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Last Updated: Thursday, 27 May, 2004, 09:39 GMT 10:39 UK
How Soham could shape privacy laws
By Jon Silverman
Home affairs analyst

It is a fair bet that the names of Ian Huntley and Maxine Carr will never be far from the public spotlight.

Ian Huntley
An inquiry centred on Ian Huntley could prompt changes in the law

The infamy of the Soham murders and the need to protect the pair from vengeance will see to that.

But the more immediate concern for the government is how to respond to the Bichard Inquiry's report into how police checks failed to prevent Ian Huntley getting a job at a school.

Its findings will land shortly on the Home Secretary's desk.

The inquiry's evidence-taking sessions revealed a mish-mash of different practices of collecting and holding data in the 43 police forces of England and Wales. As such, it can be assumed that Bichard will recommend one standardised approach for the retention of criminal records.

This is likely to be enshrined in a statutory code of practice.

But who will draw up such a code? If it is the Home Secretary, who, after all, is responsible for police matters, can we expect him to be even-handed between the police desire to retain data to solve crime and the individual's right to privacy?

Domestic dispute

In the post 9/11 world some of the ring-fencing of personal privacy which achieved its "high water-mark " in the Data Protection Act of 1998, has already been eroded in the name of fighting international terrorism. We may be about to see more.

The Association of Chief Police Officers told Bichard it would like to keep all criminal records until the suspect's 100th birthday, if necessary.

I am expecting Bichard to come down in favour of long-term retention of data
Dr Chris Pounder

In the light of the Huntley case, this is perfectly understandable.

Would it be an infringement of someone's right to privacy, though?

A test case brought under the Human Rights Act (and subsequently incorporated in the Criminal Justice Act 2001) has already decided that it would not.

A man called Marper, who was arrested but not charged after a domestic dispute, argued that the police had acted unlawfully in retaining indefinitely a DNA sample.

The judgment went against him on the grounds that if he did not go on to commit a crime, the data associated with the sample would not be processed.

Unified system

Dr Chris Pounder, of the specialist lawyers, Masons, says: "I am expecting Bichard to come down in favour of long-term retention of data but with some kind of filter process to restrict access to it.

"But I accept that it's tricky deciding who should have access. "

This may mean the police losing responsibility for the disclosure of information to an outside body such as the Criminal Records Bureau.

ACPO told Bichard it favoured the Scottish model, in which the country's eight police forces applied a unified criminal intelligence system.

DNA samples could be kept until a suspect turns 100

But it's worth noting that even with a police strength of only 14,000, it took four years to develop the IT to co-ordinate the sharing of data.

Imagine the scaling up problems with 43 forces in England and Wales and 140,000 staff.

True, there is the Police National Computer, which officers know inside out. But it is 1970's technology stretched to capacity already.

The landscape, post-Bichard, could also be complicated by a fact often overlooked.

Legal minefield

The Data Protection Act 1998 is a piece of domestic legislation drafted to bring the UK into line with a 1995 Directive harmonising practices throughout the EU.

That means it can't be tampered with too radically without incurring the scrutiny of Brussels.

Indeed, a Court of Appeal ruling in December 2003, which appears to have limited the scope of what is considered personal data under the act may have put the UK at odds with the Directive. It is currently being investigated by the European Commission.

If the government plans legislation in the light of the Bichard report, this will have to be taken account of too.

Protecting children is a shared goal, but in the field of data retention and disclosure it is also a legal minefield.


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