Last week the Northern Irish High Court rejected a claim by an individual (anonymity granted due to age) to compel the Chief Constable to remove his DNA samples, fingerprints and photographs from the police database when prosecution against him was dropped. It is the DNA samples and fingerprints that will be considered in this article. The Chief Constable argued he was following the statutory police powers under articles 61-4 of the Police and Criminal Evidence (Nothern Ireland) Order 1989, that required samples be retained unless an exception applied.
The Claimant relied on the case of S and Marper v UK. The European Court decided the “blanket and indiscriminate nature of the power of retention” was contrary to the right to privacy (protected under article 8 of the European Convention). However, this was the opposite of what the House of Lords had previously decided in the case. The Chief Constable argued that where there was conflicting decisions from the House of Lords and European Court the court should follow domestic precedent. The High Court agreed.
It is strange to me why the court did not consider its powers under the Human Rights Act (it is not clear from the judgment whether this was ever argued by the Claimant). In particular, section 4 HRA provides the court power to declare a piece of legislation incompatible with the Convention. I am lost for words why section 4 was not at least considered. Surely there is not a case that is more appropriate? We know the legislation is incompatible – the European Court has said as much. This seems the only option.
The structure of the Human Rights Act creates a ‘democratic dialogue’ between courts and government to create rights. This relies on the court placing pressure on the government to bolster rights by publicly declaring where they have fallen short of their European obligations. Indeed, the Northern Irish court noted that the UK government had proposed to alter legislation in response to Marper, however after two years the changes “remain uncompleted”. It is in these cases specifically where it is paramount on courts to engage in the dialogue that is set out under the Human Rights Act in order to ensure due account is taken of individual rights.
With regard to the ever-expanding DNA database, there are compelling reasons why reform is required. There is currently a default blanket retention policy on DNA unless an exception applies. Of course the database has led to success in crime detection and other areas, however there are three reasons why this blanket policy infringes on individual privacy too much. Firstly, by retaining the DNA of innocent people, the government creates a ‘suspect society’. It alters the relationship of state and individual and tends towards an individual having to prove himself innocent rather than the state proving him guilty. This is a particular concern because of the many errors already found on the database. Further, it potentially has the effect of chilling an individual’s exercise of civil rights like freedom of expression. In the words of McCartney it creates a “communal sense of unease”. Think Foucault’s prison – the state’s knowledge of our actions being a controlling force on our behaviour. The European court tended to this argument, finding mere storage (and not use) of DNA was an infringement of article 8(1). Secondly, DNA is one of the most personal pieces of information. This was noted by Baroness Hale in the House of Lords who said “there can be little, if anything, more private to the individual”. DNA is perhaps the most defining characteristic of self. Thirdly, with respect to balancing these interests against the detection of crime, there is solid evidence that shows after 6 years the chance of re-arrest is no higher than for the rest of the population.
So the court should have made a declaration of incompatibility on the legislation to pressure the government to alter the blanket DNA retention policy. But what should the government do? Marper is actually a very easy decision to circumvent. All that was found incompatible by the European Court was the “blanket and indiscriminate policy” of data retention. Therefore by differentiating the samples, the government can bring UK law in line with the judgment. Alan Johnson (then Home Secretary) announced plans to alter the regime in 2009, differentiating adults/juveniles and those convicted/not convicted. Fingerprints and DNA data were treated the same. This is a positive move, but the government must act on its plans. Perhaps a declaration would have been the impetus for them to do so.