Department of Justice
Consultation on Proposals for the Retention and Destruction of Fingerprints and DNA in Northern Ireland
Response of the Law Society of Northern Ireland
96 Victoria Street
Belfast BT1 3GN
Tel: 02890 23 1614
Fax: 02890 232606
Email:
Website:
1.1The Law Society of Northern Ireland (hereinafter “the Society”) is the professional
body invested with statutory functions in relation to solicitors (primarily under the Solicitors (NI) Order 1976, as amended). The functions of the Society are to regulate responsibly and in the public interest, the solicitors’ profession in Northern Ireland and to represent solicitors’ interests.
1.2The Society represents over 2,200 solicitors working in some 550 firms, based in
over 74 geographical locations throughout Northern Ireland. Members of the Society represent private clients in legal matters. This makes the Society uniquely placed to comment on policy and law reform proposals.
1.3 The Society welcomes the opportunity to comment on the proposed framework for the retention of fingerprints and DNA profiles. The UK has been somewhat a pioneer in the development of a system for the development of DNA profiles for crime detection purposes. This has resulted in the largest database in the world per capita. Changes to the Police and Criminal Evidence (NI) Order 1989 have been made to accommodate this system. These changes have placed significant emphasis on facilitating crime detection whilst in some respects overlooking the need to give adequate regard to human rights, in particular the right to privacy. It is hoped that these proposals shall redress this imbalance.
1.4 The Society gave detailed consideration to the Home Office consultation ‘Keeping the Right People on the DNA Database’ and to debates and discussions which followed the ECHR case S and Marper v UK (2008) The Society supported thesubmission provided by its sister society, the Law Society of England & Wales, to the Home Office consultation.
1.5 The Home Office consultation received a significant number of responses, the majority of which were critical of provision contained in the proposed framework for the lengthy retention of finger prints and DNA profiles. Following on from analysis of consultation responses, the then Secretary of State for the Home Department, Mr. Alan Johnston MP, provided a written ministerial statement to Parliament which detailed amended plans for a framework. The proposed framework now forms part of the Protection of Freedom Bill, currently being considered by the Westminster Parliament.
The Framework
2.1 The framework which the Department of Justice (NI) is proposing and has detailed in the consultation paper reflects the framework contained in the Protection of Freedoms Bill and is also reflective of the framework operating in Scotland. The Society has therefore considered research and views expressed on DNA retention across the United Kingdom.
2.2 The Society would welcome further information on how the DNA retention framework is to be passed into law. The Society is of the view that it should be introduced by way of an Act of the Northern Ireland Assembly therefore affording the Assembly and the Committee for Justice ample opportunity to consider the detail of the framework.
Non-convicted
2.3 In considering the proposed framework,the Society has had strong regard for the presumption of innocence. The presumption of innocence dictates that those who have not been convicted of an offence should not suffer any penalty, nor be treated in any way that stigmatises them, unless a strong public policy justification exists. The proposed framework will allow the retention of fingerprints and DNA profiles from persons charged but not convicted of a serious offence, for a period of three years, with an extention of two years available on application to the courts. The wording of the consultation document suggests that a five year retention period is the maximum permissible and clarification is sought upon this.
2.4 The ECHR identified the risk that the retention of fingerprints and DNA of an individual may stigmatise such individuals. The Society’s preferred approach would be for the destruction of all DNA samples and fingerprints of individuals not convicted of a crime, except in such circumstances where a genuine objective justification for doing so exists, with reference to the individual involved. The proposed framework goes so far as to look at the particular crime the individual has been charged with but does not go so far as to consider the particular circumstances of the individual. Whether the proposed framework strikes the correct balance is a matter for debate.
Persons charged but not convicted
2.5 It is noted that in prescribed circumstances, fingerprints and DNA profiles from persons charged with but not convicted of serious offences may be retained. The Society would welcome further details on the list of prescribed circumstances. The examples provided relate to the circumstances of the alleged offence rather than the particular circumstances of the individual.
Persons convicted
2.6 In respect of convicted adults, their finger prints and DNA profiles may be retained for an indefinite period. The Society queries whether some form of provision should be made for individuals to apply for the destruction of their fingerprints and DNA profiles. It makes this suggestion in light of the comments by the ECHR relating to the stigmatising effect which retention can have upon certain individuals. In circumstances where an individual wishes to put their earlier offence behind them and feels that retention of their fingerprints and DNA profiles is hampering this, there is an argument that fairness requires that such individuals should be able to make their case for the destruction of the data.
2.7 In respect of under 18s, the proposed framework will not allow the indefinite retention of fingerprints and DNA profiles where the under 18 has been convicted of a minor offence on one occasion. Instead the details shall be retained for 5 years plus any custodial sentence served. The Society would welcome clarification on how the framework will deal with circumstances in which an individual is convicted of more than one offence in respect of the same incident or series of incidents.
2.8 Data relating to those under 18 years of age may be retained indefinitely on conviction for a serious offence or on conviction for a second offence following an earlier conviction for a minor offence. In S and Marper v UK the ECHR were particularly interested in the impact retention of fingerprints and DNA profiles has upon under 18s. The Court noted:
“the retention of the unconvicted persons’ data may be especially harmful in the case of minors … given their special situation and the importance of their development and integration in society”
2.9 Whilst these comments relate to retention of an unconvicted persons’ dat, one wonders if the circumstances of the applicants in this case had been different what comments the ECHR would have made regarding the indefinite retention of data relating to convicted persons. The Society considers that a greater case may exist for some form of provision to be made for under 18s, or those convicted of a crime while under 18, to make their case for destruction of their data on the basis of a continuing stigmatising effect.
Early Deletion
2.10 The Society would welcome further information with respect to the grounds on which the early deletion of data would be required. It is noted that wrongful conviction is not cited in the examples provided.
Speculative Searches
2.11 With regard to speculative searches, the Department will be aware of a not insignificant body of opinion which are of the view that fingerprints and DNA samples should only be taken if there is some objective criteria beyond the mere fact of the suspicion on which the arrest was based, for example the nature of the alleged offence, or the needs of the investigation. There is a related view that speculative searches should only be taken where justifiable grounds exist.
1