UK DNA policy (still) fails proportionality test

It is now a year since the European Court of Human Rights’ (ECHR) ruling on UK vs. S and Marper. The court’s ruling in that case was clear: the UK government’s policy of systematic and indiscriminate retention of DNA samples, DNA profiles and fingerprints of those acquitted of any offence is disproportionate. The government had, it says,

“overstepped any acceptable margin of appreciation in this regard”.

Grudgingly and slowly, the government is considering amending its policy – but only to the extent of conceding on indefinite retention. [Editorial update: as of December 9th, the Council of Europe expressed its concern that the new proposals probably still fail the proportionality tests required by the ECHR. They are keeping the dossier open, and will review the UK position again in March 2010].
Under the Home Secretary’s current proposals, the data and samples of the innocent are now only to be held for 6 years (there’s an excellent summary paper here, on the House of Commons Library website). The ruling in full is accessible online here. It’s well worth a read; almost every paragraph contains something to back up the view that the policy on DNA retention is intrusive and obnoxious. For instance, how about this section on the Police and Criminal Justice Act 2001 (my emphasis):

27. As to the retention of such fingerprints and samples (and the records thereof), section 64 (1A) of the PACE was substituted by Section 82 of the Criminal Justice and Police Act 2001. It provides as follows:
“Where – (a) fingerprints or samples are taken from a person in connection with the investigation of an offence, and (b) subsection (3) below does not require them to be destroyed, the fingerprints or samples may be retained after they have fulfilled the purposes for which they were taken but shall not be used by any person except for purposes related to the prevention or detection of crime, the investigation of an offence, or the conduct of a prosecution. …
(3) If – (a) fingerprints or samples are taken from a person in connection with the investigation of an offence; and (b) that person is not suspected of having committed the offence, they must except as provided in the following provisions of this Section be destroyed as soon as they have fulfilled the purpose for which they were taken.
(3AA) Samples and fingerprints are not required to be destroyed under subsection (3) above if (a) they were taken for the purposes of the investigation of an offence of which a person has been convicted; and (b) a sample or, as the case may be, fingerprint was also taken from the convicted person for the purposes of that investigation.”

Even the ECHR judges somewhat understate the case against retention – for instance, in this paragraph:

“78. It is common ground that fingerprints do not contain as much information as either cellular samples or DNA profiles. “

Unfortunately, that is not accurate. The fingerprints themselves (as opposed to any scanned or photographic record of them) consist of natural oils and skin cells – which of course contain the subject’s DNA. There is plenty of published material on the practicalities of small-sample DNA analysis, and the technique has been used by UK law enforcement agencies. In other words, fingerprints not only contain the same information as cellular samples, they contain cellular samples in a very individual layout – the fingerprint itself.
But I digress…
What I really wanted to do was point to three excellent blog posts on the “justification” for DNA collection and retention in the UK system.
The first is this one from Privacy law specialists Amberhawk – correlating the government’s own re-offending statistics with their assertions about the benefits of 6-year retention.
The Tech and Law blog has further analysis of the Amberhawk piece, here, including a link to a trenchant letter questioning both the practicality and the proportionality of the current policy.
And finally, Toby Stevens adds his excellent analysis here, setting out (among other things) four fundamental flaws with the current approach. In passing, he notes that the UK’s national DNA database is (perhaps thankfully) unique; no other country has one like it, or uses DNA in the same way.
Which brings us back to the ECHR’s judgement in UK vs S and Marper. Sections 47 and 48 of that judgement bear repeating in full (my emphasis):

“47. The United Kingdom is the only member State expressly to permit the systematic and indefinite retention of DNA profiles and cellular samples of persons who have been acquitted or in respect of whom criminal proceedings have been discontinued. Five States (Belgium, Hungary, Ireland, Italy and Sweden) require such information to be destroyed ex officio upon acquittal or the discontinuance of the criminal proceedings. Ten other States apply the same general rule with certain very limited exceptions: Germany, Luxembourg and the Netherlands allow such information to be retained where suspicions remain about the person or if further investigations are needed in a separate case; Austria permits its retention where there is a risk that the suspect will commit a dangerous offence and Poland does likewise in relation to certain serious crimes; Norway and Spain allow the retention of profiles if the defendant is acquitted for lack of criminal accountability; Finland and Denmark allow retention for 1 and 10 years respectively in the event of an acquittal and Switzerland for 1 year when proceedings have been discontinued. In France DNA profiles can be retained for 25 years after an acquittal or discharge; during this period the public prosecutor may order their earlier deletion, either on his or her own motion or upon request, if their retention has ceased to be required for the purposes of identification in connection with a criminal investigation. Estonia and Latvia also appear to allow the retention of DNA profiles of suspects for certain periods after acquittal.48. The retention of DNA profiles of convicted persons is allowed, as a general rule, for limited periods of time after the conviction or after the convicted person’s death. The United Kingdom thus also appears to be the only member State expressly to allow the systematic and indefinite retention of both profiles and samples of convicted persons.”