Memorandum by GeneWatch UK
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
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
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 othersincluding
organised criminalsto 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.
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.
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.,
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,
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.
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.
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.
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).
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.
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."
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".
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 analysiswhich
allows a DNA profile to be extracted from a single cellhas
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
and the judge in the Omagh trial to criticise specialist evidence
on this technique as contradictory.
In one case this technique reportedly identified a 14-year old
English schoolboy as a suspect for having planted a Real IRA car
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.
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
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.
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
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.,
29. There have already been a number of
incidents and practices which cause serious concern:
Five employees of the Forensic Science
Service (FSS) have been suspended whilst allegations that they
"copied, retained and/or adapted software and/or other confidential
information" are investigated.
Emails supplied to GeneWatch UK as
a result of a Freedom of Information request revealed that the
commercial company LGC kept copies of information sent to it by
the police, including individuals' demographic details, alongside
their DNA profiles and samples.,
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.,
However, such cases do not justify permanently retaining DNA profiles
and samples from people whose DNA has not matched a past crime
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.
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%.
The Home Office appears to accept that the retention of DNA from
innocent people has had little impact on crime detection rates
and seems unable to quantify the claimed benefits.
In Parliament, ministers have repeatedly provided figures for
DNA matches, rather than detections or convictions. DNA matches
are much more frequent than successful prosecutionsthey
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
and have also frequently been misreported as "solved"
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"
and the Human Genetics Commission has concluded that the reasons
given for retaining them are "not compelling".,
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 Databaseso 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
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
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
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