The National DNA Database - Home Affairs Committee Contents

Memorandum submitted by GeneWatch UK

  GeneWatch UK is a not-for-profit organisation which aims to ensure that genetics is used in the public interest. The organisation began investigating the issues associated with the expansion of the National DNA Database in 2003 and we published the first report about the database in January 2005.[1] Since then, we have responded to every consultation on this issue, published articles, and supplied written and/or oral evidence to numerous committees, including to the Scottish Parliament's Justice 2 Committee in 2006, and to the European Court of Human Rights on behalf of S. and Marper. We created a "Reclaim your DNA" section of our website (www.genewatch.org) in 2006 and a new website jointly with other organisations in 2009 (www.reclaimyourdna.org).

  GeneWatch has consistently argued that new legislation governing the DNA Database could be adopted which significantly improves protection for human rights, is compliant with the European Court of Human Rights' judgment on this issue, regains much of the loss of public trust in policing, and does not have an adverse impact on crime detection or prevention.

  This is possible because Home Office figures suggest that expanding the Database to include DNA profiles from more individuals has not helped to solve more crimes. Collecting DNA is often very useful during a criminal investigation, but storing DNA profiles from hundreds of thousands of innocent people has made a minimal contribution to solved crimes.

  The relevant evidence is explained below. Numerous errors in the evidence provided to you by the police and minister are corrected.

BACKGROUND: HOW THE DNA DATABASE WORKS

  It is important to distinguish clearly between the role of DNA in a specific criminal investigation and the role of the DNA Database. DNA databases are not required to provide evidence of guilt or innocence when there is a known group of suspects for a crime—a DNA sample can be taken from each individual and the DNA profile (a string of numbers based on specific areas of each individual's DNA) can be compared directly with a crime scene profile. There is little cause for concern in using DNA samples in this way and there can be significant benefits to criminal investigations. In practice, these comparisons are made using the Database—by entering both the crime scene profile and the suspect's profile on it. However, looking for a DNA match for a known group of suspects for a specific crime does not require a database: in particular it does not require DNA profiles to be retained after an investigation is complete.

  The retention of DNA profiles and samples taken from crime scenes on the Database can readily be justified because they might be useful if an investigation needs to be re-opened in the future (either to convict a perpetrator, or to exonerate an innocent person). The human rights concerns relate to the widening of the group of individuals (not crime scene samples) from whom DNA can be taken and then retained on the database. This is because:

— DNA can be used to track individuals or their relatives, so the Database could be misused by Governments or anyone who can infiltrate the system;

— DNA records are linked to Police National Computer records of arrest, which can be used to refuse someone a visa or a job, or lead to them being treated differently by the police; and

— DNA is not foolproof, so people on the Database can be falsely implicated in a crime.

  The purpose of entering an individual's DNA profile on the Database is to see if they are a potential suspect for a past crime. This may include a crime they have been arrested on suspicion of committing, if DNA evidence has been collected from that crime scene, although this type of comparison does not require a database. However, the search will also include any unsolved crime for which a DNA profile is stored from any past crime scene. Because DNA is taken from only a small proportion of crime scenes, and for only some types of offences, in most cases the DNA taken from an individual on arrest is only relevant to other past crimes, not to the offence for which they have been arrested. The value of the database is in providing "cold hits" (unanticipated matches between a crime scene DNA profile and an individual's DNA profile), which use the Database to introduce a new suspect into an investigation. The purpose of entering increasing numbers of DNA profiles on the Database (unrelated to the reason for arrest) is that it may allow investigation of a past crime to be re-opened, by 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 (or, perhaps, to be deterred from re-offending by the retention of their profile).

  Although DNA can undoubtedly be useful to exonerate the innocent, a database of individual DNA profiles (as opposed to crime scene profiles) is never necessary to exonerate an innocent person, since this can always be done by comparing the DNA profile of the innocent suspect directly with the crime scene DNA profile. The "added value" of putting individuals on the Database is only to introduce new suspects into a past or future investigation, not to exonerate the innocent. This depends on the number of "cold hits" (unanticipated DNA matches) and the extent to which these matches lead to successful prosecutions.

NUMBER OF SOLVED CRIMES

  Chief Constable Sims, of the Association of Chief Police Officers (ACPO), stated in evidence to you that 33,000 crimes (0.67% of recorded crimes) had been solved last year "solely or largely by the DNA database". This claim was reiterated by the minister. This claim is incorrect: it is a significant overestimate of the number of solved crimes.

  We presume that Chief Constable Sims was referring to the 31,915 DNA detections (17,463 direct detections, and 14,452 indirect detections) recorded in 2008-09 (see Table 1). Direct detections are detections in which a DNA match is involved. Indirect detections are additional crimes that may be detected following the match (for example, if the suspect then confesses to more crimes).

  The first problem with the ACPO claim is that these are detections not convictions. Detections are crimes considered to have been "cleared up" by the police, usually because someone has been prosecuted. They are not solved crimes. There are no figures on crimes solved using DNA. However, the Home Office has estimated in the past that some 50% of detections lead to convictions and some 25% lead to a custodial sentence.[2]

  The second problem with the Chief Constable's claim is that DNA detections are not detections achieved "solely or largely" through the use of the DNA database.

  Direct DNA detections are of three types:

1. Detections where the suspect was first identified by other means and whose DNA matches the crime scene DNA available for the offence for which he/she was arrested.

2. Detections where the suspect's DNA profile is loaded to the NDNAD and makes a "cold hit" with a stored crime scene DNA profile, as a result of a speculative search against all crime scenes other than that for which they have been arrested, and where sufficient other evidence exists to prosecute him/her for the crime.

3. Detections where a crime scene DNA profile is loaded and makes a "cold hit" with a stored individual's DNA profile, and where sufficient additional evidence exists to prosecute that individual for the crime.

  The first type of DNA detection does not require a database, since DNA can be taken directly from the individual who is suspected of committing the offence, and the second type requires only a database of stored crime scene DNA profiles. Only the third type of DNA detection represents those detections that would be lost or delayed if a DNA database of individuals' DNA profiles did not exist. (Nobody objects to the indefinite retention of crime scene DNA profiles on a database).

  No figures are available for the breakdown of DNA detections into these three types. As far as we aware, the only available estimate for the proportion of "cold hit" detections comes from a research exercise carried out in 2002-03, reported in the Home Office's 2006 report on the DNA Expansion Programme.[3] The study followed 620 cases involving DNA matches and found that in 58% of all detected cases, the DNA match was the first link to the offender. Assuming these cases are representative and that this percentage has not changed, we can estimate that 42% of the 17,462 direct DNA detections recorded in 2006-07 were "known suspect" detections (7,334 DNA detections) and 58% were "cold hit" detections (10,128). It should be noted that here is considerable uncertainty in this split due to the lack of an up-to-date and reliable figure on the proportion of cold hits (matches where the individual had not been previously identified as a suspect for that crime before their DNA was taken).

Table 1

DNA DETECTIONS 1998-99 TO 2008-09

	1998-99	1999-2000	2000-01	2001-02	2002-03	2003-04	2004-05	2005-06	2006-07	2007-08	2008-09
Number of DNA profiles stored from individuals*	517,000	737,000	1,186,000	1,695,000	2,099,964	2,527,728	3,085,766	3,785,571	4,428,376	5,056,740	5,607,614
Direct DNA detections	6,151	8,612	14,785	15,894	21,098	20,489	19,873	20,349	19,949	17,614	17,463
Recorded crimes	5,109,089	5,301,187	5,170,843	5,525,024	5,974,960	6,013,579	5,637,511	5,555,174	5,427,559	4,950,671	4,703,800
% of recorded crimes detected involving a DNA match (direct DNA detections)	0.12	0.16	0.29	0.29	0.35	0.34	0.35	0.37	0.37	0.36	0.37
Indirect detections ‡	N/A	N/A	N/A	6,509	12,717	15,899	15,732	19,960	21,199	15,420	14,452
% of recorded crimes with direct or indirect detection	N/A	N/A	N/A	0.41	0.57	0.61	0.63	0.73	0.76	0.67	0.68
Crime scene DNA profiles added per year	11,951	16,844	27,104	40,296	61,431	60,226	59,247	68,774	55,217	50,579	49,572
Individuals' DNA profiles loaded per year	243,199	213,075	389,951	501,212	488,519	475,297	521,118	715,145	722,476	591,028	580,174
Direct detections per crime scene DNA sample loaded	0.51	0.51	0.55	0.39	0.34	0.34	0.34	0.30	0.36	0.35	0.35

*  Note that the number of individuals with records on the DNA Database is lower than this, since 10% to 13.7% of the records are replicates (this percentage varies in different years).

‡  Indirect detections occur if eg the suspect confesses to additional crimes.

N/A = Not available

Note:  A very small number of additional DNA detections may not be included in the figures: these are detections involving a match with a volunteer's DNA profile in circumstances where the volunteer has given consent for their sample to be used in a specific investigation only and refused permission for it to be loaded to the database. Everyone who is arrested for a recordable offence in England, Wales and Northern Ireland now has their DNA profile added to the Database as a matter of routine.

Sources:  National DNA Database Annual reports since 2002-03. Earlier detections from Hansard 10 Sep 2008 : Column 1866W.4 Recorded crimes from Home Office reports.

4  Available on: http:www.parliament.the-stationery-office.com/pas/cm200708/cmhansrd/cm080910/text/080910w0018.htm

  Of these 10,128 "cold hit" detections, some will be of the second type listed above (a loaded suspect's profile matching a stored crime scene profile) and some will be of the third type (a loaded crime scene profile matching a stored suspect's profile). Only the latter detections would be lost or delayed if a DNA database of individuals' profiles did not exist. The recent Home Office consultation (Annex D, p 65)[4] gave a 1.4% probability that a subject is matched to the DNA database for a crime other than that for which they were arrested. According to the National DNA Database Annual Report 2007-09,[5] 580,174 individuals' DNA profiles were loaded to the database in 2008-09. This suggests that 8,122 direct DNA detections in 2008-09 (1.4% of the number of individuals' DNA profiles loaded) followed from "cold hits" between loaded individuals' profiles and stored crime scene DNA profiles. Again this is an estimate, based on the 1.4% probability cited by the Home Office, which may vary from year to year. The remaining 2006 direct DNA detections (10,128 "cold hit" detections, minus the 8,122 made when the individual's profile was loaded, rather than as a result of it being stored) are of the third type listed above—ie they involve matches between a loaded crime scene DNA profile and a stored individual's profile and did rely on the existence of a DNA database of individuals' profiles. These detections may be associated with additional indirect DNA detections (for example, if the suspect confesses to further crimes). There would be an estimated 1,660 indirect DNA detections, if the ratio of indirect to direct DNA detections is the same however the match is made, giving 3,666 detections in total.

  Thus we can estimate that, in 2008-09, 2,006 direct DNA detections and 1,660 indirect detections might have been lost or delayed if a DNA database of individuals' profiles did not exist at all. Using the Home Office figure cited above, about half of these detections (1,883) could be expected to lead to convictions. This is 0.033% of recorded crimes (Table 1), more than an order of magnitude lower than the figure provided to you by ACPO. Moreover, a high proportion of these crimes would be solved later rather than not solved at all because, provided the crime scene DNA profile is still stored, the same individual's profile could be matched later if they are arrested or charged on suspicion of committing another future crime. It should be noted that the vast majority of these will be volume crimes such as burglary and theft (discussed further below).

SOLVED CRIMES DUE TO RETAINING INNOCENT PEOPLE'S DNA PROFILES

  The number of DNA detections that would be lost or delayed if innocent people's DNA profiles were removed from the Database is obviously only a fraction of the estimated 3,666 detections (2,006 direct and 1,660 indirect) that would have been lost or delayed in 2008-09 if a computer database of individuals' DNA profiles did not exist at all.

  At 24 April 2009, there were an estimated 986,185 persons with records on the National DNA Database with no record of conviction, caution, reprimand or final warning on the Police National Computer (PNC). This is 21% of an estimated of 4,587,430 persons in total (note, this is lower than the number of profiles indicated in Table 1, because some of the profiles are replicates from the same person).[6] Persons with no record of caution, conviction, reprimand or final warning on the PNC will include some persons awaiting trial and others with an old (pre-2000) caution from the days when records of cautions were still weeded from the PNC, but the majority will be innocent of any offence.

  If DNA profiles retained from innocent people were equally likely to be involved in a DNA detection compared to DNA profiles retained from persons convicted of an offence, we would expect about 21% of the lost or delayed detections to arise if only innocent people were removed from the Database: this would give an estimate of 431 direct detections and 357 indirect detections. However, we know that the correct number must be less than this because most offences are committed by people with previous convictions (and a large proportion by a small number of repeat offenders). In 2007 (the latest year for which figures appear to be available), 12% of offenders had no previous conviction or caution, compared to 25% who had 15.[7] Unfortunately, this still does not provide us with enough information to work out the number of DNA detections which relate to profiles from innocent people. However, if stored DNA profiles from innocent people were half as likely as stored DNA profiles from convicted people to be involved in a DNA detection, we would expect 216 direct detections and 178 indirect detections to be lost or delayed if innocent people were removed from the DNA Database. This is equivalent to only about 200 convictions in total (half the number of detections). Graphs provided by the Home Office in the consultation documents (Annex D, p 88) suggest that the likelihood of that a member of the general population receives a conviction or caution in a given year is about 2%, compared to about a 28% likelihood of reconviction/caution for offenders in their first year after arrest. If stored DNA profiles from innocent people were 10 times less likely than stored DNA profiles from convicted people to be involved in a DNA detection, we would expect 43 direct detections and 36 indirect detections to be lost or delayed if innocent people were removed from the DNA Database. This is equivalent to only about 40 convictions in total.

  We can therefore estimate that somewhere between 40 and 200 convictions may have resulted from the retention of DNA profiles from innocent people in 2008-09. It should be stressed that this is very much an estimate, due to uncertainty in the figures provided by the Home Office and gaps in information. Most of these convictions would relate to volume crimes (only 1% of DNA detections relate to rapes and 0.4% to murder/manslaughter, see below) and most detections would be delayed rather than lost because, provided the crime scene DNA profile is stored, the DNA match will occur if the individual is arrested or charged with another offence in the future. This figure includes both direct and indirect detections.

  In its consultation "Keeping the Right People on the DNA Database", the Home Office provided estimates of "lost" detections due to removing unconvicted persons from the database, as part of its Impact Assessment.[8] However, the model used to calculate these lost detections is substantially in error due to the failure to account for the different types of detections cited above, and the erroneous assumption that persons arrested but not convicted are as likely to commit crimes as those convicted of an offence (based on the widely criticised research by the Jill Dando Institute, see below). It is difficult to give a more reliable estimate without access to more data and without developing our own model of the database, but GeneWatch's preliminary estimate is that the Home Office's calculations could be up to two orders of magnitude in error.[9], [10], [11]

IMPACT OF CHANGES IN LEGISLATION ON DNA DETECTIONS

  The figures provided in Table 1 show how the number of DNA detections has changed with time.

  The Criminal Justice Act 2003, which allowed the collection of DNA on arrest rather than charge, came into force in April 2004. As Table 1 shows, the number of crimes detected involving a DNA match has fallen since this time (note that the total direct detections include all three types, as described above, but that an increase in "cold hits" should still increase the total). The Home Office has sometimes argued that this is because the total number of recorded crimes has also fallen. But the percentage of recorded crimes involving direct DNA detections has remained roughly constant since 2002-03. Thus, the Table clearly shows that there has been no noticeable increase in crimes detected using DNA since the Act came into force.

  The Criminal Justice and Police Act 2001 was adopted in May 2001. It allowed DNA profiles (at that time, collected on charge) to be retained indefinitely if a person was acquitted or charges dropped. It was also applied retrospectively to the estimated 50,000 innocent individuals' DNA profiles retained illegally at that time. As a result of the later decision to collect DNA on arrest, the DNA profiles of persons arrested but not charged have also been retained indefinitely since April 2004. The number of DNA detections increased somewhat during the year following the adoption of the Criminal Justice and Police Act 2001 (there were 14,785 direct DNA detections in 2000-01, 15,894 in 2001-02, and 21,098 in 2002-03, see Table 1), before they began to fall. However, it would be a mistake to attribute this increase to the retention of innocent people's DNA profiles, because a significant increase in the number of crime scene DNA profiles was also taking place (see Table 1). It is this increase (resulting from a policy decision to collect more DNA from volume crime scenes such as burglary and theft) which peaked in 2002-03, explaining why there has been no subsequent increase in DNA detections. In its 2006 assessment of the DNA Expansion Programme, the Home Office confirms this when it states (paragraph 32, page 10)[12]: "Evaluation of the Programme has shown that the number of matches obtained from the Database (and the likelihood of identifying the person who committed the crime) is `driven' primarily by the number of crime scene profiles loaded onto the Database" [Emphasis added].

  Thus, the available data allows us to conclude that 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. In contrast, the policy decision to collect DNA from scenes of volume crimes, such as burglaries and thefts, has been successful. This is because the number of crimes detected is driven primarily by the number of crime scene DNA profiles loaded, not the number of individuals' profiles loaded or retained.

  GeneWatch first conducted an analysis along these lines in 2006.[13] We sent this analysis to members of the Scottish Parliament and to the Home Office Minister then responsible for the DNA Database, Andy Burnham. In a letter to us on 15 March 2006, Mr Burnham stated: "You raise important points about understanding the impact of DNA. The interpretation of statistics in the context of the processes which they represent is vital and your analysis of that set of crimes for which DNA provided a first link to the suspect is sound. These crimes are not the only ones in which DNA plays a useful contribution however. Despite the apparent `losses' through the investigative process that you note, the presence of DNA can have additional benefits not represented in the statistics, such as reducing the time of investigation, stopping offenders earlier in their criminal careers and reducing subsequent court time". [Emphasis added].

  The Nuffield Council on Bioethics subsequently drew attention to similar issues in its report "The forensic use of bioinformation: ethical issues",[14] noting (paragraph 5.52) that: "... There is very limited evidence indeed that the retention regime of England and Wales is effective in significantly improving detection rates ...".

ROLE IN VOLUME CRIMES AND BREAKDOWN BY CRIME TYPE

  Chief Constable Sims stated that 40% of burglaries were solved using DNA. This is incorrect.

  The percentage of recorded domestic burglaries involving a direct DNA detection in 2008-09 was 1.3%, as shown in Table 2.

Table 2

DNA MATCHES AND DETECTIONS BY CRIME TYPE 2008-09[15], [16]

	Crimes with a DNA scene- subject match	Detections of crimes in which a DNA match was available	Percentage of total DNA detections	Total recorded crimes	Percentage of DNA detections per recorded crime
All other recorded crime	3,699	1,506	8.62	799,457	0.19
Criminal damage	5,149	2,886	16.53	936,729	0.31
Domestic burglary	8,188	3,702	21.20	284,445	1.30
Drugs offences	1,110	397	2.27	242,907	0.16
Homicide‡	252	70	0.40	648	10.80
Other burglary	7,110	3,830	21.93	296,952	1.29
Other sex offences**	175	106	0.61	38,355	0.28
Other violent offences*	1,819	861	4.93	903,345	0.10
Rape
	580	168	0.96	13,133	1.28
Robbery	1,462	603	3.45	80,104	0.75
Theft from vehicle	3,484	2,036	11.66	969,990	0.21
Theft of vehicle	3,699	1,298	7.43	137,749	0.94
Total	36,727	17,463	100	4,703,814	0.37

‡  Murder plus manslaughter and infanticide

†  Total recorded rape of a female plus rape of a male.

*  Total recorded violence against the person offences, minus recorded homicide offences.

**  Total sexual offences, minus recorded rapes (male plus female).

  Since about half of these detections are expected to lead to a conviction, only 0.65% of burglaries are likely to be solved using DNA (ie to be cases involving a DNA match). As explained above, the number of burglaries solved as a result of keeping individuals' DNA profiles on a Database will be only a fraction of these: those where the DNA match was the first link to the offender and where the offender was already on the database (rather than being added after the crime scene profile was on the database). Above, we found that out of 17,463 direct detections, about 2006 were of this type (11.5%). According to Table 2, 21.2% of direct DNA detections in 2008-09 were for domestic burglary and 21.93% for other burglary. This suggests that only an estimated 865 burglaries involved direct detections as a result of keeping individuals' DNA profiles on the Database, corresponding to about 433 convictions. The number of burglaries solved due to keeping innocent people's DNA profiles will be a small fraction of these.

  We presume Chief Constable Sims was mistakenly citing the detections per crime scene DNA profile loaded (the DNA detection rate), which for burglary was 41% in 2004-05.

  The overall detection rate for burglary (detected crime/recorded crime) in the same year was 26%, thus clearly showing that a burglary is more likely to be detected if DNA is found at the crime scene. Again, this demonstrates the value of the policy decision to collect more DNA from volume crime scenes, but it provides no information regarding the extent to which the collection and retention of DNA profiles from different categories of individuals as been useful. Re-offending rates for burglary are high and in 2007 only 5% of those convicted of burglary were first time offenders.[17] This tends to suggest that the high probability of a match when a crime scene DNA profile from a burglary is loaded to the Database is because it contains the DNA profiles of convicted past offenders.

ROLE IN MURDER AND RAPE

  In his evidence, Chief Constable Sims claimed that 83 murders and 163 rapes had been solved in 2008-09 by the DNA database. He also stated that the DNA database plays a much more significant part in solving serious crimes than it does in volume crimes. Both claims are incorrect.

  The Chief Constable appears to be citing the number of serious crimes involving a direct DNA detection in 2007-08 (83 homicides and 184 rapes). The figures for 2008-09 are shown in Table 2 (when direct DNA detections occurred in 70 homicides and 168 rapes). These figures are detections not convictions and, as explained above, only some of them will have required the existence of a DNA database of individuals' DNA profiles.

  In terms of total numbers of crimes, Table 2 highlights the very small proportion of DNA detections that relate to homicide and rape (0.4% of the total DNA detections in 2008-09 related to homicide and 0.96% to rape). Using our estimate of 40 to 200 solved crimes due to the retention of innocent people's DNA (above), this would suggest that—including indirect detections (where the perpetrator confessed to the homicide or rape following a match to another crime)—something between one rape every six months to two years, and one homicide every one to five years might be solved due to retaining innocent people's DNA profiles. However, this is likely to be an overestimate, due to the evidence that the Database is in fact less effective at solving murders and rapes than volume crimes. Firstly, the proportion of cold hits can be expected to be less because murder and rape victims are likely to be known to their victims[18], [19] and thus the DNA is more likely to be taken from a known suspect than for other crimes (rather then requiring the suspect's profile to be on the database). Secondly, for rape, the ratio of detections to convictions is likely to be less. This is because DNA does not help to resolve disputes about consent, it only helps to establish the identity of the suspect. Proving the absence of consent is usually the most difficult part of a rape prosecution, and is the most common reason for a rape case to fail.[20] Finally, for murder cases, it is also often the victim's DNA rather than the perpetrator's that provides the crucial evidence (for example, by their blood being found on the clothing of the suspect, or in their house or car). It is not usually difficult to obtain the victim's DNA: this does not require a database.

  In its evaluation of the DNA Expansion Programme[21] (page 16), the Home Office explains: "DNA is proving to be most helpful in those crimes that are more difficult to detect, eg domestic burglary. Although it makes a relatively small contribution to all detections, it makes a powerful contribution to those cases in which it is available. The DNA detection rates for volume crime show striking increases—while the overall domestic burglary detection rate was 16%, the rate where DNA is available rises to 41%" [based on 2004-05 data] and "DNA has been shown to be of crucial importance in that subset of crimes where suspect identity is not immediately apparent, eg burglary and vehicle crime".

  Numerous Members of Parliament have sought information on the numbers of crimes that have been detected or solved as a result of the retention of unconvicted persons on the National DNA Database, by asking Parliamentary Questions. In each case, ministers have replied that this information is not available.[22] Calls for the Government to undertake or commission an assessment of the benefits of retention of DNA profiles from unconvicted persons have been made by academic researchers, GeneWatch UK, the House of Commons Science and Technology Committee and the Nuffield Council on Bioethics, all of whom have questioned the benefits of the Government's approach. No such assessment has been made. In 2005, the Police Liaison Officer for the Scottish DNA Database stated: "It is arguable that the general retention of profiles from the un-convicted has not been shown to significantly enhance criminal intelligence or detection"[23] and in 2006, the Justice 2 Committee of the Scottish Parliament sought further information regarding the benefits of DNA retention from unconvicted persons from the police. They were provided with only speculative cases.

  GeneWatch UK has been unable to identify any murders that have been solved as a result of the retention of innocent people's DNA profiles since 2001. We have examined every Parliamentary Question on DNA since 2005, all published reports, and the Government's evidence to the European Court of Human Rights. A figure of zero solved murders to date as a result of retaining innocent people's DNA profiles is consistent with our statistical analysis.

  In total, five rape cases have been cited by the police as having been solved due to the retention of an innocent person's DNA profile (these are described further below in the section on Scotland's legislation). One of these was a cold case which could have been solved more rapidly if old crime scene DNA evidence from serious cases was analysed more promptly (this is also explained below, in the section on cold cases). The other cases may be addressed by a targeted approach, similar to Scotland's legislation. Our statistical analysis suggests that these are probably the total number of solved rapes that involved the retention of an innocent person's DNA profile, not a subset of a much larger number of crimes. It seems likely that considerably more crimes involving violence against women could be prevented or solved if the money spent on expanding the DNA database was spent differently (see the section on costs, below).

MISLEADING CLAIMS ABOUT THE FIGURES FOR MURDERS AND RAPES

  A long series of misleading claims have been made by ministers, including the Prime Minister, about the number of murders and rapes solved due to retaining innocent people's DNA profiles on the Database.

  In 2006, the Association of Chief Police Officers in Scotland (ACPOS) claimed that 88 murders had been solved as a result of retaining innocent people's DNA in England and Wales. Similar claims have been made by ministers on multiple occassions.[24] In his 2008 speech on "Security and Liberty", the Prime Minister claimed that 114 murderers would "in all probability have got away" had the law not been changed to retain innocent people's DNA. These claims are demonstrably false. The main problem with them is the conflation of matches between individuals' DNA profiles and crime scene DNA profiles with actual solved crimes. Matches are not detections and (as explained above) detections are not convictions. The Committee may wish to read our history of these claims in full.[25] The Home Office's interesting response to this briefing, in which we highlighted that the Prime Minister's claim as false (and known by the Home Office to be so), was: "I think in this case we'll have to let the Prime Minister's words speak for themselves. The figures he quoted were publicly available from 2006."[26]

  On 25 June 2008, the then minister Tony McNulty referred, in evidence to the House of Lords Constitution Committee to: "... the litany of rapists, killers, child abusers who nominally on anybody's definition would fall into your innocent category, ie they have encountered the criminal justice system but the case has not been pursued against them, only for in some cases 15-20 years later horrendous crimes to be laid at that individual's door purely because of the individual's DNA sample being on the database".

  The minister appears to have confused the retention of individuals' DNA profiles on the Database with the re-analysis of old crime scene evidence carried out during cold case reviews (discussed further below). As noted above, no cases of solved murders have ever been cited which relied on the retention of innocent people's DNA.

  A new study of matches in homicide and rape cases during 2008-09 was carried out by ACPO last year.[27] GeneWatch has requested but not yet obtained a copy of this report. However, the study again appears report only matches, not detections or convictions (it is referred to by the NPIA[28] and the Home Office,[29] but with different figures cited, and was cited by the minister in January 2010).[30]

MISLEADING CLAIMS ABOUT INDIVIDUAL CASES

  The minister cited the Wright case in the Westminster Hall debate held on 9 December 2009, and it was used in cross-examination by Committee members as an example of a case that was solved as a result of the retention of an innocent person's DNA profile on the DNA Database. This case (and many other high profile cases cited by ministers) did not rely on the retention of an unconvicted person's DNA.

  Neither the conviction of Steve Wright, who murdered five women in Suffolk (but had a prior conviction for theft),[31] nor that of Mark Dixie, who killed Sally Anne Bowman (and was arrested subsequently during a pub brawl), would have been affected by a decision to remove innocent people's records from the Database.[32] Although Wright was a convicted person, whose DNA profile was already on the database, he was also a known suspect who had been stopped twice by the police before the crime scene DNA profile was obtained, since his car had been identified.[33] Thus his DNA could have been taken and matched with the crime scene DNA profile even if he had not been on the database. The delay in obtaining the match was due to a delay in obtaining a crime scene DNA profile, due to the bodies of his victims being submerged in water.

  The Committee may wish to note that the judgments in the Wright and Dixie cases were made a matter of days before the S. and Marper case appeared before the Grand Chamber of the European Court of Human Rights in February 2008. The cases were cited in the press and by Government Counsel in the Grand Chamber, alongside the R v B rape case originally used by the then Home Secretary Jack Straw to justify the 2001 legislation (described below).

  At the time, Sally Ann Bowman's mother was informed by the police officer who headed the investigation, that the murder would have been solved several months earlier had there been a universal DNA database including everyone in Britain.[34] Mrs Bowman was encouraged to start a campaign for such a universal database. Following the hearing, the Sun organised a delegation to Jack Straw's office, calling for a compulsory DNA database.[35]

  The Home Office cites support from Mrs Bowman in its 2009 consultation, yet it (rightly) has no intention of creating a universal database (which is opposed by ACPO and forensic scientists), nor would removing innocent people's records from the DNA database have had any impact on the case. Without stating that Mrs Bowman is calling for everyone to be on the database (which, as the Committee heard in evidence, ACPO and the minister oppose), the consultation (page 8) cites her as telling the Evening Standard:[36] "I am sick to death of people that complain about this idea. They have no idea what families like mine have gone through". The other cases in cited in the article (Worboys and Reid) both involved a failure by police to act on other evidence linking them to crimes. The then Home Secretary Jacqui Smith refers in the forward to the consultation to the speech she made in December 2008 in which she stated: "I have real sympathy for all those concerns that any move could undermine a system that helped trap Sally Anne's killer" (thus, implying, wrongly, that removing innocent people's DNA profiles from the database would have had an impact on the case).

  The R v B case (used by the then Home Secretary Jack Straw to justify the 2001 change in the legislation) involved a rape followed by a burglary, for which the suspect was charged and his DNA taken. The match with the semen sample from the rape was indeed made after the individual had been cleared of the burglary, when his profile was held illegally, but this situation only occurred because the sample had not been analysed promptly.[37], [38] The Home Office is to be commended for speeding up crime scene DNA analysis so this situation will not arise again, but its use of the case to justify the Criminal Justice and Police Act 2001, which allowed the indefinite retention of innocent people's DNA is less commendable.

ROLE IN PROVING INNOCENCE

  DNA can play an important role in exonerating an individual who is a suspect for a crime. However, an innocent suspect carries their DNA with them at all times and does not need their profile to be stored on a database in order to show it does not match the crime scene profile.

  In the past, ministers have wrongly cited serious miscarriages of justice—the Sean Hodgson and Stefan Kizsco cases—to support the retention of innocent people's DNA profiles. Sean Hodgson was freed as a result of old crime scene DNA evidence that was found not to match his profile.[39] He did not need his DNA profile to be held on a database, because a DNA sample could have been taken from him at any time while he was in prison.

  The Stefan Kiszco case was cited by the then minister Tony McNulty in evidence to the Constitution Committee in June 2008. Kiszco was jailed in 1976 for the murder of schoolgirl Lesley Molseed on the Yorkshire moors. The forensic evidence which eventually cleared Kiszco was that the semen on Lesley's underwear could not have been his, because he had a health condition which made him incapable of producing sperm—evidence never shown to the defence or court at his original trial. He was freed in 1992, but died a year later. The police re-opened the case in 2001, obtained a DNA profile from Molseed's underwear, and Ronald Castree was convicted of the murder in 2007. He had been convicted within a year of the Molseed's murder of abducting another young girl and trying to assault her, but his DNA was not added to the Database until 2006, when he was arrested for an unrelated crime. The case illustrates the importance of retaining crime scene DNA evidence and DNA profiles from individuals convicted of serious offences, who may re-offend. It did not involve the retention of DNA from any innocent individual and Kizsco was not freed as a result of the retention of either his or Castree's DNA.

SCOTLAND'S LEGISLATION

  Although we have highlighted above that the DNA Database plays a much greater role in solving volume crimes than serious crimes, victims and members of the public rightly attach more weight to solving serious crimes such as rape and murder, and to avoiding delays in the detection of such offences, which are stressful for victims and may allow the offender to attack again. Whilst ministers (including the Prime Minister) have seriously misled the public regarding the role of retaining innocent people's DNA profiles in solving rape and murder, there are nevertheless a small number of rape (but not murder) cases where retention of an innocent person's DNA profile did play an important role.

  Brief details of two rape cases which do involve retention of DNA profiles from arrested persons have been provided in the National DNA Database Annual Report 2005-06 (page 14). In the first case a male was arrested in November 2004 for assault occasioning actual bodily harm and was released without charge when the victim refused to make a statement: this case has also been cited by ministers as the case of Kensley Larrier. In the second case a male was arrested for violent disorder, described as a family feud, in his home in February 2005, and released without charge: this case has also been cited by ministers as the case of Abdul Azad. Both men later committed stranger rapes and were identified via a match with their stored DNA profiles. The officers in the cases stated that one case would not have been solved had the match not been made and in the other lengthy and expensive investigations would have been required. Two relevant rape cases were also briefly cited in the Government's evidence to the European Court of Human Rights: the two cases involved prior alleged possession of an offensive weapon and alleged violent disorder, respectively. One of these cases is probably the Abdul Azad case described previously, and the other is likely to be the Larrier case cited on p 14 of the Home Office's consultation. Kensley Larrier was arrested in May 2002 for the possession of an offensive weapon, but proceedings were discontinued in October 2002. He was linked to a stranger rape in July 2004 by a match with his stored DNA profile and subsequently convicted of this offence. The NPIA website describes two further relevant rape cases and one very serious assault. One of the rapes involved a cold case review—this is discussed below. According to the NPIA, the other rape case (the Abdirahman Ali Gudaal case) involved an arrest on suspicion of robbery, for which the suspect was released without charge in 2006. His retained profile later matched a rape and kidnapping committed in 2008. The assault involved a fixed penalty notice issued to Wayne Bowe some years before he got into a fight.

  Excluding the cold case (explained below) this means that four rape cases have been cited by the police as having been solved as a result of the retention of an unconvicted person's DNA profile on the DNA database. One serious assault (of a male victim) has been cited as having been solved as the result of retention of a DNA profile following a fixed penalty notice.

  Opinions differ as to whether the role the DNA database can play in rape cases justifies the retention of innocent people's DNA profiles. Lisa Longstaff, a spokesperson for Women Against Rape, opposes the proposals to retain innocent people's DNA profiles for six years contained in the Crime and Security Bill 2009-10 and argues that women should "stand against attempts—by any party—to manipulate rape survivors' pain in order to attack human rights".[40] In contrast, Julie Bindel of Justice for Women (citing the Bowman case, Stefan Kisco, Colin Stagg—another irrelevant case[41]—and Wendell Baker[42]—actually the R v B. case, see above) supports the Government's position.[43]

  This situation arises largely because of the poor record of the criminal justice system in dealing with violence against women. In particular, violence against a partner can continue for many years without the perpetrator being convicted because of reluctance of the victim to press charges; and the conviction rate for rape is low due to the difficulty in proving that the alleged victim did not consent. This issue would be better addressed by improving policies to address violence against women. However, in the meantime it may be necessary to weigh up the importance of tackling this rare subset of rape cases, against the dangers of wrongly stigmatising a group of men based on allegations that may be entirely false. The 2000 ACPO Guidelines attempted to achieve this balance for Police National Computer (PNC) records where they state: "Details may be retained for a period of five years of offences where a sexual offence is alleged, but the subject is acquitted, or the case is discontinued because of lack of corroboration or allegation of consent by the victim, providing identity is not an issue ...". Scotland's legislation for DNA records is an extension of this exception. It includes violent as well as sexual crimes because these types of offences are often linked (as in the examples above). In Scotland, for any individual who is not convicted following criminal proceedings for a relevant sexual or violent offence, DNA profiles and fingerprints may be retained for three years. This period of retention can be extended for a further two years if approved by a Sheriff, with a right of appeal.

  GeneWatch is not opposed to a retention policy similar to Scotland's, provided:

— The relevant offences are tightly drawn in an attempt to address the small number of relevant cases.

— The time period for retention is not greater than five years.

— There is a right of appeal to a court or other independent body after not more than three years.

— Safeguards are put in place to improve governance and prevent the misuse of such records to discriminate against persons who may be the subject of false accusations.

  The temporary retention of DNA profiles from a small number of unconvicted persons in Scotland has not as yet given rise to any DNA detections for serious crimes. However, Scotland's population is approximately a 10th of that in England and Wales, so, given the small number of relevant cases, this is not unexpected. At 1 December 2007 there was a total of 440 DNA profiles held under this legislation.[44]

COLD CASE REVIEWS

  Operation Advance was a £1 million joint initiative between the Forensic Science Service (FSS) and the Home Office Police Standards Unit (PSU) to review forensic evidence in old "cold" cases. It was followed by Operation Stealth. Cold case reviews have brought about more than 150 convictions for rape and murder in the past decade.

  The NPIA website describes one cold case review of a rape that took place in 1991 (before the DNA database was set up), which relied on a match with an unconvicted person. The crime scene DNA profile was loaded to the Database in 2008 and matched a DNA profile retained from Paul Dook when he was arrested from an alleged assault on a relative in 2006 (when no further action was taken).

  However, cold case reviews rely predominantly on obtaining a new crime scene DNA profile, from evidence that could not be analysed when DNA techniques were not so advanced. These profiles can be matched to the stored DNA profiles of known offenders, the profile of a suspect who had been identified but not convicted at the time, or stored on the database until someone's profile is added that generates a match. Several cold cases have also been solved using "familial searching": a technique which can identify the relative of a suspect through a partial match with their DNA profile.

  Retention of innocent individuals' DNA profiles would not play a role at all in cold case reviews if all the relevant crime scene profiles had already been added to the database. Speeding up the review of serious cold cases would also help address concerns that they might give rise to miscarriages of justice, due to poor corroborating evidence because of the long time since the offence. It would also help the relatives of victims.

  Given the success of cold case reviews, and the low cost compared to adding innocent people to the DNA Database and storing 5 million DNA samples (see below) it is extraordinary that the Government is considering axing Operation Stealth in order to save money.[45]

HOME OFFICE RESEARCH

  The minister stated in evidence that research commissioned by the Home Office had shown that innocent persons whose profiles will be retained on the DNA database for six years had been shown to have a greater risk of offending than the general population. This is not the case.

  The original research on which this claim is based, published as part of the Home Office's consultation, has been widely criticised. Ben Goldacre in "Bad Science" called it "possibly the most unclear and badly presented piece of research I have ever seen in a professional environment"; it was described by one professor of statistics as "a travesty of both statistical science and logical thinking"; and criminologists also published a critical analysis in the New Law Journal.[46], [47], [48] The Jill Dando Institute, which conducted part of the research, later distanced itself from the findings which it stated were "unfinished".[49]

  A new, finished version of this evidence has now been published by the Home Office.[50] The previous analysis 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.

  In 2006, the then Home Office minister with responsibility for the National DNA Database, Joan Ryan MP, stated, more honestly: "As far as we are aware, there is no definitive data available on whether persons arrested but not proceeded against are more likely to offend than the population at large."[51]

  Even if research did show that people who had been arrested but not convicted were more likely to be convicted of a subsequent offence than a member of the general population, this does not mean that retaining their DNA profiles on the database is going to solve many crimes. This is because lost or delayed DNA detections only arise if individuals whose records are taken off the Database commit a crime which they could have been linked to through their stored DNA profile had it been retained, but which remains undetected. As we have shown above, this situation is rather rare (it applies to only a tiny fraction of crimes committed). If some of these people commit a future crime detected in another way, they will end up on the database again in any case.

  Arguably, innocent people with their DNA profiles on the Database may be less likely to commit a crime for which DNA evidence is relevant than a member of the general population. This is because their DNA profile has been searched against all past crime scene DNA profiles on loading to the Database and this has failed to lead to their identification and conviction for any past offence from which a crime scene DNA profile has been stored. A member of the public who has never had their profile loaded onto the database is more likely to have committed one of these offences, and perhaps to be at risk of doing so in the future, even though this likelihood is very small (this includes serving police officers, whose profiles are loaded onto a separate Police Elimination Database, which is never speculatively searched).

LINK TO POLICE NATIONAL COMPUTER RECORDS

  People who have been arrested have an arrest summons number (ASN) included in their record on the National DNA Database (NDNAD), which provides a link to other information on the Police National Computer (PNC). When the NDNAD was established in 1995, records were supposed to be removed at the same time as an individual's criminal record.[52] 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.[53] The retention of permanent records of arrest is unprecedented in British history. Retention of the PNC records enables the police (who do not have direct access to the NDNAD) to establish whether or not a DNA sample has already been taken from an arrested person. However, PNC records may also be accessed by a much wider range of individuals and agencies than the DNA Database, and used for other purposes, such as pre-employment checks.

  For innocent persons on the DNA Database, the provisions in the Crime and Security Bill 2009-10 are 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.[54] Retention of these records gives rise to stigma and discrimination and can lead to refusal of a visa or a job.

  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 Manchester is an example.[55]

  The Rehabilitation of Offenders Act does not apply to US visa law, for example, 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.[56]

  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".[57]

INDEFINITE RETENTION OF "CONVICTED" PERSONS

  The research on re-offending published by the Home Office, in its consultation and elsewhere, does support the re-introduction of weeding rules, so that records of people with old past cautions or convictions for minor offences do not have their records retained indefinitely. This is because most re-offending occurs relatively soon after a first offence.

  Taking these patterns of offending into account, the 2000 ACPO Guidelines on retention of police records[58] required most police records of cautions to be deleted after five years, and convictions for minor offences to be deleted after 10 (provided no further offences had been committed). Exceptions were made for serious offences, or multiple offences, where records could be retained indefinitely. Under the guidelines in use when the DNA Database was first set up in 1995 (Home Office Circular 16/95), DNA Database records were also supposed to be deleted when PNC records were weeded, but this was never implemented due to a failure to link the computer systems. Adoption of the Criminal Justice and Police Act 2001 (which allowed the indefinite retention of DNA profiles and samples following acquittal or if charges were dropped) led to the abandonment of the ACPO Guidelines and any nominal provisions to weed DNA profile or fingerprint records from persons with reprimands, final warnings, cautions or convictions. All records from all arrested persons are now retained indefinitely.

  Parliament has never considered whether or not all persons aged 10 or above who have been given a reprimand, final warning, caution or conviction for a recordable offence should have their records retained indefinitely. The decision to do so was a purely administrative one. Nor is the indefinite retention of these records, including DNA profiles and fingerprints, necessarily compatible with Article 8 of the European Convention on Human Rights.[59], [60]

  A more proportionate police would reinstate the weeding rules for Police National Computer records and ensure that deletion of DNA profiles and fingerprint records occurs at the same time.

RACIAL BIAS

  The minister claimed that the proposals in the Bill would have neither and an adverse nor a positive effect on disproportionality and that the answer to this problem lies elsewhere. This is incorrect.

  The DNA profiles of an estimated 37% of black men[61] and 77% of young black men, aged between 15 and 34, have been estimated to be on the National DNA Database.[62] Baroness Scotland confirmed the latter figure to the Committee during its 2007 inquiry "Young Black People and the Criminal Justice System.

  In evidence, the minister correctly noted that these figures are approximate because they are calculated by comparing the proportion of the population recorded as "Afro-Caribbean" on the Database (based on appearance to a police officer) with the proportion identifying themselves as belonging to the relevant ethnic group in the national census. Nevertheless they give a strong indication that significant disproportionality does exist.

  The Committee's 2007 report concluded that statistics show that young black people are over-represented at all stages of the criminal justice system.[63] Black people constitute 2.7% of the population aged 10-17, but represent 8.5% of those of that age group arrested in England and Wales. The report concluded that social exclusion, educational underachievement and school exclusion interact to form a web of disadvantage, bringing young black people disproportionately into contact with crime and the criminal justice system as both victims and offenders. The report also argues that the relationship between black communities and the police in Britain leads to greater involvement in the criminal justice system—in some instances due to discrimination, and in other cases because suspicion or mistrust of criminal justice agencies leads young people to take the law into their own hands to protect themselves or exact redress.

  Because arrests of black men in particular are so high, the retention of innocent people's DNA is losing trust in policing. This is because people who have done nothing wrong—and who may even have been intervening to try to prevent a fight, for example—still have their records retained by the police. A six-year retention period will do nothing the address this issue, because people can be re-arrested and kept on the database indefinitely. Trust is not increased by claims made by serving police officers that the police arrest some people just to get their DNA[64]—a practice that would allow an individual simply to be re-arrested and put back on the Database under the provisions in the Bill. In August 2009, GeneWatch UK and Black Mental Health UK organised a meeting for black community groups about the Home Office's consultation. Around 200 people attended to discuss the issues and to hear the Home Office's Head of Policing Powers explain the consultation. His claim that the threshold for arrest was high (see below) was not widely accepted by the audience.

  The decision not to include deletion of Police National Computer (PNC) records at the same time as DNA and fingerprint records in the Crime and Security Bill 2008-09 will have a particularly negative impact on members of black and ethnic minority communities who are disproportionately represented on these databases. It is the PNC record that the police use when they "name check" someone, and which can lead to stigma and discrimination, including refusal of visas or a job.

A UNIVERSAL DATABASE?

  The discussion of a universal database is somewhat theoretical since such a proposal would clearly not be compatible with the judgment of the European Court of Human Rights.

  Adding adult volunteers onto a universal database would cost an enormous sum of money, waste police time and be unlikely to catch any serious offenders, because they would simply not turn up to give their DNA. Attempting to add the whole population by force would lead to even greater difficulties, and waste even more police time by treating anyone who is unwilling to cooperate as a criminal. If DNA was taken at birth, in 10 years' time there would be a DNA database of every child under 10 who had been born in Britain—but this would not have helped to catch any murderers or rapists. The children on the database would be vulnerable to identification and abuse by anyone who could infiltrate the system.

  The British Academy of Forensic Sciences has noted that "in reality there are a number

of disadvantages" with profiling everyone at birth, which it lists as:[65]

— The scale of the operation would be disproportionate, since only a minority commit crimes.

— It would increase anxieties about "big brother", already evoked by widespread CCTV coverage and proposed biometric identity cards.

— It might be seen to imply that we are all guilty until proven innocent.

— There have, and will be, mistakes, chance matches and false matches with close relatives, made even more likely where profiles are incomplete.

— Links will be established all the time between the scene and innocent individuals, leading to false inferences.

— It would render every member of the population vulnerable to attack, by for example having their DNA planted at a crime scene.

— In future it is possible that profiles could also reveal confidential information about the health of an individual.

— It would be impossible to control for the large numbers of people who enter and leave the country, both legally and illegally.

  In our 2006 analysis[66] GeneWatch noted that the number of crimes detected using DNA would not be very large, even if the whole population were on the DNA database. This is because the value of the Database is always limited by the number of crime scenes that yield samples that can be analysed so that profiles can be loaded to the database. In 2008-09, the NDNAD Annual Report states (page 27) that 796,780 crimes had a crime scene examination (17% of recorded crimes) and that 49,572 crime scene DNA profiles were added to the database (often, a profile of sufficient quality cannot be obtained). Assuming one profile per crime scene (often many more are collected from crime scenes such as murders), this means that crime scene DNA profiles were obtained from 1% of recorded crimes. Even if all these profiles were matched with an individual, because the entire population and all visitors were on the database, not all matches lead to detections and not all detections lead to convictions, so the percentage of crimes solved would be a small fraction of this 1% of crimes. Further, as the size of the DNA database increases the expected number of false matches is expected to increase, leading to a waste of police time following false leads, and to potential miscarriages of justice.

PRIORITIES AND COSTS

  The minister stated that no assessment of cost-effectiveness of expanding the DNA database compared to other approaches had been carried out. This is one of the few claims that is correct.

  It is GeneWatch's understanding that the decision to expand the DNA profiling of individuals, to include everyone arrested for a recordable offence, and to store DNA samples indefinitely, resulted from lobbying by commercial interests, not by the police. This has resulted in a focus on the wrong priorities—analysing large numbers of individual samples and storing them—because they make more money than a targeted approach. In GeneWatch's view a focus on analysing crime scene samples would be much more cost-effective.

  The provisions in the Crime and Security Bill 2009-10 to destroy all samples (which are currently retained indefinitely) will save a significant amount of money. Removal of DNA profiles is virtually cost free, once the necessary software has been set up. Automatic removal of profiles is much more cost-effective than the current case-by-case approach, which is wasteful of the time of the police, the applicants and their MPs.

  In the Annex to its consultation, the Home Office estimated that its preferred option of automated deletion of DNA profiles from unconvicted persons six years after arrest (unless the individual concerned has been re-arrested or convicted during this period) would incur a one-off cost of £15,000 and an average annual cost of £20. Manual deletion of the same number of profiles would cost considerably more: the Home Office's estimate is £52 million (NPV over 20 years).[67] The monetised cost of one-by-one destruction of samples over 20 years was put at just under £92 million in this analysis, but Home Office officials have confirmed to us that this was included in error as the routine destruction of all samples (rather than tracking back innocent people's samples one-by-one) would cost nothing. The monetised savings in storage (refrigeration) costs were estimated at £9.5 million over 20 years: this would be a loss of earnings to the companies which store the samples. In our view this is likely to be an underestimate: DNA samples cost approximately £1 a year to store.

  The costs of the NDNAD in 2008-09 were £4,290,500 (this includes both capital and running costs; it is not possible to separate the two).[68]

  As far as we are aware, no cost-benefit analysis of the decision to collect DNA samples on arrest rather than charge has ever been published. The most recent figure available of the cost of putting an individual on the database is the £30 to £40 provided by Mr Pugh in evidence to you. This is consistent with the Home Office's report in 2006 (paragraph 79) which stated that the cost of processing a new PACE (Police and Criminal Evidence Act) kit DNA sample is below £50.3. We noted above that DNA detections have not increased since the adoption of the Criminal Justice Act 2003. This suggests that large amounts of public money appear to have been wasted by collecting DNA on arrest rather than on charge.

  We noted above that the cold case review of serious crimes has solved many important cases, but that this may be axed due to lack of money.[69] In GeneWatch's review, cold case reviews should be prioritised, since obtaining crime scene DNA profiles from these cases could continue to produce important benefits for victims and their families. This may include the exoneration of innocent persons (who, as explained above do not need to have their DNA profile on a DNA database, but do need the crime scene DNA profile to be available). The more quickly this is done, the better.

  Current cases would also benefit from a focus on analysing crime scene DNA, rather than expanding the number of individuals' profiles added to the Database. The Government's efforts, as part of the DNA Expansion Programme, to speed up the analysis of DNA from crime scenes has been successful, as has the decision to collect more DNA from the scenes of volume crimes. Whilst many crime scenes do not yield DNA, there remains significant room for improvement in crime scene investigation in some areas, particularly rape, which many women do not report and where adequate medical examinations are often not undertaken.[70] Addressing this issue properly would more than outweigh any potential detections lost due to removing unconvicted individuals' DNA profiles from the database. The figures in Table 1 show that about 0.35 DNA detections are made per crime scene DNA profile loaded to the database. This suggests an initial crude estimate that loading 10 more DNA profiles from rapes per year could deliver 3 to 4 more DNA detections—many times more than might be lost through removing unconvicted persons from the Database. However, note that detections are not successful prosecutions and that DNA cannot resolve disputes about consent. Other policies therefore have a higher priority when considering how best to tackle crimes of violence against women.

  The explanation for these poor priorities is that the decision to collect DNA on arrest rather than on charge was made following lobbying by commercial interests, not by the police. No cost-effectiveness analysis was ever made and scrutiny was limited. The amendment to the Criminal Justice Act 2003 by-passed committee stage and was submitted by the Home Secretary David Blunkett during the first week of the Iraq war, the week before the Bill began to be debated in the Commons.

FALSE MATCHES AND DATA SHARING ACROSS THE EU

  DNA evidence is not foolproof an errors can occur in a variety of ways.

  Neither the minister nor the police discussed concerns about the increasing likelihood of false matches between crime scene DNA profiles and stored individuals' profiles. There is significant concern within the Home Office and amongst forensic scientists about the potential for false matches to occur once sharing of DNA profiles across the EU beings in 2011, as a result of an extension of the Prm Treaty Europe-wide.

  It is clearly valuable to be able to share crime scene DNA profiles of the suspected perpetrators of serious crimes with other EU countries, and to search for possible matches with individuals who have their DNA retained on other databases. However, the blanket approach agreed by ministers (comparing every stored crime scene DNA profile, whether it is believed to come from the perpetrator of a crime or not, with every stored individual's DNA profile, including those from innocent people) raises significant concerns about the potential for false matches, because the number of false matches is proportional to the number of comparisons between profiles that are made.

  The likelihood of false matches also increases if the DNA profile from the crime scene is not complete, a situation which occurs frequently because crime scene DNA may become degraded. Probably largely as a result of adding partial crime scene profiles to the Database, the National DNA Database Annual Report 2005-06 states that between May 2001 and April 2006, 50,434 matches with crime scene profiles, or 27.6% of the total number of match reports, involved a list of potential suspects, not a single suspect, being given to the police, because matches with multiple records on the NDNAD were made. A reported 83.7 multiple matches a month were made over the 12 months from May 2008 to April 2009.[71] Matches with partial crime scene DNA profiles are flagged up to the police, and GeneWatch has been unable to obtain reliable figures about the extent to which they have been used in court.

  The number of false matches that occur simply by chance (rather than laboratory errors etc) is expected to increase significantly when the routine sharing of DNA profile matches across the EU begins in 2011. The large size of the National DNA Database means that a much greater number of false matches is expected than for any other country.[72] This includes false matches with full crime scene DNA profiles, where it will not be immediately obvious that there might be a problem, as well as partial ones. False matches can lead to false accusations and (in a worst case scenario) miscarriages of justice.

  The number of false matches that occur by chance is proportionate to the size of the Database and thus one mechanism to reduce these would be to restrict profile retention to a smaller number of people who genuinely pose a danger to the public.

THRESHOLD FOR ARREST

  The minister stated that the threshold for arrest is high and that "we are talking about serious offences". This is not the case.

  Recordable offences include virtually all offences, except dropping litter and some traffic offences.[73] The Government has sought to expand DNA collection to non-recordable offences but dropped the proposals following public controversy, including opposition by ACPO, which stated that "Extending the taking of samples to all offences may be perceived as indicative of the increasing criminalisation of the generally law-abiding citizen".[74] However, recordable offences still include many minor offences, such as children pulling each others' hair (assault); throwing snowballs and breaking windows with footballs, breaking a fence or a tree branch (criminal damage). A false accusation from another child (or an adult) is sufficient to be arrested. In one case, a grandmother was arrested for theft because she refused to return a football to some boys who had kicked it into her garden.

  The situation has been exacerbated due to the significant increase of arrests of children due to police targets. The former chair of the Youth Justice Board, Professor Rod Morgan, summarised the situation:[75]

"To meet crime targets, the police are picking low-hanging fruit—the lowest of which comprises juvenile group behaviour in schools, residential homes and public spaces, offences that could be dealt with informally, more effectively, speedily and cheaply, and in former times were. There has been a 26% increase in the number of children and young persons criminalised in the past three years. This at a time when the British Crime Survey and police statistics indicate that most crimes, including those committed by juveniles, have been falling."

  Chief Inspector Sir Ronnie Flanagan, raised concerns with the Committee in 2008, that children were being arrested for fighting in school playgrounds.[76] A child who has done nothing wrong can also be arrested in these situations, because one of the children will often make a counter-accusation, which may or may not be true. Both children will then have their DNA taken and entered on the Database. Police Constable Stuart Davidson told the BBC: "We get exactly the same points for cautioning a girl for pulling another girl's hair as we would for domestic burglary. In terms of statistics they're exactly the same".[77]

  The Police Federation has published a list of ludicrous arrests, of both adults and children.[78]

  Many people who are suffering from mental illness also get arrested for public order offences because they are behaving strangely in a public place. Some vulnerable individuals may suffer serious impacts on their mental health as a result of having their DNA taken by the police.[79] Victims and passers-by who have intervened to stop a fight, or simply been in the wrong place at the wrong time, have also been arrested.

  All these people, including those whose arrests have been described as "ludicrous" by the police, will have had their DNA and fingerprints taken routinely on arrest and retained on the DNA database.

VOLUNTEERS

  The minister urged Committee members to consider amending the Bill to allow the inclusion of volunteers on the DNA Database. PACE was in fact amended to allow the inclusion of volunteers on the Database by the Criminal Justice and Police Act 2001 and 36,093 profiles on the database are estimated to have come from volunteers.

  Whilst volunteers are required to give consent to inclusion on the database, this consent is irrevocable and has caused controversy because many victims of crime have ended up on the DNA Database unaware of what they have signed. Some later raised objections and were unable to get their records removed. The Science and Technology Committee and the Human Genetics Commission both expressed concerns and ACPO and the NDNAD Ethics Committee conducted an investigation which concluded that the inclusion of volunteers was not helping to solve crimes: "There would therefore be no loss to operational policing if, for the majority of crimes, volunteer samples were not loaded onto the NDNAD and were used only in relation to the investigation of the crime for which they were obtained".[80] This led to a proposal in the Home Office's 2009 consultation that volunteers' DNA profiles should be used for specific investigations only and not included on the Database, and that existing volunteer profiles should be removed, a proposal which attracted "significant support",[81] but which appears to have been omitted from the Bill.

  Concerns about potential inclusion on the Database have led some people who are asked to give their samples on a voluntary basis to refuse to co-operate with police inquiries. Police now routinely have to reassure the public that they will not be added to the Database without their consent, in order to persuade them to co-operate.

  GeneWatch suggests that Committee members do not follow the minister's advice as they would look at best foolish amending new legislation to replicate what has already been adopted, and which existing evidence has shown to have contributed to a loss of public trust and to be a waste of time and money. Instead, members might more productively consider amending the Bill to remove the profiles of volunteers from the Database, or, at minimum, to allow withdrawal of consent.

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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 Back

2   The National DNA Database Annual Report 2002-03. (p26). http://www.forensic.gov.uk/forensic/news/press_releases/2003/NDNAD_Annual_Report_02-03.pdf. Back

3   Home Office (2006) DNA Expansion Programme 2000-05: Reporting achievement. Forensic Science and Pathology Unit. http://police.homeoffice.gov.uk/news-and-publications/publication/operational-policing/DNAExpansion.pdf Back

4   Available on: http://www.homeoffice.gov.uk/documents/cons-2009-dna-database/ Back

5   National DNA Database Annual Report 2007-09. http://www.npia.police.uk/en/docs/NDNAD07-09-LR.pdf Back

6   House of Commons Hansard 2 Jun 2009: Col 360W. Back

7   Ministry of Justice (2009) Sentencing statistics,2007: England and Wales. Revised Edition published 26 June 2009. http://www.justice.gov.uk/publications/docs/sentencing-statistics-2007-revised.pdf Back

8   Available on: http://www.homeoffice.gov.uk/documents/cons-2009-dna-database/ Back

9   GeneWatch UK and Open Rights Group. Submission to the Home Office's Consultation: Keeping the Right People on the DNA Database. August 2009. On: http://www.genewatch.org/uploads/f03c6d66a9b354535738483c1c3d49e4/DNAconsul_GW.doc Back

10   GeneWatch UK. Annex to submission to the Home Office consultation. August 2009. On: http://www.genewatch.org/uploads/f03c6d66a9b354535738483c1c3d49e4/ANNEX.doc Back

11   GeneWatch UK. Erratum to DNA consultation submission. August 2010. http://www.genewatch.org/uploads/f03c6d66a9b354535738483c1c3d49e4/ERRATUM.doc Back

12   Home Office (2006) DNA Expansion Programme 2000-2005: Reporting achievement. Forensic Science and Pathology Unit. http://police.homeoffice.gov.uk/news-and-publications/publication/operational-policing/DNAExpansion.pdf. Back

13   GeneWatch UK (2006) The DNA Expansion Programme: Reporting real achievement? February 2006. Back

14   Nuffield Council on Bioethics Report: The forensic use of bioinformation: ethical issues. http://www.nuffieldbioethics.org/go/ourwork/bioinformationuse/introduction Back

15   National DNA Database Annual Report 2007-09. http://www.npia.police.uk/en/docs/NDNAD07-09-LR.pdf Back

16   Home Office (2009) http://www.homeoffice.gov.uk/rds/pdfs09/hosb1109vol1.pdf Back

17   Ministry of Justice (2009) Sentencing statistics,2007: England and Wales. Revised Edition published 26 June 2009. http://www.justice.gov.uk/publications/docs/sentencing-statistics-2007-revised.pdf Back

18   Home Office (2009) Homicides, Firearm Offences and Intimate Violence 2007-08. http://www.homeoffice.gov.uk/rds/pdfs09/hosb0209.pdf Back

19   Crown Prosecution Service (2008) Violence against women: Strategy and Action Plans. http://www.cps.gov.uk/publications/docs/vaw_strategy_english.pdf Back

20   Crown Prosecution Service (2009) Violence against women crime report 2008-09. http://www.cps.gov.uk/publications/docs/CPS_VAW_report_2009.pdf Back

21   Home Office (2006) DNA Expansion Programme 2000-2005: Reporting achievement. Forensic Science and Pathology Unit. http://police.homeoffice.gov.uk/news-and-publications/publication/operational-policing/DNAExpansion.pdf. Back

22   For example, in: House of Commons Hansard 1 Mar 2006 : Column 842W; 14 Dec 2006, Column 1315W; 25 July 2007, Column 1172W, 12 Jan 2010 Col 848W. Back

23   Ross T (2005) Police retention of prints and samples: proposals for legislation. Comment prepared by Thomas Ross, Police Liason Officer/Office Manager, Scottish Police DNA Database. http://www.scotland.gov.uk/Resource/Doc/77843/0018258.pdf. Back

24   GeneWatch UK (2006) The DNA Expansion Programme: Reporting real achievement? February 2006. Back

25   GeneWatch UK (2008) Would 114 murderers have walked away? June 2008. Back

26   Williams C (2008) Gordo's DNA Database claims branded "ridiculous". 29 June 2008. http://www.theregister.co.uk/2008/06/29/brown_dna_database_innocent_genewatch/ Back

27   ACPO Criminal Records Office (ACRO) (2009) DNA Retention Research Project Financial Year 2008-09, London: ACPO. Back

28   http://www.npia.police.uk/en/13340.htm Back

29   Home Office (2009) DNA re-arrest rate hazard analysis. http://www.homeoffice.gov.uk/documents/cons-2009-dna-database/dna-retention-evidence-paper2835.pdf?view=Binary Back

30   House of Commons Hansard. 12 Jan 2010 Col 849 W. Back

31   Steve Wright guilty of Suffolk murders. The Guardian. 21 February 2008. http://www.guardian.co.uk/uk/2008/feb/21/steve.wright.guilty Back

32   GeneWatch UK (2008) Would 114 murderers have walked away? June 2008. Back

33   Fresco A (2008) Scientists' elation at finding DNA that led to a murderer. The Times. 22 February 2008. http://www.timesonline.co.uk/tol/news/uk/crime/article3410814.ece Back

34   Kelly J (2008) DNA database debate urged. BBC Online. http://news.bbc.co.uk/1/hi/uk/7259494.stm Back

35   The mother of all crusades. The Sun. 20 March 2008. http://www.thesun.co.uk/sol/homepage/news/justice/article940274.ece Back

36   Mother of Sally Anne Bowman: Store everyone's DNA on a national database. 1 April 2009. http://www.thisislondon.co.uk/standard/article-23669100-mother-of-sally-anne-bowman-store-everyones-dna-on-a-national-database.do Back

37   Williams R, Johnson P, Martin P (2004) Genetic Information & Crime Investigation. Funded by the Wellcome Trust. http://dro.dur.ac.uk/2555/. See page 36. Back

38   Judgments-Attorney General's Reference No 3 of 1999. House of Lords. 14 December 2000. Back

39   DNA clears "killer" after 30 years in prison. The Times. 12 March 2009. http://www.timesonline.co.uk/tol/news/uk/crime/article5891503.ece Back

40   Longstaff L (2009) Retaining DNA won't get rid of rape. 13th November 2009. http://www.guardian.co.uk/commentisfree/libertycentral/2009/nov/13/rape-dna-database Back

41   Catalogue of police mistakes left Napper free to rape and kill. London Evening Standard. 18 December 2008. http://www.thisislondon.co.uk/standard/article-23604579-catalogue-of-police-mistakes-left-napper-free-to-rape-and-kill.do Back

42   Should Wendel Wilberforce Baker be tried against for rape? The Times. 28 July 2009. http://business.timesonline.co.uk/tol/business/law/columnists/article6730647.ece Back

43   Interview. The Today Programme. 11 November 2009. Back

44   http://www.scotland.gov.uk/Publications/2008/09/22154244/23 Back

45   Police spending cuts may spell the end for unsolved murders unit. The Times. 14 December 2009. Back

46   Soothill K, Francis B (2009) Keeping the DNA link. New Law Journal, 17 July 2009. Back

47   Goldacre B (2009) Is this a joke? The Guardian, 18 July 2009. Available on: http://www.badscience.net/2009/07/is-this-a-joke/ Back

48   The DNA database: innocent or guilty, what's the difference? Straight Statistics. 15 June 2009. http://www.straightstatistics.org/article/dna-database-innocent-or-guilty-whats-difference Back

49   DNA storage proposal "incomplete". BBC Online. 25 September 2009. http://news.bbc.co.uk/1/hi/uk/8273882.stm Back

50   Home Office (2009) DNA re-arrest rate hazard analysis. http://www.homeoffice.gov.uk/documents/cons-2009-dna-database/dna-retention-evidence-paper2835.pdf?view=Binary Back

51   House of Commons Hansard 9 Oct 2006: Column 492W. Back

52   Home Office Circular 16/95. Back

53   Coates F (2006) Police to file all offences for life. The Times. 21 Jan 2006. http://www.timesonline.co.uk/tol/news/uk/article716688.ece Back

54   Doward J (2009) Names of innocent people will stay on police database. The Observer. 20 December 2009. http://www.guardian.co.uk/politics/2009/dec/20/dna-police-database-rights Back

55   Available on: http://news.bbc.co.uk/1/hi/uk/8354740.stm Back

56   See: http://www.usembassy.org.uk/cons_new/visa/niv/vwp3.html Back

57   See: http://www.cjsonline.gov.uk/offender/criminal_record/ Back

58   ACPO (2000) General rules for police record weeding on criminal systems. Back

59   Equalities and Human Rights Commission (2010) Government's proposals incompatible with European Convention on Human Rights. Press Release. 5th January 2010. Available on: http://www.equalityhumanrights.com/media-centre/government-s-proposals-incompatible-with-the-european-convention-on-human-rights Back

60   Legal Opinion available on: http://www.equalityhumanrights.com/uploaded_files/counsels_advice_dna_database.pdf Back

61   Randerson J (2006) DNA of 37% of black men held by police. The Guardian. 5 January 2006. http://www.guardian.co.uk/world/2006/jan/05/race.ukcrime Back

62   Leapman B (2006) Three in four young black men on the DNA Database. The Telegraph. 5 November 2006. http://www.telegraph.co.uk/news/uknews/1533295/Three-in-four-young-black-men-on-the-DNA-database.html Back

63   House of Commons Home Affairs Committee (2007) Young black people and the criminal justice system. Second report of session 2006-07. Volume I. HC-181-I. http://www.publications.parliament.uk/pa/cm200607/cmselect/cmhaff/181/181i.pdf Back

64   Police "arrest innocent youths for their DNA", officer claims. The Telegraph 4 June 2009. http://www.telegraph.co.uk/news/newstopics/politics/lawandorder/5444332/Police-arrest-innocent-youths-for-their-DNA-officer-claims.html Back

65   British Academy of Forensic Sciences (2007) Submission to the consultation held by the Nuffield Council on Bioethics on "The forensic use of bioinformation: ethical issues". http://www.nuffieldbioethics.org/fileLibrary/pdf/British_Academy_of_Forensic_Sciences.pdf Back

66   GeneWatch UK (2006) The DNA Expansion Programme: Reporting real achievement? February 2006. Back

67   Available on: http://www.homeoffice.gov.uk/documents/cons-2009-dna-database/ Back

68   House of Lords Hansard 2 Dec 2009 : Column WA52. Back

69   Police spending cuts may spell the end for unsolved murders unit. The Times. 14 December 2009. Back

70   HMIC(2007) Without Consent. January 2007. Available on: http://inspectorates.homeoffice.gov.uk/hmic/inspections/thematic/wc-thematic/them07-wc.pdf?view=Binary Back

71   House of Commons Hansard. 17 Jun 09: Column 315W. Back

72   van der Beek CP (2008) Exchange of DNA-profiles by the Treaty of Prm. Maastricht/Heerlen (NL), 5-6 June 2008. www.dna-conference.eu Back

73   http://www.guardian.co.uk/commentisfree/2007/feb/19/comment.politics3 Back

74   See: http://www.genewatch.org/sub-55199 Back

75   http://www.guardian.co.uk/commentisfree/2007/feb/19/comment.politics3 Back

76   Hoggart S (2008) Targeting the young. The Guardian. 1 March 2008. http://www.guardian.co.uk/politics/2008/mar/01/1 Back

77   Wasting Police Time. BBC Panorama. 16 September 2007. http://news.bbc.co.uk/1/hi/programmes/panorama/6948201.stm Back

78   Police condemn "target culture". BBC Online 15 May 2007. http://news.bbc.co.uk/1/hi/uk/6656411.stm Back

79   Morris N (2008) Mother claims son killed himself after DNA taken. The Independent. 8 August 2008. http://www.independent.co.uk/news/uk/home-news/mother-claims-son-killed-himself-after-dna-profile-taken-888387.html Back

80   1st Annual Report of the Ethics Group: National DNA Database. April 2008. Back

81   Home Office (2009) Keeping the right people on the DNA database: science and public protection. Summary of Responses Public Consultation 7 May to 7 August 2009. November 2009. Back

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Prepared 15 March 2010