This government has done more to erode our civil rights and the protections long afforded by our criminal justice system than any previous UK government that I can think of. So, it comes as no surprise that, in the wake of the ruling of the European Court of Human Rights, it has done what it perceives as the bare minimum it can get away with to address the illegality of people convicted of no crime being among the 4.5 million DNA profiles held on a national database.
As a lawyer, I hold dear (and so, I suggest, should everyone) the presumption of innocence enjoyed by every person who is arrested, charged and tried for a criminal offence. It is for the Crown (the state) to prove a defendant’s guilt; it is not for the defendant to prove his or her innocence. I thought at the time that it was done that it was wrong to undermine a defendant’s right to silence, which was of course consistent with the presumption of innocence and the burden on the Crown to prove guilt, by changing the police arrest caution and the direction given to juries by judges, that a defendant’s refusal to mention under police questioning evidence that they later rely on in court may cause the jury to draw an adverse inference from that refusal. Although unspoken, the clear subtext here is that only the guilty keep quiet and that, as it wasn’t mentioned at the time, the evidence in question may therefore be fabricated.
To my mind, this can never sit comfortably with the presumption of innocence. If the Crown’s case is weak, why should a defendant risk bolstering it by his responses to questions? After all, how many times have we all said something and moments later wished that we had chosen our language more carefully, as what we had just said had been taken to mean something other than what we had intended? Or how often have we had an argument with someone and subsequently thought of a particular fact that would have supported our position but which, in the heat and stress of the moment disappeared from the mind? It is not hard to see how, under stress, a suspect may easily be lead into difficulty under questioning, regardless of whether they are guilty or not. As any lawyer will tell you, it is not particularly difficult to construct a line of questioning that will lead someone to say exactly what you want them to say. Pollsters with political agendas have been using such techniques for decades.
So, what of this database? Well, should anyone who is suspected but not charged, or is tried but then acquited, have their DNA profiles held on a database along with convicted criminals? Of course not. To keep their DNA profile in this way is to continue treating them as suspects, as being potentially guilty of the crime of which they were suspected or of other crimes that have yet to be solved. This cannot be right. Few people would tolerate the notion of everyone’s DNA profile being held on a database (just look at the resistance to identity cards) – presumably because they take the view that those who have done nothing wrong should not have their right to privacy infringed in this way. So, why should those who were never convicted of the offence that led to their arrest and a DNA sample being taken have their profiles held for between six and 12 years?
We stand by and watch our rights being chipped away at our peril.