APPENDIX 22
Memorandum submitted by Genewatch UK
EXECUTIVE SUMMARY
1. England and Wales are the only countries
in the world which keep DNA profiles and samples from innocent
people and people convicted of minor offences for life. The practice
of taking DNA on arrest for a very wide range of offences, and
retaining both DNA samples and the computerised DNA profiles permanently
is disproportionate to the need to tackle crime.
2. The rapid expansion of the National DNA
Database has enormous implications for the balance between the
power of the state to implement "biosurveillance" on
an individual and the individual's right to privacy. Issues of
cost and cost-effectiveness are also raised by the practice of
keeping DNA profiles and samples permanently from so many people.
There is also significant potential for others—including
organised criminals—to infiltrate the system and abuse it,
for example by using it to reveal changed identities and breach
witness protection schemes.
3. There has been little public or democratic
oversight of this shift in approach and current safeguards are
inadequate to prevent errors or abuses. Proposals to further expand
police powers and to share DNA data with other countries will
exacerbate this situation.
4. GeneWatch UK believes that there are
important changes that could be made that would improve safeguards
for human rights and privacy without compromising the role of
the DNA Database in tackling crime. A better balance would be
struck by:
— reintroducing a system of time
limits on how long people are kept on the Database—so that
only DNA profiles from people convicted of serious violent or
sexual offences are kept permanently;
— destroying all individuals'
DNA samples once an investigation is complete, after the DNA profiles
used for identification have been obtained;
— ending the practice of allowing
genetic research using the Database or samples, so that research
is limited to performance management and database improvements;
— better governance, including
an independent regulator;
— public and parliamentary debate
before new uses of the Database are introduced;
— a return to taking DNA on charge
rather than arrest, except where it is needed to investigate a
specific offence.
INTRODUCTION
5. GeneWatch UK is a not-for-profit policy
research group concerned with the science, ethics, policy and
regulation of genetic technologies. GeneWatch believes people
should have a voice in how these technologies are used: our aim
is to ensure that genetics is used in the public interest.
6. Our submission is concerned with the
use of DNA for identification purposes and oversight of the National
DNA Database (NDNAD). Police powers to take and retain DNA have
expanded rapidly in recent years and a current Home Office Consultation
proposes to expand these powers further. GeneWatch UK strongly
believes that there has been insufficient public and democratic
scrutiny of these far-reaching and rapid changes. We therefore
welcome the opportunity to input to this inquiry.
WHAT IS
SPECIAL ABOUT
DNA?
7. DNA and fingerprints differ from other
means of surveillance, such as photographs and iris scans, because
they do not require equipment to be installed in particular places
in order to trace or record where an individual has been. Both
DNA and fingerprints may be left wherever a person goes. The retention
of DNA and fingerprints from an individual on a database therefore
allows a form of biological tagging or "biosurveillance",
which can be used to attempt to establish where they have been.
8. Unlike fingerprints, DNA can also be
used to investigate biological relationships between individuals
(including paternity and non-paternity). A person's DNA also contains
some other private information about their health and other physical
characteristics. Some of this information (such as carrier status
for a genetic disorder and non-paternity) may be highly sensitive
and/or unknown to the individual.
THE ROLE
OF DNA DATABASES
IN SOLVING
CRIMES
9. The National DNA Database (NDNAD) relies
on the fact that DNA can be taken from any sample of human tissue
left at a crime scene. DNA profiles (a string of numbers based
on part of the sequence of the DNA) can be obtained from both
crime scene DNA and from individuals' DNA (usually collected at
a police station using a simple mouth swab) and stored on computer.
Every night a `speculative search' of the Database is run to look
for new DNA profile matches. A match between an individual's DNA
profile and a crime scene DNA profile indicates a high probability
that the individual was at the crime scene.
10. A DNA database is not required to provide
evidence of guilt or innocence when there is a known group of
suspects for a specific crime: a DNA profile can be obtained from
each individual and compared directly with a crime scene profile.
For the same reason, a database of individual DNA profiles is
also unnecessary to exonerate an innocent person. The "added
value" of putting individuals on a database is only to introduce
new suspects into an investigation.
11. DNA matches between crime scenes and
individuals on the Database include many matches with victims
and innocent passers-by. Only some matches (called DNA detections)
involve sufficient evidence to charge someone for a crime, and
not all DNA detections lead to prosecutions or convictions.
12. The value of entering increasing numbers
of DNA profiles from individuals on the Database (unrelated to
the reason for arrest) is that it may allow investigation of a
past crime to be re-opened, by unexpectedly identifying a new
suspect. The purpose of retaining an individual's DNA profile
on a database is to treat them as a suspect for any future crime.
This is arguably likely to be of most benefit when an individual
has a record as a "career criminal" and is considered
likely to re-offend.
EXPANSION AND
USES OF
THE NATIONAL
DNA DATABASE
13. Britain's National DNA Database is the
largest in the world. It includes DNA profiles from more than
4 million individuals—over 6% of the population, compared
to about 0.5% in the USA. The law in England and Wales now allows
the police to take DNA samples routinely without consent from
anyone arrested in connection with any recordable offence: including
being drunk and disorderly, begging or taking part in an illegal
demonstration. All DNA samples are kept permanently by the companies
that analyse them, and the computerised DNA profiles and personal
data (such as name and ethnic group) are also kept permanently
on the NDNAD, even if a person is never charged or is acquitted.1,
2
14. England and Wales are the only countries
in the world which keep DNA profiles and samples from innocent
people and people convicted of minor offences for life. This is
out of step with practice in other European countries and with
the principles adopted by bodies such as the Council of Europe,3
which require time limits on retention for all but the most serious
offenders.
15. Although the law in Northern Ireland
also allows permanent retention of DNA samples and profiles,4
Forensic Science Northern Ireland (FSNI) still implements a policy
of removing profiles on acquittal.5 However, a recent agreement
allowing export of individuals' DNA profiles from Northern Ireland
to the NDNAD6 could lead to changes.
16. The Scottish Parliament voted against
permanent retention of DNA from innocent people, in May 2006.7,
8 Instead, police powers were expanded to allow temporary retention
(for up to 5 years) from a much smaller number of people who had
been charged but acquitted of a serious violent or sexual offence.9
17. A current Home Office consultation proposes
further extending police powers (outside Scotland) by allowing
DNA to be taken on arrest in the street or in short-term holding
facilities (STHFs), in shops or town centres, where people could
be detained for up to four hours.10 Suspected offences for which
DNA can be taken would be expanded to include non-recordable offences
(such as dropping litter), from anyone aged ten or above. Both
computerised DNA profiles and DNA samples would be permanently
retained. The main purpose of taking DNA and fingerprints would
change from investigating offences to establishing "identity":
this implies a new link between the NDNAD and the proposed National
Identity Register. STHFs may be staffed by non-police personnel.
18. Uses of the NDNAD may include any purpose
related to the prevention or detection of crime. Uses now include:
familial searching (using partial DNA matches to try to identify
the relatives of a suspect); searching by name; and undertaking
various types of genetic research (including controversial attempts
to predict ethnic appearance from DNA).6, 11 Undertaking genetic
research using the Database or samples is a breach of the usual
ethical requirements for consent to such research.
19. Proposals under the Prum Treaty
may in future allow access to the NDNAD, or some of the information
it contains, by law enforcement agencies in other European Union
countries.12
POTENTIAL FOR
ABUSES AND
LOSS OF
PUBLIC TRUST
IN POLICING
20. The NDNAD is a useful tool in criminal
investigations, but the permanent retention on it of everyone
who has been arrested raises important concerns about privacy
and rights, including:
— the potential threat to "genetic
privacy" if information is revealed about health or family
relationships, not just identity;
— the creation of a permanent
"list of suspects" that could be misused by governments
or others;
— the potential for unauthorised
access, abuses and/or misuses and mistakes;
— the exacerbation of discrimination
in the criminal justice system.
Whose records are on the National DNA Database?
21. More than a million people on the National
DNA Database have not been convicted or cautioned for any crime,13
although some of these people will be awaiting trial.
22. Tens of thousands of children who have
never been charged or cautioned with any offence are on the NDNAD14,
15 The total number of innocent children with records on the Database
(including those who had their charges dropped or were acquitted)
is unavailable.
23. More than a third of black men in the
UK population are on the NDNAD, prompting the Black Police Association
to call for an investigation.16 About three out of four black
men between the ages of 15 and 34 have records on the Database.17,
18
24. Volunteers, including victims of crime,
must give their consent for their DNA profiles to be entered on
the Database. However, in England and Wales this consent is irrevocable
and cannot be withdrawn.
Potential for abuses
25. People who have been arrested have an
arrest summons number (ASN) included in their record on the NDNAD,
which provides a link to other information on the Police National
Computer (PNC).
26. When the NDNAD was established in 1995,
records were supposed to be removed at the same time as an individual's
criminal record.19 However, the change in legislation allowing
DNA records to be retained has subsequently been used to justify
a change in policy which means that all PNC records are now kept
permanently.20 The retention of permanent records of arrest is
unprecedented in British history.
27. PNC records are available to a wide
range of agencies, although a plan is being developed to "step
down" records so that access will be limited to the police
after similar time-frames to those which used to result in their
removal. However, information contained in these records may continue
to be made available to others as the result of an Enhanced Criminal
Record Check.21 Employers may also require an individual undertake
his or her own subject access request to the police and reveal
this as a condition of employment (known as "enforced subject
access").
28. The permanent retention of these records
means there is significant potential for individuals to suffer
erosions of their rights simply as a result of a record of arrest.
Potential abuses could include: refusal of visas or access to
visa waiver schemes (such as that operated by the US); refusal
of employment; and excessive Government or police surveillance
(of individuals or selected groups of people). The link between
the PNC and the DNA Database increases the potential for abuse
because an individual's DNA profile can be used to trace their
movements or identify relatives. If a person's DNA sample is also
accessed, other personal genetic information may also be obtained.
29. If criminals can infiltrate the system
they may be able to use it to identify people whose identity is
protected, including people in witness protection schemes. Although
access to the DNA Database itself is supposedly restricted, there
have been a number of incidents and practices which cause serious
concern:
— Five employees of the Forensic
Science Service (FSS) have been suspended whilst allegations that
they "copied, retained and/or adapted software and/or
other confidential information" are investigated.22
— Emails supplied to GeneWatch
UK as a result of a Freedom of Information request revealed that
the commercial company LGC kept copies of information sent to
it by the police, including individuals' demographic details,
alongside their DNA profiles and samples.23, 24
30. The new Home Office proposals for Short-term
Holding Facilities significantly increase the risk of infiltration
of the system, especially if they give staff who are not police
officers powers to check identity using fingerprints and DNA.
The risk is also increased by plans to share more information
with EU countries and to check DNA or police records on the spot
using hand-held devices.25, 26
Potential for errors
31. DNA evidence is not foolproof: false
matches can occur by chance, especially if the DNA profile from
the crime scene is not complete. The increasing use of Low Copy
Number (LCN) DNA analysis—which allows a DNA profile to
be extracted from a single cell—has led the Director of
the Forensic Institute in Edinburgh to warn that innocent people
may be wrongly identified as suspects as a consequence of being
on the NDNAD27.
Effectiveness and costs
32. Re-examination of a number of "cold"
cases has highlighted the importance of keeping past crime scene
DNA evidence. Occasionally, the DNA of someone arrested for a
minor offence is matched with DNA from a serious past crime, arguably
justifying taking DNA from relatively large numbers of individuals.
However, such cases do not justify keeping DNA profiles and samples
from people whose DNA has not matched a past crime scene.
33. Analysis of Home Office data shows that
collecting more DNA from crime scenes has made a significant
difference to the number of crimes solved, but keeping DNA from
increasing numbers of individuals has not.28 Since April 2003,
about 1.5 million extra people have been added to the Database,
but the chances of detecting a crime using DNA has remained roughly
constant, at about 0.36%.29
34. The cost-effectiveness of expanding
the NDNAD has never been established.30, 31 Costs of processing
each sample have been made available32 but do not include police
time33 or the costs of storing samples permanently34—a growing
part of police budgets.
UNNECESSARY RETENTION
OF DNA SAMPLES
35. Individuals' samples are destroyed in
some other countries, such as Germany, once the DNA profiles used
for identification purposes have been obtained. Retention of individuals'
DNA samples increases privacy concerns and costs (the companies
which store them are paid an annual fee). The Home Office has
recognised that retaining samples is "one of the most
sensitive issues to the wider public"35 and the Human
Genetics Commission has concluded that the reasons given for retaining
them are "not compelling".36, 37 Only temporary,
not permanent, storage is necessary for quality assurance purposes
and a new sample can always be taken from the suspect if a DNA
profile requires checking or upgrading.
THE NEED
FOR BETTER
OVERSIGHT
36. The Government has admitted there is
a "regulatory gap" in standard setting for forensic
science38 and GeneWatch UK believes an independent regulator is
needed.39 However, a regulator alone will not address concerns
unless a system of time limits on retention, with regulatory oversight,
is also implemented.
References
1. GeneWatch UK (2005) The police National DNA
Database: Balancing crime detection, human rights and privacy.
GeneWatch UK. January 2005. http://www.genewatch.org/HumanGen/Publications/Reports/NationalDNADatabase.pdf
2. GeneWatch UK(2005) The police National DNA
Database: human rights and privacy. GeneWatch UK Briefing Number
31. June 2005. http://www.genewatch.org/publications/Briefs/brief31.pdf
3. Recommendation No 92 on the use of analysis
of deoxibonucleic acid (DNA) within the framework of the criminal
justice system (adopted on 10 February 1992).
4. The Criminal Justice And Police Act 2001 Chapter
16 amends the Police and Criminal Evidence (NI) Order 1989 so
that restrictions on the use and destruction of fingerprints and
samples are consistent with the new provisions for England and
Wales: http://www.opsi.gov.uk/acts/en2001/01en16-d.htm
5. http://www.fsni.gov.uk/operattxt.html#dna
6. FSNI-PSNI Service Level Agreement 2006-07.
7. Scottish Parliament Justice 2 Committee Official
Report 28 March 2006. http://www.scottish.parliament.uk/business/committees/justice2/or-06/j206-0902.htm#Col2146
8. Scottish Parliament Official Report. Police,
Public Order and Criminal Justice (Scotland) Bill: Stage 3. 25
May 2006. http://www.scottish.parliament.uk/business/officialReports/meetingsParliament/or-06/sor0525-01.htm
9. http://www.scotland.gov.uk/News/Releases/2007/01/29133555.
10. Home Office (2007) Modernising Police Powers.
Review of the Police and Criminal Evidence Act (PACE) 1984. Consultation
Paper. Home Office, March 2007.
11. GeneWatch UK(2006) Using the police National
DNA Database—under adequate control? GeneWatch Briefing.
June 2006. Available on: www.genewatch.org
12. Johnston P, Waterfield B (2007) DNA data
deal "will create Big Brother Europe". The Telegraph.
18 February 2007. http://www.telegraph.co.uk/news/main.jhtml;jsessionid=GAUE2T1MP0CL5QFI
QMGCFGGAVCBQUIV0?xml=/news/2007/02/16/ndna16.xml
13. House of Commons Hansard. 11 December
2006 : Column 829W.
14. Press Association (2006) MP in bid to wipe
DNA profiles. The Scotsman. 24 January 2006. http://news.scotsman.com/scotland.cfm?id=116232006.
15. Woolf M, Goodchild S (2006) Surveillance
society: the DNA files. The Independent, 7 May 2006.
16. Randerson J (2006) DNA of 37% of black men
held by police. The Guardian. 5 January 2006. http://society.guardian.co.uk/crimeandpunishment/story/0,8150,1678170,00.html.
17. Leapman B (2006) Three in four young black
men on the DNA database. The Sunday Telegraph. 5 November
2006. http://www.telegraph.co.uk/news/main.jhtml?xml=/news/2006/11/05/nrace05.xml
18. Rt Hon Baroness Scotland of Asthal, Minutes
of Evidence, Home Affairs Committee: Young black people and the
criminal justice system. Tuesday 13 March 2007.
19. Home Office Circular 16/95.
20. Coates F (2006) Police to file all offences
for life. The Times. 21 January 2006. http://www.timesonline.co.uk/section/0,,2086,00.html
21. ACPO (2006) Retention guidelines for nominal
records on the Police National Computer. 16 March 2006.
22. Gallagher I, Myall S (2007) Five civil servants
suspended over "DNA espionage". Mail on Sunday.
31 March 2007. http://www.dailymail.co.uk/pages/live/articles/news/news.html?in_article_id=445902&
in_page_id=1766&in_a_source=&ito=1490
23. http://www.genewatch.org/uploads/f03c6d66a9b354535738483c1c3d49e4/AnswerFOI8May.pdf
24. Barnett A (2006) Police DNA database is "spiraling
out of control". The Observer, 16 July 2006. http://observer.guardian.co.uk/uk_news/story/0,,1821676,00.html
25. Adams L (2006) Police computer goes on the
beat. The Herald, 14 October 2006. http://www.theherald.co.uk/news/72189.html
26. For example: http://www.itweek.co.uk/vnunet/news/2170113/portable-dna-analyzer-invented.
27. Morgan J (2006) Guilty by a handshake? The
Herald, 2 May 2006.
28. GeneWatch UK (2006) The DNA expansion programme:
reporting real achievement? February 2006. http://www.genewatch.org/uploads/f03c6d66a9b354535738483c1c3d49e4/DNAexpansion_brief_final.pdf
29. GeneWatch UK (2007) The National DNA Database:
an update. Human Genetics Parliamentary Briefing No 7. January
2007. http://www.genewatch.org/uploads/f03c6d66a9b354535738483c1c3d49e4/MPs_Brief07.pdf
30. House of Commons Science and Technology Committee
(2005). Forensic science on trial. Seventh Report of Session 2005-05.
HC 96-I, www.publications.parliament.uk/pa/cm200405/cmselect/cmsctech/96/96i.pdf.
31. Williams R, Johnson P, Martin P (2004). Genetic
information and crime investigation. August 2004. The Wellcome
Trust. www.dur.ac.uk/p.j.johnson/Williams_Johnson_Martin_NDNAD_report_2004.pdf
32. Home Office (2006) DNA Expansion Programme
2000-05: Reporting achievement. Forensic Science and Pathology
Unit.
33. HMIC(2000) Under the microscope. p16. http://inspectorates.homeoffice.gov.uk/hmic/inspect_reports1/thematic-inspections/utm001.pdf
34. House of Commons Hansard. 8 January
2007 : Column 149W.
35. Home Office (2005). Supplementary Memorandum,
Appendix 20. In: House of Commons Science and Technology Committee
(2005) Forensic science on trial, Volume II. HC 96-II, www.publications.parliament.uk/pa/cm200405/cmselect/cmsctech/96/96ii.pdf
36. Human Genetics Commission (2002). Inside
information. May 2002. http://www.hgc.gov.uk/UploadDocs/DocPub/Document/insideinformation_summary.pdf
37. Human Genetics Commission (2005) HGC response
to the Scottish Executive consultation on police retention of
prints and samples. http://www.scotland.gov.uk/Resource/Doc/77843/0018244.pdf
38. http://www.homeoffice.gov.uk/documents/cons-2006-forensic-regulator/
39. GeneWatch UK (2006) Standard setting and
quality regulation in forensic science: Submission to the Home
Office consultation. October 2006. http://www.genewatch.org/uploads/f03c6d66a9b354535738483c1c3d49e4/HO_consul2.doc
April 2007
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