Select Committee on Home Affairs Written Evidence


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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