APPENDIX: MEMORANDUM BY THE INFORMATION
COMMISSIONERHIS VIEW OF THE HOME OFFICE PROPOSALS FOR THE
RETENTION OF DNA PROFILES CONTAINED IN THE CRIME AND SECURITY
1.1 The Information Commissioner has responsibility
for promoting and enforcing the Data Protection Act 1998 and the
Freedom of Information Act 2000. He is independent from government
and his mission is to uphold information rights in the public
interest, promoting openness by public bodies and data privacy
for individuals. The Commissioner does this by providing guidance
to individuals and organisations, solving problems where he can,
and taking appropriate action where the law is broken.
1.2 The views expressed in this evidence replicate
the content of a letter sent from the Information Commissioner
to the Home Secretary on 15 February 2010.
2.0 Explanation of the Commissioner's views
2.1 In December 2008 the European Court of Human
Rights (ECHR) ruled that the "blanket and indiscriminate"
retention of DNA by the UK police constitutes a disproportionate
interference with the right to respect for private life contrary
to Article 8 of the European Convention on Human Rights. The ruling
also engages a number of the provisions of the Data Protection
Act 1998; in particular the First Principle which requires that
personal data shall be obtained and further processed fairly and
lawfully and the Third and Fifth Principles that personal data
should be adequate, relevant, not excessive and kept for no longer
2.2 In May 2009 the Home Office published a consultation
paper entitled, "Keeping the right people on the DNA database"
containing proposals for implementing the ECHR judgement and improving
the governance and accountability around biometric data. The Commissioner
responded to the consultation paper welcoming the evidence based
approach adopted by the Home Office in developing the proposals
but raising concerns about the reliability of that evidence.
2.3 The Home Office subsequently revised some
of its proposals; in particular the length of the retention period
for "non-convicted" adults was reduced from 12 to 6
years irrespective of the seriousness of the crime for which they
had been arrested. These revisions are now included in the Crime
and Security Bill.
2.4 The Commissioner recognises the value of
DNA profiles to policing. He believes that there can be a justification
made for the retention of DNA profiles of individuals arrested
but not convicted in clearly defined and limited circumstances.
He also accepts that the ECHR judgment does not prevent the police
using DNA profiles to search against the DNA database in the period
between arrest and any decision as to further action in the case
where this is to aid the identification of the arrested individual
and the detection of unsolved crimes.
2.5 The Commissioner welcomes the fact that the
latest Home Office proposals in the Crime and Security Bill remain
evidence based. However, he is concerned that the evidence for
the 6 year retention period for "non-convicted" adults
is still unreliable for reasons explained in detail below. He
is also concerned about inconsistencies in approach. In particular
the proposed 6 year retention period for 16-17 year olds arrested
for but not convicted of "serious crime sits oddly with the
argument that the evidence does not support any such distinction
between serious and minor crimes in the proposed 6 year retention
period for "non-convicted" adults.
2.6 The Commissioner's concerns are informed
by the latest views of Keith Soothill, Emeritus Professor of Social
Research at Lancaster University and Brian Francis, Professor
of Social Statistics at Lancaster University. Professors Soothill
and Francis have previously produced research for the Commissioner
in relation to the retention of criminal conviction information
by the Police. They also produced a paper entitled "Keeping
Innocent People on the DNA Database" in response to the Home
Office consultation paper. Copies of their views on the latest
Home Office research and proposals are attached as Appendices
1 and 2 to this paper (not printed).
2.7 The Commissioner's first concern is that
Home Office research continues to use "arrest to arrest"
as the basis for its analysis of risk. In the Commissioner's opinion
the use of an "arrest to arrest" approach is likely
to be distorted by factors that have little, if anything, to do
with the guilt of an individual. His opinion is informed by the
latest views of Professors Soothill and Francis who maintain that
the present Home Office research does not provide measured evidence
of what happens by the proposed 6 year point. They also maintain
that comparing those who have been arrested with the general population
is misleading as the police are more likely to re-arrest those
who have already been arrested because they now have an arrest
record and are on the Police National Computer (PNC).
2.8 To avoid this distortion and to ensure that
the UK does not knowingly develop a system which is likely to
encourage abuse the Commissioner believes that any new retention
arrangements should have "arrest to conviction" as their
basis rather than "arrest to arrest". As well as ensuring
that the new arrangements are based on research that is as reliable
as possible, this will also ensure that the courts, rather than
the police, play a central role in determining the period of retention
of entries on the DNA database.
2.9 The ECHR judgment makes clear that the right
balance must be struck between the individual's right to respect
for their private life and the legitimate interests of the State
in preventing and detecting crime. Any interference with the right
to respect for private life is only justified if the benefit to
the prevention and detection of crime clearly outweighs that interference.
Therefore the intrusion involved in the retention of a DNA profile
of a "non-convicted" individual, which arguably increases
with the time since their arrest, must be justified by a real
and proportionate increase in the ability of the State to prevent
and detect crime.
2.10 In the Commissioner's opinion this means
that the cut off point to determine the "correct" retention
period should not be at the point where the risk of re-arrest
for arrested individuals becomes the same as that of the general
population but at a point where the State's ability to prevent
and detect crime is significantly enhanced to such an extent that
it justifies the intrusion into private life. Setting aside concerns
about whether the correct basis for judging retention is 'arrest
to arrest' the research which leads to the present Home Office
"estimated hazard curve" shows a significant narrowing
around the 2 year mark. It is strongly arguable that this is the
point where the interference no longer remains justifiable.
2.11 Although there is merit in establishing
standard retention periods based on general evidence there will
still need to be arrangements for the scrutiny of retention in
individual cases to help ensure that there is no breach of Article
8. For example, in a case where an individual is acquitted by
the court there should be a mechanism for the court to rule on
whether or not the individual's DNA profile is retained; such
rulings could be made either on the initiative of the court or
an application by the defence and in line with clearly defined
2.12 The Commissioner welcomes the fact that
the Crime and Security Bill includes provisions placing a legal
duty on the chief officer to remove and destroy the DNA records
from the database in certain defined circumstances. The defined
circumstances in the Bill include where it appears to the chief
officer that the arrest was unlawful, the taking of the DNA sample
was unlawful, the arrest was based on mistaken identity or there
are other circumstances relating to the arrest or the alleged
offence which mean it is appropriate to destroy the DNA sample
2.13 The Commissioner made his position on the
removal of DNA records very clear in his response to the Home
Office consultation paper. Whilst welcoming the proposed changes
to the existing Exceptional Case Procedure outlined in that paper
he said, amongst other things, that clear criteria for the removal
of records should be set out in a statutory code of practice or
in regulations and be subject to full and open public consultation.
2.14 He also said that the decision to remove
a record should be a pro-active one by the police, not one that
is only triggered by a complaint from the individual to whom the
record relates. In addition there should be a right of appeal
to an independent body against the chief officer's decision not
to remove a record.
2.15 The Home Office summary of responses to
the consultation paper made it clear that the Commissioner's views
were shared by many other individuals and organisations. In particular
there was "general dissatisfaction with the current (removal)
process which was arbitrary, lacking transparency and subject
to too much local discretion". The idea of placing the system
on a statutory footing was welcomed and, as it was "considered
that (as) judicial review was not an approach which many people
would follow, a suitable course of appeal should be to an established
2.16 The recent House of Commons debate on the
Crime and Security Bill also shows that the existing removal procedures
are seen by some as varying "from one police force to another
and the unfairness breeds discontent". The procedures are
also described as "a postcode lottery" in which "some
police forces refuse to remove any records at all once a case
is closed and the person declared innocent, while others comply
with 80 per cent of requests for deletion".
2.17 In the same debate the Home Secretary said,
"we need to look at the system replace the post code lottery
or any other type of lottery. It is not right, and we are suggesting
that we amend that in the Bill". He also said that "the
will change, in that we will set out
in law the circumstances in which DNA must not be retained. In
those circumstances it will be removed if the individual requests
that but not in other circumstances, perhaps, because we cannot
be absolutely prescriptive here, and we will need to define this".
2.18 Whist the provisions in the Bill address
some of the concerns raised by the Commissioner in his response
to the consultation paper he does not consider that they go far
enough. The Commissioner welcomes the fact that the provisions
include some defined circumstances under which DNA material will
be destroyed. However, it is still his view that the development
of these conditions should be subject to full and open public
consultation and that the agreed conditions should be laid down
in a statutory code of practice.
2.19 The Commissioner also believes that the
decision to remove a DNA record should be a pro-active one by
the police not one that is triggered only by a complaint from
the individual to whom the record relates. However, comments made
by the Home Secretary in the recent House of Commons debate suggest
that the decision to remove DNA in certain defined circumstances
"will be made if the individual requests that but not in
other circumstances" although the Home Secretary goes on
to say that "we cannot be absolutely prescriptive here and
we will need to define this".
2.20 This is an important matter because if,
in the absence of any complaint from an individual, the police
continue to retain DNA data in circumstances that clearly meet
the defined conditions for removal, for example where the arrest
was unlawful, that would be contrary to the requirements of the
Data Protection Act 1998. Whether personal data are irrelevant,
excessive or kept for longer than is necessary is not dependent
on whether an application for removal of the data has been made.
If for example an individual who has been arrested for a crime
that it turns out was never committed succeeds in having his DNA
removed there cannot be any justification for the police retaining
DNA on others who might also have been arrested for the non-existent
crime merely because they have not asked for removal.
2.21 The Bill makes no provisions for an independent
appeal mechanism against a chief officer's decision under the
proposed removal arrangements even though this was a key concern
raised by many in response to the Home Office consultation. In
the recent House of Commons debate on the Bill the Home Secretary
said, "As the Bill proceeds through the House, we will need
to pay attention to the question of whether there should be another
authority to go to on appeal".
2.22 Whilst welcoming the Home Secretary's recognition
of the importance of this issue, the Commissioner is concerned
that the Bill does not actually contain any specific provisions
for an appeal mechanism. He is also concerned that the Home Secretary
still appears to regard the question of whether there is a need
for an appeal system as something for discussion and debate rather
than as a given.
2.23 The Commissioner is in no doubt that there
should be an independent appeal mechanism included in the bill,
perhaps to an "established lower court" as suggested
in the summary of the Home Office consultation paper.. .
3.1 The Commissioner welcomes the Government's
efforts to put the operation of the national DNA database on a
sound legal basis. Retention of DNA profiles engages significant
data protection concerns and these are heightened where the profiles
relate to the un-convicted and those of little ongoing interest
to the police.
3.2 He welcomes efforts to base continued retention
on reliable evidence but remains concerned that the way this evidence
is being interpreted at present does not provide an appropriate
basis for the proposed retention periods.
3.3 As the ECHR has recognised, the retention
of DNA on the un-convicted is an interference with their privacy.
If there is to be such an interference there must be reliable
and convincing evidence that retention contributes significantly
to the prevention and detection of serious crime. The Commissioner
does not consider that the evidence presented supports a general
retention period of anything like six years.
3.4 The Commissioner believes that even if sound
evidence based retention periods are established as a general
rule, there still need to be additional safeguards surrounding
the decision to retain on acquittal, the proactive review of records
subject to deletion and an appropriate appeal mechanism to protect
against unwarranted decisions to retain records.
3.5 The Crime and Security Bill provides a major
opportunity to ensure that the national DNA database not only
continues to play an essential role in operational policing but
does so in a way that incorporates the necessary privacy and data
protection safeguards. The Commissioner urges the Government to
revisit key provisions in the Bill to ensure that this important
opportunity is not lost.
16 February 2010