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Lords demand amendment to help the innocent get DNA off database

Out-Law News | 06 Nov 2008 | 2:24 pm | 3 min. read

The House of Lords has voted to amend the law to help innocent people have their DNA samples removed from the Government's DNA database. The Lords have passed an amendment to the Counter Terrorism Bill.

The peer who introduced the amendment expressed "deep worry" that Government guidelines tell police officers that their first act should be to refuse outright any request for deletion, and only to look into the matter "if the applicant persists".

Police can gather fingerprint and DNA samples from people detained on suspicion of committing one of a large number of offences. Samples can be taken without the person's consent.

Police are allowed to keep the samples on the database, even if the person is found innocent or if no case against them is ever pursued. The result is that the DNA database for England and Wales has samples from 6% of the population on it, the biggest proportion of any country.

The Conservative Party's home affairs spokeswoman in the House of Lords, Baroness Hanham, proposed an amendment to the Counter-Terrorism Bill which would force the Government to outline to people how they can have their samples removed from the database.

"This amendment would require the Secretary of State to draft and lay before Parliament regulations governing the procedures by which people can discover what information is held about them and under what circumstances a request can be made by them to have samples taken during an investigation by the police destroyed," said Baroness Hanham in the House of Lords on Tuesday.

She said that people were not being given sufficient rights or information about samples. "There is no transparency in the current situation and the dice are severely loaded against innocent people being able to ensure that their most personal details are not kept indefinitely following their exclusion, either by a court or following a decision that there is no reason for them to be involved further in any inquiry."

The House of Lords Security Minister Lord West said that guidelines were available, but Baroness Hanham said that no member of the public could be expected to find them, that the guidelines were directed at police, and that they instructed police to refuse all requests for sample deletion without explanation.

"[The guidelines] certainly did not pop up in a sample search of the internet; rather, they appeared on the website of the Association of Chief Police Officers and are, apparently, only for the guidance of the police. Members of the public would find it extraordinarily hard to make any headway through this maze," she said. "The guidelines are deeply worrying and make clear just how high a barrier the Government have imposed on DNA and fingerprint information ever being destroyed. The initial response to a request for destruction is an automatic refusal."

The Government established the Ethics Committee of the National DNA Database to look into ethical issues in relation to the database. It reported earlier this year, and said that innocent people's DNA samples should be deleted at the end of an investigation.

"For those members of the public who are believed to be innocent at the time of sampling and voluntarily donate their DNA to help the police with their enquiries, the presumption should shift to an expectation that these samples will be used only for the case under investigation, that the profile will not be loaded onto the [National DNA Database], and that the samples and all data derived from them will be destroyed when the case has ended," said one of its recommendations.

Another Government-established panel, a citizens' inquiry run by the Human Genetics Commission, said earlier this year that it, too, believed that the DNA data of the innocent should be deleted from the database.

Lord West said that he believed the current situation was acceptable, but that he would try to make the guidelines for police more accessible.

"I firmly believe that national guidance of the type prescribed in the amendment is unnecessary; indeed, it would be extra bureaucracy. Information on how to obtain details of what information the police hold on an individual and the ACPO guidelines on the retention, use and destruction of fingerprints and samples are already publicly available," he said.

"However, I take the point made by the noble Baroness, Lady Hanham, that this is somewhat convoluted. When I looked for myself, I saw that it was not as straightforward as it perhaps should be. I very much recognise the importance of clarity for the public on these matters and so I will ask my officials to work with the relevant bodies to ensure that the guidance is much more easily accessible."

The amendment was made at the final reading stage of the Counter-Terrorism Bill. It will now be bounced between the Commons and the Lords in the 'ping pong' stage, and made law by royal assent once agreement has been reached between the two houses.

The European Court of Human Rights (ECHR) is expected to rule this year on a case which will test the right of the Government to hold on to innocent people's samples.

Michael Marper has never been charged with a crime and objects to the retention of a DNA sample on the database. He lost a case at the House of Lords but has appealed to the ECHR, arguing that the retention breaches his human rights as protected by the Human Rights Act.

The House of Lords said in 2004 that the Act's privacy provisions did not apply to the retention of his DNA.