The National DNA Database - Home Affairs Committee Contents

Examination of Witnesses (Questions 1-37)


5 JANUARY 2010

  Q1 Chairman: Good morning; this is our first session of the New Year. Could I wish everyone a Happy New Year! This is a new inquiry into the National DNA Database. Could I refer everybody to the Register of Members' Interests. Could I welcome Dianne Abbott MP and Isabella Sankey from Liberty. Could I start with you, Ms Abbott. Thank you for coming to give evidence today to the Committee. We know of your interest in these issues and the fact that you recently held an Adjournment Debate in Westminster Hall about these matters. Those who are opposed to the current policy concerning the retention of DNA on the National Database argue that as far as the over-representation of black people, especially black youths, on the Database is concerned this damages community relations. Do you believe that is the case?

Ms Abbott: Yes, I do. Let me just say three things. The first thing is, this DNA Database is a major innovation—it is the largest one in Europe by far—but we have never had a proper parliamentary debate on it. What we have done, in a series of compendium Criminal Justice Bills, is have put permissive clauses in, and the police have taken those permissive clauses and driven ahead building this Database. It is long overdue that we as a Parliament consider the issue; and that is why I appreciate the fact that the Committee is having this very important inquiry. The second thing to say is that it is very important, in discussing this issue, to retain a distinction in your mind between guilty people and innocent people. Nobody queries the fact that guilty people should have their DNA kept on the Database for a period of time; this debate is about what you do about innocent people. In relation to the effect on the community, it is very serious. I have been campaigning with Liberty on this subject for some time, and last year we held a special advice clinic to help young people, people under 16, and innocent people to try and help them get their DNA off the Database. I got a tremendous response, even from people that were not coming to the clinic. They got back to me to say how glad they were to hear that Liberty and I were doing this, and how concerned they were about it. We held the clinic; Liberty's lawyers gave advice; I spoke though to all of the parents that were there—because it was parents that came with children—and I think it is one of a whole set of things, like arresting people on suspicion, which puts a gulf between the police and the community.

  Q2  Chairman: Yes, but do you not agree, the communities who are affected by crime—in particular the ethnic minority communities—surely would welcome the fact that information is being retained on the DNA Database, because it would help the police solve more crimes?

  Ms Abbott: It is precisely because I represent a community both black and white, Muslim and Christian, which is particularly affected by crime that I am particularly concerned about this issue. The only way you can successfully act against crime in areas like Hackney is if the police have the cooperation of the community. I would contend that the existence of the DNA Database, the fact it has never properly been debated, the random way DNA is collected, the difficulties put in the way of innocent people trying to get their DNA off the Database, actually undermines police/community cooperation and that is a very serious matter. Without that cooperation we cannot fight crime.

  Q3  Chairman: In your joint project with Liberty—and you mentioned some of these examples during the debate in Westminster Hall—you came across a number of individuals who had been trying to get their DNA removed from the Database. I think you mentioned in particular a young black woman who had gone into Primark with a receipt for an item of clothing that she had already purchased, who was subsequently arrested and whose DNA remains on the Database. Could you give us other examples of the types of people who have been involved in the project that you and Liberty are jointly conducting?

  Ms Abbott: For instance, we had a young man in Greenwich Park who was having a water-fight—Greenwich Park is quite a large park—in another part of the park an assault took place and the police came and arrested all the young people who had been in the park. Four days later the police came to his house and arrested him; he was taken to the police station; DNA; prints; photographs taken; interviewed; but no further action was taken. Up until now they have not been prepared to take his DNA off the Database. There was a case you mentioned: a young woman aged 24 at the time of arrest; she went to Primark to return some goods she had bought the day before; she was wearing a Primark sweater that she had bought the day before and mindful of that she brought with her the receipt for the sweater that she had on. She was still arrested on suspicion of having stolen the sweater she was wearing, despite the receipt; arrested; taken to the police station; DNA; prints; photographs taken. She was finally released because they looked at the receipt, but they are still holding on to her DNA. That sort of thing does not build confidence in the community.

  Q4  Tom Brake: Ms Sankey, could you tell us how many people, for instance, have had their DNA retained in spite of the fact they have committed no offence? Do you happen to know how many people have sought to get their DNA removed, and how many have been successful? Can you give us some hard facts about what this problem looks like in terms of scale?

  Ms Sankey: I do not have statistics about the number that have sought to have their DNA removed, I am afraid; but I do know that in 2007-08 there were a total of 162 profiles deleted from the Database and that in 2008-09 there were a total of 283 profiles removed. At Liberty we have sought on several occasions, with many of the people that come to us, to request removal of DNA for innocent people and we have found it extremely difficult; not least because of the ACPO guidance that is currently in place, which sets out the Exceptional Case Procedure for when deletion can happen, which sets the bar extremely high. Deletions are only really taking place when it is found (1) that an offence was not committed at all for the arrest that was made; or (2) where the arrest was made unlawfully; or where the DNA sample was taken unlawfully. We know that chief constables are instructed to reject the deletion request when it is first made and only consider a second request, so the bar is exceptionally high. We found it very difficult to achieve deletion, but we do know that the more publicity and the higher profile a case is the more likely it is that deletion will take place.

  Q5  Tom Brake: Do you maintain a database of cases that you have taken up? In other words, can you tell us how many of the cases that have been raised with you have been deleted, that the individuals have had their DNA deleted?

  Ms Sankey: Our litigators would have that information. We are, all the time, asking people to come forward if they have their DNA on the Database, are innocent, and wish to have it removed. We are providing advice and information to those people and seeking to litigate on their behalf as things stand with the current retention regime.

  Q6  Tom Brake: It might be useful for the Committee if your litigators were able to provide that information. In other words, how many people in the last year, say, have contacted you seeking to have their DNA removed, and how many have subsequently been successful in doing that.

  Ms Sankey: Absolutely; we can provide that information.

  Ms Abbott: In relation to the size of the problem, the Committee will be aware that 77% of young black men under the age of 25 have their DNA on the Database

  Q7  David Davies: You will be aware that only 5-10% of crimes that are committed end in a conviction, so is it not likely that a large percentage of those arrested but not found guilty of an offence will nevertheless have actually carried it out?

  Ms Sankey: I think it is difficult to speculate on people that have not been—

  Q8  David Davies: It is not difficult to speculate that only 5-10% of all crimes end in a conviction. We know there has quite rightly been a huge outcry over the fact that it is about 9% with rape, and that is actually higher than most other crimes; for burglary it is about 5%. That is not speculation; that is a fact.

  Ms Sankey: There is nothing that suggests that those innocent people who are on the DNA Database are any more likely to have committed a crime than those who are not on it at all.

  Q9  David Davies: Somebody who is arrested because the police believe there is reason to believe they may have committed a crime is no more likely to have done so than somebody who has never been arrested in their life?

  Ms Abbott: Can I just make a simple—

  Q10  David Davies: No, I am just interested in Liberty's answer to this.

  Ms Abbott: I am going to allow my Liberty colleague to speak, but it is very important in this inquiry that you keep a clear distinction between innocent people and guilty people because that is the cornerstone of our criminal justice system.

  Q11  David Davies: Is it not also important that we differentiate between those who are not taken to court, not prosecuted or found guilty of a crime, but nevertheless may well have committed one? Is it not important to bear that in mind? Ms Abbott, you must be aware of the rape cases and outraged about that?

  Ms Sankey: Could I just say, to clarify our position, we have never said that no innocent person can ever be retained on the DNA Database. We understand that in exceptional circumstances you might be able to frame a DNA retention regime which allows for retention for a limited period for those who have not yet been prosecuted, or against whom charges were brought, prosecution began and was not completed. We recognise that there are those exceptional cases where there is a certain amount of suspicion that remains and it would make sense, it would be pragmatic, to allow that DNA to be retained.

  Q12  David Davies: So you are not against it in principle. That is very important; thank you for clarifying that. You are not, in principle, against it; it is just the guidance that you want changed for keeping it for people not found guilty?

  Ms Sankey: We want the presumption to be different. Could I also say that when it comes to your question that these people might in fact be guilty although they have not been successfully convicted, it always remains possible for the police to retake DNA at the point of arrest. We have never objected to the idea that the police, when there is reasonable suspicion or when new evidence comes to light, can make an arrest and retake somebody's DNA. The fact that it is deleted from the Database does not mean that it will never go back on, or the police can never obtain it again, it is the idea of retaining innocent people's DNA indefinitely that we object to.

  Q13  Bob Russell: Notwithstanding your answers so far, what are your main objections to the proposals about retention of DNA in the Crime and Security Bill?

  Ms Sankey: In light of the Crime and Security Bill I think the first thing to say is that we welcome the fact the Government has finally recognised that this issue needs to be addressed in primary legislation, having dropped, of course, the regulations from the Policing and Crime Bill last year. Our main objection to the current proposals in the Bill is the six-year retention proposal for innocent people. We do not believe the Government is fully accepting of the principles laid out in the S and Marper judgment by the European Court of Human Rights. We think they are grudgingly doing as little as they think is necessary to try and comply with that judgment. We do not believe that a six-year retention period would comply. I think the Council of Ministers, when they met last in September, indicated the same, that proportionality requirements would not be met with a six-year retention period for innocent people.

  Q14  Bob Russell: Six years would be an improvement on the current situation. If not six years, what figure would you give, if any?

  Ms Sankey: We believe that innocent people as a matter of principle should have their DNA deleted once it is decided that prosecution will not go ahead; and then a fixed period should be put as a cap to ensure that DNA is deleted after that decision has been made.

  Q15  Bob Russell: So six years is not the objection, the objection is the retention over any period?

  Ms Sankey: Exactly, the principle that you would automatically retain innocent people's DNA, rather than presume that you are going to delete it unless there are exceptional circumstances.

  Q16  Bob Russell: I just want to make it clear: it is not the six years you are objecting to; it is the principle of any period?

  Ms Sankey: Absolutely.

  Q17  Mr Winnick: Ms Abbott, you gave the impression in the debate—a very interesting debate (which I must confess I have read for the first time) in Westminster Hall in which the Chairman of this Committee also participated—that in your view the police were wrong to take DNA samples in the first place.

  Ms Abbott: If that is the impression you have had from reading the debate this morning, I apologise. Let me make my position clear: first of all, nobody objects to keeping the DNA of guilty people. The question is what do you do with the DNA of innocent people? Everybody, including Liberty, accepts there are circumstances in which you should keep the DNA of innocent people. The question is that those circumstances have never been codified, and that is partly to do with the fact we have never had a proper debate in Parliament. I would suggest to the Committee there are two possibilities: one is that the courts should be allowed to direct when a case is concluded; that people have been found innocent yet nonetheless the court is directing their DNA should be kept. That would certainly be acceptable to the people I am working with. The other option is to say there are certain categories of crime—violent crime and sexual crime—and in those cases you would keep the DNA. I am not saying, nor is Liberty saying, you should never keep the DNA of innocent people. It should be codified: either the courts should direct; or you should specify the types of crimes for which this is kept. Just to respond to my colleague Bob Russell's point about the Government's proposals: first of all, many lawyers do not believe that the Government's proposals are actually compliant with what the European Court was saying; but, secondly, the Government did invite contributions as to what it should do, and it seems in its proposals to have completely ignored them. That is not unusual, you will tell me, but that is one of the reasons one objects to it.

  Q18  Mr Winnick: If I understand you right, Ms Abbott, and you will correct me obviously if this is not your position, if someone has been arrested but not charged with certain offences of violence and has been released you would be in favour of a DNA profile being kept by the police?

  Ms Abbott: Yes. I think we should debate it.

  Q19  Mr Winnick: Debate it as we like, but at the end of the day a decision has to be reached. Again, if I can just pursue the point: someone has been arrested for some very serious offence, not charged for all kinds of reasons, first and foremost presumably because there is a lack of evidence, but you would not object to that profile being retained by the police?

  Ms Abbott: I would not want to make law at a select committee hearing.

  Q20  Mr Winnick: You do not want to say yes or no to that?

  Ms Abbott: I am going to say this: I would support certain specific circumstances either where the court directed, or where it involved crimes of violence or sexuality, where it was codified that DNA would be kept. What I do not accept is that all innocent people's DNA, whatever their age, can be kept willy-nilly.

  Q21  Mr Winnick: Do you accept, Ms Abbott, that retaining DNA profiles by the police does help at the end of it all to substantially reduce criminality?

  Ms Abbott: That is an interesting point, Mr Winnick. The problem is, although the police and other people you will get evidence from later this morning will give you certain high profile cases where the DNA of innocent people has enabled them to solve the crime, there is no conclusive research to prove that overall keeping the DNA of innocent people helps you to clear up crime. I would point out that the inventor, if you like, of the DNA technique, Sir Alec Jeffreys, is vehemently opposed to keeping the DNA of innocent people; he says it is too random a weapon.

  Chairman: We will in fact be inviting him to come to give evidence next week on this.

  Q22  Tom Brake: Could I just ask, Ms Sankey, you said there are exceptional circumstances in which you think the DNA could be retained and is your position the same as Ms Abbott's in terms of a court directing that it should be retained in the case of violent and sexual crimes or is your position different?

  Ms Sankey: Liberty, in pursuing our campaign on the DNA Database, has always said we need a much more proportionate framework for DNA retention. We have always said in framing the new DNA retention regime, you could look at a number of factors. For example, it could be those suspected offences where DNA is particularly relevant, like violent or sexual offences; it could be if somebody is suspected of more than one offence; it could be where there has been shown to be a propensity to re-offend. There are a number of things you could do to frame the keeping of DNA for a limited period in certain special circumstances. It would be preferable if that was laid down as set criteria and it was not left to be done on a case-by-case basis by a court because the latter might have the effect of implying guilt at least in the mind of the person whom it concerns. Another possible way of squaring the circle would be to look to the Scottish system, where it is that if proceedings have been brought against an individual you can hold on to their DNA but for a limited period of time. So those who are arrested and nothing further is done do not have their DNA retained, but those against whom a prosecution is brought but is dropped for whatever reason do have their DNA retained. These would all be much more proportionate ways of making sure that the right people are kept on the Database and the right people are taken off.

  Q23  Bob Russell: I think the most recent answers we have had to questions from Mr Winnick and Mr Brake have caused confusion rather than clarification as to what should or should not be on the DNA Database. Ms Abbott, would you be happy if everyone's DNA was on the Database?

  Ms Abbott: That would have the benefit of being intellectually coherent, but in practice you would be talking about a huge, impracticable project. I am sorry that you are confused. I am saying that if you are going to keep innocent people's DNA on the Database it should be in clear, codified circumstances. I think that is clear enough.

  Q24  Bob Russell: Liberty's position? Everybody?

  Ms Sankey: Absolutely not. As Ms Abbott has said, a universal database would of course lend itself in terms of intellectual coherence. It would also do something to sort out the current discrimination problem that we have with the way the DNA Database is constituted, but it would not be proportionate and it would not be necessary either. There is also, of course, always the risk that the more profiles you upload and keep on there the more likelihood there is of mistakes being made, of bad matches being made, of the Database being corrupted and potentially discredited in the courts. This is something Liberty certainly would not want to see because we believe in the value of DNA evidence in securing convictions.

  Q25  Bob Russell: With your international connections, are you aware of any countries where there is total DNA Database of all its citizens?

  Ms Sankey: I am not aware of any such country. I do know that we have the largest DNA Database in Europe and the largest DNA Database per capita in the world.

  Q26  Chairman: Both of your positions are that although you would understand the logic of having a Database that contained everybody's names you are both against having a Database that has the samples of every single member of the public on it?

  Ms Abbott: In principle I can see the logic; in practice it would be entirely wrong.

  Q27  Chairman: That is your position as well, is it, Ms Sankey?

  Ms Sankey: Absolutely. In principle there are things that lend themselves to that view, but it would be wholly disproportionate and a complete invasion of privacy on a scale we have never seen.

  Q28  Gwyn Prosser: Ms Sankey, Ms Abbott has made the point that although there has been quite a lot of anecdotal evidence about some high profile cases where a so-called innocent sample has led to prosecution, especially in rape and murder cases—and also we have been told there is no in-depth research being done—do you have a feel or is there anywhere where we could get access to the number of cases where the use of DNA has been solely or largely responsible for bringing people to justice?

  Ms Sankey: That is a very interesting question, and we do not believe that such a statistic exists. We also believe that if it did exist it would be negligible because the statistical test would be (1) that someone who is innocent has been retained on there (2) that has led to their conviction for an offence (3) and no other evidence could have led the police to them. That would be the test for whether or not statistically it makes sense to automatically keep innocent people on there. We have never been presented with those statistics. Interestingly, the high profile cases that you refer to, all of those such cases that have ever been presented to me, in interviews and otherwise, have always been cases where it is actually the taking of somebody's DNA, ostensibly for another purpose because they are suspected of another offence, that has led the police to see that they are actually linked to the crime scene of an earlier offence. It is not actually the retention of those people's DNA but the taking of it. As I said earlier, we have absolutely no problem with the taking of DNA on arrest.

  Q29  Gwyn Prosser: In your answer, Ms Sankey, you made the assertion that the results would be negligible. If the research was done on a rational basis and the results did show a significant link, would you then change your views about limiting and prescribing which records should be kept?

  Ms Sankey: Ultimately, decisions about how a DNA Database is constituted need to come down to two things: statistics, but principally principles; And the Government is currently failing to take a principled approach to DNA retention. In a free society there are always more things we could do to detect a couple more crimes, to secure a couple more convictions, whether it is having curfews for every man, woman and child, whether it is removing, for example, the need for reasonable suspicion before you arrest somebody. There are always more things that you could do. A universal DNA Database might be a way of securing a few more convictions, but you need to come back to this idea of whether it is proportionate and whether that is the kind of society in which we want to live. We say, quite frankly, that automatically retaining the DNA of innocent individuals—which can of course reveal things about their ethnicity, their familial links, their life expectancy, their chance of getting disease—storing that and stockpiling that, as is currently done by the State, is not the kind of society we do want to live in.

  Q30  Gwyn Prosser: Ms Abbott, do you concur with that view?

  Ms Abbott: I had a meeting with the officer at the Metropolitan Police who is responsible for these issues and he told me, certainly within the Metropolitan Police area, there is no substantive research which demonstrates a link between keeping the DNA of innocent people and the ability to clear up crime. I would point out as well that we have this sort of catch-all system here in England, very different from Scotland and very different from other European countries. There is no evidence at all to show that our approach to the DNA Database has impacted on our crime levels relative to countries which actually have a DNA Database which is more compliant with the European Human Rights situation.

  Q31  Mr Winnick: Being the devil's advocate if you like—that is part of our job obviously on a select committee, as you know very well, Ms Abbott—I am just wondering whether you dismissed too lightly in the Westminster Hall debate when the Minister gave an example of the retention of DNA. He mentioned Steve Wright, who was later convicted of murdering five prostitutes in Ipswich in 2003. His DNA sample, the Minister said, was taken when he was arrested on suspicion of theft—not the most serious offence—however, later, it matched the DNA from the body of one of the five women murdered in Ipswich which all led, fortunately, to this monster being convicted. We are all very pleased that such monsters are convicted of the murder of five innocent women. In those circumstances, I am just wondering if you did not dismiss the Minister, because you intervened immediately after him and said that this was a dramatic matter but what about other issues. Did you really take seriously the point the Minister was making at the time?

  Ms Abbott: Mr Winnick, I would never dismiss a Minister. My point is this: you can always point to individual instances where keeping the DNA of an innocent person has helped to clear up a crime. What there is no statistical basis for saying is that keeping the DNA of innocent people overall helps to bring down the levels of crime. Quickly, because I know the Chairman wants to move on, a point I have not been asked on but I think—

  Q32  Mr Winnick: But it helped in the case of Wright, did it not? He was convicted.

  Ms Abbott: In an individual case, Mr Winnick. Show me the stats which show that it helps overall. The point I wanted to make very briefly is this issue of innocent people getting their DNA taken off the Database; which brings me back to the first point the Chairman made to me. Nothing causes more upset in a community than how difficult it is for innocent people—maybe they were bystanders; it is often the case we have dealt with people who just happen to be around—and the difficulty and the difference between police districts. If we are going to take a step forward on this issue there should be a clear, transparent, codified and uniform system for people who are undoubtedly innocent, who perhaps have not committed a crime for very many years, to be able to get their DNA off the Database. That would go a long way to restoring police confidence.

  Mr Winnick: It does not feel right, but we understand that point.

  Q33  Tom Brake: Presumably if there is no research that shows that holding people's DNA on a Database is effective in tackling crime, there is also no research that shows, for instance, that spending money on maintaining records of innocent people and their DNA, and that quite heavy administrative process dealing with complaints that come in about it, is a more effective way of spending money than, for instance, investing in training more specialist police officers dealing with rape cases. Is there any evidence that shows that it has a significant cost-benefit advantage?

  Ms Abbott: There is no evidence that it has a cost-benefit advantage and there is ample evidence, as I say, that it undermines community cooperation with the police, which is vital to fighting crime.

  Q34  Mrs Cryer: At the moment an innocent person wishing to have their DNA record removed from the National Database apparently has to go through certain procedures which finish up with the chief police officer of that area, and he can determine whether or not it is removed. It has been suggested that this could lead to a certain amount of patchiness from one area to another, because there are different chief police officers for each area. It has been suggested that instead of it going as a final court of appeal to the chief police officer, it could go to an organisation called the National Policing Improvement Agency. Would either of you prefer that route to the existing one?

  Ms Sankey: We do not believe that the problem with the current system is down to the fact that the discretion lies with the chief constables; in fact we would not want to put any blame at their doors for the chaos that we are now in with the DNA deletion system. We think that actually it is because Parliament has left a vacuum here while saying that the discretion lies with the chief constables, passing the responsibility over to them. This vacuum has, of course, been filled by the ACPO guidance which, as I said earlier, sets the bar so high for deletion as to be almost impossible to reach. For us that is the real problem here.

  Q35  Chairman: The point Mrs Cryer is making is should there be one body, like the NPIA, that should deal with these requests; and therefore you avoid the postcode lottery that clearly is in existence? It does not deal with the issue of discretion; but should there be one authority that deals with all requests, rather than 42 chief constables?

  Ms Sankey: We have never taken issue with the idea that the chief constables, as with so much of the discretion that they have, have a discretion in this instance; but what we would like to see is much better guidance set out in statute for how they exercise their discretion.

  Q36  Chairman: But they still retain the discretion under your system?

  Ms Sankey: Of course, accompanied by requirements to delete innocent people's DNA as soon as they have decided not to go ahead with prosecution, but there needs to be a much, more robust discretion left to them in legislation, along with guidance about how they exercise it.

  Ms Abbott: Speaking as a constituency MP and someone who has gone to a lot of trouble mailing people on various databases who are concerned about this issue, I would welcome a single consistent and transparent system for innocent people, however you deem them to be innocent; maybe they have not been involved with the police for 10 years or whatever, a single, consistent national coherent system for removing your DNA from the Database. You have just explained to the Committee what the system is, or what the system is supposed to be in theory. In practice, I had a case of a 14-year old girl who happened to be in the back of a car that was stopped by the police; they were just giving her a lift home from a party; she was 14 years of age; she was taken back to a police station with the other older people, put in a cell and had her DNA taken. She had no criminal record whatsoever; no-one in the end was charged as a result of this car being stopped. It took myself and another MP two years to get her DNA removed. What the police told us at every point was they had no choice; they had to keep the DNA. It is because of dealing with cases like that I am actually quite keen on a single national transparent explicit system for getting innocent people's DNA off the database.

  Q37  Mrs Cryer: In the case you are talking about, was it the case that the chief police officer said, "No, we're not removing it"; or was it that it never got to him? Was it delays on the route to him?

  Ms Abbott: It never got to him. First of all, I wrote to the local police who said they had not stopped the car, it was the special patrol group; and then the special patrol group wrote back to me and said there was nothing they could do. In fact, they brought the parents in and told them, "We can do nothing. Parliament insists we keep all this DNA". I then wrote to the Police Minister, who then was Tony McNulty, who said, "No, no, no. It's at the discretion of the chief constable". It was only at that point, when I put it to the Minister, that they said it was at the discretion of the chief constable. It went back to the Met and they said, "Unless there are exceptional circumstances, we're not willing to take the DNA off". I believe with innocent people, who have no criminal record and so forth, there ought to be some sort of presumption of taking the DNA off rather than the other way around. There should not be the inconsistency

  Chairman: Ms Abbott, Ms Sankey, thank you very much for giving evidence this morning, it has been very useful.

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