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Supreme Court to have say on DNA rules

26 July 2010

The High Court has agreed to allow a direct appeal to the Supreme Court over the rules for retaining DNA profiles and fingerprints.

Under the coalition government’s Freedom Bill, which featured in the Queen’s Speech, DNA profiles and fingerprints from people investigated or arrested, but not convicted, would be destroyed in most cases.

Following the Scottish model, they would only be retained in the case of serious violent or sexual offences for a maximum period of three years.

The Freedom Bill is due to be introduced into Parliament this autumn, but the DNA measures are unlikely to be implemented until next year at the earliest.

The previous government’s reforms to the rules, set out in the Crime and Security Act 2010, have not been implemented.

They would have replaced the policy, introduced in 2001, of indefinite retention save in exceptional circumstances, with a single limit of six years for samples from those arrested but not convicted.

Giving an ex tempore ruling in R (on the application of GC) v Met Police Commissioner and Home Secretary (no citation available), Lord Justice Moses and Mr Justice Wyn Williams said the doctrine of precedent obliged them to follow the leading House of Lords judgment on DNA profiles, which backed the status quo.

Both suspects had given DNA and fingerprints in the course of police investigations. Neither were convicted of any offence, but their requests for the samples to be destroyed were refused by the Met Police.

They applied for judicial review on the grounds that this policy breached their article 8 privacy rights.

Without considering the merits of their individual cases, the Administrative Court had to decide whether to follow the existing House of Lords precedent or whether it could apply the later ECtHR ruling which held that privacy rights had been breached.

Shamik Dutta, a solicitor at Fisher Meredith, acted for GC. “There has been a significant amount of time since the European judgment and as yet there is no change in the government’s position on the indefinite retention of samples,” he said.

“Any judicial review must be determined on the basis of the law as it currently stands. However, we argued that if the court was bound by the precedent laid down in the House of Lords, then the case raised a point of law of sufficient public importance for an appeal to be heard by the Supreme Court.”

In a separate development, the government has been criticised for delaying implementation of the Bribery Act 2010 by six months, until April 2011.

The Act, which was passed by Parliament in the pre-election ‘wash-up’, would replace the UK’s outdated anti-corruption legislation, some of which is Victorian. It was expected to be implemented in the autumn.

Section 7 of the Act creates a new offence which can be committed by commercial organisations which fail to prevent bribery committed for their benefit.

Justice secretary Ken Clarke said section 9 put the government under a duty to publish guidance about procedures which companies could introduce to prevent bribery. However, he said it was important that the guidance took account of the views of businesses and non-governmental organisations.

The MoJ said a consultation on the guidance would be launched in September, with a view to publication early in the New Year.

Eoin O’Shea, partner and head of the anti-corruption group at Lawrence Graham, said the Bribery Act had already gone through a very long gestation period and it was over ten years since the first Law Commission report.

“There have been several consultation exercises already, both by the Law Commission, the government and parliamentary committees,” he added.

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