Article 8 again ….. and the UK loses another case!

A few months ago we heard the outcomes of the case of ‘Marper and S v United Kingdom’ brought before the European Court of Human Rights. Now, you may remember this one - something of a landmark. The court opined that the storage of DNA profiles in England was contrary to the privacy requirements enshrined under Article 8 of the European Convention on Human Rights.

Just in case you had missed the Article, it states:

ARTICLE 8
1. Everyone has the right to respect for his private and family life, his home and his correspondence.

2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.

The problem for the UK, and for England in particular, was that the claimants in the case were innocent persons who had not been charged or convicted of any offence. It was, said the Court, an infringment of their privacy for their DNA records to be retained within a national criminal database. Now, interestingly Scotland applies the law in a different way to England (of course!) and the Scottish model was approved by the European Court. The Conservatives have given a commitment to implementing the Scottish model when (not if!) then win the next election. We’ll hold them to that. The Government in London has now announced a revision of rules to apply in England - rules that have all the sublety of a two fingered salute to Europe - and has indicated that it will change the rules to allow law enforcement to retain data for 6 or 12 years. No intention there to remove the data as required by the Europen court.

But - along comes another case and again the Courts find that the actions of law enforcement in the UK go against the requirements of Article 8. Andrew Wood had his photograph taken by police surveillance units when (perfectly legitimately) he attended the AGM of a company in which he had shares. The police photographs were stored on file and were potentially available for use in investigation of other acts. The Appeal Court has now rules (2 to 1) in the case and has instructed the Metropolitan Police to destroy copies of photographs of Mr Wood.

The implications here are interesting. The police must now destroy Mr Wood’s images - but must also now look to identifying, removing and destroying images of other perfectly law abiding persons who happened to come in front of their surveillance photographers - perhaps at football matches, demonstrations etc. Taking photographs is a legitimate practice the court held - but the police should identify those who were of good character and should destroy the images. The implication of that opinion by Lord Justice Dyson is that images should only be retained of those who are nicked - and they will be photographed at the police station anyway so facial recognition should be able to locate, and identify them in surveillance image databases. Anyone else should then deleted.

Naturally the police were not too happy and may now consider an appeal to the House of Lords (note - there was one dissenting opinion in which Lord Justice Laws argued that the police were ‘operating within the margin of operational discretion in keeping the photos’.

The Crusher senses the wind of change blowing - the surveillance society created under New Labour is unravelling before the courts. With an increasingly lame duck administration and an imminent election (which the PM has tacitly recognised that Labour will lose) we may be seeing a few steps back from the oppressive nature of surveillance. Where next - data retention and the Communications Data Bill?

DNA retention - Sir Alec speaks out

An interesting piece on BBC Radio 4 today - 15th April. Martha Kearney interviewed Professor Sir Alec Jefferies on the ‘World at One’ about the Home Office response to the recent S and Marper judgement in the European Court of Human Rights.

Now that judgement was unequivocal - in a judgement delivered unanimously (17-0) the judges of the ECHR held that the retention of the applicants fingerprints, cellular samples and DNA profiles was in violation of Article 8 of the European Convention on Human Rights (Article 8 deals with the right to privacy). The full judgement makes interesting reading and is recommended.

Now, Sir Alec Jefferies should know a thing or two. He developed the DNA fingerprint technique whilst working at the University of Leicester in the early 1980s. It is interesting that he is very concerned about the expansion of the UK DNA database and, in particular, its inclusion and retention of data relating to innocent persons (ie those not convicted of any crime). Today he condemned the Govt. for branding innocent people as criminals by not destroying their DNA profiles.

The Home Office recognise that the UK database is the largest of its kind in the world - to quote their own website: ‘The UK’s database is the largest of any country: 5.2% of the UK population is on the database compared with 0.5% in the USA. The database has expanded significantly over the last five years. By the end of 2005 over 3.4 million DNA profiles were held on the database – the profiles of the majority of the known active offender population.’.

The Home Office goes on to note that other police forces are keen to emulate the crime solving success of the database. OK, so the database can help to solve crime. But it contains the records of people unconnected with any crime and may serve to stigmatise those. Anecdotal evidence suggests that the database contains disproportionate records of certain groups within the population - it has been suggested that the database contains the DNA profiles of some 40% of the black youth population of the UK.

It was the retention of data relating to innocent persons and the disproprortionate nature of data in the database that attracted the dismay of the European judicial process. Today the Home Office told the BBC that it was their intention to bring forward an amendment to the Policing and Crime Bill to allow them to retain DNA and that the new regulations would be subject to full public consultation. An interesting response from the Home Office and somewhat at odds to the response to the ECHR judgement shown on their website, ‘The Government recognises the importance of the Judgment and will publish its response and timeline to the Court’s findings as soon as possible.’ Bringing forward regulations to allow the retention of DNA data hardly seems to recognise the important and significant comments made in the judgement, in fact, it flies in the face of the judgement and suggests that the Government intend to plough ahead and to ignore the advice of learned judges in Strasbourg.

The ECHR judgement indicated that retention was blanket and indiscriminate - and there are suggestions that there may be up to 800,000 records of people who have no criminal conviction. The BBC reported that the Govt. had suggested that it would be prepared to remove profiles from the database but would retain the original DNA samples - this matches up with the suggested changes to the Police and Crime Bill.

Removing the DNA profiles of innocent people is what the judgement indicates. Retaining the original DNA samples makes a mockery of the judgement - it is simply easy to re-profile the samples at a later date and to re-populate the database. Quite simply this is sticking two fingers up to the ECHR.

The Home Office and law enforcement agencies and officials must realise and must be made to realise that nothing short of complete removal and destruction of all records and samples relating to those not convicted or charged with any offence will do. The data relating to innocent persons must be removed from the database and there must not be work arounds or variations to allow DNA to be retained. Retaining DNA is an infringement of individual privacy and there must be no process to allow retention where there is no crime.

This is all about proportionality. The risk of crime and the demands of crime detection do not override the risks of damage to those concepts that we hold dear - the right of a democratic approach where a person is held to be innocent unless proven guilty beyond all reasonable doubt and where individual privacy is respected.

This Government steps out against the ECHR at its own peril. The population can and are seeing the results.

[Note: The Police and Criminal Evidence Act (PACE) and the PACE Code of Practice 'D' set out the manner of collection of fingerprints, DNA samples etc. It is important to note that fingerprints or DNA samples taken on a 'speculative' basis must be destroyed unless the subject has given permission for the data to be retained. Once permission is granted it cannot be revoked. It would be sensible to refuse permission for data to be retained.]

EU to open proceedings against the UK

The European Commission has announced its intention to open an infringement action against the UK Government after complaints from UK Internet users about infringments of their privacy through the use of targetted advertising.

The actions result from the testing of the Phorm process by BT earlier in the year. Problems arose when users complained that they were not aware of the trial or the use to which their web usage would be put. Behavioural advertising used data collected by analysis of web traffic patterns to select advertising and push this to the end user. Users complained that the analysis was an infringement of privacy.

“Technologies like internet behavioural advertising can be useful for businesses and consumers but they must be used in a way that complies with EU rules. These rules are there to protect the privacy of citizens and must be rigorously enforced by all Member States,” said EU Telecoms Commissioner Viviane Reding. “We have been following the Phorm case for some time and have concluded that there are problems in the way the UK has implemented parts of EU rules on the confidentiality of communications. I call on the UK authorities to change their national laws and ensure that national authorities are duly empowered and have proper sanctions at their disposal to enforce EU legislation on the confidentiality of communications. This should allow the UK to respond more vigorously to new challenges to ePrivacy and personal data protection such as those that have arisen in the Phorm case. It should also help reassure UK consumers about their privacy and data protection while surfing the internet.”

It is an offence to intentionally intercept communications in the UK. The key word there is ‘intentionally’. Of course, there are circumstances where interception can be lawful and these are controlled under the Regulation of Investigatory Powers Act and require warrants to be issued - unless it can be reasonably assumed that the subject had given consent. It is the giving of consent that is the issue in relation to behavioural advertising - users had complained that they were unaware of what was being done and that their ISP had failed to advise them of trials taking place.

The indication of the European Commission notice is that the Commission believes that the UK has not correctly implemented European Data Protection laws. That will mean some re-drafting is required - but, of course, we will have to await the outcome of the Commission proceedings before we see actions in the UK. It would seem likely that the role of the Information Commissioner would be extended to cover any required changes.