Consultation on Keeping the right people on the DNA database– my response
Here is my response to the Home Office consultation Keeping the right people on the DNA database. There are a number of problems with the Home Office’s proposals, my response focuses on quite a narrow area – I have seen other responses that highlight many of the other problems.
Dear Sir or Madam,
this email contains my comments to the paper “Keeping the right people on the DNA database” at: http://www.homeoffice.gov.uk/documents/cons-2009-dna-database (from now on referred to as “the paper”).
The paper makes recommendations about how to comply with the ECtHR ruling in the S and Marper case. There are a number of recommendations that I agree with, but there are also a number of recommendations that I believe that will not ensure compliance with the above ruling. This means the UK government could be put in the embarrassing position of having its recommendations overturned by a future ECtHR ruling.
Recommendations that I agree with:
a) Samples taken from suspects on arrest are destroyed once a profile has been created. (Samples from crime scenes retained indefinitely).
b) Adults convicted of a recordable offence will have their profiles retained indefinitely.
c) Profiles from individuals volunteering to have their DNA taken, for example for elimination purposes, will not be stored on the database.
There are serious problems, however, with the recommendations pertaining to samples taken from people who are arrested but not convicted of offences. These problems lie in four main areas:
i) the lack of discrimination between people who are arrested but not charged and those who are arrested and acquitted. Also the lack of discrimination between those who are arrested and convicted, and those who are cautioned, warned or reprimanded.
ii) the assumption that the hazard rate of arrest for someone previously arrested can be estimated from the conviction rate of people previously convicted.
iii) that the paper recommends different retention periods for “serious” and “non serious” offences, despite stating in several places that this is not a good idea.
iv) that protection of the public includes protection from wrongful arrest and wrongful conviction.
I will deal with these in turn:
i) Lack of discrimination. One of the main findings of the ECtHR was that the indiscriminate nature of the powers of retention of DNA profiles fails to strike a fair balance between the competing public and private interests and that the State has overstepped any acceptable margin of appreciation in this regard. Therefore, since the paper states that the government is committed to complying with the ruling, any recommendations must increase the level of discrimination applied.
It is impossible to see how any recommendations that fail to discriminate between the guilty and the innocent would comply with the ECtHR ruling. The paper makes the same recommendations for those arrested, tried and acquitted (who must be presumed innocent) and those arrested and not tried (who therefore may or may not be guilty). What’s more the same recommendations apply whether or not the person was charged and whether or not the person was cautioned, warned or reprimanded.
Essentially the recommendations lack discrimination and amount to a presumption that an arrested person is guilty. The profiles of arrested people are treated the same whether or not that person is guilty of the offence.
My view is that DNA profiles should only be kept if the suspect is charged with a crime. If they are subsequently acquitted then the DNA profile should be removed.
ii) Assumption about the hazard rate of arrest. Paragraph 6.10 (page 15) states “For this to be valid, we would have to believe that the risk of offending following an arrest which did not lead to conviction is similar to the risk of re offending following conviction”. Section 6.11 states “This is obviously a controversial assertion”. That is correct. It is certainly too controversial to be the basis of any recommendations, especially given that there is little evidence (the paper quotes one study that “suggests” this). This means that there is no real evidence based reason for the proposed retention periods. Further research is required here.
iii) Paper’s self-contradiction. The paper states in a number of places that retention period should not depend on the seriousness of the offence. Page 32: “[if] a policy of selective deletion is decided upon, based on the seriousness of the offence leading to the initial offence, it will lose most of its potential in downstream detection”. The conclusions of Annex C (page37) states: “Selective deletion by offence seriousness or youth of arrestee would remove most of the detective value of retention for the arrestee NFA [no further action] group”. Paragraph 2.8 of Annex D (page 90) states: “the evidence does not support giving minor crimes a different retention period”.
Yet despite all this, the paper recommends a different retention period for “serious” and “not serious” offences. Why?
iv) The protection of the public from wrongful arrest and wrongful conviction. It is part of the public interest that members of the public are not wrongfully arrested or convicted. Having an innocent person’s DNA retained means that there is a potential for a mismatch of that person’s DNA profile with the DNA found at a crime scene. This can result in wrongful arrest, and also wastes police time, since they need then to deal with the mismatch. In the worst case this could lead to wrongful conviction. It is not in the interests of the police or the individual to have innocent people’s DNA profiles in the database. Now clearly it is impossible to ascertain the innocence of all arrestees, but a less acquisitive stance is beneficial. As I have heard it said: “When you are looking for a needle in a haystack, it’s not a good idea to make the haystack bigger”.
There is real (albeit) small risk that people are wrongfully arrested because of DNA evidence, yet the paper makes no mention of this risk, nor any measures to mitigate it.