Off the record

It's time for the latest instalment in the enduring battle against excessive DNA retention. We have a new Supreme Court judgment, R v Commissioner of Police for the Metropolis [2011] UKSC 21, handed down almost exactly ten years since the insertion of section 64(1A) into the Police and Criminal Evidence Act 1984, on 11 May 2001, to permit the police to indefinitely hold the DNA of everyone arrested for a recordable offence, irrespective of their guilt.

Many will remember the uncompromising December 2008 judgment of the European Court of Human Rights in S and Marper v United Kingdom [2008] 48 EHRR 1169, which condemned the 'blanket and indiscriminate' UK retention policy as a violation of the right to respect for private life, and put powerful pressure on the government to implement a new regime. Since then, legislation amending the DNA retention regime was passed under the previous Labour administration in the Crime and Security Act 2010, but not brought into force by the coalition government. This was no great loss since the proposals were based on tissue-thin evidence which conflated arrest with guilt and provided for blanket six-year retention, only marginally less offensive than the present scheme.

A new draft scheme is currently making its way through parliament in the Protection of Freedoms Bill, which was published after GC was heard, but before judgment was handed down. It is thought that the bill might get through by autumn this year. While not perfect, the new statutory scheme is better than the old, providing a much more detailed and nuanced retention model, requiring the destruction of DNA taken from people arrested but not charged with any offence, and time-limited retention for those who are arrested or charged with serious offences but not convicted.

For the first time, juveniles are treated slightly less harshly, so that a child convicted of a minor offence on one occasion only, and given a non-custodial sentence, will have his or her DNA destroyed after five years. Separate provision is made in the bill for DNA retained for national security purposes.

We don't yet know whether these provisions will become law. In summary, the bill provides for retention periods for DNA and fingerprints (leaving aside the national security regime). (See box.)

Against that background, a seven-judge panel of the Supreme Court was asked in late January 2011 to consider the obvious conflict between the House of Lords judgment in R (S and Marper) v Chief Constable of the South Yorkshire Police [2004] UKHL 39, which found by a majority that the DNA retention policy did not even interfere with article 8 (right to respect for private life), with the European Court of Human Rights' judgment in the same case, which found a clear breach of article 8.

GC was arrested on suspicion of common assault on his girlfriend. He was released without charge and no further action was taken against him. C was arrested on suspicion of rape, harassment and fraud.

He was charged with rape (but not harassment or fraud) and acquitted at trial when the prosecution offered no evidence against him. Both sought the destruction of their DNA and fingerprints, and both were refused on the basis that their cases were not 'exceptional' within the meaning of the Association of Chief Police Officers' exceptional cases policy: a very narrow test which permits destruction of retained DNA in 'exceptional circumstances' (for example, when it turns out that no offence was committed '“ by anyone '“ or the arrest was unlawful).

By the time the case was heard in the Supreme Court, it was common ground that the current regime for indefinite retention of DNA and fingerprints taken from everyone arrested for a recordable offence constituted a breach of article 8, and the House of Lords' 2004 Marper judgment could not stand. The parties differed on the remedy that should be granted.

The Metropolitan Police urged the court to grant a declaration of incompatibility on the basis that section 64(1A) could not be read compatibly with article 8. Since the wording of section 64(1A) is permissive, not mandatory (DNA may be retained), this was always going to be a difficult argument to mount, and the court rejected it (Lords Brown and Rodger dissenting). The appellants GC and C sought declarations that the retention of their data was unlawful, and GC also sought the quashing of the ACPO exceptional cases scheme and reconsideration of the retention of his data within 28 days.

In its judgment of 18 May 2011, the Supreme Court has now declared unlawful the current retention regime, thus finally bringing domestic law into line with Strasbourg. However, because of the draft legislation in parliament, the court declined to order the police immediately to implement a lawful scheme, at least until parliament has had a reasonable time to pass the bill currently before it. So, although the declaration of illegality is welcome, the judgment will make little practical difference for the hundreds of thousands of people whose DNA is '“ admittedly '“ unlawfully retained, who will have to wait even longer to compel the police to destroy it.

This protracted DNA saga shows the folly of those who argue that the Human Rights Act 1998 gives the courts too much power. Despite both European and UK courts condemning the current regime as an unlawful breach of privacy rights, the law remains as it was passed by parliament ten years ago, and implemented by the police. Although the Supreme Court rejected the argument that section 64(1A) of PACE was incompatible with the Human Rights Act, it has nonetheless deferred to parliament rather than impose an interim solution.

In an area that has attracted so much controversy, one can understand why the Supreme Court took this path, although it will no doubt be a disappointment for those affected.

Discrimination

One of the most pernicious consequences of the current DNA policy has been the massive overrepresentation of black people. The Human Genetics Commission estimates that up to three-quarters of black men between the ages of 18 and 35 are on the National DNA Database. The Ministry of Justice's Statistics on Race and the Criminal Justice System for 2008/09 (published June 2010) show that three times as many black people as white people, per 1,000 population, were arrested (and therefore potentially liable to DNA sampling). The MoJ itself accepts that 'findings from the longitudinal analysis of the Offending, Crime and Justice Survey 2003-06 (Hales et al, 2009) suggested that an individual's ethnic group was not significantly associated with increased or reduced likelihood of offending. Against this background, the arrests data presented are best seen as evidence of whom the police suspect of committing crime.'

It is often argued that DNA retention policy does not itself discriminate on the grounds of race (or sex), but merely reflects discriminatory arrest practices '“ but this is mistaken. Properly understood, the fact that the overrepresentation of black men on the DNA database is caused by the disproportionate number of arrests of black men, itself almost certainly due to direct discrimination, makes the retention policy impossible to justify.

An indirectly discriminatory effect can hardly be justified by pointing to racial prejudice or stereotyping elsewhere in the criminal justice process. Liberty was granted permission to intervene in GC to make these discrimination arguments, but because the legality of the regime was not in issue by the time the case was heard, the judgments do not address these points in any detail. Liberty has another case, JA, presently stayed in the Administrative Court pending the outcome of GC, which raises the same points.

As ever, there are other similar areas ripe for challenge. One issue raised by GC was the retention of his photographs, taken on arrest but not covered by the ACPO policy. The court declined to deal with the issue, leaving it for determination in another case. The case of Wood v Commissioner of Police for the Metropolis [2009] EWCA Civ 414 found a breach of article 8 in circumstances where the police had taken and retained photographs of the appellant, a campaigner against the arms trade, after he had perfectly lawfully asked questions at an AGM.

The issue of retention of data (particularly non-conviction, or 'soft' data) by police cries out for clarification, despite the unhelpful judgment of the Court of Appeal in relation to conviction data in Chief Constable of Humberside Police and others v Information Commissioner [2009] EWCA Civ 1079.

So, we wait now for the next DNA instalment, to see whether the Protection of Freedoms Bill becomes law in its current form. If not, there will no doubt be a queue of aggrieved innocents seeking to secure the destruction of their DNA through further litigation. I hope that indefinite, discriminatory DNA retention policy '“ already in its death throes '“ can finally be put to sleep.