Creating a fairer Britain
19 October 2009
The Equality and Human Rights Commission has written today (19 October 2009) to the Association of Chief Police Officers (ACPO) asking it to confirm that it will withdraw its guidance to Chief Constables on the retention of DNA evidence or face potential enforcement action.
The intervention follows the Commission’s recommendations to Government and Council of Europe’s Committee of Ministers to change the way DNA profiles are stored and used on the national DNA database. It coincides with a Home Office announcement that it has dropped a proposal to keep hold of the DNA of innocent people for up to 12 years.
The Commission believes that guidance given by ACPO to Chief Constables does not meet the European Court of Human Rights requirement for there to be clear and justifiable reasons for holding onto the DNA data from people who have not been convicted of a crime.
A letter sent by ACPO in July 2009 advised Chief Constables to continue to retain all DNA samples of individuals who have had samples taken on arrest but have not been convicted of any offence.
The Commission has given ACPO 28 days in which to confirm that the current advice given to chief constables will be withdrawn and replaced by advice that complies with the law. If ACPO fails to do this, the Commission will consider taking formal enforcement action.
John Wadham, Group Director Legal at the Equality and Human Rights Commission said:
'We outlined our concerns about the DNA database to Government and the Council of Europe’s Committee of Ministers earlier this year. We're pleased with the decision to drop the proposal to hold on to the DNA of innocent people for up to 12 years, as removing innocent people from the database was one of our recommendations.
'We can see no reason now why Association of Chief Police Officers (ACPO) should not change its guidance on the retention of DNA. The Commission recognises that ACPO had been put in a difficult position by the government by this issue, which is why we are offering them the opportunity now to amend their advice and avert future legal action.
'The police are at the forefront of the fight against crime. The importance of this fight cannot be underestimated but it should comply with the Government’s legal obligation to protect the privacy of innocent people, as outlined by the European Court.'
For more information contact the Equality and Human Rights Commission Media Office on 02031170255, out of hours 07767272818.
The European Court of Human Rights requires the UK Government to have clear, justifiable reasons for holding on to DNA data from people who had not been convicted of a crime.
In the case of S and Marper v United Kingdom (Dec 2008), the European Court of Human Rights 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 of the European Convention on Human Rights). It found that 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).
Following the ruling, in May 2009 the Home Secretary began a consultation process on keeping DNA samples taken from people without criminal convictions. Any draft guidelines published as a result of this are not expected to take effect until 2010.
The Commission submitted a response to the Government consultation, ‘Keeping the Right People on the DNA Database’ which noted that it believed further changes were required to the way DNA profiles are stored and used by the state if it is to comply with the law. The full submission can be found on our website.
In July 2009, ACPO advised Chief Constables to continue to retain all DNA samples of individuals who have had samples taken on arrest but have not been convicted of any offence. The Commission believes this guidance contravenes the European Court of Human Rights requirement. The Commission has given ACPO 28 days in which to confirm that the current advice given to chief constables will be withdrawn and replaced by advice that complies with the law. If ACPO fails to do this, the Commission will consider taking formal enforcement action.
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 encourage compliance with the Human Rights Act. It also gives advice and guidance to businesses, the voluntary and public sectors, and to individuals.
ACPO is an independent strategic body that works in partnership with Government and the Association of Police Authorities. It leads and coordinates the direction and development of the police service in England, Wales and Northern Ireland.