DNA Database – The Age of Innocence

Posted on | by Anya Proops KC

The Government has today proposed new rules for the retention of DNA profiles and fingerprints on the police national DNA database.  The proposals, which are made in the context of a public consultation process (‘Keeping the Right People on the DNA Database’), come in the wake of the Marper judgment (4 December 2008). In Marper, the ECtHR held that a blanket policy under which fingerprints, cellular samples  and DNA profiles were indefinitely retained by the police constituted a disproportionate and, hence, unlawful interference with Article 8 rights to privacy. The new proposed rules aim to circumvent the problems posed by having a blanket indefinite retention policy by varying the length of time that data can be retained depending in the innocence of the suspect and the severity of the crime in respect of which they were arrested. Thus, the DNA profiles and fingerprints of individuals who are arrested but not convicted in respect of minor offences will be destroyed after a period of six years; individuals who are arrested but not convicted for more serious violent and sexual offences and terrorism-related offences will have to wait twelve years for their DNA profiles and fingerprints to be destroyed; individuals who are convicted of an imprisonable offence will have their DNA profiles and fingerprints retained indefinitely. The proposals have received a rebarbative response from civil liberties campaigners, many of whom had expected the Government to destroy some 850,000 DNA profiles, fingerprints and samples in response to the Marper judgment. Of course, the question has to be posed whether it can ever be a proportionate interference with privacy rights to retain data in respect of individuals whose guilt was never established in respect of the offence for which they were arrested and who must, in the circumstances, be deemed innocent. The Government’s answer to this question appears to be that the interference is justified because: (a) criminology research suggests that, over time, the retained data can be used to convict those ostensibly innocent individuals of subsequent crimes; and (b) accordingly, retention of the data will constitute a vital weapon in the fight against crime. The presumption underlying this answer appears to be that, in a statistically significant number of cases, individuals who appear to be innocent in respect of one crime are in fact destined to go on to commit crimes in the future, such that it is legitimate for their data to be retained for a relatively substantial period of time (either six or twelve years). Whilst the more nuanced approach to the retention of DNA profiles may be relatively well placed to survive a legal challenge in the domestic courts (see further the House of Lords judgment in Marper [2004] UKHL 39, [2004] 1 WLR 2196), it remains to be seen whether the ECtHR would regard that approach as falling within the four corners of the justification defence under Article 8(2).

ID Card Trials Struggle on Take Off

Posted on | by Anya Proops KC

Recent media reports suggest that the British Airline Pilots’ Association (Balpa), which represents more than 80% of commercial airline pilots, is considering a legal challenge to Home Office plans to use critical airside workers as the first compulsory guinea pigs in trials of the national identity card scheme. MPs are shortly to be asked to approve powers which could be used to compel pilots and other individuals who work airside to register for the national ID card scheme as part of their pre-employment checks. Balpa, which has been objecting to the proposed trial arrangements since late 2008,  has raised concerns about the compulsory nature of the current proposed arrangements. It has also asserted that ID cards will have absolutely no value so far as security is concerned. Meanwhile, speculation that the Government may look to axe the ID card scheme in the wake of the economic downturn has been dampened by an announcement in early April 2009 that the Government had recently signed two ten year contracts worth £650 million to get the scheme under way.

GCHQ Denies Snooping Project

Posted on | by Anya Proops KC

GCHQ, one of the three UK intelligence agencies, has issued a public statement in which it has specifically denied that it is developing technology which would enable it to access all internet traffic in the UK. The statement, which was made in response to weekend media reports on GCHQ’s Mastering the Internet Programme (MTI),  is unusual in that the agency does not usually comment on media stories.  The statement is plainly designed to reassure the public than the State is not secretly sanctioning the development of highly intrusive surveillance strategies. Its release follows in the wake of an announcement made by the Home Secretary on 27 April 2009 that the government had shelved plans to create a superdatabase that would centrally store all communications data in Britain (see the earlier post on the Super Database).

Police DNA Database Cut Down to Size

Posted on | by Anya Proops KC

The Home Secretary, Jacqui Smith, will this week unveil plans to remove from the police national database DNA information relating to up to one million innocent people. The proposals come in the wake of the ECtHR’s judgment in Marper in December 2008 that the practice of retaining the DNA profiles of innocent people on the database constituted an unjustified interference with the Article 8 right to privacy. Privacy campaigners have welcomed this development but continue to lobby for further limitations on the database, including removing the DNA profiles for minor offenders. See further Tim Pitt-Payne’s article on the Marper judgment in the New Law Journal.

Recent conference papers

Posted on | by Timothy Pitt-Payne KC

On 11 KBW’s main website, you can now find some conference papers delivered this month by members of chambers.

There’s a paper that I gave at a Northumbria University conference.  The theme of the conference was information sharing; my paper is about the new law on breach of confidence (post-Campbell v MGN).

Yesterday, the LGG/11KBW legal update conference took place, with about 115 delegates.  Karen Steyn gave a paper on recent case-law affecting local authorities; the first section is about information law.  I gave a paper about employment vetting.  In discussion, delegates were clearly very interested in getting to grips with the new ISA barring regime.  Questions were raised about its implications for elected members of local authorities, and for volunteers (e.g. parents helping out in schools).  

Another subject  raised in discussion was the recent decision of the Administrative Court in R(G) v Governors of X School and Y City Council.  A music assistant employed at a primary school was dismissed; the allegation was that he had formed an inappropriate relationship with a 15 year old boy who was on work experience at the school.  The school’s disciplinary committee told the employee that they would be reporting the case to the Secretary of State for potential inclusion in “list 99” (i.e. the statutory list of those banned from working in schools).  The Court quashed the decision because the school had refused to allow legal representation at the dismissal hearing or at a forthcoming appeal.  The disciplinary proceedings, and the referral to the Secretary of State for a potential banning direction, formed part of one and the same proceedings.  Those proceedings were not criminal in nature for the purpose of article 6 of the Convention.  However, their potential consequences were grave; and procedural fairness required the claimant to be allowed legal representation, before both the school’s disciplinary committee and its appeal committee.

Super Database – Not so Super After All

Posted on | by Anya Proops KC

The Home Secretary has this week announced that proposals to create a State run super database, which would track everyone’s use of email, internet and text messages, have been scrapped. The announcement is hardly surprising. It was always going to be difficult to persuade the public that such a database could be kept secure, particularly in light of recent high profile controversies about large scale losses of electronic personal data by government agencies. Moreover, allowing the State to develop such a vast single repository of electronic communications data was always going to raise questions as to whether the resulting interference with private rights was proportionate and was otherwise consistent with the State’s obligations under the Data Protection Act 1998. The Government has now issued a consultation paper on new plans to allow telecommunications companies to retain the communications data for a period of 12 months. See further the Home Secretary’s Ministerial Statement.