17 February

The national DNA database again



Today's Guardian has an article by Tom Bingham, the fairly recently retired senior Law Lord,
entitled "Judges possess the weapon to challenge surveillance" on the threats posed by our surveillance culture; he asks whether the British people "are content to be the most spied upon people in the democratic world." It is particularly valuable coming from our most distinguished and enlightened judge in recent times, although Lord Bingham has not been immune from criticism in some of his judgments backing the Executive. But in his cri de coeur he includes a national DNA database in his forensic sights and prays in aid the European Court of Human Rights decision in S and Marper v UK. As I have been publicly calling for just such a thing although independent of the state, I have today written to the paper as follows:



Lord Bingham was, until his retirement, our most distinguished and enlightened judge. His characteristic cri de coeur against the excesses of our surveillance culture ("the most spied upon people in the democratic world") demands that all who value our traditional liberties stand up and be counted. Regrettably, however, he lumps in a national DNA database for condemnation, citing with approval the decision of the European Court of Human Rights which held that the retention by the police of DNA samples given by people who had been acquitted or never charged breached the right of privacy enshrined in Article 8 of the European Convention on Human Rights.

As our senior judge, Lord Bingham has been acutely concerned at our notorious record of miscarriages of justice and he, more than most, will be aware of the value of DNA evidence in identifying and eliminating suspects of crime, not least in preventing and rectifying miscarriages. Its retention may also conceivably act as a deterrent to crime.

The European Court decision in question (S and Marper v UK) should not be regarded as blanket disapproval of a national DNA database. What it expressed as of "particular concern" was "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 held that domestic law must afford appropriate safeguards to prevent any use of personal data inconsistent with Article 8, not least when such data was used for police purposes, and declared that the intrinsically private character of DNA information required the Court to exercise scrutiny of any state measure authorising its retention and use by the authorities without the consent of the person concerned.

The rationale behind the decision was the indiscriminate, disproportionate and stigmatising use by the state and its "authorities", in particular the police, of DNA samples and profiling. There is nothing in the decision that should deter us from establishing a comprehensive DNA database and entrusting it to the strict ring-fenced custody of a public body which is entirely independent of the state and its agencies, particularly the police, and which would only release information for good and substantiated cause. .