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Bydd cynhigion cronfa ddata DNA yn dal yn torri cyfraith hawliau dynol

07 August 2009

In its response to the Government’s consultation, ‘Keeping the Right People on the DNA Database’, the Equality and Human Rights Commission believes further changes are required to the way DNA profiles are stored and used by the state if it is to comply with the law.

The Government is consulting on changes to the rules about the DNA database after a European Court of Human Rights ruling found that these were unlawful. Under the Government’s proposals, even if someone has not been charged with committing a crime their DNA profile can be kept for up to 12 years, or indefinitely if they have been found guilty of any offence.

The Commission believes this proposal does not meet the European Court of Human Rights requirement for the UK Government to have clear, justifiable reasons for holding on to DNA data from people who had not been convicted of a crime. The Commission’s response is based on advice from Michael Beloff QC.

The Commission sets out its concerns in relation to several aspects of the Government’s proposals along with its recommendations to bring them in line with the Council of Europe's guidance on the use of DNA in the criminal justice system:

• DNA profiles must be destroyed once a final decision has been made in a case, with only a few exceptions. A person’s DNA profile should only be kept for a limited period if they have been convicted of a serious crime and where destroying that information is likely to pose a risk to the public.
• There must be more of a balance between someone’s right to privacy and the right of other people to be protected from a crime that might be committed.
• The rules should also differentiate more between children and adults. The Commission argues that it is not proportionate – and therefore unlawful – to keep the DNA profile of a 10 year old child arrested for a minor offence for the same length of time as an adult.

The Commission also wants an independent adjudicator to be put in place to oversee the system. This would give innocent people a way of challenging the need to keep their DNA profile on file.

John Wadham, Group Director Legal at the Commission, said:

“We recognise that the DNA database is a vital tool in the fight against crime, but people have a right to have their privacy protected. The proposed changes to the national DNA database are a step in the right direction, but we think there is no reason why the police should be allowed to keep anyone’s DNA profile indefinitely. There also needs to be better protection for innocent people.

“It would be sensible for the Government to get this right now or it could face many more expensive legal challenges. Britain is at the cutting edge of how this technology is used in fighting crime, but it must be used lawfully.”

The Commission also calls into question the validity of the research used by the Government to support its proposals, noting that the evidence has been criticised by other experts. The response also drew attention to issues that the consultation paper failed to address, but which the Commission thinks are highly relevant:

• In Scotland DNA samples and profiles must generally be destroyed if the individual is not convicted or is granted an absolute discharge, unless it relates to a violent or sexual offence. The Government has not pointed to any evidence that this is having a detrimental effect on crime in Scotland.
• The proposals do not tackle the fact that there are a disproportionate number of black men, particularly young black men, on the database.
• There are disproportionate numbers of vulnerable people are on the database, including children as young as ten and people with mental illnesses.
• DNA is being collected for a broad range of offences, even when it may not be relevant as evidence.

Further information

• Read our response in full to 'Keeping the right people on the DNA database' (Pdf)
• Read the legal advice we received from Michael Beloff, QC (Pdf)
• Find out more about this consultation

Ends

For more information contact the Equality and Human Rights Commission Media Office on 020 3117 0255, out of hours 07767 272 818.

Notes to Editors

• The UK Government has to revise how it stores fingerprints, DNA samples and DNA profiles following a case at the European Court of Human Rights (the Court). In the case of S and Marper v United Kingdom, (Dec 2008) the Court found that the 'blanket and indiscriminate' nature of the powers of retention of fingerprints, DNA samples and profiles of persons suspected but not convicted of offences in England and Wales interferes with their right to respect for their private lives (Article 8).  Such a retention regime is not proportionate and fails to strike a fair balance between the competing interests.  The court emphasised the general principle that an interference with an individual's right to privacy will only be considered 'necessary in a democratic society' for a legitimate aim if it answers a 'pressing social need' and, in particular, if it is proportionate to the legitimate aim pursued and if the reasons adduced to justify it are 'relevant and sufficient' (emphasis added). 
• The Government consultation intends to “promote public debate on how long we should retain fingerprints and DNA.” The Home Office consultation paper “sets out the benefits of DNA and fingerprints in detecting offenders and helping to bring them to justice. It also sets out proposals to introduce clearer and more transparent safeguards for the individual. It aims to provide a proportionate balance between protecting communities and protecting the rights of the individual.” More about the consultation can be found at: http://www.homeoffice.gov.uk/documents/cons-2009-dna-database/

The Equality and Human Rights Commission

The Commission is a statutory body established under the Equality Act 2006, which took over the responsibilities of Commission for Racial Equality, Disability Rights Commission and Equal Opportunities Commission.  It is the independent advocate for equality and human rights in Britain.  It aims to reduce inequality, eliminate discrimination, strengthen good relations between people, and promote and protect human rights.  The Commission enforces equality legislation on age, disability, gender, race, religion or belief, sexual orientation or transgender status, and encourages compliance with the Human Rights Act.  It also gives advice and guidance to businesses, the voluntary and public sectors, and to individuals.