Six-year limit on DNA of innocent in DNA database is a valid way to adhere to European Court of Human Right’s ruling.
The UK was the only Member State in the European Union to allow the DNA of people found not guilty for crimes to retain on the DNA database. The 17 judges of the European Court of Human Rights fervently disagreed with this stating that the government had to change its policy on the matter and that they would not give much leeway on the matter given its high level of disruption to Human Rights. The Government has now released proposals to impose a 6 year limit on the retention of the innocent’s DNA; but does this satisfy what the European Court ordered?
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The government has changed what the Court specified they should change
The European Court of Human Rights was quite clear when it stated that retaining indefinitely the DNA and fingerprint records of unconvicted suspects is unlawful. The government’s new proposals to meet the requirements of this judgment is to make the DNA of the unconvicted only remain on the database for 6 years. The law has to be laid down in a set manner rather than imprecise terms. Loopholes are often found but in the long run, they are what create a fair and just legal system. We cannot have loose laws, everything must turn on the wording. The ruling stated that the DNA of the innocent could not be saved indefinitely, so the government is proposing that this DNA only be kept on the system for 6 years. They have done what the Court has asked them to do, to take away the permanency.
the Scottish route was recommended and taken into account
When issuing its decision the European court stated that England and Wales should look at how the Scottish police DNA database is administered. There, the records have a time limit if the person is not found guilty. The time limit is three years in Scotland, but what the court emphasized was the fairness of allowing the innocent to be removed from the database instead of remaining there permanently. The government has taken the courts advice and has issued a policy similar to that of Scotland’s and imposed a time limit on the retention of the DNA of the innocent. The government’s proposals therefore are perfectly consistent with the judgment of the court.
What the court emphasized about the Scottish approach to the DNA database was that they followed the recommendation from the Council of Europe's Committee of Ministers about the use and analysis of DNA. What was praised was the changing of the retention time of the DNA of the unconvicted based on the seriousness of the crime. Therefore, rape and murder suspects who had their cases dropped or who were found innocent would have their DNA stored for a longer period of time, determined by a judge. This is very different to the proposals of the British Government who would have a blanket 6 year limit on the storage of DNA.
In Scotland, the main rule is still, no conviction equals no DNA, with violent crimes being an exception to that rule in order to protect society from potential criminals. What the UK government is proposing is against the innocent’s human rights. There is no proportionality like that of the Scottish DNA database rules.
The court is theoretical, the government is practical.
It is a fine thing for a court to sit in their ivory tower and pick holes in a database that helps solve crimes, in the name of human rights. But what the court seem to neglect is the fact that the government are accountable to their public, and the public want to see crimes solves. The DNA database helps solve 20,000 crimes a year. The database holds 181,000 DNA profiles from suspects who under the Scottish system would not be on the database.
The government statistics show that 8,251 of these individuals were subsequently linked with crime-scene stains, which involved 13,079 offences including 109 murders and 116 rapes. [[Danny Shaw, http://news.bbc.co.uk/1/hi/uk/7765484.stm, December 2008]] Surely whilst the court can make its value judgments on what human rights mean, the government have the practical task of making human rights of the innocent proportionate with the human rights of those who could be victims of crimes. This is a balancing act that the practical government should embark on using the courts judgment as guidance rather than a blueprint.
The court has little leeway to give
The Strasbourg court made a unanimous decision, which is extremely powerful as there are 17 judges in that court, that the UK keeping the DNA of the unconvicted on a database permanently was contrary to human rights and therefore illegal. They stated that due to the high level of disruption to human rights, on this issue the court would not have much "margin of appreciation" or leeway. Therefore, by imposing a 6 year limit of keeping the DNA of the innocent the UK government are still acting contrary to human rights. This is still 6 years of the privacy of the innocent being invaded. Given the European Court of Human Rights statement of low tolerance in this area, the government will have to lower this time limit and reconsider their policy if they wish to adhere to the court’s wishes.
The reason the court was so harsh was due to the government’s ulterior motives
What the court recognised in their judgment was the Government’s preference for an identity database which will have everyone’s DNA on it. Keeping the DNA of anyone who had criminal implications even if they were not convicted was one step towards this. What the court have done is put a block on such a database and said that this is contrary to our right to a private life.
Given this context, the Government should not be allowed to loosen the ruling of the Strasbourg court. They should instead opt for the Scottish option which the court recommended. This will ensure that the Government do not gradually creep towards their ulterior goal – an entire DNA database of every citizen, guilty, unprosecuted or entirely innocent.
What do you think?