Destruction of DNA samples
1. GeneWatch UK strongly supports this provision, which will enhance privacy protection and save public money, without impacting adversely on crime detection.
Deletion of records
2. Clauses 14 to 20 describe new powers in relation to the destruction of DNA and fingerprints. GeneWatch's view is:
· The provisions for retention of innocent people's DNA profiles should be amended to implement automatic immediate deletion of most DNA profiles of unconvicted persons, with an exception for some persons proceeded against for serious or violent sexual offences, based on Scotland's approach (or similar);
· Steps should be taken to ensure that Police National Computer (PNC) records are deleted at the same time as DNA profiles and fingerprints;
· Deletion of all records should be applied retrospectively to all innocent persons on the relevant databases.
Rationale for amendments to deletion of DNA profiles
3. In September 2009, the Council of Europe's Committee of Ministers concluded that the Home Office's proposals to retain DNA profiles 6 or 12 years after arrest (contained in its consultation) did not conform to the requirement for proportionality. The Committee also expressed the view that the proposals did not meet the requirements of the judgment with respect to children. Further, it criticised the lack of an independent review of the justification of the retention of individuals' DNA profiles, and the poor quality of the scientific evidence provided by the Home Office.
4. The Government has since made modifications to the proposals contained in the Bill. The Home Office has also published new evidence which it claims justifies the new proposed retention times. 
5. In December, the Committee of Ministers again welcomed the proposed destruction of samples and the (revised) plans to introduce time limits on retention of DNA profiles, but:
"nevertheless noted that a number of important questions remain as to how the revised proposals take into account certain factors held by the European Court to be of relevance for assessing the proportionality of the interference with private life here at issue, most importantly the gravity of the offence with which the individual was originally suspected, and the interests deriving from the presumption of innocence (see paragraphs 118 - 123 of the judgment), and requested, accordingly, that the Secretariat rapidly clarify such questions bilaterally with the United Kingdom authorities". [Emphasis added].
6. The Committee also noted that further information was also necessary as regards the institution of an independent review of the justification for retention in individual cases.
7. The provisions in the Bill fail to address the requirement that retention should not be arbitrary (paragraph 99 of the judgment). They allow the system to remain open to abuse, because an individual's DNA profile and fingerprints can still be retained indefinitely merely by being arrested multiple times. Further, the failure to delete Police National Computer (PNC) records (discussed further below) will allow the ready identification of persons who have been previously arrested, leaving no safeguard whatsoever to prevent them being re-arrested simply to get their DNA. The Bill also allows a Chief Constable to overrule the destruction of records if s/he determines that they need to be kept for "reasons of national security". In such cases, records will be kept for two years, but this can be repeatedly extended. These provisions clearly lack the safeguard of an independent review required by the judgment of the European Court.
8. The Government has argued that its proposed 6 year retention time for DNA profiles and fingerprints is based on research. The previous (widely criticised,,,) analysis contained in the consultation was based on 'conviction-to-conviction' (the likelihood of a convicted person being re-convicted), which was then extrapolated to people who had not been convicted. The new analysis is based on 'arrest-to-arrest' (the likelihood that an arrested person against whom no further action is taken is later re-arrested). Neither piece of research shows that persons who are arrested but not convicted have a greater risk of offending than the general population - the second piece of research shows only that they have a greater risk of re-arrest. Further, this research does not consider the extent to which retaining DNA profiles from innocent persons impacts (or not) on the detection of crimes.
9. GeneWatch UK has provided a detailed analysis of the latest figures on crime detection to the Home Affairs Committee, including a discussion of the role of DNA in individual cases.  The available data suggests that the proposed approach is not proportionate because neither the Criminal Justice and Police Act 2001, nor the Criminal Justice Act 2003 have led to a noticeable increase in the number of crimes detected using DNA, despite a massive increase in the number of individuals' DNA profiles that have been collected and retained.
10. Scotland's legislation for DNA
records is an attempt to address the very rare subset of stranger rape cases
that may involve a match with the stored DNA profile of an unconvicted person
11. Large numbers of people will be
affected by the blanket approach proposed in the Bill, in comparison to this
retention of records from innocent people generated most responses to the Home
Office consultation (384) with "the significant
majority opposed to any form of retention of profiles and fingerprints for
persons arrested and against [whom]
no further action was taken or [who were] acquitted".  A number of people also
referred to the system in use in
13. In summary, the Bill's provisions which retain innocent persons' DNA and fingerprint records for six years after arrest (three years for children) are disproportionate, probably unlawful, and not justified by the available evidence regarding crimes solved using DNA. Further, retention can be extended indefinitely in a manner which is arbitrary and has no independent oversight: either by re-arrest or by declaring retention an issue of national security.
14. In contrast,
Rationale for deletion of PNC records
15. The Bill is silent on the issue of records on the Police National Computer (PNC). In GeneWatch's view this is a serious mistake. Failure to delete PNC records will not restore public trust in the police use of DNA and other personal data.
16. In 2000, Association of Chief Police Officer (ACPO) Guidelines required the deletion of Police National Computer (PNC) records 42 days after acquittal or proceedings were dropped, except in narrowly defined circumstances (when records could be retained for up to 5 years, as described above).
17. Subsequently, as stated in the National DNA Database Annual Report 2005/05 (page 9): "In support of the powers provided by Section 82 of the CJPA [Criminal Justice and Police Act 2001] and Sections 9 and 10 of the CJA [Criminal Justice Act 2003], it has become necessary to retain a nominal record of every person arrested for a recordable offence on the Police National Computer (PNC) to enable a link to be made between the DNA profile held on the NDNAD and fingerprints held on the national automated fingerprints database (IDENT1) to help the police identify and locate an individual following a match being obtained on the NDNAD". PNC records include information as to whether or not a person has had a DNA sample taken by the police as well as a person's name and other data. The Arrest Summons Number (ASN) included in the PNC record provides a link to an individual's record on the NDNAD.
18. Thus, since December 2005, when the necessary changes to the computer systems were completed, all Police National Computer records of arrest, as well as all records of reprimands, final warnings, cautions and convictions have been retained indefinitely (nominally until age 100). The decision to create a permanent record of everyone arrested for any recordable offence was never debated in parliament.
19. It is the PNC record that the police access
when they do a 'name check' and this can result in different treatment by the
police: the case of David Sweeney in
20. The Rehabilitation of Offenders Act does not apply to US visa law and "people who have been arrested, even if the arrest did not result in a criminal conviction" may not be eligible for the Visa Waiver Scheme or may be refused a visa altogether. Information disclosed in an Enhanced Criminal Record Check can include "non conviction information, if in the opinion of the Chief Officer it is considered to be relevant to the post or position applied for".
21. Under the current 'exceptional cases' procedure, records on the National DNA Database (NDNAD), IDENT1 (the fingerprint database) and the Police National Computer are deleted if an individual is successful in his/her application for removal. The provisions in the Crime and Security Bill 2009/10 allow only for the automatic removal of records from the NDNAD and IDENT1. The Home Office has confirmed to the Observer that it does not intend to delete innocent people's PNC records under the new provisions in the Bill.
22. For innocent persons on the DNA Database, the intended practice following adoption of provisions in the Crime and Security Bill 2009/10 is therefore worse than the current 'exceptional cases' removal procedure followed by Chief Constables, because records of arrest on the Police National Computer (PNC) will be retained indefinitely.
23. The DNA profiles of approximately 37% of black men and 77% of young black men, aged between 15 and 34, have been estimated to be on the National DNA Database. The standard information contained in a person's PNC record includes 'ethnic appearance' to a police officer. The retention of these records, combined with the potential for repeated re-arrest and re-collection of DNA is unlikely to restore trust within BME groups.
Retrospective deletion of records
24. It is unclear why the destruction of material taken prior to commencement is left to the future adoption of a statutory instrument. Innocent persons with records on the National DNA Database understandably wish to see the destruction of their data to be undertaken urgently.
25. It is also unclear why the Home Office's proposal to delete past volunteers' records appears to have been omitted from the Bill, despite widespread support and evidence that retaining profiles from volunteers has not contributed to solving crimes.
Expansion of DNA collection
26. Clauses 2 to 13 describe new powers to collect DNA and fingerprints. GeneWatch's view is:
· The provisions relating to the expansion of DNA collection should be deleted;
· A Royal Commission should be established to consider outstanding issues relating to the DNA database, with a view to putting it on a proper statutory footing. The issues raised by clauses 2 to 13 should be included in the review.
27. These provisions apply to persons not in detention, who are not arrested on suspicion of committing an offence (persons in detention and persons arrested are both covered by existing law). They go beyond existing law because they make refusal to supply a biological sample or fingerprints a criminal offence for some such persons. The main provisions are:
· A requirement to attend a police station on request for the collection of samples and fingerprints retrospectively without consent from persons aged ten or over who have a past conviction, caution, reprimand or final warning for any recordable offence since 10th April 1995 in England, Wales or Northern Ireland;
· Collection of samples and fingerprints retrospectively without consent from persons arrested prior to 10th April 1995 for offences specified in Schedule 1 to the Criminal Evidence (Amendment) Act 1997, where the person has at any time been detained in prison or under the Mental Health Act 1983 (currently the law requires the person to be detained);
· Collection of samples and fingerprints retrospectively without consent
from persons resident in the
28. For 'qualifying offences', retrospective sampling may occur at any time. For any other recordable offence, attendance at a police station may be required up to two years after the day on which the person was convicted/cautioned, or, if later, two years from the day on which the Bill comes into force. The individual will typically be given 7 days to attend and failure to do so will lead to arrest.
Necessity and practicality
29. The provisions as drafted allow a previously convicted or cautioned person (or a child previously given a final warning or reprimand) to be required to attend a police station for the collection of their DNA and fingerprints in circumstances where there are insufficient grounds for arrest in relation to a further offence, but where this has nevertheless been identified as 'necessary' (a requirement of Article 8 of the European Convention on Human Rights), in order to perform speculative searches against stored crime scene DNA profiles on the National DNA Database (Clauses 5 and 11). In the Bill, the test of necessity is performed by an officer of at least the rank of inspector.
30. Firstly, it is not clear how any officer can make any such determination, unless the sample is necessary in order to investigate a specific offence (a situation which already allows the suspect to be arrested and sampled under PACE). Secondly, it is unclear whether introducing this new test is actually helpful to investigations.
31. This is because police officers conducting criminal investigations must weigh up the best point at which to make an arrest, considering the evidence but also the potential for a suspect to abscond. Under the proposals in the Bill, the test of 'necessity' will lead, not to immediate arrest, but to a letter requesting attendance at a police station. Any individual who has committed a relevant offence to which they might be linked by the DNA (or fingerprints) will be alerted to the fact they are likely to be caught, and thus be able to abscond (because they will not be under arrest or in detention). Particular problems may arise where a cold case is under active investigation, perhaps with the net closing in to a potential arrest of the offender, and an officer elsewhere alerts the suspect by calling them into a different police station to collect DNA for speculative searching.
32. The Bill appears to imply that it may be necessary to collect DNA from any or all persons given convictions, cautions, reprimands or final warnings for any offence since 1995 in order to populate the National DNA Database and perform speculative searches, but this is inconsistent with the statements in the Bill that an officer should determine whether the test of necessity is met. In specific cases, new evidence may be available, but if so the suspect can be arrested under existing powers. It therefore remains unclear what evidence would meet the test of necessity but not of arrest, and in what circumstances would this not be counter-productive by alerting the potential suspect. Further, the Criminal Justice and Public Order Act 1994, has allowed non-intimate samples to be taken in connection with the investigation of any recordable offence since the National DNA Database was first established in 1995: an officer may therefore be required to justify why, if the police considered the collection of samples to be necessary, they did not collect them at the time.
33. The difficulties with necessity may be lessened in the case of pre-1995 serious offences and serious offences committed overseas, since the ability and/or power to collect DNA was not previously available for these offences (except for persons still detained in 1997, who could be sampled in prison following adoption of the Criminal Evidence (Amendment) Act 1997). However, the risk of absconding would remain.
34. There are further practical issues about how past
offenders who are no longer detained (or never were detained) will be
35. For persons convicted of
serious offences outside
36. The Bill also appears to allow the collection of samples and fingerprints whether or not a person is in police custody, i.e. potentially outside police stations. If implemented, his would raise concerns about the lack of provisions to protect vulnerable people (including children and people suffering from mental illness); security of data; and the safety of police offices and passers-by in situations where officers use 'reasonable force' to obtain a sample.
37. The issue of whether it is lawful and proportionate to retain DNA profiles and fingerprints indefinitely from all persons given a reprimand, final warning, caution or conviction for any recordable offence has not yet been resolved. This is relevant to the issue of retrospective collection because retrospective collection of DNA from persons whose data should no longer (lawfully) be retained (on the grounds that their risk of offending is now low) had they been put on the Database at the time of their arrest, charge or conviction would be likely to be disproportionate and potentially open to legal challenge.
38. The Equalities and Human Rights Commission has expressed the view that the indefinite retention of all convicted persons' records is incompatible with the European Convention on Human Rights, and has obtained a legal opinion to this effect. The Opinion relies on the wording of The Committee of Ministers' Recommendation R92(1), which was referred to in the Marper judgment.
39. Under the guidelines in use when the DNA Database was first set up in 1995 (Home Office Circular 16/95), DNA Database records were supposed to be deleted when PNC records were weeded, but this was never implemented due to a failure to link the computer systems. The 2000 ACPO Guidelines on retention of police records required most PNC records of cautions to be deleted after 5 years, and convictions for minor offences to be deleted after ten (provided no further offences had been committed). Exceptions were made for serious offences, or multiple offences, where records could be retained indefinitely. These guidelines were subsequently abandoned, but this was a purely administrative decision that was not debated by parliament. The evidence supplied by the Home Office in its consultation, does not show that unconvicted persons are likely to commit offences, however it does show that risk of re-offending by convicted persons reduces over time. This evidence therefore supports the original (or perhaps new, revised) ACPO guidelines for weeding police records, including DNA records.
40. In GeneWatch's view, retrospective sampling will need to be restricted - potentially by offence, sanction and/or age - in order to be proportionate to the need to tackle crime.
Harm to vulnerable persons
41. Any benefits in terms of crime detection must be weighed against the harm to vulnerable persons that is likely to arise. Depending how widely the powers for retrospective sampling are used, it might include many persons mis-identified via the PNC or other databases, as well as people with old past convictions, cautions, reprimands or final warnings, including for very minor offences. Many people suffering from mental illness are given cautions for minor public order offences and many are already disturbed by collection of their DNA (there has been one reported case of suicide ). A letter arriving out of the blue, requiring attendance at a police station to give DNA and fingerprints could therefore have seriously harmful consequences for some vulnerable persons. There may be particular issues with regard to retrospective sampling of children.
Rationale for proposal to delete these provisions
42. Whilst, in theory, the issues of principle described above could be addressed by amending these clauses so they are more tightly drawn, it may be difficult to do so unless and until a consensus is reached regarding the indefinite retention of data from all 'convicted' persons (including persons given cautions, reprimands or final warnings for minor offences since 1995). Further, this would leave the issues of practicality unaddressed: particularly the danger of alerting any genuine offenders who may then abscond, and how to avoid harm to vulnerable persons. GeneWatch therefore recommends that these clauses are deleted and that the best way to revise these provisions is considered by a Royal Commission, set up to look more broadly at all the outstanding issues relating to the National DNA Database.
Royal Commission and outstanding issues
43. As noted above, issues relating to the proposed expansion of DNA sampling are interconnected with other outstanding issues regarding that National DNA Database that are not addressed in the Bill. The Human Genetics Commission (HGC) has recommended that the Government establishes a Royal Commission to "give focus to, and to learn from, the public debate, and to ensure that its outcomes will be taken forward and reflected in future framework legislation". GeneWatch supports this view and recommends that, rather than expanding DNA collection in the Bill, a Royal Commission is established to consider:
· DNA collection, including whether this should take place on arrest or charge, or for a narrower range of offences; whether collection should apply retrospectively and/or to some persons convicted overseas; and whether there should be special provisions for children.
· Uses and restrictions on uses.
· Retention guidelines for 'convicted' persons (including persons given cautions, reprimands and final warnings)
· Governance, including a process for appeal
against retention of data.
44. In this context, the Committee should be aware that the provisions in the Bill fall far short of addressing the concerns raised by children's organisations with respect to the rights of the child (see, for example, the submissions to the Home Office's consultation made by the NSPCC, the Standing Committee for Youth Justice and 11 Million (the UK Children's Commissioners). These organisations have expressed concerns about the extent of the powers to collect DNA from children (on arrest for any recordable offence), as well as concerns about retention of DNA profiles. These issues cannot be fully explored or addressed in the context of the Bill.
45. The Commission's proposals should be followed by a public consultation before further legislation is drafted.
46. Such an approach would allow these issues to be properly addressed, public confidence restored, and potential further breaches of the European Convention on Human Rights to be avoided.
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