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Police guidelines on DNA data are unlawful

23 May 2011

Guidelines used by the police to determine whether they should destroy DNA profiles and fingerprints are unlawful and incompatible with article 8 of the ECHR, the Supreme Court has ruled.

The guidelines, drawn up by the Association of Chief Police Officers (ACPO), provide that data should only be destroyed in exceptional cases.

The government has committed itself to reforming the law so that, in line with the Scottish approach, samples would be retained only in the case of serious violent or sexual offences and then only for three years.

In 2008 the European Court of Human Rights ruled in Marper that indefinite retention of samples breached article 8.

The High Court agreed to allow a leapfrog appeal to the Supreme Court last summer (see solicitorsjournal.com, 26 July 2010).

Giving the leading judgment last week in R (on the application of GC) v Met Police Commissioner [2011] UKSC 21, Lord Dyson said that since parliament was already “seised of the matter” it was neither just nor appropriate to make an order requiring a change within a specific period.

“The legislature must be allowed a reasonable time in which to produce a lawful solution to a difficult problem,” Lord Dyson said.

“Nor would it be just or appropriate to make an order for the destruction of data which it is possible (to put it no higher) it will be lawful to retain under the scheme which parliament produces.

“In these circumstances, the only order that should be made is to grant a declaration that the present ACPO guidelines (as amended) are unlawful.”

Lord Dyson said that if parliament did not produce revised guidelines within a reasonable time, the appellants would be able to launch a judicial review and “their claims will be likely to succeed”.

Lords Phillips, Judge and Kerr and Lady Hale agreed. Lords Rodger and Brown dissented.

Lord Brown held that it was not unlawful for the Met police to continue to hold data on the national DNA database.

He went on: “I should certainly not have thought it ‘just and appropriate’ within the meaning of section 8 of the HRA to require them to change their existing practice pending the introduction of a new legislative data retention scheme.

“If anyone is to be criticised for the failure of the existing database to meet the state’s obligations under article 8, it is surely the government, not the police.”

Lord Brown said that in his judgment, the police had a defence under section 6(2)(b) of the Human Rights Act 1998, in that they were acting to enforce provisions which could not be read in a way that was compatible with Convention rights.

John Wadham, group director of legal at the Equality and Human Rights Commission, said there were more than a million people on the DNA database who had not been charged with a crime, “let alone convicted”.

He went on: “This puts innocent people at a disadvantage when they are vetted for jobs or if they were to come into contact with the criminal justice system again. There have to be clear and justifiable reasons for holding onto the DNA data from those people who have not been convicted of a crime.

“Our view is that the current guidelines for the police are not in keeping with the law and the court has confirmed this.”

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