Protection of Freedoms Bill

Memorandum submitted by GeneWatch UK (PF 19)

1. GeneWatch UK is a not-for-profit organisation which aims to ensure that genetics is used in the public interest and that members of the public have a say about genetic science and technologies.

2. 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.

3. GeneWatch UK broadly welcomes the introduction of the Protection of Freedoms Bill, but we would like to see some further restrictions on the retention of data in some circumstances, and clarification of wording in some places. Our main concern is the lack of a provision to delete Police National Computer (PNC) records at the same time as DNA database records and fingerprints.

4. This evidence is informed by our own analysis of published evidence relating to the National DNA Database, and by issues raised directly with us by members of the public.

People with DNA database and fingerprint records and their concerns

5. Amendments to the Police and Criminal Evidence Act (PACE) introduced by the Criminal Justice and Police Act 2001 and the Criminal Justice Act 2003 currently allow DNA samples and fingerprints to be collected routinely from everyone arrested for any recordable offence, from the age of ten, and samples and computer records to be retained indefinitely whether or not the individual is charged or convicted. Recordable offences include all offences which are punishable with imprisonment plus around sixty other non-imprisonable offences (excluding only very minor offences such as dropping litter and parking offences). At the time of the arrest a record is also created on the Police National Computer (PNC). As a matter of policy, all records are currently retained to age 100.

6. The most recent figures available for England and Wales show that at 31 March 2010 there were an estimated 4,946,613 persons on the NDNAD, of whom 22% (an estimated 1,083,207 persons) did not have a current conviction, caution, formal warning or reprimand recorded on the Police National Computer (PNC). [1]

7. GeneWatch is regularly contacted by members of the public who have been arrested or whose children have been arrested and have had their DNA and fingerprints taken under this legislation. Examples of the cases they describe include: a grandmother whose 12-year old grandson was arrested for allegedly damaging a neighbour’s fence (charges were dropped when another neighbour made a statement that the fence had already been damaged); a business man falsely accused of an offence by disgruntled employees who had themselves been committing offences; a number of men who have tried to stop fights in pubs and town centres; people with mental health problems arrested for public order offences; several cases where the arrest involved a dispute with a particular officer (including one where the officer was involved in divorce proceedings with a member of the family); children whose friends have committed or allegedly committed minor offences, or against whom another child or a neighbour has made a false accusation; a student arrested for disrupting traffic whilst having an argument with a friend in the street; a man who took down an illegally erected estate agent’s sign; people involved in disputes with their neighbours.

8. There are many similar reported cases, for example: a 12-year old-schoolboy arrested for allegedly stealing a pack of Pokemon cards [2] ; a grandmother arrested for failing to return a football kicked into her garden [3] ; a ten-year-old victim of bullying who had a false accusation made against her [4] ; a 14-year-old girl arrested for allegedly pinging another girl's bra [5] ; a 13-year-old who hit a police car with a snowball [6] ; a computer technician wrongly accused of being a terrorist [7] ; Janet Street-Porter [8] ; comedian Mark Thomas [9] ; and MPs Greg Hands and Damian Green.

9. In the vast majority of these cases no further action was taken and in some cases police officers apologised for the arrest, recognising that a false accusation had been made. Often the alleged offence as recorded (theft, assault, criminal damage) does not reflect the minor nature of the allegation.

10. Some innocent individuals have been successful in getting their records removed by applying to police constables under the ‘exceptional cases’ procedure. However, others have been unsuccessful. Their experiences tend to reinforce the view that the system is unfair by treating some people differently to others.

11. People have a variety of concerns about retention of their records, including concerns about:

· the personal nature of their DNA;

· being treated like a criminal;

· the growth of a ‘Big Brother’ state and potential misuse of data by government (tracking individuals or groups of people or their families);

· potential loss of data or misuse of data (including by corrupt police officers, commercial providers or others who might infiltrate the system);

· the implications of having a ‘criminal’ record for the rest of their life (including implications for employment, visas or treatment by the police); and

· the possibility of being falsely accused of a crime, for example if their DNA was planted at a crime scene.

12. In some cases, the retention of records exacerbates an existing distrust of the police; in other cases, people say that they or their children used to trust the police but no longer do so. In addition, there has been a disproportionate effect on black and ethnic minority communities, with negative impacts on trust in policing in these communities: estimates suggest that 37% of black men [10] and 77% of young black men, aged between 15 and 34, may have records on the National DNA Database. [11] Some vulnerable individuals may suffer serious impacts on their mental health as a result of having their DNA taken by the police (there has been one reported case of suicide [12] ).

13. One overarching issue is that innocent people regard being treated as criminals unfair: this is particularly true where children are involved. Parents often say that it is hard to explain to their children why their records are retained even when the police have accepted that a false accusation has been made against them. Their situation appears to be arbitrary (resulting from being in the wrong place at the wrong time); or entirely of another’s making (being falsely accused, unfairly arrested, or with friends who may have committed an offence). In other cases, such as when a child has committed a single minor offence, people regard having a criminal record for life as excessive and counter-productive.

14. Members of the public do not always realise the limitations of DNA matching, although they are concerned about the potential for others to plant DNA evidence. However, this may change in the future. False DNA profile matches are expected to occur routinely by chance when the EU Prüm Directive comes into force (implementation is due this year but is expected to be delayed in the UK). The Dutch Forensic Science service has predicted that thousands of false DNA matches could occur by chance every year between individuals’ DNA profiles stored in the UK and crime scene DNA profiles stored elsewhere (especially in Germany). [13] Other problems, including laboratory contamination, can give rise to a person being falsely implicated in a crime. Although most of the documented problems have occurred in the USA [14] common quality standards are only just beginning to be developed across the EU. [15] It is unclear whether arrests could be made using the European Arrest Warrant purely on the basis of a DNA match.

Comments on the Bill

Destruction of DNA samples

15. The destruction of DNA samples once the DNA profiles (a string of numbers based on parts of the DNA) have been obtained from them is welcome. This provision will address some of the concerns people have about the private nature of their DNA (for example, the potential to derive additional health-related information from samples or to do genetic research without consent) and it will also save money. A similar system is already in operation in a number of other European countries.

Unconvicted persons: deletion of DNA records and fingerprints

16. The provisions for the deletion of innocent people’s DNA and fingerprint records are welcome. The available evidence suggests that the proposed system of removals for the DNA and fingerprint records of innocent people will help to restore public trust whilst minimising the chance that any crimes will go undetected.

17. Home Office figures highlight that the significant expansion in the size of the DNA Database 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 (especially to serious crimes). A detailed analysis of the available crime detection statistics and cases is available in GeneWatch UK’s January 2010 submission to the Home Affairs Committee. [16] Some of the findings are summarised below.

18. In 2008/09, 17,463 direct DNA detections were reported (0.37% of recorded crimes). The total number of direct DNA detections has been falling gradually since 2002/03 and the number of direct DNA detections as a proportion of recorded crimes has remained roughly constant, despite the database more than doubling in size. (Note: only about half of detections lead to a conviction).

19. An earlier increase in direct DNA detections was due to an increase in the number of crime scene DNA profiles added to the DNA database, not the number of individuals’ DNA profiles. More recent research by the RAND Corporation in the USA confirms these findings: [17] "In assessing how DNA analysis is used to aid investigations in the U.S. system, we found that database matches are more strongly related to the number of crime-scene samples than to the number of offender profiles in the database. This suggests that "widening the net," which research indicates has only a minimal deterrent effect, might be less cost-effective than allocating more effort to samples from crime scenes. Indeed, the UK Home Office reached this same conclusion in an analysis of its National DNA Database (NDNAD) performance".

20. Most direct DNA detections would not be lost even if no individuals’ DNA profiles were retained on the DNA database at all. This is because DNA detections involve three types of matches: (i) matches between a known suspect’s profile and a crime scene DNA profile (which do not need the database); (ii) matches between a stored crime scene DNA profile and a newly loaded individual’s DNA profile (which only need crime scene DNA profiles to be stored); (iii) matches between a stored individual’s DNA profile and a newly loaded crime scene DNA profile. Only the third type of DNA detection would be lost if individuals’ DNA profiles were not stored, since the Bill allows speculative searching of newly loaded individuals’ DNA profiles against all stored crime scene DNA profiles on the database [18] . In our 2010 submission to the Home Affairs Committee, we estimated that there were about 2006 direct DNA detections of the third type in 2008/09 (out of the total 17,463). (It should be noted that there is some uncertainty in the proportion of DNA detections of each type due to limited data).

21. Removing innocent people’s DNA profiles from the DNA database (roughly 1 million out of 5 million profiles) would mean that up to1/5 of these detections (400 detections in 2008/09) could be lost or delayed if everyone on the DNA database were equally likely to commit DNA-related crimes. In reality, the proportion of offences committed by people with no previous offences is likely to be much less than this. A recent paper includes data from a sample in which 31% of people against whom no further action was taken went on to commit further offences, compared to 30% of people who were given cautions, and 36% given non-custodial sentences. [19] , [20] However, the paper, which is based on limited follow-up of three small samples, looks only at offending subsequent to a first arrest and thus excludes people with a history of previous offences. [21] The Crime and Justice Survey 2003 found that while prolific offenders formed only 2% of the sample and 26% of active offenders, they accounted for 82% of all offences measured. [22] Thus we can expect that only an unknown small fraction of these 400 detections are lost or delayed: perhaps somewhere between 40 and 200 DNA detections. The majority of these detections will be delayed, not lost, because any future arrest will allow the individual’s DNA profile to be added to the database again, matching any stored crime scene DNA profiles relating to offences committed in the interim.

22. The vast majority of any lost or delayed detections will relate to volume crimes. Only 0.4% of DNA detections related to homicide (murder plus manslaughter) in 2008/09 and only 0.96% to rapes (168 DNA detections out of 13,133 recorded crimes). Since most murders and rapes are committed by people who know their victims (unlike most volume crimes), an even smaller percentage of the expected lost or delayed detections would relate to such crimes, amounting to only a handful of crimes over a decade. These statistics are consistent with the very small number of relevant cases that have been identified (bearing in mind that many cases have been wrongly cited in support of retaining innocent people’s DNA profiles [23] ).

23. Most rapes are not solved using DNA (although it can be useful to confirm a man’s identity) because disputes about consent cannot be resolved using DNA. More effective ways to tackle violence against women require a focus on prevention rather than on waiting until a violent man goes on to commit a stranger rape. A coordinated strategy is being developed with this objective in mind. [24] It is likely to be much more effective than retaining the DNA records of innocent people.

The need to delete innocent people’s Police National Computer (PNC) records

24. A major omission from the Bill is the lack of a requirement to delete Police National Computer (PNC) records at the same time as DNA and fingerprint records. Such a requirement should be introduced by amending Clause 1 of the Bill so that "Section 3D material" includes records on the Police National Computer (PNC) and Police National Database (PND).

25. All persons who have been arrested have records created on the Police National Computer (PNC), which are in the process of being copied to the Police National Database (PND). Current policy is to retain these records to age 100. In addition, many arrested persons also have photographs taken and retained by the police. This means that the estimated 1 million innocent people with records on the DNA database also have records on the PNC which will be held until they are aged 100.

26. The small number of innocent people who make successful applications to chief constables under the ‘exceptional cases’ procedure currently have their PNC records deleted as well as their records on the National DNA Database (NDNAD) and the fingerprint database (IDENT1). On request, they also have their photographs destroyed. In Scotland, records on the Criminal History System are deleted within six months of a non-conviction disposal being recorded. [25] Yet the Protection of Freedoms Bill allows indefinite retention of PNC (and/or PND) records and photographs from all innocent persons.

27. In England and Wales , innocent people’s police records used to be removed after 42 days: those with cautions after 5 years; and those with single convictions for minor offences aft er ten. [26] By 2006, these guidelines had been abandoned in favour of retention of all PNC records , from everyone arrested for any recordable offence, to age 100. [27] The change was made as a matter of ACPO policy and never debated by parliament. The justification provided at the time was that the police needed to retain PNC records to see whether or not they had already taken a DNA sample from an arrested individual, and to help them track an individual down in the event of a DNA match. [28] This no longer applies if new legislation requires a person’s record on the DNA database to be deleted.

28. Records of arrest can have serious negative consequences for individuals.

29. The US embassy now states that anyone who has been arrested for any offence must apply for a full visa, rather than using the visa waiver scheme. [29] Visa applicants must then pay the ACPO Criminal Records Office (ACRO) to release their record to the US embassy as part of the expensive and time consuming application process. [30] This has major implications for a large proportion of the population who may no longer be able to travel freely simply because they have been arrested.

30. Police officers also access PNC records on the beat and a record of arrest can lead to stigma and discrimination.

31. Although the Bill introduces a more proportionate Vetting and Barring scheme, records of arrest could still be used to refuse people employment.

32. It is nevertheless important to consider whether deletion of PNC records at the same time as DNA and fingerprint records would have any adverse effect on public safety, especially of children. In particular, records of arrest may sometimes act as a warning sign of possible offending behaviour. The most commonly cited example is the case of Ian Huntley and the murders of Holly Wells and Jessica Chapman in Soham in August 2002.

33. In 2004, the Bichard Inquiry, ordered following the Soham murders, recommended changes to the criminal records system and the creation of a new registration scheme for people working with children. [31] Bichard did not recommend that all records of arrest should be retained indefinitely. He called for a Code of Practice to " clearly set out the key principles of good information management (capture, review, retention, deletion and sharing), having regard to policing purposes, the rights of the individual " (Recommendation 9).

34. Ian Huntley, who murdered Holly Wells and Jessica Chapman, was employed as a caretaker at Soham College in late 2001, despite a number of previous allegations against him which did not show up on his CRB check. Although his employment did not facilitate the murder (the girls came to his house because they knew his girlfriend, who was a teaching assistant at their primary school, St Andrew’s), there was nevertheless significant concern that he had obtained a job in a school. Huntley’s DNA and fingerprints were not relevant to identifying him as a suspect for the murders (he was a known suspect and the case relied largely on fibres for forensic evidence [32] ) or to any of the earlier rape allegations against him (where he admitted intercourse but disputed consent, giving a DNA sample voluntarily on one occasion). However, retention of his record on the PNC is relevant to the issue of criminal record checks.

35. The Bichard Inquiry Report documents eleven allegations against Huntley – nine of which related to sexual offences, one to a burglary and one to failure to pay his TV license - between August 1995 and July 1999, whilst he was living in Humberside. In 1995, his ex-wife also told social services that he had pushed her down the stairs whilst pregnant. The allegations of sexual offences included four of underage intercourse (one with a thirteen-year-old), four of rape and one of sexual assault on an eleven year-old girl. Huntley was interviewed in connection with all four alleged rapes (all of which he claimed were consensual intercourse): he was arrested for one (in April 1998) and charged with another (in May 1998). In July 1999, an officer filed an intelligence report on him, warning that he was a serial sex attacker.

36. The Sexual Offences Act 2003 means that it is now highly unlikely that Huntley would not have been prosecuted for some if not all of the underage sex offences (none of which led to an arrest, but one of which he admitted to police) and for the alleged sexual assault on the eleven-year-old (for which he was arrested in July 1998). Even if this were not the case, if PNC records were deleted at the same time as DNA and fingerprint records, Clause 3 of the Protection of Freedoms Bill would certainly have led to retention of the rape charge and probably also the arrest for five years, in the light of the police intelligence report. These would therefore still be in his PNC record when he applied for the caretaker job (in October 2001) and at the time of the murders (August 2002).

37. The Crime and Justice Survey 2003 estimated that 24% of men and 6% of women (15% of all respondents) had been arrested at least once, but found that serious and prolific offenders are extremely rare. Further, whether or not someone is ever arrested for minor offence can appear arbitrary: based on self-reporting, the Survey estimated that 41% of ten-to 65-year-olds living in private households in England and Wales had committed at least one of 20 core offences in their lifetime (52% of males and 30% of females). The proportion of the population likely to have committed one recordable offence (a much larger category of offences) is likely to be far higher and would probably include the majority of constituents.

38. It therefore seems likely that abandoning the deletion of records altogether (contrary to Bichard’s recommendation) will swamp the system with useless information. This is more likely to compromise than assist the idea of using selected records as a warning sign .

39. In contrast, deleting PNC records at the same time as DNA database and fingerprint records would be more likely to highlight the small number of people whose arrest or charge may be a warning sign, as well as being more proportionate.

Children

40. Children have been particularly affected by the expansion of the DNA database, following a significant increase in the numbers of young persons arrested following minor crimes or false accusations (such as pulling each others’ hair or damaging trees or fences), due to the system of police arrest targets put in place as the database expanded. [33] , [34] , [35]

41. GeneWatch UK welcomes the proposals in the Bill to delete the DNA profiles and fingerprints of children who have been convicted of a single minor offence after five years (dating from their arrest, or in rare cases, from the end of their prison sentence). Although a small number of children who have been convicted of an offence at an early age do go on to become prolific and serious offenders, it is very unlikely that such young people will remain without further convictions for a period of five years after a first offence (the proposed condition for their removal from the database). In fact, the proposals could go further and give more young people with more than one minor conviction a chance to avoid being labeled a criminal for life.

42. In particular, we do not think that reprimands and warnings should be treated as equivalent to convictions by a court. The system of reprimands and warnings was set up specifically to avoid children entering the criminal justice system unnecessarily, recognising extensive evidence that labeling children as criminal at a young age can be counter-productive. [36] A reprimand or final warning is not a finding of guilt in law, and they can be administered without the consent of the child or their parent. It is therefore surprising that the Bill allows children with more than one warning or reprimand to have their records retained for life. A shorter (e.g. two-year) retention time should be considered for reprimands and warnings.

43. As we have recommended for innocent persons, GeneWatch also believes the provisions for deletion of children’s records should be extended to include PNC records. Impacts of a criminal record on future employment are a major concern for children and their parents.

44. Some stories about the implications of the retention of PNC records for members of the public have been reported on the website for Public Reading Stage of the Bill. [37] Many people describe how mistakes made many years ago, often as children, now blight their lives and prevent them getting jobs, with no hope of deletion of their records until they are aged 100.

Deletion of records at the end of an investigation

45. Clause 2 allows retention of material until the "conclusion of the investigation of the offence" or the conclusion of any proceedings. The wording of this clause should be clarified so that individuals who have been ruled out of further inquiries do not have their data retained indefinitely in circumstances where a case is not closed (i.e. when an investigation may be continuing – perhaps for years - but does not include any suspected involvement of the individual).

Exception for ‘national security’

46. GeneWatch accepts that there may be grounds to retain some data for reasons of national security and we welcome the inclusion of a system of oversight for this provision. However, we would like to see this power defined more narrowly. As it stands, anyone, including a child, arrested for any recordable offence could potentially have their DNA retained indefinitely via repeated two-year extensions, with no right of appeal. Some restrictions on this power should be included in the Bill, not only via guidance. For example, it is difficult to see why the provision is applied to people who have not been arrested in connection with terrorist offences, and why it is allowed to be extended indefinitely.

Adults with cautions and convictions

47. The Bill treats adults who have been cautioned as if they are convicted, and all adults cautioned or convicted for a single minor offence will have their records retained indefinitely. More consideration should be given to whether this is necessary and proportionate.

Uses of retained material

48. The listed uses of retained material includes at Clause 16 63S(1)(d) "for purposes related to the identification of a deceased person or of the person to whom the material relates". It is debatable whether the DNA database should be used for identification of (non-deceased) persons who are not suspected of committing a crime. GeneWatch would prefer this use (which first appeared in the Counter-Terrorism Bill 2008) to be deleted or to be restricted so that it does not allow the database to be used routinely for identification purposes, rather than for the investigation of offences.

Deletion of copies

49. It is unclear whether copies of data held by the security services or other agencies would also be deleted at the same time as all copies held by the police.

Biometrics Commissioner

50. GeneWatch supports the views of Action on Rights for Children (ARCH) and others that the option of a single Privacy Commissioner should be considered, rather than multiple commissioners addressing a variety of different issues and technologies.

March 2011

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