A nail in the coffin for universal databases?

I can be a hostage to fortune commenting on pending litigation. In other cases, I have expressed the hope that the courts would uphold the staus quo, only to have those hopes dashed. It is a delight on this occasion that when I "hoped without hope" that the European Court would do something about the intrusive DNA database, in the face of the House of Lords' strong support for police powers, I can now report a robust judgement in favour of the ordinary citizen's human right to privacy.

The issue was the power of the police to maintain indefinitely on its DNA database the details of those acquitted or against whom the police discontinued proceedings. The actual extent of the powers extends even beyond this: DNA is retained from those who have never even been charged, even those suspects whom the police's own enquiries subsequently vindicate; there have been particular concerns voiced about the extent of the database in respect of children.

The judgement says in somewhat obtuse language that (paragraph 125)

"the Court finds that the blanket and indiscriminate nature of the powers of retention of the fingerprints, cellular samples and DNA profiles of persons suspected but not convicted of offences, as applied in the case of the present applicants, fails to strike a fair balance between the competing public and private interests and that the respondent State has overstepped any acceptable margin of appreciation in this regard. Accordingly, the retention at issue constitutes a disproportionate interference with the applicants' right to respect for private life and cannot be regarded as necessary in a democratic society."

Now, I would like to think that the conclusions of this case are a nail in the coffin of other databases, in particular that associated with ID cards, and the universal children's database. Unfortunately, the language and approach of the court leaves it uncertain what it would conclude in these areas.

At one level, the court made its decision based on simple data protection principles. Applying these principles, one would have thought that as strong case could be made out that both the universal children's database and ID cards go beyond what is permissible because they go beyond what is necessary.

At another level, the court made clear that it considered DNA as a genetic fingerprint, to be more acutely personal data than many other kinds of personal information. On this basis, one might hold out greater hope that this judgement would be a nail in the coffin of ID cards - because of the element of biometric data - than of a universal children's database.

At another level again, the court also made clear its particular concern for the rights of children. This may hold out hope in respect of children's databases. The court gave short shrift to the argument that the universal nature of the database meant that it carried no stigma, but it did so in the particular context of a database held by the criminal justice system.

This latter point does lead me in conclusion to one point of concern. You will detect I write with a civil liberties perspective. However, I would not want the criminal standard of proof to be the ultimate arbiter of whose details the state may retain. I am acutely aware that as social workers we protect children and vulnerable adults applying a civil standard of proof.

When the government works out how it is going to respond to this historic ruling - as it will surely have to - I hope that it will get the balance right. That means abolishing universal and indiscriminate data collection. It also means retaining systems to keep data relating to reasonable grounds for suspicion of significant harm, and not just criminal convictions.

Allan Norman is Principal Social Worker & Solicitor at Celtic Knot (www.celticknot.org.uk), an independent law firm and social work practice.