Updated Lord Justice Sedley's proposal to put everyone in the UK on a DNA database would be dependent on a British man's case against the UK at the European Court of Human Rights, according to a privacy law expert.
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 that 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 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.
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