House of Lords - Constitution Committee

Surveillance: Citizens and the State - Constitution Committee Contents

Memorandum by GeneWatch UK

SUMMARY

1. England and Wales are the only countries in the world which keep DNA profiles and samples from innocent people and people convicted of minor offences for life. The National DNA Database is an important tool in criminal investigations. However, the practice of taking DNA routinely on arrest for all recordable offences and retaining both DNA samples and the computerised DNA profiles permanently, is disproportionate to the need to tackle crime.

2. The change in legislation allowing DNA records to be retained even if an individual is never charged or is acquitted has subsequently been used to justify a change in policy which means that all Police National Computer (PNC) records are now kept permanently. The retention of permanent records of arrest (for all recordable offences) is unprecedented in British history.

3. The rapid expansion of the National DNA Database has enormous implications for the balance between the power of the state to implement "biosurveillance" on an individual and the individual's right to liberty and privacy. There is also significant potential for others—including organised criminals—to infiltrate the system and abuse it, for example by using it to reveal changed identities and breach witness protection schemes.

4. The permanent retention of all DNA profiles, samples and police records, significantly changes the relationship between the individual and the State. Individuals with records on the DNA Database lose their presumed legitimacy to go about their daily life, their right to refuse to take part in genetic research and their right to keep their family relationships and other genetic information private. Even if they have never been charged or convicted of any offence, they may be refused employment or a visa as a result of the retention of a permanent record of their arrest on the PNC. The retention of an individual's DNA profile also allows their movements to be tracked or their relatives to be identified. The potential implications for the right to protest are particularly serious.

5. There has been little public or democratic oversight of this shift in approach and current safeguards are inadequate to prevent errors or abuses. Proposals to further expand police powers and to share more DNA data with other countries will exacerbate this situation.

6. It is difficult to reconcile the current situation with the principle of equal application of the law (the concept that everyone is equal before the law). Additional constitutional protection is therefore necessary to prevent excessive "biosurveillance" of this group of citizens by this or future governments.

INTRODUCTION

7. GeneWatch UK is a not-for-profit policy research group concerned with the science, ethics, policy and regulation of genetic technologies. GeneWatch believes people should have a voice in how these technologies are used: our aim is to ensure that genetics is used in the public interest.

8. Our submission is concerned with the National DNA Database (NDNAD), which is the largest in the world. Police powers to take and retain DNA have expanded rapidly in recent years and a current Home Office Consultation proposes to expand these powers further. These changes have major implications for the privacy of citizens and their relationship with the State.

BACKGROUND

9. The police in England and Wales now routinely take DNA samples without consent from anyone aged ten or above in police detention who has been arrested in connection with any recordable offence. All DNA samples are kept permanently by the companies that analyse them, and the computerised DNA profiles and personal data (such as name and ethnic group) are also kept permanently on the National DNA Database (NDNAD), linked to the stored samples by a unique reference number.[1], [2] Volunteers, including victims of crime, must give their consent for their computerised DNA profiles to be entered on the National DNA Database, and the collection of DNA from children under 10 years-old requires parental consent. However, in England and Wales consent is irrevocable and cannot be withdrawn.

10. This is out of step with practice in other European countries and with the principles adopted by bodies such as the Council of Europe,[3] which require time limits on retention of DNA records for all but the most serious offenders.

11. People who have been arrested have an arrest summons number (ASN) included in their record on the NDNAD, which provides a link to other information on the Police National Computer (PNC). 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.[4] The retention of permanent records of arrest is unprecedented in British history.

12. A recent Home Office consultation proposes further extending police powers and implies a new link between the NDNAD and the proposed National Identity Register.[5] Proposals under the Prüm Treaty may in future allow direct access to the NDNAD, or some of the information it contains, by law enforcement agencies in other European Union countries.[6]

USES OF THE NDNAD

13. Every night a "speculative search" of the NDNAD is run to look for new DNA profile matches. A match between an individual's computerised DNA profile and a crime scene DNA profile indicates a high probability that the individual was at the crime scene.

14. A DNA database is not required to provide evidence of guilt or innocence when there is a known group of suspects for a specific crime. The "added value" of putting individuals on a database is only to introduce new suspects into an investigation.

15. DNA matches between crime scenes and individuals on the Database include many matches with victims and innocent passers-by. Only some matches (called DNA detections) involve sufficient evidence to charge someone for a crime, and not all DNA detections lead to prosecutions or convictions.

16. Uses of the NDNAD may include any purpose related to the prevention or detection of crime. Uses currently include: familial searching (using partial DNA matches to try to identify the relatives of a suspect); searching by name; and undertaking various types of genetic research (including controversial attempts to predict ethnic appearance from DNA).[7]

Does permanent retention of DNA samples and computer records on the NDNAD change the balance between citizen and state? What effects are there on a citizen's liberty and privacy and the character of citizenship?

17. The law allows the capture and use of genetic information without consent from a defined section of the community (those who have been arrested for a recordable offence), often referred to as the "active criminal population" (despite the fact that many of these individuals will not have committed any crime).

18. People on the Database are treated as members of a "risky population", whose DNA requires permanent retention by the State.[8] Young people, people suffering from mental illness and people from black and minority ethnic groups are particularly likely to be members of this "risky population". Retention of an individual's DNA profiles on a Database is likely to be of most benefit when he or she has a record as a "career criminal" and is considered likely to re-offend. However, the population on the Database now includes anyone who is arrested for a recordable offence. Ministers have accepted that: "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."[9]

19. DNA and fingerprints differ from other means of surveillance, such as photographs and iris scans, because they do not require equipment to be installed in particular places in order to trace or record where an individual has been. Both DNA and fingerprints may be left wherever a person goes. The retention of DNA and fingerprints from an individual on a database therefore allows a form of biological tagging or "biosurveillance".[10]

20. Unlike fingerprints, DNA can also be used to investigate biological relationships between individuals (including paternity and non-paternity). A person's DNA also contains some other private information about their health and other physical characteristics. Some of this information (such as carrier status for a genetic disorder and non-paternity) may be highly sensitive and/or unknown to the individual.

21. The routine use of "speculative searches" of the NDNAD means that any individual with a record on it may become a suspect for a crime as a result of a match between their DNA profile and a crime scene DNA profile.

22. Because a DNA match does not provide certainty that the individual committed the crime (many DNA matches are with the DNA of passers-by, and a few occur by chance), this process entails a subtle shift in the burden of proof and the presumed legitimacy of people on the Database to go about their daily lives. New techniques may also make false matches more likely. For example, the increasing use of Low Copy Number (LCN) DNA analysis—which allows a DNA profile to be extracted from a single cell—has led the Director of the Forensic Institute in Edinburgh to warn that innocent people may be wrongly identified as suspects as a consequence of being on the NDNAD[11] and the judge in the Omagh trial to criticise specialist evidence on this technique as contradictory.[12] In one case this technique reportedly identified a 14-year old English schoolboy as a suspect for having planted a Real IRA car bomb.[13] The use of "familial searching" means that anyone who is genetically related to an individual on the Database may also become implicated as a suspect.[14]

23. Because an individual may leave DNA wherever they go, there is also potential for it to be used to try to identify whether he or she has been present at scenes other than crime scenes (for example, a political or religious meeting). The legal restriction of uses to "purposes related to the prevention and detection of crime" provides no meaningful barrier to such surveillance, nor is there any independent scrutiny which could identify such uses. Particular concern arises in the context of the right to protest, because acquittal by a court, or a spent conviction for a relatively minor offence, no longer results in removal of a person's record from the NDNAD or the PNC.

24. Allowing the Database to be searched by name, or by using a "familial search" (looking for partial matches between a DNA profile and profiles stored on the Database), means that an individual's DNA profile can be obtained and used to trace their movements or identify relatives. If a person's DNA sample is also accessed, other personal genetic information may also be obtained. The same approach may be used to trace identifiable groups of individuals (for example, searches for the DNA profiles of people belonging to a particular ethnic group or having "typical Muslim names" have been made in the context of research projects undertaken using the NDNAD).

25. The permanent retention of an individual's record of arrest (including the retention of their record on the PNC, linked to the NDNAD) may also be used to deny them access to employment or visas, or restrict their rights in other ways (for example, they lose their right to refuse to take part in controversial genetic research). Even after records are "stepped down" on the PNC (so that access by agencies other than the police is supposedly restricted) information contained in these records may continue to be made available to others as the result of an Enhanced Criminal Record Check.[15] Employers may also require an individual undertake his or her own subject access request to the police and reveal this as a condition of employment (known as "enforced subject access").

26. The rapid expansion of the National DNA Database therefore has enormous implications for the balance between the power of the state to implement "biosurveillance" on an individual and the individual's rights to liberty and privacy.

Is the Data Protection Act sufficient in safeguarding constitutional rights?

27. The Data Protection Act is inadequate in principle because it does not restrict the retention or use of individuals' DNA samples or computer records in any meaningful way: it does not prevent State "biosurveillance" of any individual with a record on the Database.

28. The Act is also inadequate in practice because its focus is on control of access to the Database itself. In practice, the process of collecting, analysing and storing DNA allows numerous points of access to confidential information (for example, by employees working in the commercial laboratories which analyse and store the DNA samples for the police; or by the non-police staff who may collect DNA in the proposed new Short-Term Holding Facilities). If criminals can infiltrate the system they may be able to use it to identify people whose identity is protected, including people in witness protection schemes and undercover police officers, and to trace their relatives or reveal private genetic information (including paternity and non-paternity). The risk to privacy is also increased by plans to share more information with EU countries and to check DNA or police records on the spot using hand-held devices.[16], [17]

29. There have already been a number of incidents and practices which cause serious concern:

Do the benefits outweigh the concerns? Where should the line be drawn?

30. The practice of retaining individuals' DNA samples and computerised DNA profiles permanently is clearly disproportionate to the need to tackle crime.

31. The value of entering increasing numbers of DNA profiles from individuals on the Database (unrelated to the reason for arrest) is that it may allow investigation of a past crime to be re-opened, by unexpectedly 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.

32. Re-examination of a number of "cold" cases has highlighted the importance of keeping past crime scene DNA evidence. Occasionally, the DNA of someone arrested for a minor offence is matched with DNA from a serious past crime, arguably justifying taking DNA from relatively large numbers of individuals. Examples of such cases have been provided to Parliament and to the public in an attempt to justify expansion of the Database.[21], [22] However, such cases do not justify permanently retaining DNA profiles and samples from people whose DNA has not matched a past crime scene.

33. Analysis of Home Office data shows that collecting more DNA from crime scenes has made a significant difference to the number of crimes solved, but keeping DNA from increasing numbers of individuals has not.[23] Since April 2003, about 1.5 million extra people have been added to the Database, but the chances of detecting a crime using DNA has remained roughly constant, at about 0.36%.[24] The Home Office appears to accept that the retention of DNA from innocent people has had little impact on crime detection rates[25] and seems unable to quantify the claimed benefits.[26] In Parliament, ministers have repeatedly provided figures for DNA matches, rather than detections or convictions. DNA matches are much more frequent than successful prosecutions—they will include many matches with the DNA of victims and of passers-by. Despite the lack of evidence on successful prosecutions, the figures on matches have repeatedly been used by ministers to justify the changes in the law[27] and have also frequently been misreported as "solved" crimes.[28]

34. Retention of individuals' DNA samples increases privacy concerns and costs (the companies which store them are paid an annual fee). Individuals' samples are destroyed in some other countries, such as Germany, once the computerised DNA profiles used for identification purposes have been obtained. The Home Office has recognised that retaining samples is "one of the most sensitive issues to the wider public"[29] and the Human Genetics Commission has concluded that the reasons given for retaining them are "not compelling".[30], [31] Only temporary, not permanent, storage is necessary for quality assurance purposes and a new sample can always be taken from the suspect if a DNA profile requires checking or upgrading.

35. GeneWatch UK believes that there are important changes that could be made that would improve safeguards for human rights and privacy without compromising the role of the DNA Database in tackling crime. A better balance would be struck by:

— reintroducing a system of time limits on how long people are kept on the Database—so that only DNA profiles from people convicted of serious violent or sexual offences are kept permanently;

— destroying all individuals' DNA samples once an investigation is complete, after the DNA profiles used for identification have been obtained;

— ending the practice of allowing genetic research using the Database or samples, so that research is limited to performance management and database improvements;

— better governance, including an independent regulator;

— public and parliamentary debate before new uses of the Database are introduced;

— a return to taking DNA on charge rather than arrest, except where it is needed to investigate a specific offence.

Is there a need for any additional constitutional protection of citizens?

36. The permanent retention of DNA profiles and samples from large numbers of individuals who have committed no offence, or have a spent conviction for a minor offence, significantly changes the relationship between the individual and the State.

37. Individuals with records on the National DNA Database are treated as a "risky population", whose DNA requires permanent retention by the State. They lose their presumed legitimacy to go about their daily life, their right to refuse to take part in genetic research and their right to keep their family relationships and other genetic information private. Even if they have never been charged or convicted of any offence, they may be refused employment or a visa as a result of the retention of a permanent record of their arrest on the PNC. The retention of an individual's DNA profile also allows their movements to be tracked or their relatives to be identified.

38. It is difficult to reconcile this situation with the principle of equal application of the law (the concept that everyone is equal before the law). Additional constitutional protection is therefore necessary to prevent excessive "biosurveillance" of this group of citizens by this or future governments.

1 June 2007