Back in November, I blogged about the grudging way in which the current government appears to have reacted to the European Court of Human Rights’ unanimous verdict, over a year ago, on the retention of DNA samples of those who are arrested but not subsequently charged or found guilty.
The government would doubtless argue that this is a complex issue, in which the ECHR’s verdict must be balanced against the needs of law enforcement; that they have judiciously carried out a consultation exercise; that their proposals create a proportionate retention policy… and so on.
Unfortunately, as I noted in November, the ECHR already disagrees – based on the information which is in the public domain – and in March 2010 it will review the UK’s progress towards compliance with the judgement issued in November 2008.
Legally, then, the situation we have is this: the current policy (of indefinite retention at the discretion of Chief Constables) is reinforced by guidance from the Association of Chief Police Officers (ACPO) that such discretion should be exercised only under “exceptional circumstances”. In other words, the policy position is that the DNA of innocent people should normally be retained indefinitely. That, of course, is what the law still provides for, pending the passing of any new legislation which takes the ECHR’s 2008 ruling into account.
You might think that that leaves police forces in a clear position: the law is unchanged from before the ECHR ruling; ACPO guidance is that the default should be indefinite retention; until new legislation is introduced, the police have to enforce the current law.
Except that that doesn’t fit the observable facts – at least, according to the figures published in this BBC piece today. What it shows is that police forces across the country are responding to DNA deletion requests in ways which vary from “never” (0% of requests granted) to “almost always” (over 80% of requests granted). Of course, one should be wary of reading too much into as bare a set of statistics as those published in the article… For instance, most of the forces which have refused all requests have also had the lowest number of requests for deletion.
However, when I see forces with comparable volumes of requests reacting in widely different ways, the simplest interpretation is that some forces have a default policy of refusal (for instance, in the case of Nottingham and Sussex: 0/16 and 1/28 requests granted, respectively) and others have a default policy of granting (for instance, Cleveland and Cumbria, with 12/17 and 15/19 requests granted, respectively).
So, what conclusion would I draw, as we look forward to 2010 and the March ECHR review of UK policy in this area?
Well – the law as it stands is clear, and has been ruled to be disproportionate. Despite its clarity, it is equally obviously being applied in radically different ways by different police forces across the country. The Home Secretary’s proposals introduce – in the name of proportionality – a wider range of retention periods, depending on the offence committed (or not committed… the DNA of innocent people will still be retained under his proposals).
I can see no prospect that that will result in a more consistent or more uniform application of the law across the country. If anything, it seems bound to worsen the arbitrary inconsistencies which the current statistics appear to demonstrate.