The European court of human rights has ruled that it is illegal to retain the fingerprints and DNA profiles of unconvicted crime suspects – a judgment that affects England, Wales, and Northern Ireland, but not Scotland, where limits of DNA data are already in place.

The DNA database contains profiles of 4.3 million people, arrested in connection with so-called “recordable” offences that carry a potential prison sentence. It is – proportionately to the the population as a whole – the largest database of its kind in the world, as the Home Office states on its website (albeit on the basis of 2005 data). Some of these include profiles of people not subsequently charged or found not guilty.

The summary version of the judgment, by 17 judges, notes:

The Court was struck by the blanket and indiscriminate nature of the power of retention in England and Wales. In particular, the data in question could be retained irrespective of the nature or gravity of the offence with which the individual was originally suspected or of the age of the suspected offender; the retention was not time-limited; and there existed only limited possibilities for an acquitted individual to have the data removed from the nationwide database or to have the materials destroyed.

Liberty described it as one of the ‘most strongly worded’ judgments it had seen from the court. The judgment also said that because DNA samples could be used to identify identify family relationships between individuals, their indefinite retention also amounted to an interference with their right to respect for their private lives under the human rights convention.

Around 850,000 records should now be removed from  the database. And it appears all but certain to put an end to Home Office plans to extend the retention of DNA samples from people charged with low level offences, such as traffic offences. The rules in Scotland on the use of DNA data are much tighter – one of the benefits of pluralistic legal systems – and permit DNA samples to be held for five years and only in serious cases involving violence or sexual offences. The UK government has until March to explain how it plans to comply.

Obviously this is a sign of a potential shift. Another might be the (possibly related) absence of the Communications Monitoring Bill from this week’s Queen’s Speech. Another is in the report this week from the Commissioner for Human Rights of the Council of Europe on Protecting the right to privacy in the fight against terrorism (opens in pdf):

General surveillance raises serious democratic problems which are not answered by the repeated assertion that those who have nothing to hide have nothing to fear. This puts the onus in the wrong place: It should be for States to justify the interferences they seek to make on privacy rights.

A blog post by AC Grayling reflects that

“Britain has the unpalatable reputation of leading the world in intrusions upon its citizens; we are the most snooped upon of all states, and a major reason is that we are practically a parliamentary tyranny – a single vote majority in the House of Commons can deprive us of rights in a moment.”

The government’s illiberalism is a long way from Labour Party traditions. He quotes Roy Jenkins, widely regarded as the most progressive Home Secretary to serve in the post, from a 1959 book, that ‘the first duty of a Labour government, when in office, is to observe “the need for the state to do less to restrict personal freedom.”‘

And the issue is still wide open. Statewatch has a sobering assessment of the EU’s proposals on extending surveillance across Europe (The Shape of Things to Come – the EU Future Group, opens in pdf) which concludes on the basis of existing directives and proposals that “the  EU is set to become the most surveilled place in the world”. The UK may be a leader in surveillance, but it is in line with the EU’s plans and attitudes.

The report’s author, Tony Bunyan, concludes:

“There is now only a slim chance that the political elites in Council of the European Union, the European Commission, national governments, the law enforcement agencies and the multinationals will change course – they have already invested too much to allow a meaningful public debate to take place.”

Part of this, though, is driven by political alignment with the United States. There is a small chance that a US administration which has a higher regard for the parts of the American Constitution which undeline the importance of “liberty” may change some of the ground.

Update, 28th March 2009: On Our Kingdom, Anthony Barnett reviews a a new report from Joseph Rowntree on the state and database technology: Technology is transforming government, and there is an urgent need to control and understand it. One shocking but unsurprising finding:

“[It] has commissioned a careful survey of all the state databases that a distinguished group of experts could identify. They found 46. Of these they judged that only six are safe. The rest are either ‘Amber’ or ‘Red’. Many of the latter they found to be almost certainly illegal as well as dangerous.”