions, it
is arguable that the opportunity to challenge the otherwise blanket
rules on retention is a significant loss. Our predecessor Committee
considered that an opportunity for independent review important
in circumstances where the application of general rules would
require retention for a significant period.[47]
55. Our predecessor Committee called upon the then
Government to provide for an appeal against individual officers
exercising such discretion. The Government considers that judicial
review should be adequate. Our predecessor Committee recommended
that the provision of a statutory appeal from the decision of
Chief Officers exercising their discretion under the special procedure
would provide an important opportunity for an independent review
in individual cases.
56. There is no provision on the face of the Bill
which makes clear that an individual will be able to request that
a Chief Officer destroy material held unlawfully. The Human Rights
Memorandum makes clear that it is the Government's intention that
such requests will be possible, and that a refusal could lead
to judicial review of the Chief Officer's decision. The Memorandum
explains the Government's view that an independent review of retention
in individual circumstances is unnecessary beyond the provision
in the Bill for the treatment of unlawfully obtained material,
material obtained as a result of mistaken identity or the treatment
of material held exceptionally in connection with arrest rather
than charge (see above):
The Government considers that the availability of
judicial review of chief officers' decisions, in the context of
the proposals set out in the Bill, provides a sufficient measure
of independent review in most circumstances, and that it is not
necessary to have a statutory appeal right against a decision
not to destroy DNA profiles. The Government notes that the comments
of the ECtHR [...] were made in the context of an indefinite and
blanket retention policy which applied [...] irrespective of the
gravity of the (alleged) offences, and in which there were no
defined statutory criteria for the early deletion of data. The
context of the current proposals is very different.
57. We note that the system operating in the Netherlands
(which has twice been challenged unsuccessfully at the European
Court of Human Rights) provides for retention of material gathered
from people convicted of certain offences but also provides for
exemptions from the general rules in cases where the circumstances
of the offence do not justify ongoing retention (e.g. where the
relevant offence bears no connection to the offenders genetic
material, such as in connection with perjury) or where the circumstances
are such that the individual is highly unlikely to commit a further
offence (e.g. where an individual has been seriously injured or
in a case where a woman of previously good character has assaulted
a husband who has been subjecting her to domestic violence). This
regime also provides an opportunity for individuals to challenge
ongoing retention in their specific case.[48]
No such provision for challenge is provided in connection with
the proposals in the Bill.
58. We accept
the Government's analysis that the European Court of Human Rights
did not strictly require independent review in every case and
that the proposals in the Bill are more clearly defined than the
provisions for indefinite retention without review. Retention
for three years without opportunity for review in individual cases
is more likely to be justifiable. However, given the unusual circumstances
of automatic retention based on the criteria set out in the Bill,
we consider that the provision for review and destruction in exceptional
cases would provide a valuable safeguard against arbitrary and
disproportionate retention in some cases.
(v) Appeals and independent oversight:
decisions of the Biometrics Commissioner
59. We welcome the recognition in the Bill that some
decisions on retention, particularly those where the police exercise
a significant degree of discretion, will be subject to review
by the Biometrics Commissioner. We consider that the role of the
Biometrics Commissioner in connection with national security determinations
above. The Biometrics Commissioner also plays a role in connection
with the decision whether a person arrested in connection with
an offence, but not charged, should have their biometric material
retained. His consent is essential. We have commented on the independence
and impartiality of the Commissioner earlier in this Report. Indeed
the Bill provides that individuals, arrested but not charged,
whose DNA is retained in these circumstances will have a right
to appeal against the decision of the Biometric Commissioner.
Unfortunately, no further details about the scope of the right
to appeal are provided on the face of the Bill. We wrote to the
Minister to ask for further information. The Minister told us
that he was working with ACPO on these provisions and that further
information on the right to appeal will be provided during the
Bill's passage. Unfortunately, further clarity has not yet been
forthcoming. As the Minister explained:
Until the Government is ready to provide that further
information on the substance of the appeal, the identity of the
appeal body or the grounds for appeal it is not possible to give
a detailed explanation of its view of the ECHR compatibility of
the decision making process.
60. It is disappointing that, at this late stage
in the process, detailed information about the appeal mechanism
proposed is unavailable. Where a safeguard is clearly relevant
to the assessment of a proposal's impact on human rights, failing
to provide information on the scope and substance of that safeguard
undermines the ability of both Houses accurately to scrutinise
the relevant measures. It also undermines our ability to scrutinise
the provisions for their compatibility with the UK's human rights
obligations significantly. We
regret the lack of detail provided on the provision for appeals
against the decisions of the Biometrics Commissioner to consent
to the retention of DNA taken from innocent people in prescribed
circumstances. We consider that, in light of the breadth of these
proposals, and the significant discretion being afforded to the
Secretary of State to determine the circumstances in which the
special mechanism will apply, the opportunity for independent
review will be particularly significant to the assessment of proportionality
in individual cases. We call on the Minister to provide further
detail on the proposed scope of any appeal from the decision of
the Biometrics Commissioner.
(vi) The retention of children's
biometric material
61. The retention of biometric material taken from
children raises particular human rights issues. The treatment
of DNA taken from innocent children was specifically addressed
in Marper (one of the applicants was a child). The Court
referred expressly to the obligation placed on the UK by Article
40 of the UN Convention on the Rights of the Child which requires
the special protection of minors in the criminal justice system.
The Court indicated that the retention of juvenile biometric material
will require a greater degree of justification in order to comply
with Article 8 ECHR:
The Court further considers that the retention of
the unconvicted persons' data may be especially harmful in the
case of minors [...] given their special situation and the importance
of their development and integration in society. The Court has
already emphasised, drawing on the provisions of Article 40 UN
Convention on the Rights of the Child, the special position of
minors in the criminal justice sphere [...] In the same way, the
Court considers that particular attention should be paid to the
protection of juveniles from any detriment that may result from
the retention by the authorities of their private data following
acquittals of a criminal offence.[49]
(A) INNOCENT CHILDREN
62. The Government's Human Rights Memorandum explains
the its view that children charged but not convicted should be
treated in precisely the same manner as adults. It explains the
Government has considered the "particular position of children
in society" but balanced that against the need to operate
a retention policy that "reflects the period of peak offending".
The Government's impact assessment provides little further explanation,
but confirms the Government's view that there is no evidence to
support the differential treatment of children.
63. We wrote to ask for further information on the
Government's view that this approach was compatible with the requirements
in Article 40 UN Convention on the Rights of the Child and consistent
with the guidance of the Court in Marper. In his response,
the Minister told us that the Government was satisfied that this
approach struck a "fair balance" between competing public
and private interests. He went on to explain the Government's
view further:
The Government does not believe that it is appropriate
to differentiate between people aged 18 and over and those under
18 in this particular respect, given that the three year period
is already relatively short, and that reducing it still further
would seriously jeopardise the police's ability to make matches
between future crime scenes and entries on the databases.
The Government considers that retention for a strictly
time limited three year period should, in particular, greatly
allay concerns about a long-term detrimental effect on young people's
ability to be reintegrated into society and to assume a constructive
role.
Retaining young people's biometric data for a fixed
period rather than deleting it when a person turns 18 is sensible
as it avoids the anomaly that could, for example, allow a 17-year-old
to have his or her data deleted within a few days or weeks of
it being taken, in contrast to a 13-year-old arrested in the same
circumstances.
The Government's assessment is that the Bill's provisions
are already sufficiently limited and targeted that even by applying
the same regime as is applied to adults, the legislation is consistent
with the safeguards required by the Convention.[50]
64. We also asked the Government for a fuller explanation
of the relevance of the period of likely peak offending. The
Minister responded by reference to the research conducted by the
Home Office in support of the Crime and Security Act 2010. He
explained that the Government relied upon findings in that research
to support the conclusion that people under 18 after a first conviction
were "almost twice as likely to be reconvicted the following
year as those aged 18 and over". There are significant flaws
in this research, as highlighted by our predecessor Committee.
Not least, the research relies principally on those already convicted
of some offence, not individuals arrested but not convicted. It
appears that the Government's reliance on evidence of "peak
offending" during the late teenage years can be summarised
thus: if individuals are statistically more likely to offend
during this period, it is statistically more likely that their
profile may match a future crime scene sample and therefore including
their biometric information on a national crime database is more
easily justified it will make the operation of the database more
effective. Unfortunately, the Government has produced no further
evidence to illustrate that the inclusion of children and young
people's biometric information on the database has led to a greater
number of convictions.
65. While we accept the Government's analysis that
retention in defined circumstances for a fixed period of time
is significantly less detrimental than indefinite retention, we
are concerned that the Government's analysis has not fully engaged
with the need to recognise the particular potential for stigma
to damage the reintegration of a child or young person involved
in crime into society. Unfortunately, the reference to the period
of "peak offending" is not fully explained. It appears
that the Government justification hinges entirely on the likelihood
that there will be a greater number of helpful matches on the
database leading to convictions if material is gathered from this
group. While the effectiveness of the proposed retention and its
contribution to the prevention and detection of crime is relevant
to the assessment of proportionality, it is unfortunate that the
Government has not provided statistics or further material to
support its belief that the inclusion of material taken from innocent
children during the period of likely peak offending does lead
to increased matches with crime scene samples. We are also disappointed
that the Government's analysis does not appear to take on board
the Court's assessment in Marper about the possibility
for enhanced detriment for children whose biometric material is
retained. We note that until recently, in Scotland, no provision
was made for the retention of biometric material taken from children
involved in proceedings before childrens' panels. Recent changes
to the law have introduced provisions for retention, but these
were not in force when the Scottish model was cited with approval
by the European Court of Human Rights in Marper v UK.[51]
We recommend that
the Minister provide a fuller explanation of the likely impact
of retention for 3-5 years on people under 18; whether that impact
is more or less detrimental than that faced by over 18s and whether
there is evidence that the value of the inclusion of biometric
material taken from children and young people on the National
DNA Database is likely to have an enhanced impact on the prevention
and detection of crime and the protection of the rights of others.
(B) CONVICTED CHILDREN
66. In its Human Rights Memorandum, the Government
explains that it has acted in order to "balance the particular
position of children in society". In connection with juveniles
convicted, the Government's Human Rights Memorandum explains that
the Bill bases retention of samples "on the length of custodial
sentence, which would provide an approach which is individually
risk-based". The distinction drawn in the Bill is between
first offences attracting sentences less than a 5-year custodial
sentence, for which DNA will be retained for 5 years, and second
minor offences and any first offence for which a custodial sentence
of over 5 years is imposed. In connection with this second category,
children will be treated in the same manner as convicted adults
and their DNA may be retained indefinitely, without provision
for review. Although the Government memorandum explains that juveniles
will be treated differently for the purposes of the Bill, the
application of indefinite retention after two convictions means
that a child convicted of two relatively minor offences when very
young could have their DNA retained for life.
67. The UN Convention on the Rights of the Child
(UNCRC) provides that children convicted of criminal offences
should be treated in a manner consistent with the promotion of
the child's dignity and self-worth and in a manner which takes
into account the child's age and the desirability of promoting
reintegration and the child assuming a constructive role in society
(Article 40, UNCRC). Under the UNCRC, the best interests of the
child is enshrined as a governing principle in the governance
of matters relating to children, including children in the criminal
justice system (Article 3, UNCRC). The Government's explanation
of its approach mirrors the previous Government's limited analysis
of its assessment of compatibility of the Crime and Security Act
2010 with the UNCRC.
68. We return to the proportionality of the indefinite
retention of biometric material taken from those convicted of
minor offences, below. While we welcome the Government's proposal
to treat young offenders convicted of a first minor offence differently
for the purposes of indefinite retention, we are concerned that
the proposals in the Bill fail to take into account the differential
impact of retention on children highlighted by the Court of Human
Rights in Marper and the need for the special treatment
of children in the criminal justice system required by Article
40 UNCRC. The implications of the proposals in the Bill remain
serious for child offenders who may be convicted of multiple minor
offences: if an 11 or 12-year-old were convicted of two separate
minor offences, for example, criminal damage following an incident
of disorder or anti-social behaviour or theft following an instance
of shoplifting, the State would retain their biometric material
for life. In the light of the obligations in the UNCRC to make
special provision for children in the criminal justice system,
we consider that when the Government proposes to treat a child
in the same or similar manner as an adult offender, the Government
should produce clear justification, supported by evidence, to
illustrate why such comparable treatment is justified and compatible
with the UNCRC. We consider that, in light of the special attention
drawn by the European Court of Human Rights to the impact of stigma
on children associated with the National DNA Database, the need
for a full explanation of the proposed provisions for retention
of children's DNA is particularly acute. We
recommend that the Government should provide further information
for its justification for continuing to retain biometric material
taken from people convicted of minor offences as children; the
distinct impact of indefinite retention of that material on such
offenders; and evidence of the contribution made to the prevention
and detection of crime made by the inclusion of such material
on the National DNA Database. Based on the evidence so far provided,
we are concerned that indefinite retention of all child offenders
biometric material (except those convicted of a first, minor offence)
may be disproportionate, subject to challenge under Article 8
ECHR and inconsistent with the requirements of the UN Convention
on the Rights of the Child.
(vii) Penalty Notices
69. Clause 8 of the Bill provides for the retention
of material taken from those who are issued with a penalty notice
for disorder for two years. These provisions reflect amendments
to the Scottish Model adopted in 2010, which came into force in
March 2011.[52] We wrote
to the Minister to ask for further justification for the retention
of material gathered in connection with minor disorder offences
discharged by use of penalty notice. We asked the Minister to
confirm that if the relevant penalty notice were challenged and
discharged, that any relevant material would be destroyed.
70. In his response the Minister explained that there
had been some degree of confusion about the operation of these
provisions:
Clause 8 would only result in the retention of biometric
material where a person is arrested on suspicion of the commission
of a recordable offence and the investigation of that offence
results in a PND ("penalty notice for disorder") being
issued. There are relatively few recordable offences for which
PNDs can be issued, including theft, destroying or damaging property,
possession of cannabis and behaviour likely to cause harassment,
alarm or distress; there are no qualifying offences for which
a PND can be issued.[53]
71. The Minister gives three broad reasons why this
approach is considered proportionate. Firstly, this is a "proportionate
way of balancing the need to link potential future offending of
a person issued with a penalty" with the intent of the penalty
notice scheme to discharge any liability for conviction in connection
with the offence. Secondly the Government compares the proposed
2-year period with the 6-year period any arrested person's data
would be retained under the Crime and Security Act 2010.[54]
Finally, the Minister confirms that if the notice is challenged
successfully, the material should be destroyed:
Where a penalty notice is contested, that takes place
by way of criminal proceedings in the normal way. Clause 2 of
the Bill would permit the retention of the biometric material
during those proceedings and, if the person were not to be convicted
[...] clause 1 [...] would require their material to be destroyed.
We are, however, considering whether this outcome needs to be
brought out more clearly on the face of the Bill.[55]
72. We welcome the Minister's recognition that the
issuing of penalty notices for disorder is not accompanied by
the same safeguards that accompany a criminal trial and associated
conviction for an offence. We also welcome the Minister's explanation
that PNDs issued "on-street" will not lead to the storage
of individual's biometric material. However, PNDs issued after
arrest are punishments which are accepted without the full rigour
of a criminal trial or any form of judicial oversight. We are
therefore concerned that the acceptance of a PND following arrest
will lead to automatic retention of biometric material (albeit
for a relatively short period). This is in contrast with those
arrested for minor offences and discharged (whose DNA, under the
Bill's proposals, will generally be destroyed unless authorised
by the Biometrics Commissioner in prescribed circumstances). However,
it also contrasts with the current proposal that all adults convicted
of any offence will have their DNA retained indefinitely.
73. Currently all those whose biometric material
would be retained under Clause 8 would have been arrested and
so, would have their material retained indefinitely. This status
quo is clearly in violation of the right to respect for private
life, following the judgment in Marper v UK. Under the
measures in the Crime and Security Act 2010, their material would
be retained for up to six years. While the current proposals
are more likely to be proportionate than the measures in the Crime
and Security Act, it remains for the Government to justify the
retention of biometric material after the issuing of a PND as
proportionate to the legitimate aim of the prevention of crime
and disorder and the protection of the rights of others.
74. In any event, in light of the contrast between
the treatment of those subject to "on-street" PND and
those who are otherwise discharged after arrest without charge,
we consider that additional safeguards may be appropriate to ensure
that individuals who accept a PND are aware of the implications
for the retention of their biometric material and the opportunity
to challenge the PND. We
welcome the Minister's reassurance that where a PND is successfully
challenged in criminal proceedings and set aside, the relevant
material should be destroyed. However, we consider that the Bill
should also be amended to provide that when a PND is issued which
will engage Clause 8, officers should be under a duty to notify
the accused of the implications of accepting a PND for the treatment
of their biometric information. We propose a minor amendment to
the Bill for this purpose.
75. This amendment has been drafted to require individuals
who are issued with a penalty notice for disorder to be provided
with information that makes it clear that accepting the penalty
notice will result in their biometric material being retained.
This information will also make clear that the individual will
not have their biometric material retained if they elect to be
tried and are acquitted.
Clause 8, page 7, line 46, insert the following
new subsection:
(3) When material is retained under this section,
the information provided under Section 3(3) of the Criminal Justice
and Police Act must also:
(a) inform the person that section 63D material
will be retained; and
(b) inform the person that of the circumstances
in which section 63D material will be retained if tried for the
relevant offence.
76. We note that the Minister highlights the short
retention period proposed (2 years) in considering the proportionality
of these provisions. We note that the Minister accepts that the
types of offences which are discharged by way of penalty notice
may be relatively minor.[56]
The retention of biometric information in connection with PND
raises further questions about the proportionality of the proposed
retention. Notably, if an adult were convicted of a similarly
minor offence, their material will be retained indefinitely under
the Bill. Under the proposals in the Bill all convictions (including
cautions, warnings and reprimands) will lead to the indefinite
retention of adult offenders' biometric material.[57]
The EHRC has raised its concern about indefinite retention of
biometric material after a caution, warning or reprimands.[58]
In their judgment, the Court noted that the UK is the only country
in Europe which expressly allows "the systemic and indefinite"
retention of profiles taken from convicted people.[59]
77. Council of Europe Recommendation 92 (1) recognises
that the retention of biometric material of persons convicted
of serious offences may be proportionate, and that retention
in connection with any type of offence must be justified
by reference to the evidence that retention is necessary and proportionate
to meet the legitimate aim of the prevention and detection of
crime and the protection of the rights of others. The Recommendation
states:
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 (Emphasis added).
78. In its Human Rights Memorandum, the Government
explains its view that the continued retention of all convicted
persons' biometric material is now justified "by the substantial
contribution which DNA records have made to law enforcement"
and the clear distinction drawn in the case law of the European
Court of Human Rights between convicted and innocent people.[60]
They stress the importance of the impact of "stigmatisation"
of innocent people to the judgement in Marper caused by
their inclusion in a database otherwise populated by offenders.
The Minister explains that the Bill provides a mechanism in Clause
24 to provide binding guidance to be issued to the police on the
destruction of DNA profiles. The Memorandum explains that this
would "ensure that if in respect of a particular category
of case it appears that retention of DNA is not justified, this
can be addressed in practice". However, while the recognition
that it may not be appropriate to continue to retain certain categories
of material indefinitely is welcome, the deletion of this material
at the discretion of individual forces according to statutory
guidance would not give individuals a right to have their material
removed. If the justification for retention falls away, there
is a significant risk that the right to respect for private life
will be violated and the material will need to be deleted to remove
the violation (Article 8 ECHR).
79. We agree with the Minister's analysis that the
same weight of justification is not required in connection with
the retention of the biometric information of convicted people
as that of innocent persons. However, justification is still required
and differing degrees of justification may be necessary according
to the effectiveness of the operation of the scheme and the value
of holding different categories of material. Unfortunately, the
Government has been unable to provide supporting evidence or statistics
in support of the contribution made by the National DNA Database.
This means that it is extremely difficult to assess whether the
same justification for the retention of the DNA of those convicted
of minor offences exists for the retention of material gathered
from those convicted of more serious offences.
80. The indefinite retention of all convicted adults'
biometric material, including in connection with convictions for
relatively minor offences (including cautions), has not yet been
considered by the European Court of Human Rights. We are concerned
that blanket retention without any opportunity for review or distinction
based on the type and seriousness of the relevant offence may,
in some cases, yet create a risk of a disproportionate interference
with the right to respect for private life (Article 8 ECHR). Unfortunately,
as we noted above, very little information is currently gathered
on the operation of the National DNA Database. This means that
it is difficult to assess the real value of retaining the biometric
material of those convicted of minor offences (including those
accepting a caution). We
welcome the acceptance in the Explanatory Notes that where DNA
retention is no longer justified, the removal of categories of
profiles can be dealt with under guidance issued under Clause
24. However, we recommend that the Minister should be asked to
provide further information on the Government's view that blanket
retention remains appropriate at this time. We consider that there
is a clear case for keeping the indefinite retention of biometric
material gathered from people given PNDs or convicted of minor
offences under review.
Interim measures
81. On 9 September 2010, we wrote to the Home Secretary
to ask what interim measures regarding DNA retention the Government
intended to take, pending the introduction of their proposals
in the Coalition programme for Government. The obligation in Article
46 ECHR includes an obligation to bring to an end the violation
identified by the Court and to prevent any further similar violations.
We welcomed the Minister's decision to introduce interim guidance
to abate the effects of the breach identified in Gillan v UK
and asked whether a similar proactive approach would be taken
in relation to the gathering and retention of fingerprints and
DNA samples.[61] The
Government did not respond to our request for further information
until March 2011, as the Minister did not wish to respond until
the substance of the proposals in this Bill had been published.
In the Minister's response, James Brokenshire MP, Parliamentary
Under Secretary for Crime Prevention, explained that the Government
regretted that it had taken over two years to respond to the judgment
in Marper appropriately. The Minister said that after discussions
with ACPO, the Government had concluded that interim measures
were inappropriate in this case for a number of reasons:
- The need to balance the need
to "make swift progress with implementation while minimising
the financial impact on the police service";
- Taking action on the basis that DNA which would
not be retained in Scotland should not be routinely retained in
England and Wales would "pre-judge the will of Parliament";
and
- Staff who would implement any interim solution
would have to be diverted from work on the proposals in this Bill.
82. Notably, under the existing statutory framework,
chief officers have the discretion to decide not to retain certain
material, including fingerprints and DNA taken from people not
convicted of any offence. In our letter to the Home Secretary,
we noted that, shortly after the judgment, ACPO issued guidance
to its members indicating that practice should not change pending
the adoption of new statutory rules.[62]
While we understand that the Government did not wish to divert
resources from the development of a more permanent replacement
for the provisions in the Crime and Security Act 2010, in the
two years since the Marper judgment a significant amount
of data may have been gathered from individuals who are entirely
innocent and the retention of whose DNA will be a disproportionate
interference with their right to respect for private and family
life. Similarly, a number of people will continue to have had
their material retained, while a permanent solution is sought.
This issue is further complicated by the ongoing use of techniques
by the forensic science service which the Minister has since explained
will make deletion of individual DNA profiles held by forensic
laboratories extremely difficult. We
regret that an interim solution was not actively sought by the
Government in this case. We particularly regret that no steps
were taken to stop the collection and retention of samples and
profiles whose retention was unlikely to be justified (for example,
samples and profiles taken from children arrested in connection
with very minor offences and subsequently released without charge).
We consider that, as a matter of good practice, the introduction
of interim measures designed to minimise the risk of further,
similar violations, while a permanent response to an adverse human
rights judgment of the domestic courts or the European Court of
Human Rights is being developed, should be encouraged.
Statistical information and the
operation of the National DNA Database
83. We wrote to the Minister to ask for fuller information
on the evidence on which the Government had chosen to base the
decision to retain DNA profiles taken from some innocent people
for 3-5 years (other than in national security cases), the Minister
referred to earlier criticism of our predecessor Committee of
the quality of evidence produced by the then Government to support
its argument in favour of the wider powers of retention in the
Crime and Security Act 2010. The Minister referred us back to
his statement in Public Bill Committee that the policy decision
had been "fundamentally [...] a question of judgment and
there is a line to be drawn. Based on the information and the
evidence, we believe our proposals strike a fair and proportionate
balance between public protection and the right of the individual,
and we feel strongly that the provisions are appropriate".[63]
84. During debates on the Crime and Security Act
2010, our predecessor Committee asked the then Government to provide
a number of detailed statistics on the success rate of the DNA
database when linking the DNA taken from innocent people to subsequent
offences. The information requested was either not published or
not available.[64] For
example, ACPO research cited 36 cases during 2008-09 involving
matches to innocent people's DNA which were of "direct and
specific value" to an investigation. Our predecessor Committee
called on the Government to publish more details on these statistics
to allow Parliamentarians to consider them during debates on the
Bill, but no further detail was forthcoming.[65]
We have also asked for a number of detailed statistics to help
inform our understanding of the contribution which the proposals
in the Bill would make to the prevention and detection of crime,
with similarly disappointing results. For example, we asked for
statistics connected with speculative searches of the National
DNA Database (including, for example, when a speculative search
led to a conviction when the relevant DNA profile had been gathered
from a person who had never previously been convicted of any offence).
The Minister told us that this type of information is not routinely
gathered and it would be too resource-intensive to collate from
the Police National Computer.[66]
The Minister instead, told us that the public would rightly object
if an offender such as Mark Dixie was arrested and yet not linked
to the commission of an earlier offence for which DNA evidence
was available. So, while it is our view, subject to our specific
concerns expressed above, that these provisions are more likely
to be compatible with Article 8 ECHR, we cannot reach a firm conclusion
without a fuller picture of the value of including specific categories
of biometric material on the database.
85. We are disappointed
that accurate statistical information about the operation of the
National DNA Database does not appear to have been routinely gathered.
Understanding when a match assists in
the identification of an offender would allow the Government to
assess accurately when the National DNA Database is at its most
effective and to ensure that the information retained contributes
to the prevention and detection of crime. We consider that this
type of ongoing analysis is essential to understanding whether
the database is operating in a way which is proportionate to the
aims it seeks to achieve, by establishing clearly the contribution
it makes to the reduction of crime in the UK. Fuller information
about the value of retention would bolster the Government's current
arguments that in its judgment, the proposals in the Bill are
proportionate in light of the contribution they will make to the
prevention and detection of crime. Without this information, Parliamentarians
are asked to make a value judgment on the operation of the NDNAD
based on the citation of a few, very high profile cases, rather
than any more scientific assessment of its effectiveness. This
is unsatisfactory. We recommend
that the Government should be required to gather information about
the operation of the proposals in the Bill which should be published
in a regular report to Parliament. We consider that the relevant
information should include:
- Information
and statistics on the categories of biometric information retained
and the demographics of the people whose information is retained
(including the numbers of people convicted, charged but not convicted,
voluntarily providing information, material retained pursuant
to a national security determination and any material retained
from persons arrested but not charged, in the prescribed circumstances
identified in the Bill);
- Information and statistics on
the number of successful searches of the National DNA Database,
including criteria for success (for example, excluding people
from investigations, identifying suspects, leading to further
information and the conviction of an individual). It would be
particularly helpful to identify the number and type of cases
where biometric material identified through a search of the database
has played a role in a conviction (and particularly what role
that material played).
86. While
we consider that this research and record keeping will require
careful coordination between the police and the Crown Prosecution
Service, we consider that in light of the pioneering role played
by the UK in the development of database technology in the prevention
and detection of crime, the collation of information designed
to allow for effective qualitative research on the effectiveness
of the National DNA Database is important. The Bill should be
amended to require the Secretary of State to produce such regular
reports. We have produced the following amendment for discussion.
It is designed to create a statutory duty to publish information
on the operation of the NDNAD and to recognise that these functions
could be performed by any combination of the Secretary of State,
the Biometrics Commissioner or the Strategy Board.
87. The purpose of this amendment is to require the
annual publication of statistics and other information relevant
to the operation and effectiveness of the National DNA Database.
To move the following Clause:—
After section 63AB of the Police and Criminal
Evidence Act 1984 (for which see Section 24) insert—
"63AC Statistical and other information on
the operation of the National DNA Database: Reports to Parliament
(1) The Secretary of State will lay information
before Parliament annual statistical information about the operation
of the National DNA Database. This information shall include:
(a) information and statistics on the categories
of biometric information retained and the circumstances of retention,
to include
(i) the number of fingerprints, samples and profiles
taken under Section 63D of the Police and Criminal Evidence Act
1984 during this reporting period;
(ii) the number of fingerprints, samples and profiles
retained under this Act under each of the sections 63E-63O, by
section, in total and retained during this reporting period;
(iii) the number of samples destroyed following
the application of section 63D during this reporting period;
(b) information and statistics on the demographics
of persons from whom biometric information is retained under each
of the sections 63E-63O, by section, in total and retained during
this reporting period;
(c) information and statistics on the number of
searches of the National DNA Database performed annually, including:
(i) the total number of searches;
(ii) the number of successful matches;
(iii) the outcome of individual matches and their
relevance to the prevention and detection of crime, including
for example:
(a) the number of matches which excluded an individual
from an investigation or provided exculpatory evidence in relation
to a defendant in criminal proceedings or a person accused in
a criminal investigation;
(b) the number of matches which were relevant
to a prosecution and contributed to a conviction; and
(c) information on the type of contribution DNA
evidence based on a successful match has made to prosecutions
during this reporting period.
(2) Information under this section shall be presented
in a report to Parliament from the Secretary of State. The Secretary
of State may delegate the preparation of this Report to the National
DNA Database Strategy Board.
(3) In compiling this information, the Secretary
of State must consult:
(a) chief officers;
(b) the Director of Public Prosecutions;
(c) the National DNA Database Strategy Board;
(d) the Commissioner for the Retention and
Use of Biometric Material;
(e) the Information Commissioner;
(f) any other such persons as the Secretary
of State considers appropriate.
4 Clauses 1-5. Back
5
App No 30562/04, Judgment, 4 December (Herein "Marper").
This is an issue on which our predecessor Committee reported a
number of times.For a summary of the judgment see Twelfth Report
of 2009-10, Legislative Scrutiny (Crime and Security Bill),
HL 67/CH 402, paras1.6-1.7 and 1.18 ("Herein JCHR
Report: Crime and Security Bill").For ease of reference,
in the operative part of the judgment the Court said "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." Back
6
The Crime and Security Act 2010 has not yet come into force for
these purposes (Sections 14-23). Back
7
See JCHR Report: Crime and Security Bill, paras 1.8-1.10. The
Committee of Ministers at the Council of Europe (who has responsibility
under Article 46 ECHR for monitoring the UK response to Marper)
also questioned the scope of these proposals and the evidence
base for concluding that they were proportionate. See DH-DD(2010)327E
1092nd DH meeting-Communication from the Secretariat in the case
of S. and Marper against United Kingdom (Application No. 30562/04). Back
8
Human Rights Memorandum, paras 10-14. Herein we refer to the
Human Rights Memorandum published by the Government, available
online: http://www.homeoffice.gov.uk/publications/about-us/legislation/freedom-bill/
Back
9
Marper, para 100 Back
10
Marper, paras 122-125 Back
11
Marper, para 112 Back
12
Marper. paras 111-112 Back
13
We also welcome the introduction of some specific safeguards,
below. Back
14
Clause 14(4) DNA samples refer to the biological material taken
from an individual. A DNA profile refers to the unique data extrapolated
from the sample. The profile is generally an encrypted set of
numbers which can be linked to an individual by matching to a
DNA sample. Back
15
Marper, paras 70-77 Back
16
Our predecessor Committee considered the impact of the decision
to destroy samples and retain profiles in more detail.See JCHR
Report: Crime and Security Bill, paras 1.17-1.23.They noted that
the retention of profiles requires a lesser degree of justification.
However, they considered that the previous Government's assessment
that the retention of profiles was a "modest" interference
with the right to respect for private life an inaccurate assessment
of the analysis of the Court. Back
17
Marper, para 119 Back
18
Ev 114-115 Back
19
1115th DH Meeting (7-9 June 2011) - S. and Marper against the
United Kingdom (Applications No. 30562/04 and 305666/04 of 04.12.08,
Grand Chamber) - Memorandum prepared by the Department for the
execution of judgments and decisions of the European Court of
Human Rights. CM/Inf/DH(2011)22rev Back
20
Acquisition and Retention of DNA and Fingerprinting Data in Scotland,
Professor Frazer, June 2008, p14. Back
21
JCHR Report: Crime and Security Bill, paras 1.33-1.37 and 1.70. Back
22
We note that the ACPO evidence to the Public Bill Committee was
that the proposals in the Bill would reduce the number of detections
as a result of matches found on the database by 2-3% (around 1000
detections per year).ACPO also stressed that it was impossible
to analyse what percentage of these detections would be material
to the solution of a particular investigation or the success of
any prosecution. Equally it was impossible to estimate whether
the detections would relate to serious or minor offences. The
figures produced by ACPO have been criticised by GeneWatch UK,
who gave evidence to the Public Bill Committee that the number
of cases where there could be a relevant impact would be around
1-2 serious cases per year. See HC PBC Deb, 22 March 2011, Cols
8-9 (ACPO) and Cols 90-91 (Genewatch). Back
23
EN, para 82. The Human Rights Memorandum clearly explains that
"the proposals in this Bill allow only for a single extension.
This avoids the possibility of allowing indefinite retention by
the back door" (para 17). Back
24
New Section 63F(6). Back
25
New Section 63F(9). Back
26
See for example, Liberty, Second Reading Briefing, Protection
of Freedoms Bill, Feb 2011, para 13. Back
27
A number of human rights issues have been raised about a number
of issues in this part of the Bill. We have focused on those which
we consider priority issues and which may create a risk of a further
violation of Article 8 ECHR. Back
28
Differences in the Scottish criminal justice system make a direct
analogy between arrest and charge in criminal justice system in
England and Wales difficult. However, it is clear that the operation
of the scheme in Scotland is narrower than the scheme proposed
in the Bill, since only those against whom proceedings are commenced
will have their biometric material retained. Back
29
Clause 3, New Section 63F (5), (11) and (12) Back
30
Human Rights Memorandum, para 18 Back
31
Marper, para 122-124. Back
32
For similar reasons, any application for extension of the retention
period will need to be carefully managed. This will be particularly
important where an individual has been acquitted after a trial.
This issue was raised during debate in the House of Commons Public
Bill Committee, where the Minister accepted that sensitivity would
be necessary (HC PBC Deb, 29 March 2011, Col 224). There have,
as yet, been no applications for extension in Scotland under the
model operating there , so it is difficult to assess the likely
risk that the assessment of justification undertaken by the court
on extension could lead to a separate violation of Articles 6
and 8 ECHR. In his response to our letter, the Minister explained
that he expected that these hearings would take place in camera,
but that the ultimate decision would be for the courts, see Ev
115. Back
33
See for example, Asan Rushiti v Austria, App No 28389/95,
Judgment 21 March 2000. Back
34
JCHR Report: Crime and Security Bill, para 1.53 Back
35
R 92 (1), Article 8 Back
36
Human Rights Memorandum, paras 42-43 Back
37
In this context, we are concerned that the Action Plan submitted
to the Council of Europe Committee of Ministers on Marper
appears to present misleading information on the scope of the
national security provisions in the Bill. It explains that Schedule
1 of the Bill provides for retention for set periods in connection
with material retained under counter-terrorism legislation. It
then explains that the national security provisions allow these
measures to be extended by determination, on a 2 year rolling
basis. Unfortunately, the Action Plan appears to imply that the
national security determination only applies in this context.
DH-DD (2001) 333E, Action Plan dated 7 June 2011:https://wcd.coe.int/wcd/ViewDoc.jsp?id=1783423&Site=CM&BackColorInternet=C3C3C3&BackColorIntranet=EDB021&BackColorLogged=F5D383
Back
38
Schedule 6, Terrorism Prevention an d Investigation Measures Bill. Back
39
Ev 125 Back
40
Clauses 101-104 Back
41
Ev 124 Back
42
This amendment would omit the power to retain after a national
security determination has been made. Similar amendments would
need to be made to the provisions in the Bill which relate to
Northern Ireland and other consequential amendments. Back
43
HC PBC Deb, 22 March 2011, Col 14 Back
44
This correspondence is available on the Committee's website: http://www.parliament.uk/business/committees/committees-a-z/joint-select/human-rights-committee/human-rights-judgments/s--marper-v-united-kingdom/
Back
45
Letter from Minister to Martin Caton MP and Gary Streeter MP,
dated 27 June 2011 (copies deposited in the House of Commons Library). Back
46
See for example, Public Service, ICO Comments after DNA retention
U-turn claims, 26 July 2011. Back
47
JCHR Report: Crime and Security Bill, paras 1.56-1.58 Back
48
The European Court of Human Rights has twice upheld challenges
to this system in Van der Velden v Netherlands (App No.
29514/05) and W v Netherlands W v Netherlands, App
No 20689/08 (see below, footnote 60). Back
49
Marper, para 124 Back
50
Ev 112-114. See also Ev 120-121 Back
51
Criminal Justice and Licensing (Scotland) Act 2010, Section 80. Back
52
Criminal Justice and Licensing (Scotland) Act 2010, Section 79 Back
53
Ev 119 Back
54
Ev 119-120 Back
55
Ev 120 Back
56
Ev 119-120 Back
57
Clause 18, New Section 65B Back
58
EHRC, Committee Stage Briefing, 17 March 2011, Page 5. Back
59
Marper, para 48 Back
60
The Human Rights Memorandum references two admissibility decisions
of the European Court of Human Rights concerning the DNA database
in the Netherlands to support their position. Both of these cases
concerned the retention of DNA samples and profiles taken from
convicted persons and both were declared inadmissible. However,
the system for DNA retention in the Netherlands is very different
from the system operating in the UK. Notably, only certain categories
of offenders have their DNA stored on the DNA database (offenders
serving over a set limit custodial sentence), the period of retention
varies according to the relevant offence up to a maximum of 30
years retention and exemptions are available for circumstances
where retention would not be necessary or justified (for example,
where a person is no longer able of committing an offence, or
where the offence they have been convicted of has no connection
with DNA (for example, perjury)). In W v Netherlands, App
No 20689/08, the Court stressed the safeguards in the system.
Contrasting with the case in Marper, the Court noted "[T]he
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 [...] 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". Back
61
We have since welcomed this approach in our Fourteenth Report
of 2010-12,Terrorism Act 2000 (Remedial) Order 2011: Stop and
Search without Reasonable Suspicion, HL 155, HC 1141, paras
23-24. Back
62
This correspondence is published on the Committee's website: http://www.parliament.uk/business/committees/committees-a-z/joint-select/human-rights-committee/human-rights-judgments/s--marper-v-united-kingdom/
Back
63
Ev 112 Back
64
JCHR Report: Crime and Security Bill 2010, Written Evidence, Letter
from the Chair of the Committee to Rt Hon David Hanson MP, Minister
of State, Home Office, dated 18 January 2009. Back
65
JCHR Report: Crime and Security Bill 2010, paras
1.32(e)-1.35 Back
66
Ev 116-117 Back
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