He goes on to look at the S. and Marper case (where the UK lost in the ECHR on the issue of retention of DNA and fingerprints) in one of the most comprehensive clear minded analyses of the issues I've seen anywhere. Highly recommended. Caspar tells me that the honourable judge also wrote the first human rights QC’s Opinion for FIPR pro bono in 1999 http://www.fipr.org/ecomm99/ecommaud.html)."30 years ago Sir Robert Megarry VC in Malone v Metropolitan Police Commissioner1 said that if something “can be carried out without committing any breach of the law it requires no authority by statute or common law; it can lawfully be done simply because there is nothing to make it unlawful”. In that case he was talking about telephone tapping. Had the issue arisen more recently he might have been talking about CCTV or retention of biodata. Sir Robert said what he did because, following the nineteenth century constitutional lawyer AV Dicey, he considered this to be “a country where everything is permitted except what is expressly forbidden”. Their approaches ignore the special position of government officials. They do not recognise that the power of government officials to act depends on statutory authority and that the institutional position and de facto power of government officials may justify their being subjected to greater restrictions than ordinary citizens. Modern examples of such de facto power include the ability of the state to erect a network of CCTV cameras in a city centre or on a motorway, to track the movements of an individual using signals from his mobile telephone, and other manifestations of what the Information Commissioner and the House of Lords’ Constitution Committee have called a “surveillance society”.2 Things have changed in the 30 years since the decision in Malone’s case. Common law rights such as the right of access to an unbiased and independent court or tribunal, the right to property, and the right not to be detained capriciously have been recognised as fundamental.3 Our rights under the European Convention on Human Rights (the “ECHR”) have been brought into our domestic law by the Human Rights Act 1998. The result is that those embarking on a legal career today would find Sir Robert’s approach to the position of a public authority extraordinary. But the mindset underlying his approach has not vanished altogether. It bears a similarity to some of the approaches to the possibilities open to the state today as a result of technological and scientific developments. My topic this evening concerns the intersection of forensic science and human rights. It is a big topic and I shall only deal with a small part of it. Forensic science may impact on a number of the rights under the ECHR, but the human right I am concerned with today is the right to respect for private life in Article 8. Privacy, and thus the right to respect for private life, can be more vulnerable in the modern world as a result of technical and scientific developments. Developments such as a system of CCTV cameras and a DNA National database have the capacity to narrow the area of an individual’s autonomy and privacy. This area may also be narrowed as a result of an increase in the role of the state. In his book, Genetic Privacy, Graeme Laurie said that one of the greatest threats to individual privacy in the last century has been the development of a public interest in the welfare of individuals. The state has taken responsibility for basic services, such as housing, subsistence, education, and health care. Notwithstanding the attempts since 1979 to “shrink the size of the state”, the state’s legal responsibilities and the very significant financial burdens upon it have led to the development of a position in which the state considers it has an obligation to guide individuals to prudent behaviour that is considered to be of benefit to the community, for example in relating to smoking, consumption of alcohol and the wearing of seatbelts in cars. It is this position that Laurie sees as threatening individual privacy and autonomy. Within forensic science, the development that has led to most discussion in recent years has centred around DNA. This is understandable. The UK has been the scientific pioneer in this area. The position in England, Wales, and Northern Ireland (but not, as we shall see, in Scotland) has, broadly speaking, been that all bioinformation taken from those arrested is retained indefinitely whether or not the person providing the sample was subsequently convicted or even charged. At present volunteers who have given bioinformation, for example in mass screens, have no right to have it removed from the database. Chief Constables, however, have discretion to destroy the samples and profiles of both those arrested and volunteers in “exceptional circumstances”. Our National DNA Database is the largest database in Europe. In March 2007 approximately 4 million people were on it.4 The figure included over a million children. 5By March 2009 the figure had risen to some 5.1 million people,6 over 7% of our population. The comparable figures for France and Germany are respectively approximately 856,000 people, 1.44% of the French population, and some 611,000 people, 0.74% of the German population.7 There are notable examples of the use of DNA both in detecting crime and in exonerating individuals. So, for example, a number of “cold” cases of murder and rape have been cleared up, sometimes years later, when an individual is arrested on another matter and a sample taken from him which implicates him in the unsolved crime.8 Again, as shown by the cases of Stefan Kisko and Sean Hodgson, DNA can exonorate.9 The European Court of Human Rights (the “ECtHR”) has recognised the “rapid and marked progress [of member states] in using DNA information in the determination of guilt or innocence”.10 The potential uses of DNA material of course go far beyond the prevention and detection of criminal activity with which many members of the British Academy of Forensic Science (hereafter “BAFS”) are concerned. Issues of genetic privacy arise in the context of health care, insurance, and personal identity.11 There is a natural and understandable desire to make full use of technological and scientific developments in combating disease and crime, and improving our quality of life. But, equally understandably, there are also sensitivities about the retention and use of such material by public authorities and companies whether or not the material is retained in order to assist in the prevention and detection of crime. It is clearly justifiable to retain and use DNA material for the overall good of society, whether by enhanced screening for disease or by creating a method of deterring and detecting crime. But should the increased power of technology and science be balanced by a greater sensitivity to the need to protect legitimate areas of “privacy” and “autonomy”? No one argues against a balanced approach. It is recognised to be necessary in order to maintain public confidence in systems, to ensure fairness and appropriate autonomy to individuals, and to provide a method of identifying and correcting error. But there is controversy as to what constitutes a balanced approach."
Update: The Tech and Law blog has picked up Judge Beatson's speech too.