New DNA policy still defies EU law

The Home Office has just announced its revised plans to keep the DNA profiles of innocent people on the National DNA Database, despite an EU ruling that this constitutes a breach of human rights. The new policy, under which DNA samples can be taken from any individual stopped by police for an arrestable offence, permits retention of these samples for six years regardless of whether the individual was convicted or released without charge. This directly contravenes the decision made by the European Court of Human Rights in the S and Marper case last December, in which all 17 judges unanimously ruled that the UK policy of indefinitely retaining DNA samples from people who had not committed a crime was illegal under EU law.

The Association of Chief Police Officers claimed that this ruling would seriously limit their use of DNA technology. They therefore advised chief constables to ignore the EU decision, and since the Strasbourg ruling, while the Home Office drafts new legislation in response to the EU's decision, police have added DNA profiles of over 90 000 people who have never been convicted of an offense to the database. Various proposals have been submitted, condemned by human rights organisations, rewritten, resubmitted - and no response to the EU ruling is yet to pass through Parliament. The current set of plans, if passed, are likely to be in contempt of the EU court, and will no doubt provoke another long-winded round of litigation. The Home Office is clearly making every attempt to avoid the strongly-worded recommendations of the ECHR, and while the UK legislators drag their feet, every day more innocent people are added to a criminal database.

But what's the problem?

According to the European court, the "blanket and indiscriminate" retention of DNA samples practised in the UK contravenes human rights law. Innocent people whose details are held risk being criminalised and stigmatised by police.

The judges added that the fact DNA profiles could be used to identify family relationships between individuals, meant its indefinite retention also amounted to an interference with their right to respect for their private lives under the human rights convention. (source)

The problems with the national DNA database as it currently stands are as follows:

1. No distinction is made in the system between people who have been arrested but not charged, charged but not convicted, or convicted of a crime. In addition, no distinction is made between type or severity of crime.

David Sweeney from Manchester told the BBC about his experiences when he was given a parking ticket by police. When asked if he was "known to the police", he said no, since he had no criminal record.

But when they then heard over the radio that I was on the DNA database, they treated me with total contempt - as if I were a serious criminal.

"You lied to us", they said. "You're on the database. So you've obviously done something wrong. What are you trying to conceal now?"

DNA for the database is collected indiscriminately, but this data is treated as if it were indicative of someone's criminal status. While some police may treat the database as if it were an innocuous list of names and addresses, others clearly see a person's presence on the database as an indication of past, present or future guilt.

The Home Office claims that six years covers the likely period in which someone might offend after having their DNA taken. (source)

This statement is meaningless unless you read offend as re-offend, indicating that the Home Office assumes that anyone who has been arrested is guilty of an offence - even if they were never charged, let alone tried and convicted.

In UK criminal law defendants are considered innocent until proven guilty. The DNA database treats arrested individuals as guilty until proven innocent; their details are stored on the basis that since they have attracted the attention of a police officer, they are likely to go on to commit an offense. A national coordinator for ACPO is on record as saying "everyone who has got a criminal record did not have one once." This sort of pre-emptive profiling is morally suspect and risks being self-fulfilling.

2. The DNA Database is not actually very useful in solving crime.

Most crime has nothing to do with DNA and less than half a percent of recorded crime is resolved using DNA evidence. Despite the expansion of the DNA database in recent years, the rate of crime detection using DNA has actually decreased during the past year. (source)

The majority of crimes solved using DNA evidence match DNA from the crime-scene against fresh DNA samples taken from suspects in the case - so the percentage of crimes solved using the database to make a match is even lower.

Although "300,000 crimes have been detected with the aid of the Database" (according to the National Policing Improvement Agency), this does not necessarily mean that the perpetrator of a crime was identified by their presence on the database. The database is much more frequently used in an investigatory capacity, to put police in touch with people who may be useful to their enquiries. DNA is taken from a crime scene and compared with profiles in the database. When DNA matches between the crime scene and, for instance, someone on the database who had a legitimate reason for being at the scene, but who is able to help the police in their investigation, the NPIA still count this as 'solving a crime with the aid of the database'. As they say in their FAQ, "Even if there is no direct link to the offender, this can still be useful to the police, as it produces further information and speeds up the investigation."

Using such cases to justify the current retention policy is problematic. It has the effect of encouraging police to expand the database as swiftly as possible, since the more DNA profiles they have, the more connections they are able to make. In many cases, these connections could equally be made using standard police work; and yet a growing preference for relying on DNA boosts the stats for the usefulness of DNA evidence.

Whether someone has ever been arrested is irrelevant to the database's investigatory usefulness; a database of every UK resident's DNA, collected at birth or immigration, could be used in the same way. However, legislation enabling a universal database would be highly controversial and difficult to pass through Parliament. The Home Office is seeking to bypass this process by expanding the national criminal database to cover more of the population.

3. Keeping "the right people" on the database

The Home Office's consultation on this issue is entitled keeping the right people on the DNA database - which immediately begs the question, who are the 'right' people?

The demographics of the database show disproportionately high percentages of black people - particularly young black males.

At the moment, 27 percent of the entire black population, 42 percent of the male black population, 77 percent of young black men, and 9 percent of all Asians are on the database, compared with just 6 per cent. of the white population. If someone is black, their details are three times more likely to be stored on the database than if they are white. (source)

57% of DNA samples taken from people in London who were neither charged nor convicted of an offense are from the black population. One might think that this was an error of scale, based on the assumption that black people are more likely to commit an offence for socio-economic reasons. However, this assumption has been strongly challenged, and in fact a negative correlation can be found:

In spite of the over-representation of black people in the CJS, there is evidence to suggest that black people have lower offending rates than white people: 42% of white people commit an offence in their lifetime, compared with 28% of black people; 21% of white people commit a serious offence in their lifetime, compared with 14% of black people. Thus, should the conclusions of the JDI institute be valid, we should expect an under-representation of black people on the database. (source)

This discrepancy derives from widespread institutionalised racism in the criminal justice system, rather than specific racial bias relating to the collection of DNA samples, but it has unpleasant implications. The disproportionate DNA profiling of black people is especially worrying in the context of the border control human provenance pilot project, which uses DNA samples to determine the country of origin of asylum seekers - a method both scientifically imprecise and extremely morally dubious.

4. Right to privacy

Many people consider the right to genetic privacy fundamental to their civil liberties. Human rights organisation Liberty lists the national DNA databases as one of the key privacy issues in the UK, and state on their website that "stockpiling the intimate profiles of millions of innocent people is an unnecessary recipe for error and abuse. Politicians need to show us that they care about the presumption of innocence."

While some may feel that the innocent should have nothing to hide, this does not stand up to the reality of individuals facing discriminatory treatment based solely on their presence on the database, regardless of whether they have ever been charged with a criminal offence. Moreover, there are many perfectly legitimate reasons (such as those relating to family, health and identity) that people may be concerned about their genetic privacy.

The right to privacy becomes more significant when considering that it is not only law-enforcement who have access to the genetic details contained on the database. To date, at least 25 private companies have been granted access to DNA profiles from the national database by the NPIC, without the consent of any of the individuals concerned. Tellingly, the police rejected requests to use police DNA samples for research purposes. The Liberal Democrat's shadow minister for home affairs said that "the 25 projects that have been approved by ministers include some sinister explorations into ethnic profiling. It is appalling that these Big Brother practices have been allowed to go on unchecked for so long and with extremely limited ethical standards."

Same shit, different day

In the new policy the retention period for DNA profiles of people who are arrested, but not charged or convicted, of most crimes remains at six years. The maximum retention period for 'serious crimes' (which in the previous set of proposals referred to violent, sexual or terror offences) has been reduced from twelve to six years. Many of the plans remain unchanged, despite the fact that the Council of Europe released a damning response to the previous set of proposals.

This is consistent with the Home Office's usual strategy of announcing a 'review' when glaringly bad policies are exposed in the media, thus effectively shelving the issue for another few months while waiting for all the fuss to die down. UK policy consistently regards data retention as not engaging Article 8 of the Human Rights Act. The European Court of Human Rights consistently disagrees with this view. Any legal challenge on this issue is likely to fail in UK courts, which "will force litigants to take a long march through the legal institutions that ends in Strasbourg at the European Court of Human Rights". If the UK continues to disregard EU human rights law so blatantly, what authority does the European Court actually have?

As if to balance the reduced retention period for 'serious crimes', the personal data of terror suspects faces a life sentence in the new policy. Previously the Home Office proposed a twelve year retention period for this group, but under the new proposals the DNA of people arrested under counter-terrorism legislation can be retained indefinitely. This is particularly concerning in light of the broad and increasingly inappropriate applications to which anti-terrorist legislation has been put in recent years. Fot instance, police have routinely used counter-terrorism legislation to prevent activists from reaching demonstrations or conferences, or or to interfere with journalists or members of the public taking photographs of police.

At a panel discussion last night, Sir Alec Jeffreys, who pioneered the science of DNA profiling, condemned the government's new proposals. Both he and Dr Phillipson, professor of law at Durham, agreed that the Home Offices' response to the EU ruling was illegal.




Re: New DNA policy still defies EU law
Posted by Anonymous (91.108.xx.xx) on Fri 13 Nov 2009 at 07:56
On the question of UK courts not regarding Article 8 as relevant to data retention, the decision in S and Marper is directly applicable as a precedent at least in DNA cases. British courts would be bound to follow it if the new policy were challenged - which, if it ever comes in, in surely would be. However, since the Conservatives are committed to substituting the (ECHR compliant) Scottish model, it's unlikely to arise in practice. Assuming (as I tend to) that they will form the next government.

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Re: New DNA policy still defies EU law
Posted by Anonymous (80.237.xx.xx) on Fri 14 Jan 2011 at 07:45
The headline and subsequent text refer to a breach of "EU Law". This is nothing to do with the European Union (governed by the Court of Justice of the European Communities based in Luxembourg) - it is the European Convention on Human Rights (whose court sits in Strasbourg) that the Government's actions have been held to breach.

This convention was drafted in 1950, before the European Union existed (the EEC was founded in 1957). Confusing these two bodies is a mistake frequently made by so-called eurosceptics.
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Re: New DNA policy still defies EU law
Posted by denny (94.194.xx.xx) on Wed 11 May 2011 at 09:38 [ Send Message | View Weblogs ]

Thanks for the correction!