Protection of Freedoms Bill

Memorandum submitted by the Forensic Science Service (PF 48)

EXECUTIVE SUMMARY

1. The Forensic Science Service (FSS) is the UK’s leading forensic science provider. It provides the broadest range of forensic techniques from the crime scene to court room.

2. The use of DNA profiling as an evidential tool has supported many successful prosecutions. The National DNA Database (NDNAD) has facilitated the detection and prosecution of many offenders. The combination of both proved valuable to police in gaining important leads in both current and historic unsolved cases. More people have been exonerated by DNA testing than have ever been convicted.

3. Part 1 of the Freedom Bill introduces a new framework for the retention of biometric data taken from arrestees, which includes the destruction of this either immediately or after a period of time if the arrestee is not convicted. This submission is confined to the provisions concerned with the retention and destruction of DNA samples and profiles.

4. Regarding the destruction of DNA profiles, the FSS believes that:

· The requirement to destroy legacy DNA profiles will be a time consuming, expensive process which carries major resource implications across the Criminal Justice System.

· The requirement to destroy a significantly increased number of DNA profiles each year will necessitate the allocation of additional resources.

· An efficient mechanism for notification of case outcome will be required to ensure the legislation is adhered to and avoid repeats of cases such as AGs Ref No 13. of 1999 and R v Weir.

· If DNA profiles are to be deleted from the Forensic Science Provider’s (FSP) case file, there is a conflict with the record keeping requirements of the Criminal Justice System.

5. Regarding the destruction of DNA samples, the FSS believes that:

· These provisions will potentially compromise the investigative capability of the Police.

· More people will have to be re-approached and re-tested by Police during their investigations.

· Potential for repercussions for criminal trials if court exhibits and/or evidence of continuity is lost as a consequence of the destruction of a DNA sample.

SCOPE OF THE SUBMISSION

6. The submission is confined to the provisions in Part One, Chapter One of the Bill in relation to biometric data. In particular, it considers the resource implications and potential consequences of the:

· Mandatory requirement (in s63D) to destroy a DNA profile unless it is capable of retention.

· Mandatory requirement (in s63Q) to destroy a DNA sample once a profile has been prepared from it.

7. The FSS previously responded to the Home Office Consultation Paper entitled ‘Keeping the Right People on the DNA Database: Science and Public Protection’ which preceded the enactment of the Crime and Security Act 2010.


THE DNA PROFILING PROCESS

BACKGROUND

8. This section outlines the DNA profiling process including: how a sample is taken, how a DNA profile is obtained and the uses that a DNA profile is put to.

9. The process includes three different stakeholders. These are the:

· Law enforcement authority – usually a police force in England/Wales (LEA)

· Forensic science provider (FSP)

· National Policing Improvement Agency (NPIA)

10. This section concentrates upon the role of the FSP in this process and only gives brief details of the LEA and NPIA’s roles.

The Law Enforcement Agency (LEA)

11. The LEA takes a DNA sample from an arrestee in accordance with the Police and Criminal Evidence Act (PACE) 1984. The sample (referred to as a ‘PACE’ sample) is taken irrespective of whether the case involves DNA evidence. The main purpose of taking a DNA sample when the case does not involve DNA evidence is to facilitate a speculative search of the NDNAD to ascertain whether or not the arrestee may have been involved in an undetected offence.

12. When a subject is arrested, the LEA checks the Police National Computer (PNC) to see if the individual’s DNA has been taken previously. If it has, the LEA may choose not to re-sample the person unless the case involves DNA comparisons.

13. A PACE kit is used to obtain the DNA sample and each has a unique barcode associated with it. The process is as follows:

· Two preformed swabs are scraped against the arrestee’s cheek lining to remove cells.

· The swabs are placed into two barcoded tubes provided and are referred to as ‘buccal scrapes’ (known as A and B scrapes).

· A kit datacard is completed by the LEA and includes personal details of the arrestee.

· The buccal scrapes and the datacard are sealed inside a tamper evident bag.

14. In cases involving DNA comparisons, the LEA may need to take DNA reference samples from other persons to be eliminated (complainants, witnesses, family members). Such samples are referred to as volunteer samples and can only be taken with written consent. They are not automatically loaded to the NDNAD (most are never loaded). Further written consent from the subject would be required to load their profile onto the NDNAD.

The Forensic Science Provider (FSP)

15. The testing of PACE kits is contracted to a FSP. The FSP must be an accredited supplier of the NDNAD and be an approved supplier under the National Forensic Framework Agreement (NFFA).

16. The FSP receives the DNA kits usually as part of a consignment containing many such kits from arrestees and volunteers. The tamper evident bag is opened and one of the scrapes (the A scrape) is removed for testing. The tamper evident bag (containing the remaining B scrape and the data card) are placed into long term frozen storage.

17. The outcome of the process is a DNA profile which is an alphanumeric string identified only by the kit barcode. This is a relatively rapid process and profiles are obtained within a matter of days from submission to the FSP.

18. The DNA profile is transmitted electronically by the FSP to the NDNAD.

19. In addition to loading on the NDNAD, the DNA profiles from both PACE and volunteer kits are routinely provided to scientists (within and across FSPs) to facilitate comparisons of DNA profiles in a specific case for corroborative and investigative purposes.

20. It is normal practice for the scientist to print a copy of the DNA profile and include it in the case file specific to that investigation for future reference or comparisons. Although the DNA profiles are identified only by a barcode, other paperwork present in the case file provided by the LEA will identify the subject to whom that barcode relates.

21. The case files are a legal necessity and the scientist will rely on those records for testifying in court and for disclosure purposes. They are kept for the period of time required according to ACPO’s Memorandum of Understanding (up to 30 years dependent upon the offence) in case there is an Appeal or a notification of a review by the Criminal Case Review Commission (CCRC).

22. The FSP keeps or generates the following materials as part of the DNA analysis process:

· Two cheek swabs (buccal scrapes – known as A & B) – one is used to generate the profile (A) and the second is stored in a freezer (B);

· Kit datacard (includes the unique bar code and the subject’s name, date of birth & sex together with details of the arresting officer);

· Actual DNA profile submitted to the NDNAD;

· Interim electronic data which is created during the sample analysis (amplification & PCR stages specifically);

· Records held in case files.

23. Potentially, DNA profiles are held in two separate places at the end of the DNA analysis process:

· As a record on the NDNAD – an electronically searchable repository held by the NPIA and;

· In operational case files held by individual FSPs which though individually retrievable, DNA profiles held in these files are not searchable.

24. The following table outlines which of the items outlined in 22 and 23 have personal data linked to them and the potential to delete or sever these:

Item

Description

Includes Personal Data

Linked to personal data

Possible to destroy

Comment

‘A’ scrape

Cheek swab used to generate the DNA profile

No

Yes via bar code to kit datacard

Physically destroyed during processing

‘B’ scrape

Cheek swab retained and stored in freezers. Potential for retest should the case be subject to criminal review or upgrade samples due to the introduction of new technology

No

Yes via bar code to kit datacard

Yes

Kit datacard

Completed by the officer when taking the sample – includes unique bar code, name, date of birth & sex

Yes

Not applicable

Yes

Destroying the kit datacard severs the links to A & B scrape, interim electronic data and DNA profile

DNA Profile

Alphanumeric string of numbers loaded to the NDNAD

No

Yes via bar code to kit datacard

Yes

Destroying the kit datacard severs the links to A & B scrape, interim electronic data and DNA profile

Interim electronic data

Electronic files generated throughout the profiling process

No,

Yes via bar code tokit datacard

No

Destroying the kit datacard severs the links to A & B scrape, interim electronic data and DNA profile

Records held in case files

Printed copy of anonymous profile

No

Yes, via bar code to a copy of either the kit datacard or information provided by the LEA

Yes

The NPIA

25. The NPIA is the custodian of the NDNAD. It is responsible for the running and maintenance of the hardware, software and data that comprises the NDNAD, including the administration of computer records and the handling of enquiries from both LEAs and FSPs.

26. The NDNAD is linked to the PNC and updates the DNA status on an individual’s record when the DNA profile is loaded to the NDNAD. The status shown on the PNC is one of the following:

· DNA taken – awaiting profiling

· DNA profiled – confirm loading to the NDNAD

· DNA confirmed – person is convicted

· DNA destroyed – the profile is deleted (according to the Exceptional Case Procedure)

WHAT IS MEANT BY DESTRUCTION OF DNA PROFILES (s63D)?

DNA PROFILES

27. As it stands, the Bill does not provide a clear definition of what is meant by the destruction of a DNA profile, this could mean deleting a single DNA profile from the NDNAD, or it could mean deleting the DNA profile and all associated materials held by FSPs. In addition, it is not clear if the legislation is applicable to FSPs as well as the police.

28. As outlined in paragraph 22, the FSP keeps or generates a number of materials throughout the process. It is possible to destroy the cheek swabs, the kit datacard and the actual profile submitted to the National DNA Database with the appropriate procedures in place.

29. However, both the interim electronic data and the printed copies of DNA profiles associated with case files are not easily destroyed. The reasons for this are outlined in paragraphs 30 – 40.

DESTRUCTION OF DNA PROFILES HELD IN CASEFILES

30. In its current form, it is not clear if the legislation is applicable to the DNA profiles which are held in the FSP’s case files. The actual DNA profile held within the case file does not include any information that would identify an individual but it can be linked to other details in the case file from which it would be possible to do so.

31. If s63P(2) does extend to FSPs and to hard copies of the DNA profiles held in case files, the destruction of the records will be a complex, time-consuming and expensive process. It will also need to ensure that an accurate audit trail is maintained.

32. There is no automated system to interrogate the case file system to identify the specific files which hold a subject’s DNA profile which would require additional resource within FSPs to perform this.

33. The removal of the paper copies from case files would mean that the integrity of the file has been compromised. In addition, it conflicts with ACPO’s Memorandum of Understanding and the CPS’ guidance for experts to record, retain and reveal.

34. It is important to note that the majority of these DNA profiles are held within case files belong to volunteers who have given their express permission for their DNA profile to be held for the purpose of a specific investigation. Most of these are never loaded to the NDNAD.

DESTRUCTION OF INTERIM ELECTRONIC DATA

35. In s63P(2), the Bill states that ‘no copy may be retained by police except in a form which does not include information which identifies the person to whom the DNA profile relates.’ Clarification is required to understand whether this section extends to the FSPs as well as to the police.

36. If this section does apply to FSPs as well as police, the interim electronic data complies with the requirements as it completely anonymous and is not linked to any personal information about the individual following the destruction of the DNA profile from the NDNAD and the kit datacard (see para 24). In addition, it would not be searchable.

37. If this clause does not extend to FSPs, it is not possible to destroy the interim electronic data relating to an individual DNA profile for the reasons outlined in paragraphs 38 - 40.

38. Interim electronic data is generated as part of the DNA analysis process. PACE samples are processed in batches and there are 96 samples per batch – 80 of which are live DNA samples and 16 are quality controls. This is standard across all FSPs and not unique to the FSS.

39. The interim electronic data for a single sample is inextricably linked to the other samples processed as part of the batch. Effectively, it is like a negative generated from traditional photography processes. It is not possible to remove one person from the negative without destroying the entire negative.

40. Deleting the interim electronic data of all samples within the batch has potential to create quality and continuity issues at a later stage should, for example, one of the other samples becomes subject to a criminal trial.

RESOURCE IMPLICATIONS OF THE DESTRUCTION OF DNA RECORDS (s63D)

DESTRUCTION OF LEGACY PROFILES

41. In its current form, it appears that the Bill will be applied retrospectively to legacy profiles (s63D). This section assumes that destruction includes the profile, the A & B scrapes and the kit datacard.

42. The FSS estimates that it holds over 650,000 (as of 2008) samples relating to those who have been arrested, their profile loaded to the NDNAD, but not convicted. The FSS holds the largest proportion of such items as it has been the main provider since the development of the NDNAD in 1995.

43. It is estimated that the destruction of these samples (excluding the interim electronic data and paper copies in case files) would cost several million pounds.

 

44. This estimate includes the production of an audit trail to support the deletion of each item (e.g. the date of the deletion, who deleted the profiles, the witness and how it was deleted).

45. If the Bill requires the destruction of the interim electronic data and paper copies in case files (paragraphs 27 – 40), considerable investment would be required by the FSP. This would be needed to develop and implement the new technology required to delete individual electronic files from the batches as well as staffing costs to locate DNA profiles in the case files.

DESTRUCTION OF PROFILES IN THE FUTURE

46. Currently, only a few hundred DNA records are deleted from the NDNAD each year through the Exceptional Case Procedure. If the provisions are implemented as outlined in the Bill, it is anticipated that the number of DNA profiles subject to deletion procedure will increase significantly to either tens or hundreds of thousand each year.

47. This scale of increase would mean that FSPs would have to allocate additional resource to administrate the deletion of profiles as required.

48. In addition to the costs associated with the destruction of legacy profiles (paragraph 43), an annual cost would be incurred for the deletion of profiles added to the NDNAD in the future. This cost is estimated to be in the region of several hundred thousand pounds.

49. An effective mechanism is required to ensure that all parties (LEA, FSP and NPIA) are informed of the outcome of a case in a timely manner to ensure that the deletion takes place at all necessary points.

50. If this does not happen, there are potential issues for the Court. For example, if a profile is not deleted when it should be and a match on the NDNAD is generated against it at a later date. The Court is left with a dilemma about the admissibility of the DNA profile. Examples of this have been seen previously: AGs Ref No. 3 of 1999 [1] and R v Weir [2] .

POTENTIAL CONSEQUENCES OF THE DESTRUCTION OF DNA RECORDS (s63D)

RECORD KEEPING

51. If the record of a profile is to be removed from the case files, there are potential issues related to the integrity of the case files and the provision of adequate audit trails if the case is subject to a criminal trial, a future appeal or a cold case review.

52. As part of the judicial process, defence scientists will be employed to scrutinise the case files. If the record is deleted, they would not be able to check that the individual had been excluded based on the profile obtained at the time and may request an additional sample is taken for re-testing. Under these circumstances, the person is not obliged to provide a DNA sample.

COLD CASE REVIEWS

53. The FSS has worked with more than 38 police forces in their reviews of historic offences and has helped to secure convictions in over 220 cases. Scientists at the FSS worked on over 600 cold case reviews between January – June 2010.

54. The destruction of DNA profiles following acquittal or after timelines suggested in the Bill mean that some cold cases may not have been solved.

POTENTIAL CONSEQUENCES OF THE DESTRUCTION OF SAMPLES AFTER PREPARATION OF THE DNA PROFILE (s63Q)

55. The immediate destruction of samples provided after the preparation of the DNA profile could potentially compromise the investigative capability of the police and have serious repercussions for the conduct of criminal trials.

56. Where a volunteer has provided a sample to support an investigation, but not given permission to load their profile to the NDNAD, and the samples have been destroyed after the preparation of the profile. The samples would not be available:

· Additional testing potentially required during the life of the case

· As a court exhibit for re-test by the defence if required

· To demonstrate continuity throughout the investigation

· For upgrade if new technology is implemented and the case is reviewed in future.

57. The immediate destruction of samples would destroy all evidence of continuity for the specific case. For example, the FSS currently receives over 1000 requests per month for datacards to demonstrate continuity of evidence to the defence. It is likely that some of these datacards will be deleted as part of the proposals and would not be available for the defence or to be inspected in the future. This could potentially allow defence teams to question the continuity of the case and require further re-testing to re-eliminate the person for defence purposes.

58. In a small number of cases, new DNA technology may be used to upgrade a reference profile held as part of the case file at a later date in the investigation to eliminate the individual (for example, as has been seen with the upgrade of SGM profiles held on the NDNAD to SGM plus). If the samples have been destroyed, this would not be possible and the individual would have to be retraced, a new sample obtained and retested. This would result in additional costs and time to the police investigation.

59. It is anticipated that the number of cases falling into the situation described in paragraph 52 will increase with the forthcoming introduction of new DNA technology (NGM). The European scientific community has been developing NGM which includes additional DNA markers to mitigate the risk of false (adventitious) matches. There is now a consensus across Europe about the use of the additional markers and the UK will be expected to embrace this technology to remain in step with Europe. The introduction of this technology is already underway.

60. The section states ‘nothing in this section prevents a speculative search, in relation to samples to which this section applies, from being carried out …’ The meaning of the term speculative search needs to be clearly defined. Across the industry, the term a speculative search refers to a one off search of the NDNAD as opposed to a profile being loaded to the NDNAD. However, it is unclear whether these proposals authorise the temporary addition of a PACE sample to the NDNAD if notification of the outcome is received after which it may (or may not) be deleted.

   

ABOUT THE FORENSIC SCIENCE SERVICE

61. The FSS is the UK’s leading forensic science provider with approximately 60% of the market. It provides the broadest range of forensic techniques from the crime scene to court room. The company is organised into national crime streams dealing with violent and volume crime, drugs, sexual offences, DNA. Between April 2009 and April 2010, the FSS handled over 90,000 cases.

62. The FSS has pioneered every major breakthrough in the field of DNA analysis worldwide. It developed and implemented the world’s first NDNAD. It was responsible for the management of the NDNAD, under license to the Home Office, until November 2009 when the custodianship transferred to the National Policing Improvement Agency (NPIA).

62. The FSS is a Government-owned company. In December 2010, the Minister for Crime Prevention announced the Government’s decision to close the FSS by March 2012.

April 2011


[1] Attorney General's Reference No. 3 of 1999 [2001] H.R.L.R. 16

[2] R v Weir [2001] 2 Cr. App.R. 9