Wednesday, December 17, 2008

Jacqui Smith speaks to Intellect

SpyBlog has done a wonderful deconstruction of the Home Secretary's speech to the Intellect Trade Association on December 16, 2008. Extract particularly relevant to the recent S & Marper v UK judgement in the European Court of Human Rights:

I am determined to maintain robust powers to tackle crime and disorder. But to allay public fears of excessive intrusion, and to keep people's trust and confidence in the wider necessity of these powers to tackle disorder, crime and terrorism, I am equally clear that we have to measure these efforts against our standards for safeguards, openness, proportionality and common sense.

The same principles apply to DNA evidence. Having looked at this area particularly closely over the past year, I've found there are few areas where the balance between rights and protections comes into such stark relief as on DNA.

The recent European Court judgement in the S and Marper case has put the issue back in the spotlight.

We wonder if Jacqui Smith and her senior civil servants and political apparatchiki have actually bothered to read the damning unanimous judgment by the 17 judges of the European Court of Human Rights. They highlighted lots of areas of policy where this Labour Government is wrong and is acting illegally, with regard to both DNA cellular tissue samples, DNA profiles and also Fingerprints.

See ECHR judgment on the Marper case - rules that UK Government and Police indefinite retention of innocent people's tissue samples, DNA profiles and fingerprints is illegal

Many of you will have seen the response of victims' families to the recent ruling - notably the family of Sally Ann Bowman, whose killer was convicted as a result of DNA taken after he was arrested following a pub brawl and subsequently acquitted.

I have real sympathy for all those with concerns that any move could undermine a system that helped trap Sally Ann's killer. And I want to reassure Sally Ann's father that I will not let that happen.

In this and other cases, we've seen convictions for serious crimes of culprits who had had their DNA taken and retained for a previous crime where they were arrested, but not convicted.

In May 2002, Kensley Larrier was arrested for the possession of an offensive weapon. His DNA was taken and loaded to the DNA database, although the proceedings were then discontinued. Two years later, DNA from a rape investigation was speculatively searched against the database and matched his sample. This was the only evidence in the case, and when found guilty Larrier received a 5 year custodial sentence and was entered on the sex offenders register for life.

These cases and others tell me that the DNA database is crucial to public protection. It not only helps to lead to the guilty. It helps to prove innocence and to rule people out as suspects.

The Home Office has claimed, purely as a statistical guesstimate that there are over 100 such cases , but has refused to provide details of more than a tny handful of them.

That argument was made to the ECHR and, rightly rejected by them, as being disproportionate.

Keeping innocent people's DNA data on a database does not help to "prove innocence" or to "rule people out as suspects", that is what the direct comparison of the DNA of a suspect against the DNA samples from the crime scene does. Once it has been shown that there is no match, that data should be destroyed.

There is more we can do to strengthen the dividing line between guilt and innocence. For those who have committed a serious offence, our retention policies need to be as tough as possible.

Only for people actually convicted of serious offences, not simply those falsely accused, or arrested or even charged with such offences..

But for others, including children, I am convinced that we need to be more flexible in our approach.

The DNA of children under 10 - the age of criminal responsibility - should no longer be held on the database. There are around 70 such cases, and we will take immediate steps to take them off.

It will be interesting to see just how long "immediate" actually takes in practice.

For those under the age of 18, I think we need to strike the right balance between protecting the public and being fair to the individual.

There's a big difference between a 12 year old having their DNA taken for a minor misdemeanour and a 17 year old convicted of a violent offence, and next year I will set out in a White Paper on Forensics how we ensure that that difference is captured in the arrangements for DNA retention.

Why were these issues and procedures not debated and codified at the start of the National DNA Database ?

We will consult on bringing greater flexibility and fairness into the system by stepping down some individuals over time - a differentiated approach, possibly based on age, or on risk, or on the nature of the offences involved.

That may mean letting the 12 year old I mentioned come off the database once they reach adulthood. And it could mean limiting how long the profiles of those who have been arrested but not convicted of an offence could be retained.

We are also re-examining retention arrangements for samples. Physical samples of hair and saliva swabs that represent people's actual DNA are much more sensitive than the DNA profile that is kept on the database - which only uses a small part of non-coding DNA.

This was a key point flagged up when we set up the Ethics Group under the National DNA Database Strategy Board, and we will pursue improvements to the safeguards around the handling of samples.

The ECHR judgment suggests that you should destroy those samples of innocent people. as they contain even more sensitive familial information, including medical data than mere DNA profiles do.

These changes will see some people coming off the system. But as I said, we need to strengthen the dividing lines between innocence and guilt - and so I want to do more to ensure we get the right people onto the system as well.

The supposed error correction mechanism is currently a deliberate bureaucratic obstacle course, far beyond the resources of most ordinary people.

This must be immediately simplified and speeded up."

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