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:
- Illegal file-sharing
- DNA and fingerprints
- Domestic violence
- Stop and search
- Enforceable entitlements for parents and pupils
- Mandatory sex and relationships education
- Reporting of Family Court proceedings
- Entitlement to personal care at home
- 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:
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
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.