DNA retention and the Crime and Security Act 2010

The Crime and Security Act 2010, amending the scheme of DNA retention in England and Wales, was given royal assent earlier this month. Following from the decision in S and Marper v UK, as previously blogged about here and here, the UK was forced to revise its scheme of DNA retention in England and Wales.

The S and Marper decision prompted a lengthy consultation process by the Home Office, characterised by a reluctance to amend the law relating to the scope of the database. The consultation paper, Keeping the right people on the database: Science and public protection , ostensibly aimed “to provide a proportionate balance between protecting communities and protecting the rights of the individual”, although the lack of a robust rights-focus is noticeable throughout, while the rhetoric of risk avoidance and public protection is to the fore. The Home Office recommended the implementation of the S and Marper v UK decision through the destruction of DNA samples after six months, whether the individual goes on to be convicted or not; by permanent retention of DNA profiles after conviction; and retention for twelve years after arrest for a serious violent or sexual offence or terrorism-related offence and six years for other offences. These periods were chosen based on the likelihood of offending by people who have been arrested and not convicted, drawing on research included in Annex C to the paper which purports to show that 52% of re-offending happens within six years and two-thirds of re-offending happens within 12 years.

Legal Research Posts with the Law Reform Commission

The Law Reform Commission today posted an advertisement on its website recruiting legal researchers see here.  The Law Reform Commission has not recruited legal researchers since 2008.  Candidates for the post of legal researcher should have a law degree (at least at the 2:1 level or equivalent experience or qualification) and will normally have a postgraduate degree in law.  An essential requirement is practical experience and/or aptitude in conducting legal research and a capacity to write well and competence with IT.  These appointments will be made on a contract basis for one year.  The closing date is noon – 29 April 2010.

Cohabitation, Default Protection and the Civil Partnership Bill 2009

I have written before on the Civil Partnership Bill 2009 focusing mostly on the introduction through the Bill of civil partnership as a legally recognised relationship form for same-sex couples. We have, however, spent some time on the cohabitation proposals both ourselves and in an excellent guest contribution from Andrew Hayward of Durham University. The last few days, however, have seen a surge in analysis of the cohabitation provisions of the Bill with various voices, including Prof John Mee of UCC, expressing concern about the default protections within the Bill as it stands. Indeed, last night’s Prime Time on RTE featured a long report on the implications of the Bill for unmarried and un-civilly-partnered cohabitants. So what is the cause of this concern?

First of all there is the fact that certain protections, entitlements and obligations kick in automatically following a three-year cohabitation period or, if there is a child of the couple, a two-year cohabitation period. If a couple should manage to live together without getting married or civilly-partnered for two or three years, depending on the context, they will be termed ‘qualifying cohabitants’ and these default provisions will apply. The definition of a cohabiting couple (i.e. a couple in relation to whom we can start to count time in order to see whether they are ‘qualifying’) is contained within s.170 of the Bill.

Capacity to Undertake Jury Service

The Law Reform Commission’s Consultation Paper on Jury Service launched by the DPP earlier this week recommends removal of the discriminatory provisions in the Juries Act 1976 (as amended) which exclude persons with disabilities from jury service.  The DPP was supportive of the recommendations of the Law Reform Commission in this regard.  The general outline of the Consultation Paper and provisional recommendations are set out in this earlier HRiL blog post.

Combating Hate Crimes Perpetrated Against LGBT Persons and Persons with Disabilities

The Commencement Order for the Offences (Aggravation by Prejudice) (Scotland) Act 2009 was issued last week bringing the Act into force.  The legislation creates new statutory offences that protect victims who are attacked on the basis of their disability, sexual orientation or transgender identity in Scotland.   Specifically section 1 of the Act makes provision for offences aggravated by prejudice relating to disability (or presumed disability).  Section 2 of the Act makes provision for offences aggravated by prejudice relating to sexual orientation (or presumed sexual orientation) or transgender (or presumed transgender) identity.  Under the Act where it is proven that an offence was motivated by malice or ill will towards a victim on the basis of their identity the court is required to take that motivation into consideration when determining the sentence to be imposed.   This legislation builds upon Scottish law on hate crimes carried out on the basis of race and religion or belief under the Crime and Disorder Act 1998 and the Criminal Justice (Scotland) Act 2003.  Similar legislation is in force in England and Wales.

Further updates on the BOR process: the NIAC report

Following on from Cian’s earlier blog on the response of the DUP to the NIO’s Consultation Paper on a Bill of Rights for Northern Ireland, it is worth noting that 24 March saw the Westminster Northern Ireland Affairs Committee release ‘A Bill of Rights for Northern Ireland: An Interim Statement‘.

Given the political make-up of that Committee, many of those in favour of a NIBOR regarded the NIAC’s decision to carry out such an inquiry as an effort on the part of political actors unhappy with the NIHRC’s advice to have ‘another bite at the cherry’. Arguably, the limited and poor quality consultation document produced by the NIO in response to the NIHRC’s advice rendered this unnecessary. (For a discussion of some of the criticisms made of the NIO document, see here)

Whatever its reasons, the Committee itself does not make an explicit recommendation either in favour or against a NIBOR. Rather it states:

Modernising Jury Selection: Law Reform Commission’s Consultation Paper on Jury Selection

 

The Director of Public Prosecutions will launch the Law Reform Commission’s Consultation Paper on Jury Service this evening.   The Consultation Paper will be available here this afternoon.  The Commission is examining jury service as part of its Third Programme of Law Reform 2008-2014.  It received a large number of submissions as part of its consultation on its work programme in 2007 calling for a review and modernisation of the law regulating juries.   This is the first substantive review of jury service in Ireland since the introduction of the Juries Act 1976 (which was based largely on recommendations contained in Reports of the Committee on Court Practice and Procedure, 1965)

Bye Bye Justice, Equality & Law Reform; Hello Community, Equality and Gaeltacht Affairs?

The  Irish cabinet reshuffle (see here, here, here and here) has resulted in the  Department of Justice, Equality and Law Reform , being divested of issues relating to equality, disability, integration and human rights. These important areas will be subsumed into the new Department of Community, Equality and Gaeltacht Affairs. The comments below are some initial reactions to this news.

Justice, Equality and Human Rights-Why?

I do not believe in making structural changes for their own sake. Too often, changes in structures can be pursued to disguise a lack of clear priorities or the determination to implement them. This Government has a clear agenda which I am determined will be driven forward with energy and commitment. There is no time to be wasted on extensive restructuring at the expense of action to implement our policies.

An Taoiseach Brian Cowen T.D.  23 March 2010

From 1992 until 1997, there was Minister for Equality and Law Reform, however post the 1997 general election, this was subsumed into the Department of Justice (to become the Dept. of Justice, Equality and Law Reform (DJELR).This was a time of enormous economic growth within the Republic of Ireland and a number of months before the signing of the Belfast/Good Friday Agreement. The thrust of today’s speech by An Taoiseach’s recognised the need for a re-invigorated economy based on job creation and innovation. For reasons highlighted by the statement of An Taoiseach above, structural changes were made to a number of departments.

Update on the Civil Partnership Bill 2009

The progress of the Civil Partnership Bill 2009 through the Oireachtas continues and today’s Irish Times contains two pieces on the cohabitation provisions of the Bill. As we have documented here and here the cohabitation provisions (i.e. for cohabiting couples who are neither married nor in civil partnerships) attempt to establish a kind of safety net. However, they apply only to ‘qualifying cohabitants’ and there is a serious fear—articulated in the Irish Times by Professor John Mee of UCC—that non-qualifying cohabitants will assume themselves protected when in fact no such protection exists.

The Renewal of Control Orders before the UK Parliament

At the end of February the UK Parliament’s Joint Committee on Human Rights reconsidered the use of Control Orders under the Prevention of Terrorism Act 2005, which the Home Secretary (Alan Johnson, pictured left) has asked Parliament to renew for another year from 11 March (the fifth such renewal). Control Orders impose “tailored” restrictions upon individuals on whom they are imposed, which typically involve relocation of the individual, restricted contact with friends and family and a denial of access to the internet and other unmonitored forms of communication.

The Home Secretary informed Parliament in formulaic language based upon the wording of the PTA 2005, that, ‘the powers are needed to ensure that a control order can continue to be made against any individual where the Secretary of State has reasonable grounds for suspecting that individual is or has been involved in terrorism-related activity’. The chief argument marshalled in favour of the orders was that, ‘it is necessary to impose obligations on that individual for purposes connected with protecting members of the public from a risk of terrorism’.