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Guilty until proven innocent? The Crime and Security Bill

DNA strand, part of the building blocks of life

DNA strand

Last November 2009 the Government’s Crime and Security had its first reading in the Commons. Parts of this Bill have, to say the least, led to much debate as to how much of our liberty we are willing to forfeit in the name of national security. Additionally, some from the minority ethnic communities say the effects of the proposed measures are discriminatory on racial grounds. In my view, they may have a case.

Among others, the Bill seeks to establish, “new time limits for the retention of DNA samples, DNA profiles and fingerprints… together with extensions to the circumstances in which such samples can be collected.” The key contentious parts (at the time of writing: 22.03.10) relate to the destruction of data relating to persons not convicted. In a nutshell, if you and I are arrested or charged but not convicted our DNA profile can be retained for up to just under 6 years with extended provisions.

Some might argue, with force, that the Bill’s proposed provisions would breach our rights under Article 8 of the Convention incorporated in the Human Rights Act 1998, where everyone has the right to respect for his/her private life with qualified exceptions. In a case before the European Court of Human Rights in which the UK was a party, the applicants complained under Article 8 about the retention of their fingerprints, cellular samples and DNA profiles pursuant to PACE. One applicant was acquitted and the other had his case discontinued. Both applicants asked for their fingerprints and DNA samples to be destroyed, but in both cases the police refused.

The ECHR held that there had been a violation: “the retention at issue constitutes a disproportionate interference with the applicants’ right to respect for private life and cannot be regarded as necessary in a democratic society.” In consequence, the government proposed the provisions in the Bill, which, in my view, are equally as bad. It has been argued by some that the DNA retention measures of those charged/arrested but not convicted are needed in order to prevent and detect crime. I disagree. With respect, this conclusion cannot flow from a database, which by definition, is an ‘incomplete’ sample. It simply does not follow. The detection/prevention argument has place only where ‘everyone’s’ DNA profile is on the database i.e. a ‘complete’ sample. That argument I can follow and leads to a separate debate entirely.

‘Innocent until proven guilty’ springs to mind. This maxim is entrenched in the English legal system. In my view, the proposed Bill seeks to undermine this fundamental cornerstone of the English legal system and would create a two tier system among the innocent: You are either on the database or not. The problem is, applying the perception that, “there is no smoke without fire”, innocent people on the database might be perceived as having “got away with it”, otherwise why have their DNA retained? Surely, it could only detect crime if such people are perceived to have a propensity to commit crime, which leads me to the next, rather troubling, point and where the case for discrimination enters the debate.

In its report into ‘stop and search powers’, the Equality and Human Rights Commission’s wrote, “if you are a black person, you are at least six times as likely to be stopped and searched by the police in England and Wales as a white person. If you are Asian, you are around twice as likely to be stopped and searched as a white person.” These could, of course, lead to arrests and charges with the inevitable taking and retaining of DNAs. For example, in the Marper case, the ECHR considered a report by Nuffield Council: “The report noted that social factors and policing practices lead to a disproportionate number of people from black and ethnic minority groups being stopped, searched and arrested by the police, and hence having their DNA profiles recorded…”

It seems to me that unless one is foolishly advocating that ‘more’ black people ‘will’ (future tense) commit a crime then how does the disproportionate representation of innocent black people’s DNA profile on the database help to detect crime? Diane Abbott MP wrote in the Guardian, “if you are a young black person of any gender, you are guilty until proved innocent and permanently under suspicion.” Worryingly, I fear this perception might be held by many were these provisions to be made law. Take heed!

This is a guest post by Ryan Clement, the full article can read at his blog. Black Mental Health UK also has this relevant piece.


2 Responses

  1. “Necessity is the plea for every infringement of human freedom. It is the argument of tyrants; it is the creed of slaves.” – William Pitt, Speech, House of Commons, 18 November 1783.

  2. Good quote Mike

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