JCHR legislative scrutiny priorities for 2010 – my response

In its press release of 4 January 2010, the UK Joint Committee on Human Rights (JCHR) welcomed “short submissions of up to 1500 words from interested parties by Monday, 18th January.”

The committee identified the nine priority areas for scrutiny in 2010, based on the significance of the human rights issues involved and the likelihood of legislation being passed before the end of the parliamentary session. These were:

1. Illegal file-sharing
2. DNA and fingerprints
3. Domestic violence
4. Stop and search
5. Enforceable entitlements for parents and pupils
6. Mandatory sex and relationships education
7. Reporting of Family Court proceedings
8. Entitlement to personal care at home
9. Asylum support and destitution

I found out about the press release on the 14th of January and hastily put together some comments on (2) DNA and fingerprints and (4) Stop and Search. I would also have liked to comment on item (1) Illegal file-sharing, but did not do so because of lack of time.

Because of the lack of notice given by the JCHR my response is rushed, and I’m not particularly pleased with the quality of my arguments. But I figure it is better to give a rushed response than no response at all.

My response follows:

JCHR legislative scrutiny priorities for 2010 – comments from Martin Budden

This document, dated 18th January 2010, is my submission to the The Joint Committee on Human Rights legislative scrutiny priorities for 2010, as is welcomed in their press release at: http://www.parliament.uk/parliamentary_committees/joint_committee_on_human_rights/jchrpn06_040110.cfm

I am commenting as an individual. My name and address is:
Martin Budden
[Address removed]

Please remove my address in any published form of this document.

I am commenting on two of the nine priority areas identified by the JCHR, namely: DNA and fingerprints, and Stop and Search

(2) DNA and fingerprints
The JCHR is scrutinizing the Government’s proposed DNA retention framework contained within The Crime and Security Bill to see if the new the new framework remedies the incompatibility with the right to respect for private life as described in Article 8 of the ECHR.

I would like to suggest that the JCHR examines if the proposed DNA retention framework is compatible with Article 5, the right to liberty and security of person.

Article 5 states that a person may only be arrested or detained if there is a reasonable suspicion of having committed an offence.

A cold hit DNA match is often used to arrest or detain a person. So the question poses itself: “Is a cold hit DNA match grounds for reasonable suspicion?”. The answer to that depends on the frequency of false DNA matches, which in turn depends on the DNA false positive probability and the number of people on the DNA database.

Let us look at the numbers. The quoted false positive rate for the SGM Plus DNA profiles used in the national DNA database is 1 in one billion*. The national DNA database currently contains the profiles of about 5 million people, so for any given search against the national DNA database the the chance of a false positive is about 1 in 200. For the sake of example, let us assume the police check 200 crime scenes a week against the DNA database – this would result in one false match a week. If there is one false match a week, can a cold hit DNA match be grounds for reasonable suspicion? The JCHR needs to answer this question.

To draw an analogy: the chances of winning the lottery are only one in 14 million, yet someone wins almost every week. If a person is required to have their DNA profile loaded on the national DNA database then they are effectively being forced into entering a lottery where the ‘prize’ is at best wrongful suspicion, but at worst could be wrongful detention, wrongful arrest or even wrongful conviction. And this lottery takes place much more often than once a week. While society can accept that convicted criminals should be forced to enter such a lottery, I do not think subjecting citizens who have not been convicted of a crime to this possibility of injustice is compatible with the right to liberty and security of person as specified in Article 5 of the ECHR.

Note that the figures given above are simplified for the sake of example, but the underlying question is valid – does the inclusion of unconvicted people in the national DNA database raise the false positive rate sufficiently to mean that a cold hit DNA match for one of those unconvicted people is no longer grounds for ‘reasonable suspicion’? If so, then an arrest or detention based solely on a cold hit DNA match would violate Article 5 of the ECHR. If so, then it is clear that the profiles of all unconvicted individuals should be removed from the national DNA database.

I do not claim to have the answer to that question. But I do assert is that that question must be answered. To do so the JCHR needs to take expert statistical and scientific advice. Scientific advice is needed to get a better estimate of the DNA false positive match probability. Statistical advice is needed to estimate how frequently false positive matches occur and whether that frequency means that people are detained or arrested without ‘reasonable suspicion’.

* – the 1 in a billion false positive rate is a somewhat arbitrary value. It is based on calculation, not actual sampling. It makes assumptions about the distribution of STRs (short tandem repeats) and does not take into account that sometimes partial profiles are used, not does it take into account the possibility of laboratory contamination.

I would also like to suggest that the JCHR examines if the proposed DNA retention framework is compatible with Article 14, the right to freedom from discrimination.

The national DNA database contains disproportionate representation of certain groups, especially black and ethnic minority young people. Given there is a chance of a false positive DNA match and that such a match could result in detention, arrest, or even conviction, the disproportionate representation of certain groups in the database means that members of those groups will have a disproportionate number of false matches and therefore a disproportionate number of erroneous detentions, arrests and convictions. Therefore the inclusion of the DNA profiles of unconvicted individuals in the database is discriminatory and in violation of Article 14 of the ECHR.

(4) Stop and search
The JCHR is scrutinizing the reduction in reporting requirements on stop and search forms contained within The Crime and Security Bill to see if the new the new framework remedies the incompatibility with the right to respect for private life as described in Article 8 of the ECHR.

I would like to suggest that the JCHR examines if reduction in reporting is compatible with Article 14, the right to freedom from discrimination.

Stop and search is already being used disproportionately against ethnic minorities, so the current reporting requirements are not sufficient to prevent discrimination.

What’s more a reduction in ‘red tape’ will mean that more searches will occur (since there is less administrative disincentive to stop and search, and since the police will have more time to stop and search). Since more searches will occur, and the searches are currently discriminatory, more discrimination will occur.

So any reduction in ‘red tape’ without increased oversight to reduce ethnic discrimination will result in more discrimination, and so is incompatible with Article 14 of the ECHR.

Martin Budden, 18th January, 2010