JUSTICE regrets the decision in the Protection of Freedoms Act 2012 to depart from the DNA retention model operating in Scotland. The decision to provide for the continuing retention of DNA taken from individuals on arrest, even in circumstances where no charge results, will, in our view, be extremely difficult to justify. We are particularly concerned that the model in the Act – in new PACE section 63G – provides a detailed quasi-judicial role for the Biometrics Commissioner which will in practice lead to the identification of a group or class of individuals as somehow more suspicious and more likely to offend than the general population. We are sceptical that the underlying – broadly framed – statutory framework will be capable of withstanding challenge as posing a disproportionate interference with the individual right to respect for private life.
The Biometrics Commissioner in June 2013 conducted a consultation on his role under section 63G. Here, we publish JUSTICE’s response to that consultation. We appreciate that the Biometrics Commissioner is required by statute to perform the function set by Parliament. Against that background, we welcome his principled and considered approach to the design of his role and the publication of the principles that he will apply to his work.
While we raise specific concerns about the detail of the processes envisaged, we welcome the transparent and consultative approach adopted. We reiterate that, as a public authority for the purposes of section 6 Human Rights Act 1998, the Commissioner has the duty to perform his functions in a manner compatible with Convention rights. The backstop for the performance of the loosely framed task given in section 63G – of determining whether the retention of any innocent person’s DNA is “appropriate” – must be article 8(2) ECHR. Does retention serve a legitimate aim properly evidenced and is retention necessary and proportionate in light of the interference it poses with the rights of the individual to respect for private life? This three stage test must be the guideline for all of the Commissioner’s work outlined in the Consultation Paper. We suggest a few areas for clarification to make this duty on both applicant police officers and the Commissioner beyond doubt.