The Police Forces who disobey the law

On a personal level, I have always held that a person who is prepared to suffer the consequences of disobeying an unjust law, should disobey an unjust law. This, however, is a matter of personal conscience. If an unjust law is passed – you can think of a wholly unjust law that might be passed, perhaps of the kind that was passed by the Nazis when they were in power in Germany, it is not only meet that you disobey it but it is essential that you do so.

Conscience is a matter of personal choice and decision; it is not vested in institutions or enterprises. Those involved in institutions, such as the Police, have no choice but enforce unjust laws, or else resign from the force.

However, it seems that the police are now in many cases considering themselves able to pick and choose which laws to obey and create laws that over ride the findings of courts. This is immensely dangerous; we cannot permit this to happen.

In 2001 two English people, one of whom was then a child, were arrested by the Police qand had their fingerprints taken andf their DNA profiles recorded. One was arrested for attempted burglary (he was then eleven years old) and was acquitted; the other was arrested for harassing his live in partner, on her allegation, which was subsequently dropped after they reconciled.

Both arrested persons, wholly innocent of any offence, applied to have their DNA profiles and fingerprint records deleted. The police refused, and after a series of court actions the matter ended in the highest court to which the United Kingdom is legally subject, the European Court of Humans Rights.

The Court delivered its judgment in November 2008, over a year ago. You can see it on line at https://dl.coe.int/coenew2007/voirfr.aspx?ID=1519&startdate=&enddate=&search=arrêt

Seventeen judges had considered the matter and were unanimous in their ruling. They held that the United Kingdom was in breach of Article 8 of the Convention on Human Rights, which is incorporated in English law by Act of Parliament. The Convention is as much part of English law as speed limits or the common law crime of murder. Once the highest court has made a ruling you would expect it to be rigorously enforced.

So that there is no doubt about the ruling I set out below the text of it.

Article 8

The Court noted that cellular samples contained much sensitive information about an individual, including information about his or her health. In addition, samples contained a unique genetic code of great relevance to both the individual concerned and his or her relatives. Given the nature and the amount of personal information contained in cellular samples, their retention per se had to be regarded as interfering with the right to respect for the private lives of the individuals concerned.

In the Court’s view, the capacity of DNA profiles to provide a means of identifying genetic relationships between individuals was in itself sufficient to conclude that their retention interfered with the right to the private life of those individuals. The possibility created by DNA profiles for drawing inferences about ethnic origin made their retention all the more sensitive and susceptible of affecting the right to private life.

The Court concluded that the retention of both cellular samples and DNA profiles amounted to an interference with the applicants’ right to respect for their private lives, within the meaning of Article 8 § 1 of the Convention.

The applicants’ fingerprints were taken in the context of criminal proceedings and subsequently recorded on a nationwide database with the aim of being permanently kept and regularly processed by automated means for criminal-identification purposes. It was accepted that, because of the information they contain, the retention of cellular samples and DNA profiles had a more important impact on private life than the retention of fingerprints. However, the Court considered that fingerprints contain unique information about the individual concerned and their retention without his or her consent cannot be regarded as neutral or insignificant. The retention of fingerprints may thus in itself give rise to important private-life concerns and accordingly constituted an interference with the right to respect for private life.

The Court noted that, under section 64 of the 1984 Act, the fingerprints or samples taken from a person in connection with the investigation of an offence could be retained after they had fulfilled the purposes for which they were taken. The retention of the applicants’ fingerprint, biological samples and DNA profiles thus had a clear basis in the domestic law.

At the same time, Section 64 was far less precise as to the conditions attached to and arrangements for the storing and use of this personal information.

The Court reiterated that, in this context, it was essential to have clear, detailed rules governing the scope and application of measures, as well as minimum safeguards. However, in view of its analysis and conclusions as to whether the interference was necessary in a democratic society, the Court did not find it necessary to decide whether the wording of section 64 met the “quality of law” requirements within the meaning of Article 8 § 2 of the Convention.

The Court accepted that the retention of fingerprint and DNA information pursued a legitimate purpose, namely the detection, and therefore, prevention of crime.

The Court noted that fingerprints, DNA profiles and cellular samples constituted personal data within the meaning of the Council of Europe Convention of 1981 for the protection of individuals with regard to automatic processing of personal data.

The Court indicated that the domestic law had to afford appropriate safeguards to prevent any such use of personal data as could be inconsistent with the guarantees of Article 8 of the Convention. The Court added that the need for such safeguards was all the greater where the protection of personal data undergoing automatic processing was concerned, not least when such data were used for police purposes.

The interests of the individuals concerned and the community as a whole in protecting personal data, including fingerprint and DNA information, could be outweighed by the legitimate interest in the prevention of crime (the Court referred to Article 9 of the Data Protection Convention). However, the intrinsically private character of this information required the Court to exercise careful scrutiny of any State measure authorising its retention and use by the authorities without the consent of the person concerned.

The issue to be considered by the Court in this case was whether the retention of the fingerprint and DNA data of the applicants, as persons who had been suspected, but not convicted, of certain criminal offences, was necessary in a democratic society.

The Court took due account of the core principles of the relevant instruments of the Council of Europe and the law and practice of the other Contracting States, according to which retention of data was to be proportionate in relation to the purpose of collection and limited in time. These principles had been consistently applied by the Contracting States in the police sector, in accordance with the 1981 Data Protection Convention and subsequent Recommendations by the Committee of Ministers of the Council of Europe.

As regards, more particularly, cellular samples, most of the Contracting States allowed these materials to be taken in criminal proceedings only from individuals suspected of having committed offences of a certain minimum gravity. In the great majority of the Contracting States with functioning DNA databases, samples and DNA profiles derived from those samples were required to be removed or destroyed either immediately or within a certain limited time after acquittal or discharge. A restricted number of exceptions to this principle were allowed by some Contracting States.

The Court noted that England, Wales and Northern Ireland appeared to be the only jurisdictions within the Council of Europe to allow the indefinite retention of fingerprint and DNA material of any person of any age suspected of any recordable offence.

It observed that the protection afforded by Article 8 of the Convention would be unacceptably weakened if the use of modern scientific techniques in the criminal-justice system were allowed at any cost and without carefully balancing the potential benefits of the extensive use of such techniques against important private-life interests. Any State claiming a pioneer role in the development of new technologies bore special responsibility for striking the right balance in this regard.

The Court was struck by the blanket and indiscriminate nature of the power of retention in England and Wales. In particular, the data in question could be retained irrespective of the nature or gravity of the offence with which the individual was originally suspected or of the age of the suspected offender; the retention was not time-limited; and there existed only limited possibilities for an acquitted individual to have the data removed from the nationwide database or to have the materials destroyed.

The Court expressed a particular concern at the risk of stigmatisation, stemming from the fact that persons in the position of the applicants, who had not been convicted of any offence and were entitled to the presumption of innocence, were treated in the same way as convicted persons. It was true that the retention of the applicants’ private data could not be equated with the voicing of suspicions. Nonetheless, their perception that they were not being treated as innocent was heightened by the fact that their data were retained indefinitely in the same way as the data of convicted persons, while the data of those who had never been suspected of an offence were required to be destroyed.

The Court further considered that the retention of unconvicted persons’ data could be especially harmful in the case of minors such as the first applicant, given their special situation and the importance of their development and integration in society. It considered that particular attention had to be paid to the protection of juveniles from any detriment that could result from the retention by the authorities of their private data following acquittals of a criminal offence.

In conclusion, the Court found 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, failed to strike a fair balance between the competing public and private interests, and that the respondent State had overstepped any acceptable margin of appreciation in this regard. Accordingly, the retention in question constituted a disproportionate interference with the applicants’ right to respect for private life and could not be regarded as necessary in a democratic society. The Court concluded unanimously that there had been a violation of Article 8 in this case.

This decision “disappointed” the then Home Secretary, Ms Jacqui Smith, but we ought not to take too much notice of her disappointment, ought we? It is a ruling of a court which her Government brought into English law rule on these matters and however disappointing it may be to discover that police forces may not retain innocent people’s DNA indefinitely, she must suck it up, as they say.

So there you have a reasoned judgment as to why the indefinite retention of DNA profiles and fingerprints is illegal. You would therefore normally expect the people concerned with law enforcement to obey the law, whether they liked the ruling or not, wouldn’t you?

Not at all; Ms Smith said that the existing law will remain in place while the Government considers the judgment. As you will see there is not an awful amount of words for the Government to consider. You will bear in mind that the “existing law” that Ms Smith referred to had been clearly ruled by the court as unlawful!

Well, does it come as a surprise that on average only 22% of the requests by innocent people to remove their DNA from police records is complied with? Isn’t odd that some forces whose purpose is to enforce the law have not removed a single DNA record?

In these cases the police and Government are colluding to retain as many DNA records as possible. The Government is working on clear guidance for the retention of DNA records and the police, in the absence of such guidance are blatantly disobeying the judgment of the European Court.

In Scotland there have been no complications; Scottish law provides for the easy deletion of the DNA of innocent people, as does every other country (including Moldova, Albania, Russia and Romania) that is party to the Convention on Human Rights.

Ultimately the law is our protection against tyranny; if Governments do not comply with it, why should we?

2 Responses

  1. It’s an astonishing and contemptuous position for the police to take.

  2. […] Read the full post here! […]

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