I attended Cambridgeshire Police Authority’s Professional Standards Committee on the 13th of May 2009 and observed a discussion on the retention of DNA samples and data. This follows the December 2008 ruling of the European Court of Human Rights which decided the UK police’s disproportionate retention of DNA information / samples from unconvicted people was a violation of Article 8 of the European Convention on Human Rights.
The direction received by the Association of Chief Police Officers (ACPO) is that although the judgement has gone against the UK it does not have impact until the law is changed by Parliament, therefore no change should be made at present to police processes or procedures.
Liberal Democrat member of the Police Authority Cllr Kevin Wilkins disagreed with the police and took them task on this point. Assistant Chief Constable Mark Hopkins speaking on behalf of the police clarified that they took the view that the situation was analogous to a European Union directive and it did not have any effect until UK law was changed to take account of it. Mr Wilkins was clearly exasperated by the police’s failure to make a distinction between a court judgement and a new directive. While I would support the UK retaining its ability to decide these matters itsself, independently from European institutions, it is still an incredibly worrying situation when police chiefs arbitrarily and selectively decide to ignore a court ruling. A situation where the police decide to ignore court rulings they don’t like cannot be allowed.
Kevin Wilkins continued, saying: “The ACPO direction is wrong. Any similar case going to the court will be lost [by the UK state]. It is not correct to say the judgement does not have an impact until UK law is changed”.
The meeting’s chair, Magistrate and Police Authority member Benjamyn Damazer, pointed out to the police that they didn’t have to take the ACPO view. He said he recognised that the police, and the Home Secretary were in a difficult position.
ACC Hopkins had introduced the report saying that the European Court of Human Rights judgement had decided the UK Police’s blanket retention of DNA was not proportional. He noted the Home Secretary’s proposals for responding to the judgement were contained within a consultation launched on the 7th of May 2009 entitled “Keeping the right people on the DNA database”. The summary of the recommendations are:
- All profiles to be retained for six years for persons arrested for a recordable offence but not convicted.
- Profiles of persons subject to arrest within that period to be subject to an automatic retention period of a further six years.
- Profiles of persons arrested but not convicted for specified violent or sexual terrorism-related offences or to be retained for 12 years.
The Police Authority discussed sending a joint response to the Home Office consultation with the police, before rapidly realising that the authority may have quite different views. The committee resolved to circulate the consultation document to all members of the Police Authority.
The Chief Executive of the Police Authority stepped in to advise the committee on what they could do in relation to the item. She said that due to the fact an election campaign was in progress (for county council elections) the Political Parties, Elections and Referendums Act (PPERA) made it impossible for the committee to set policy. She suggested the committee ought do no more than note the report and request the full ACPO advice and reasoning be made available to them. This is what they finally decided to do, but only after Kevin Wilkins complained that what they could and couldn’t do was unclear. He said that the Chief Executive’s interpretation of the position “makes us incapable of doing business”.
Section 2.1 of ACPO’s Retention Guidelines for nominal records on the Police National Computer (2006) states that the Criminal Justice and Police Act 2001 removed the requirement to destroy DNA samples and fingerprints, relating to persons following acquittal at court or other discontinuance of a case.
The Criminal Justice Act 2003 ammended PACE providing the police with the additional power to take DNA samples and fingerprints without consent, from all persons detained at a police station having been arrested for a recordable offence.
The UK police currently take a DNA sample from everyone they arrest for a recordable offence (if they aren’t dearrested before they get to a police station). They then generally keep both the sample and data derived from it until the person reaches 100 years of age. There is a route, taken by 2-3 people per week* allowing DNA to be removed under the discretion of a chief police officer who has assured themself that the individual is “free of any taint of suspicion*“.
There are provisions for those who are suspected of crimes to have their DNA taken, checked against the database, then destroyed. People can volunteer their DNA to aid them being ruled out of an enquiry, their DNA is also not stored.
I think the police’s collection and retention of information has to be proportional. Keeping DNA samples and data of all those arrested is just one area where the police’s data retention is disproportionate. The judgement and ACPO’s Retention Guidelines reveal that records are never deleted from the Police National Computer. In the language used access is merely “stepped down”, records always remain accessible to the police. As well as records on the PNC forces hold local records which, while also subject to statutory guidance on the management of police information (MOPI), can be held for excessive periods. For example as far as I can tell Cambridgeshire Police plan to hold electronic records of simple Stop and Account interactions indefinitely. I cannot imagine why even now they have reasonable cause to continue to keep a record of the fact a policeman asked me why I was looking over a fence a few years ago let alone how they will justify still having it on record in ten or even fifty years time.
Shortly after the London congestion charge came in the police and security services obtained access to all the data collected by the cameras; they now have it in real time. I have no problem with data on specific individuals being released, preferably following a court issued warrant or similar safeguard but object to the ability for the police to mount “fishing expeditions” in the data.
I am in favour of giving the police the tools they need to do their job. I want to live in an ordered society where those who commit crime are brought to justice. However I do not want to see any more of our freedoms and privacy taken away by the state than is absolutely necessary. Comedian and campaigner Mark Thomas has as usual made the point very well – it is not acceptable for the state to create this new category of people which the state considers “innocent-ish”. I think that “innocent until proven guilty” is a good principle and one I am prepared to fight to retain.