Michael Marper is objecting to the retention of his DNA
information on the Home Office's database, despite the fact that he
has never been convicted of a crime. He has appealed through the
English courts and the ECHR agreed earlier this year to hear his
case.
Sedley is an Appeals Court judge who this week proposed that to
eradicate the imbalance of ethnic minorities on the DNA database,
everyone in the UK, including visitors, should be put on to the
system. The ECHR ruling could make that illegal, though, said Dr
Chris Pounder, a privacy expert with Pinsent Masons, the law firm
behind OUT-LAW.COM.
"I think what is happening is that everyone is waiting for the
decision of the ECHR in the case of Marper and everything will fall
from that," he said. "If the ECHR comes out for Mr Marper then Lord
Justice Sedley's idea would be a non-runner."
The UK is one of the few countries in Europe which includes on
its DNA database information from people who have been questioned
by police but never convicted of a crime.
Speaking to
BBC News, Sedley argued that, contrary to received wisdom, it
would boost the civil liberties of citizens to put everyone on the
database because it would be fairer. He said that the current
database was disproportionately full of information on people from
ethnic minorities.
Sedley was among the judges who ruled five years ago in Marper's
case. Sedley considered
"a universal DNA database" in that judgment.
At paragraph 87 of that judgment Sedley wrote:
"...I would certainly not
assume that a comprehensive national DNA database or samples bank,
if one were to be lawfully compiled, would constitute an
unacceptable invasion of privacy. It would be for Parliament to
decide whether the intrusion and surveillance involved in
assembling and maintaining such a resource is an acceptable price
to pay for its advantages. Certainly the information available to
this court suggests that, subject to these considerations, a
universal DNA register would be a real and worthwhile gain in the
endeavour to ensure that the guilty, and only the guilty, are
convicted of crimes. In other words, whether it is the unconvicted
population as a whole whose bodily samples are kept or only that
section of it which has faced charges, the justification is the
same."
Pounder said, though, that having a complete database would be
likely to tempt authorities to use it for a far wider range of
purposes than currently planned in moves that could undermine
subjects' civil liberties.
"If the DNA of everybody is on the database then I think Lord
Justice Sedley has just created a wish list to assume that the data
would only be used for policing purposes," said Pounder. "If you
have a database of everybody's DNA then the thing is sorting out
paternity suits and missing absent parents and fathers who
disappear off the scene. You can see that the pressures would make
using the data for these purposes almost inevitable."
The Government does not currently plan to implement the policy.
At a Prime Minister's press briefing this week, the Prime
Minister's spokesman confirmed that there were "no plans to
introduce a universal, compulsory or voluntary national DNA
database."
In response to the suggestion that the phrase "no plans" could
be interpreted as the Prime Minister having sympathy for an idea,
the Prime Minister's spokesman said that there would be huge
logistical and bureaucratic issues to deal with alongside civil
liberties concerns.
Pounder pointed out that logistical issues may not be
significant. DNA samples could be taken when people are interviewed
for an ID card or passport, he said.
Pounder believes that to avoid the existing DNA database being
used for increasing numbers of purposes an independent regulator
should be established in order to ensure that the public trusts the
database.
"At the moment the database is subject to the control of the
Home Office, which establishes the ethical considerations as well
as controlling those who have access to the database," he said.
"This is not a firm regulatory structure and my own preference is
for a regulator independent of the Home Office who can sort
problems out and who reports to Parliament and not to he Home
Secretary."
Such a proposal was made by the parliamentary Science and
Technology Committee in 2005. It said that the independent
regulation of any database was essential if the system was to
retain the public's trust.
