The Committee has followed my recommendation for the clauses about the database to be
deleted. The provisions are nearly as bad as the
information sharing orders.
http://www.publications.parliament.uk/pa/jt200809/jtselect/jtrights/68/6804.htm#a23
My arguments are on the www.amberhawk.com website (home page)
C
RETENTION, USE AND DESTRUCTION OF BIOMETRIC DATA
1.111 The Bill was amended in PBC to include new clauses, proposed by the
Government, dealing with the retention of DNA samples, profiles and
fingerprints.[165]
The clauses enable the Secretary of State to make regulations on the retention,
use and destruction of biometric data such as fingerprints and DNA collected as
part of the investigation of a criminal offence. Such regulations will be
subject to the affirmative resolution procedure.[166]
In his letter to Members of the PBC, the Minister confirmed that the Government
was not in a position to produce detailed proposals and that it would be
consulting.[167]
1.112 The Government intends the clauses and subsequent secondary
legislation to implement the Grand Chamber decision of the European Court of
Human Rights' in Marper v United Kingdom.[168]
In Marper, the Court concluded that the authorities' retention of
fingerprint and DNA samples following discontinuation of proceedings or acquittal
violated Article 8 ECHR (the right to respect for private life). In a strongly
worded unanimous judgment, the Court held:
… that the blanket and
indiscriminate nature of the powers of retention of the fingerprints, cellular
samples and DNA profiles of persons suspected but not convicted of offences, as
applied in the case of the present applicants, fails to strike a fair balance
between the competing public and private interests and that the respondent
State has overstepped any acceptable margin of appreciation in this regard.
Accordingly, the retention at issue constitutes a disproportionate interference
with the applicants' right to respect for private life and cannot be regarded
as necessary in a democratic society.[169]
1.113 During the PBC, the Minister, Alan Campbell MP, expressed the
Government's disappointment at the judgment of the European Court of Human
Rights, stating:
We continue to believe that DNA
and fingerprints play an invaluable role in fighting crime, and will now
carefully consider how best to give effect to the Court's findings.[170]
1.114 Members of both opposition parties expressed serious concerns at the
new clauses. In particular, Members were concerned at the late publication of
the clauses and the fact that the substance of the changes would be in
secondary not primary legislation (and so there would be a much reduced
opportunity for parliamentary debate and scrutiny of the provisions).[171]
1.115 Setting out the Government's position, the Minister said:
Our proposal is the best way,
within the time scale that the judgment gives us, to get the balance right
between the rights of the individual, which the court case highlighted, and the
rights of the rest of the community to be safe and be kept safe.[172]
1.116 We wrote to the Home Secretary shortly after the European Court of
Human Rights judgment, requesting the Government's proposals on implementation
by 4 March 2009.[173]
On 5 January 2009, the Home Secretary replied as follows:
Technological developments and,
in particular, the use of DNA in investigations has been one of the
breakthroughs for modern policing in which we had led the world. It has
contributed to convictions for serious crimes and also to the exoneration of
the innocent. However, I am conscious that we need to ensure that our policy
enjoys public confidence. We need also, of course, to implement the judgment of
the ECtHR. As you may be aware, I announced on 16 December at the Intellect
trade association that we will consult via White Paper on Forensics next year
on bringing greater flexibility and fairness into the system, using a
differentiated approach to the retention of samples, DNA profiles and
fingerprints.[174]
1.117 We also received a submission from Dr C.N.M. Pounder focussing on
these new clauses. In summary, Dr Pounder concluded that the new clauses would
significantly reduce the protection afforded by the Data Protection Act 1998,
noted that the clauses had been introduced in advance of a public consultation
and suggested that the fact that secondary legislation would be used would lead
to limited Parliamentary scrutiny.[175]
1.118 We are concerned at the Government's approach to implementation of
this important judgment. Whilst the Government is right to consider that the
public may wish to be consulted on proposals for reform, we are alarmed that
the substance of these proposals will not be contained in primary legislation,
subject to the usual scrutiny by both Houses. We strongly urge the Government
to think again and to ensure that there is sufficient time for scrutiny of
measures which, as the European Court has held, substantially interfere with
the right to respect for private life. In addition, given the Court's findings
on the harmful effects on unconvicted minors of retaining their data,[176]
we recommend that the Government considers a swifter solution for dealing with
the position of those under 18 years of age.
Page 116, Line 16, leave out
Clause 95.
Page 117, Line 32, leave out
Clause 96.
Page 118, Line 3, leave out
Clause 97.
1.119 We are also aware of a number of cases raising similar issues of
inappropriate retention of personal data by the police, in which the
Information Commissioner has challenged the police in relation to the failure
to remove information from the Police National Computer, including reprimands
of juveniles which ought to have been removed. The Information Tribunal has
upheld the Information Commissioner's challenge in these cases, but the police
have appealed the decision to the Court of Appeal. We may return to this
issue in the light of the Court of Appeal's judgment.
Dr.
C. N. M. Pounder
Director,
Amberhawk Training Ltd
Phone:
0845 680 2623 or Mob: 07735 365 585
www.amberhawk.com