A couple of interesting things recently on DNA / biodata retention, where the present UK government is getting some flak – merited, in my opinion.
The first is a detailed paper for a speech made by Sir Jack Beatson on 16 June 2009. He’s a UK judge and President of the British Academy of Forensic Science, and was Rouse Ball Professor of English Law in the University of Cambridge, so he certainly knows what he’s talking about.
His paper Forensic Science and Human Rights: the Challenges is a thoughtful analysis of the impact of forensic science on the right to respect for private life in Article 8 of the European Convention of Human Rights (Convention text) - in particular the retention of biodata.
He covers (critically, but in my view he’s right to be):
- The UK’s National DNA Database.
- R (S & Marper) v Chief Constable of South Yorkshire about the law governing the obtaining and retention of fingerprints and DNA samples taken from individuals who have not been convicted of an offence: House of Lords decision, European Court of Human Rights decision
- Developments in the UK in between the House of Lords and ECHR decisions on Marper, including various consultation papers and reports by government and other organisations. An extract from his conclusion in this section (which also touches on photos and face recognition etc) – my emphasis:
”I deal only with the process of forming policy about the retention of the biodata of unconvicted persons but the process issues considered are relevant in other contexts. Other types of forensic material, such as cellsite analysis, image recognition, and firearms residue, also raise important legal, practical and ethical questions on which, while the technologies are important components in the detection and deterrence of crime, our law and practice may be open to question. In the case of facial mapping, for instance, there is as yet no statistical evidence of the significance of the features which are the subject of evidence by facial mapping experts and there are differences between the approaches of different courts as to the appropriateness of an expert expressing opinions as to probabilities based on facial mapping evidence. In all these areas it is important that the process by which policy is formed on such issues is technically rigorous, inclusive, and is such as to command public confidence.”
- The implications of the ECHR decision and the approach that should be
used in forming policy and developing a new regime in the light of it
- The government’s response to that decision, particularly their May 2009 consultation paper “Keeping the Right People on the DNA Database: Science and Public Protection”:
”Will policy formed on the basis of this research lead to the confidence of the public in the policy choices made and thus in the National DNA Database which the government seeks? It is suggested that there is a risk that it will not unless the questions about the legitimate claims and boundaries of privacy and autonomy raised by the Strasbourg Court, but not dealt with in the Consultation Paper, are addressed.“
- Towards a new legal regime?:
”All this suggests that there is still much work to be done as we move from this Consultation Paper first to the promised White Paper and then to a new regime for the retention of biodata for use in the important task of preventing and detecting crime. Public confidence in what is ultimately proposed will depend on the strength of the analysis in the White Paper. It is also likely to be affected by attitudes to other manifestations of what has been referred to as a surveillance society. Those defending the present regime have relied on the argument that the UK is “at the cutting edge of forensic development”. But this argument, as the ECtHR pointed out, cuts both ways. The leader in a field bears a special responsibility in striking a balance and in explaining why what it proposes achieves it. The various UK reports that preceded the Court’s decision suggested we had not done so. Despite those reports the UK government robustly defended our policy before the Strasbourg Court. The Consultation Paper, our first considered official reaction to the judgment, has not taken on board or addressed and rebutted the Court’s criticisms of our systems. We need to do so if we are to address the challenge of producing a legal and regulatory regime which encourages the benefits of DNA profiling to be appropriately available for the detection and deterrence of crime while being clearly compatible with the European Convention on Human Rights.”
15. Clause 96 of the bill seeks to amend the Police and Criminal Evidence Act 1984 by inserting new powers for the Secretary of State, by regulations, to "make provision as to the retention, use and destruction of material". It is in our view wholly unacceptable that the important matter of retention of samples is to be dealt with by delegated legislation. The Government's proposals as to how they intend to implement the Marper judgment raise important and controversial questions, which the House will want to debate fully. Clause 96, if agreed to, will not allow that debate to happen. The principles governing samples should be set out on the face of primary legislation to enable Parliament to scrutinise them and, if needs be, to seek to amend them. Unamendable delegated legislation will not provide a sufficient opportunity for parliamentary oversight and control over the legal framework for the Government's policy.
16. We call on the Government to think again and bring forward proposals in a separate bill to regulate the National DNA Database.
Call me idealistic, but I believe politicians aren’t elected just so they can do what they want in the way that they want, ignoring what they choose - and hang the public good, the public need, the public wish. Legislation is not just licence for politicians to inflict their personal pet ideas, influenced by who knows what hidden vested interests, upon the general public.
In a democracy, politicians who pass laws affecting the lives of those who elected them into power have a duty and responsibility to do so in a way which vindicates the trust and faith placed in them by the public, rather than in a way which threatens to overstretch and besmirch the legitimacy of their mandate.
Politicians ought not to behave as if immediately before a general election is the only time when they can be held accountable to citizens. Laws should not only be made on a sensible and sound basis, but should be seen to be made on a sensible and sound basis.
With public confidence in politicians at virtually an all time low, there must surely be cause for concern when judges and lords (neither of whom are exactly known as hippy liberal types) pose questions which raise doubts about the government’s ability and willingness to produce laws which are rational, appropriate and fair for modern society, which are based on expert knowledge and scientific evidence taking into account all relevant factors, which genuinely attempt to weigh up and strike a reasonable balance between all properly competing considerations, and which are made in such a way that they are clearly subject to open democratic scrutiny.
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