Government Response
Introduction
The Home Affairs Select Committee published its report
"The National DNA Database" on 8 March 2010. This Appendix
sets out the Government's response to the conclusions and recommendations
of that report.
The Committee's report includes eleven conclusions
and recommendations for action by the Government, the Home Office,
the National Policing Improvement Agency and the Information Commissioner.
In this response the recommendations are identified according
to the paragraphs in which they appear in Home Affairs Select
Committee 's report. Some responses are grouped together where
they respond to the same issue.
It is currently impossible to say with certainty
how many crimes are detected, let alone how many result in convictions,
due at least in part to the matching of crime scene DNA to a personal
profile already on the database, but it appears that it may be
as little as 0.3%—and we note that the reason for retaining
personal profiles on a database is so that the person can be linked
to crimes he/she commits later. (Paragraph 6)
While it is true that only a small proportion of
all crimes are detected as a result of a DNA match, the Government
does not consider that a rudimentary analysis of the number of
crimes reported and the number of DNA matches provides a meaningful
basis for examining the effectiveness of the National DNA Database.
This is because there are many types of crime, such as fraud or
forgery, where there is no 'scene of crime' from which biometric
material can be obtained for matching against the Database.
Nonetheless, this Government has committed to ensuring
that all those in prison are on the Database, along with all those
with previous convictions for serious offences. A summary of our
proposals is set out in the Annex and you will note that the Protection
of Freedoms Bill, published today, gives effect to these measures.
We wish to make it clear at the outset that we
are strongly of the belief that DNA profiling and matching are
vital tools in the fight against crime; and that it is essential,
wherever possible, to gather, profile and store information relating
to DNA discovered at crime scenes. Although it is very unlikely
that DNA on its own could bring about a conviction for a crime—and,
indeed, we understand that the Crown Prosecution Service requires
further corroborative evidence before it will bring a prosecution—as
Sir Hugh Orde, the head of ACPO, told the Public Bill Committee,
DNA evidence places a person at the scene of the crime and he/she
then has to explain why they were there or prove that the DNA
match is faulty. (Paragraph 11)
The Government agrees with the Committee that taking
DNA samples from all those arrested for recordable offences, and
the comparison of that DNA with previous crime scenes, is essential.
That is why we are proposing a change to the position in Scotland,
so that all samples taken will be profiled and speculatively searched
against the NDNAD before being destroyed, irrespective of whether
a decision has already been taken to discontinue the investigation.
Nor do we question the taking of DNA samples from
everyone arrested for a recordable offence. We note that the identification
of perpetrators of some very serious crimes, including murder,
has been made possible by the matching of a personal sample taken
in connection with a later, less serious offence with a crime
scene sample. We also support the principle, as set down in the
Crime and Security Bill, of destroying the actual personal samples
as soon as practicable, not least as they could theoretically
be used to derive other personal information about the individual
such as family relationships or information about health. In this
Report we are solely concerned with the retention of personal
profiles on the database: whose profiles should be retained, for
how long they should be stored, and the processes for getting
one's profile deleted from the database. (Paragraph 12)
The Government agrees with the Committee that the
proposal of the previous administration to destroy biological
samples once they have been profiled and loaded to the Database
is an important safeguard against any perception that such samples
might be misused. We have therefore included in the Protection
of Freedoms Bill a requirement that all such samples be destroyed
within six months of being taken.
Retention of personal profiles
It is not known how many crimes are solved with
the help of the stored personal profiles of those not previously
convicted of a crime. The highly complicated calculations made
by GeneWatch to try to answer this question on the basis of information
from various sources already in the public domain, and the provisional
nature of its conclusions, underline the need for the Home Office
to undertake research specifically on this issue. (Paragraph 15)
The Government does not believe further research
in this area is required. As set out in more detail below, the
judgment of the European Court of Human Rights in Marper was clear
in its endorsement of the Scottish Model for DNA retention. Many
respondents to the previous Government's consultation on DNA retention,
including Black Mental Health, the Equalities and Human Rights
Commission, GeneWatch, Liberty and the National DNA Database Ethics
Group, also endorsed the Scottish model. Finally, the Government
made clear in the Programme for Government that it was committed
to the adoption of this model and, in the light of this widespread
endorsement of the Scottish model, the Government does not consider
that further research in this area would represent value for money.
Equity and proportionality
It could therefore be argued that the DNA from
those never charged with an offence should be treated differently
from those charged but not convicted. However, this runs counter
to the principle in England and Wales that in law people are either
innocent or guilty by introducing gradations of innocence. It
also does not tackle the nub of the problem: arrest should be
a high threshold. At least in part, the anomalies have arisen
in the current system because of the way in which offences are
treated—for example, far more incidents are now classified
as crimes of violence even if no physical assault has taken place—and
target-driven policing has encouraged police officers to treat
minor incidents formally in order to reach targets. We hope that
both these trends will be mitigated by the move back to 'commonsense
policing'; if so, the number of arrests for flimsy reasons should
decline sharply. We therefore do not recommend the return to the
pre-2004 situation of DNA being collected only on charging not
on arrest. (Paragraph 28)
However, the counter-balance to this is that it
should be easier for those wrongly arrested or who have volunteered
their DNA to get their records removed from the database. We recommend
some changes to make this possible later in this report. (Paragraph
29)
The Government agrees with the Committee that biometric
data should be taken following arrest, rather than charge, in
order to gain maximum advantage from biometric technology. The
Government also agrees with the Committee that the previous administration's
target-driven culture has had an unfortunate effect on policing
methods, and would wish to see a return to the 'commonsense policing'
that the Committee describes. The Government further agrees that
the process to request removal from the Database should be more
transparent and consistent; further details of this are set out
below.
It is arguable on the basis of natural justice
and the Equalities and Human Rights Commission's judgment that
those suspected of committing the most serious crimes should be
treated differently from those suspected of more minor crimes.
Ms Abbott, Liberty and GeneWatch clearly thought so. We support
the distinctions made among juveniles, not least because numerous
studies have shown that many 'get into trouble with the law' for
something comparatively minor and never offend again. This leaves
the question whether the same distinction should be made among
adults. The police argued that enough people progressed from committing
'minor' crimes to serious crime that the effectiveness of the
database would be seriously undermined if those suspected of minor
crimes had their DNA profiles deleted earlier than others. We
accept this, and therefore do not recommend that the Bill's provisions
relating to adults make a distinction between those arrested for
major and minor crimes. (Paragraph 31)
The Government notes this recommendation but, having
given it careful consideration, does not accept it. The European
Court of Human Rights, in considering the case of S & Marper
vs. the UK in December 2008 took particular note of the position
in Scotland, stating at paragraphs 109 & 110 of its judgment:
The current position of Scotland, as a part of the
United Kingdom itself, is of particular significance in this regard…the
Scottish Parliament voted to allow retention of the DNA of unconvicted
persons only in the case of adults charged with violent or sexual
offences and even then, for three years only, with the possibility
of an extension to keep the DNA sample and data for a further
two years with the consent of a sheriff.
This position is notably consistent with Committee
of Ministers' Recommendation R(92)1, which stresses the need for
an approach which discriminates between different kinds of cases
and for the application of strictly defined storage periods for
data, even in more serious cases…
The Government considers that the rights of those
who are innocent of any crime, notwithstanding their arrest for
a minor crime, outweigh the potential public protection benefits
of the retention of their biometric data. The European Court took
a similar approach at paragraph 112 of its judgment:
The Court observes that the protection afforded by
Article 8 of the Convention would be unacceptably weakened if
the use of modern scientific techniques in the criminal-justice
system were allowed at any cost and without carefully balancing
the potential benefits of the extensive use of such techniques
against important private-life interests.
The Government has also taken account of the conclusion
of the previous Joint Committee on Human Rights when it considered
the Crime & Security Bill proposed by the last administration.
In its Twelfth Report of Session 2009-10 (Legislative Scrutiny:
Crime and Security Bill et al), the Joint Committee noted
at paragraph 1.73 that:
In our view, various approaches could comply with
the Marper judgment—from no retention of DNA of those not
ultimately convicted to the Scottish model, where DNA is retained
for those charged but not convicted of serious offences. The Bill
could be amended to adopt the Scottish model, which complies with
the guidance of the Grand Chamber in Marper and the Council of
Europe in its Recommendation on the use of DNA in the criminal
justice system (R (92) 1). The Scottish Government does not consider
that this approach has undermined the ability of Scottish police
to investigate criminal offences. While the Government argues
that its approach has greater value for the purposes of the investigation
and prevention of crime, the Scottish model is more likely to
strike a proportionate balance between this important public interest
and the right to respect for private life of those individuals
whose samples are taken on arrest but who are subsequently not
charged or convicted.
The Government therefore considers that a model that
differentiates between those arrested for, but not convicted of,
offences of differing degrees of seriousness, as used in Scotland,
is appropriate in all the circumstances. The proposals set out
in the Annex reflect that.
Length of time for retaining profiles
The Home Secretary is right to caution against
a simple identification of a second arrest, with no indication
of outcome, as being proof of guilt. If faced with a crime such
as burglary, where it is known that a high proportion of offences
is committed by a limited number of repeat offenders, it is right
for the police to look first at suspects previously arrested for
a similar crime, rather than to the general population. Arrest
to arrest data reveal the likelihood of being arrested again,
but do not equate to the risk of offending after an initial arrest.
(Paragraph 34)
The Government believes that the determination of
an appropriate retention period is essentially a matter of political
judgement, and agrees with the Committee's assessment that the
previous Government's arrest to arrest data does not provide a
firm enough basis upon which to form policy. Given the widespread
endorsement of the Scottish model set out above, the Government
does not believe that public and Parliamentary debate would be
significantly better informed by a further examination of the
statistical data on the propensity to offend in the future of
those individuals arrested for or charged with offences but not
subsequently convicted.
The Government has given careful consideration to
the position of juveniles in the light of the European Court's
finding, in its Marper judgment, that particular attention should
be paid to the protection of juveniles from any detriment resulting
from the retention of their data. However, the broader criminological
literature suggests that early contact with the Criminal Justice
System is a strong risk factor for persistent offending in later
life. The Government has therefore taken into account the particular
position of children in society in deciding not to extend the
period of retention in their case.
We are not convinced that retaining for six years
the DNA profiles of people not convicted of any crime would result
in more cases being cleared up—let alone more convictions
obtained—than retaining them for three years. We therefore
recommend a three year limit, and a draft amendment to the Crime
and Security Bill to this effect is in the Annex to this Report.
(Paragraph 37)
The Government agrees with the Committee's views
on the legislation proposed by the previous administration and,
in particular, considers that a six-year retention period would
impose an unwarranted intrusion on the rights of innocent individuals
without a significant improvement in public protection. The Government's
proposals set out in the Annex therefore seek to implement the
proposals in the Coalition Agreement to 'adopt the protections
of the Scottish Model' for DNA Retention.
Removing records from the Database
The Government has tabled amendments at Report
Stage of the Bill to give the National DNA Database Strategy Board
the central co-ordinating role, as the organisation to which applications
for deletion of records would be made, handling the case, making
a recommendation to the relevant chief constable based on the
statutory guidance that it (the Board) would issue, and informing
the applicant of the result. We support these proposals. (Paragraph
40)
This Government is committed to abolishing the 'postcode
lottery' where residents of one force area would have their biometrics
deleted, while a resident of another force area with almost identical
case would not. As a further safeguard, we have also decided to
place the National DNA Database itself on a statutory footing,
as a number of organisations have previously called for. While
we will not therefore be bringing into force what became section
23 of the Crime & Security Act 2010, we agree with the Committee
that such provision is appropriate and have included provision
to that effect in clauses 23 and 24 of the Protection of Freedoms
Bill.
We consider that the then Home Affairs Committee
should be consulted by the Board on the draft guidance. The Home
Secretary cited an example of where DNA data should not be retained—that
of someone arrested for shoplifting when trying to exchange goods
for which she was carrying the receipt. This example is absolutely
cut and dried; we expect the guidance to allow for the destruction
of data in a far wider range of cases. (Paragraph 41)
The Government agrees that a wide range of opinion
should be canvassed on the proposed Strategy Board Guidance, in
order to ensure the process is as transparent and fair as possible.
We will work with the Board to ensure that draft Guidance is circulated
as soon as possible to the Committee and other interested parties
and views sought on its contents. The comments subsequently received
will be passed to the Strategy Board for its consideration in
finalising the Guidance.
| 
