Wednesday, 11 November 2009

DNA: Home Office still determined to ignore law and evidence

Is there any limit to the government's arrogance, pig-headedness and contempt for anyone who disagrees with it? Of course not. As Home Secretary, Alan Johnson seemed like an improvement on his predecessors. It wouldn't be hard. But he would seem to be as much a creature of his department's authoritarianism and database obsession as the rest of them. We've already seen how he dealt with Professor Nutt. Today, he announced his determination to continue with the mass-retention of DNA profiles from anyone who happens to be arrested, in the face of what the Telegraph described as "growing opposition" to the policy. It's depressing, of course, but not particularly surprising - despite the fact that only three weeks ago the government was being congratulated for what many believed was a U-turn.

It wasn't a U-turn, though. It was an S-bend.

For the uninitiated, the story so far. The British national DNA database was established in 1995 and initially restricted to convicted criminals. Under Labour rule-changes, it has been turned into an instrument of mass surveillance, with around five million samples now being held. It has grown by two million in just the past two years. This has not led to a noticeable increase in detection rates, and there is little or no evidence that retaining innocent people's samples either deters or helps solve crime. Nevertheless, the Home Office remains attached to the idea of database expansion as such, regardless of its effectiveness. In this they are supported by many in the police, for some of whom there are no innocent people, merely "those who are yet to be convicted of an offence".

In December 2008, in the case of S and Marper, the European Court of Human Rights ruled that the operation of the database in England and Wales was disproportionate, unjustified and unlawful. After several months of foot-dragging (during which the police were instructed to continue with their presumably illegal DNA collection and storage) the Home Office announced proposals which it, but almost no-one else, believed would satisfy the terms of the judgement.

The proposal put forward was that, in "serious" cases where there has been an arrest but no conviction and perhaps no trial - including "terrorism", which term of course covers everything from blowing up aircraft to shouting mild obscenities at a politician or photographing a bus-shelter - samples should be retained for twelve years. In less serious cases - say, a minor traffic violation, arguing with a council official, or accidentally being hit on the head by a police baton during a peaceful protest - the term should be six years. The response to the "consultation" was overwhelmingly negative. So they've scaled down the twelve years to six. Under the new proposals - shortly to be embodied in law - everyone will be treated the same way. Except for terror suspects, where samples may be held indefinitely, even where the suspect is under 18.

Bizarrely, the Guardian today described this as "a climbdown". On the other hand, Liberty's Shami Chakrabarti, who had greeted the apparent concession last month as "another victory for Article 8 of the Human Rights Convention", commented that today's announcement makes ministers "look stubborn rather than effective or fair". She predicted that the new proposal would lead to "a repeat collision course with the Courts". Indeed. Quite how this is supposed to meet the requirements laid down by the European Court is unclear.

The ECHR's central point was that the retention at all of DNA from those uncharged or unconvicted of a crime is a breach of privacy rights, and needs justification. The Home Office has been unable to provide proper justification, instead relying on a handful of high-profile and highly unusual cases, such as that of Sally-Ann Bowman. The Strasbourg judges were especially concerned that under the illegal UK regime "material may be retained irrespective of the nature or gravity of the offence ... or of the age of the suspected offender". Just the other day, indeed the Council of Europe issued a report which trashed the Home Office's arguments. Their report noted that "the application of two different detention periods based on the nature of the offence for which an individual is arrested [and which the Home Office today abandoned], would appear to respond to the Court's criticism of an indiscriminate approach." However, it went on, "the proposed measures and in particular the proposal to retain profiles for 6 years following arrest for non-serious offences do not conform to the requirement of proportionality." In other words, the scheme announced today is if anything less in accord with the ruling than the government's discredited former proposals.

In his last few months in office, Alan Johnson has effectively declared war on the European Court of Human Rights. He virtually said so:

Although the ECtHR suggested that the seriousness of the alleged offence should be a factor in determining what length of retention was proportionate, the best available evidence indicates that the type of offence a person is first arrested for is not a good indicator of the seriousness of offence he might subsequently be arrested for or convicted of in future.

This is not actually true - but even if it were true, it would be irrelevant, since where human rights are concerned the law is what the court says it is, not what the Home Office would like it to be. The ECHR did not "suggest", it ruled.

If the government doesn't respect the rule of law, why should anyone else?

Still, to give credit where it's due, the Home Office did today release the results of its consultation exercise (pdf). And it's fairly conclusive. There were around 500 responses in all; the overwhelming majority, it seems, rejected the proposals. A "significant majority" were opposed to any form of retention of DNA profiles for persons arrested and against whom no further action was taken or who were acquitted. Most felt it was "entirely inappropriate that an innocent person should be treated the same as a person who had been found guilty". Many suggested that the Government "would be failing to implement the judgment" and that the policy if implemented "would leave any future legislation open to future legal challenge in both domestic courts and the European Court of Human Rights." Also, "To some, it was seen as an attempt by the Government to hold onto personal data and comparisons were drawn with approaches on identity cards, CCTV and increasing use of surveillance tools."

The document goes on to mention the strong support the Scottish system had among respondents; many felt it provided "a useful approach in retaining the data of only those in the serious category of offences." There were suggestions that whether or not samples should be retained after acquittal should be a matter for the court rather than a police officer. Some drew attention to the disproportionate impact DNA retention had on ethnic minorities. Most felt that samples taken from under-18s should, in most cases, be destroyed promptly.

Many complained that "the current threshold of taking biometric data is too low and that the volume of recordable offences too wide." It is this wide casting of the net, of course, that has enabled British police forces to build the world's largest database - there have even been suspicions (outrageous, I know) that people have been arrested primarily so that their genetic details can be taken and retained. The strong criticism that the Home Office's research - a classic instance of "policy-based evidence making" - attracted from experts in genetics and criminology also gets a mention. I've dealt with this in some detail before. The basic problem with the research, though, is that it is confuses the likelihood of being re-arrested with that of committing, or being convicted of, a crime. New research offered today unapologetically makes the same deliberate mistake.

The document doesn't mention any submissions received that supported Home Office proposals, presumably because there were none. But they just don't care.

Outside the besieged citadel of the Home Office, a consensus seems to have emerged around the Scottish model, where samples are kept only in serious cases, the vast majority being destroyed at the conclusion of the police investigation, or after a defendant has been acquitted. Chris Grayling this morning committed the Conservatives to this system, which presumably means that the Home Office's new procedure, if it is introduced before the election, will not be in place for very long. This hasn't stopped most reports today treating it as a fait accompli.

The nightmare will be over soon. I hope.