DNA records - Labour is still the "Big Brother" party

Generally speaking when political parties are in opposition they tend to get more libertarian and when in government they tend to get more authoritarian.

So it is revealing, and a little frightening, that after three years in opposition Labour is still taking the "Big Brother" side of the argument on DNA testing.

Under the last Labour government, the DNA database in England and Wales was growing like topsy. DNA records of people arrested but never charged with any offence were being held indefinately.

That's a real; issue because many of the people who get released without charged are set free again because- surprise surprise - they are actually innocent. And given that the government didn't seem to be able to go three weeks without somebody leaving a data stick in a pub with confidential information on millions of people, that means the larger the government databases the more the chance of such leaks.

I don't always agree with the judgements of the European Court of Human Rights, but I do strongly agree with a 2008 judgement in which the 17 judges unanimously ruled that laws passed by the then Labour government which required the retention of the DNA of anyone arrested, even if they were never charged or convicted,

"failed to strike a fair balance between the competing public and private interests,"

and that the then UK government "had overstepped any acceptable margin of appreciation in this regard".

The court also ruled "the retention in question constituted a disproportionate interference with the applicants' right to respect for private life and could not be regarded as necessary in a democratic society".

It was pointed out then that the Scottish model which is based on the principle that except in special circumstances you only keep the DNA of those who have actually been cautioned or convicted, appears to be at least as effective in fighting crime.

The coalition goverment agreed in 2010 to move to the Scottish model and this change was written into the law in the Protection of Freedoms act 2012.

A home office spokesman said this week that  "In the past DNA was kept from innocent people but not taken from prisoners. We are taking samples from the guilty and getting rid of them when people have done nothing wrong.

"Through the Protection of Freedoms Act we are restoring common sense to the system by ensuring only those convicted of a criminal offence will have their DNA retained indefinitely.

"Forces will be able to retain DNA from someone arrested and not charged for up to three years, but only with permission from the biometrics commissioner.  

"All DNA samples taken by police are checked against the national database before deletion."

Labour have been making allegations this week that home office advice to start deleting the DNA record of innocent people in advance of the October deadline after which police forces will not be able to hold the DNA of those who are not arrested and charged means that the DNA records from rape suspects will have to be deleted.

I'm not at all convinced. Because of the "Big Brother" society which Labour themselves created, the UK DNA database is at least 25% larger than it needs to be. If I understand the figures which have been quoted correctly, there are more than a million people whose DNA is currently on the database when they have never been convicted or charged with a serious offence. The removal of most of these people's DNA from the database should not be controversial, but if police forces leave it to the last minute before deleting them, it's asking for trouble with some people's DNA being deleted when it should not be and others being held after this becomes illegal.

Surely it should not be beyond the capability of well run police forces to delete the uncontroversial DNA records now, while setting up the appeal cases for the more difficult cases such as suspected rapists to be taken to the Biometrics Commissioner when the system to review those cases comes on line in a couple of months' time.

No doubt there will be some confusion and mess, there always is in anything the Home Office touches whoever is in government, but for Labour shadow ministers to fulminate about Home Office incompetence is a bit rich when most of us remember what a complete mess the department was when Labour was running it. At one point a serving Labour Home secretary, John Reid, admitted that the home office was "not fit for purpose."

There is room for further debate about how you deal with people who are charged with certain crimes which are difficult to prosecute, such as rape, so as to provide as much protection as possible for potential victims without creating the risk that innocent people are stigmatised or, worse, convicted. That debate needs to be much wider than just how you handle DNA evidence.