Dissertation for City University – written April 2010 (copyright TBCoutts)
The layout of my project (opens in PDF document)
MAIN FEATURE
Gone are the days of being innocent until guilty. With the National DNA Database growing each day we are all effectively being treated as guilty of something until proven innocent, as our DNA is being kept to match to suspects.
As of March 2009 there were 4.8 million individuals on the database, an 11 per cent rise from 2008. Not all of these profiles are from those convicted of a crime, with many coming from people later proven to be innocent or those who had volunteered a sample. But getting these innocent profiles removed from the database is not as easy as it would appear and it is even said to be a lottery dependent on where you live.
The Conservatives have uncovered figures which show large differences in the way DNA records of innocent people are treated across the country. These figures were obtained using Freedom of Information requests from Damian Green, the Conservative Shadow Minister for Immigration. They show that where some police forces remove up to 80 per cent of innocent profiles, some forces refuse to remove any once a case has been closed. Labour government proposed a law change last year and as of April 8 the Crime and Security Act was passed but will it put an end to the postcode lottery?
Most countries remove the DNA profiles of convicted offenders after a period of five to 20 years. The UK is not the only database to retain profiles of those convicted indefinitely, as Austria, Finland and Norway also do. However the UK is the only database to retain the profiles of innocent individuals, those profiles that were taken upon arrest, but then the person have been acquitted or the charges have been dropped.
In comparison with other European countries the UK database is unique. As of 2005, when GeneWatch UK conducted a report called Human Rights and Privacy about the National Database, profiles in Sweden were only added if the offender was expected to spend more than two years in prison. And in Germany profiles needed a court order to be added and even once that had been sorted only those convicted of specific offences and were likely to re-offend were added.
Dylan Sharpe, Campaign Director of Big Brother Watch, said: “No person arrested and later found innocent should even have to request that their data is removed from the National DNA database. In Scotland the DNA of innocent people is removed as a matter of course and there is no reason why this system cannot be adopted in the rest of the UK. The fact that some police forces are more receptive to removing innocent DNA than others shows what a mess the system is in.”
Campaign groups have been actively lobbying for the law on the DNA database to be changed and with the General Election looming all three main political parties all have differing policies on the DNA database, but will they all be happy with the provisions brought in by the Crime and Security Act?
The Conservatives have set up a campaign called Return My DNA. Damian Green MP was arrested in November 2008 for revealing Home Office failures when he allegedly received leaked official documents, but was later cleared of all charges and successfully fought to have his DNA removed from the database through the Metropolitan Police. In response to this an online petition was launched to raise awareness of the huge number of innocent profiles held on the DNA database.
The Liberal Democrats are in agreement with the Conservatives and have also set up a campaign. Jenny Willott MP, along with other Liberal democrats in Wales, are urging innocent people to request for the removal of their DNA from the database and have set up a campaign called Give Me Back My DNA.
Labour seem to be divided though. Hulya Ahmet, a spokesperson for the Direct Communications Unit in the Home Office on behalf of Alan Johnson MP (Labour), told the Guardian: “We propose to introduce greater transparency by setting out in statute more clearly defined criteria where deletion would be appropriate. In addition to this we propose that appeals against a Chief Officer’s decision under the Exceptional Case Procedure are to be heard at a Magistrates Court.”
However speaking at Prime Minister’s Questions, Gordon Brown said the Tory plans to restrict the DNA database would damage public safety: “Last year there were 832 matches to the national DNA database, and those were made in cases of murder, manslaughter and rape. That is why the database is supported by the families of victims as essential in protecting the public.”
He argued that if DNA is removed and the person later goes on to commit a crime that they would be harder to catch, “So any Conservative party proposal that reduces the DNA register’s ability to punish and find those people who are criminals is, I believe, a step backwards for justice in the country. I hope that the Conservative party will think again about a policy that would leave people who are guilty free as a result of our inability to take the action that is necessary.”
In 1984 the police were granted powers to take samples of DNA and fingerprints from any person charged with a recordable offence in The Police and Criminal Evidence Act (PACE). Then in 2003 the Criminal Justice Act furthered these powers to allow police to keep profiles indefinitely on the database, even if the person is later proven to be innocent.
Up until 1998 a minor was said not to have sufficient maturity to be guilty of a crime but the Crime and Disorder Act removed that, so any child over the age of 10 can be arrested for a criminal offence, meaning their DNA can also be added to the database. In 2007, Action on Rights for Children (ARCH) found that a quarter of all profiles on the database were taken from under 18s. They believe that a child’s DNA should not be taken and that it should be left to a court to decide whether there is sufficient public interest in an offence to justify a profile being taken.
Even though it was the Conservatives who brought the DNA database into being in 1995, it has been Labour who has introduced the liberal rules that have allowed innocent people’s DNA to be stored indefinitely. In July 1999 the Home Secretary Jack Straw revealed proposals to allow police to keep DNA samples given by the innocent to compare with potential matches found at crime scenes. Then in 2001 under the Criminal Justice and Police Bill, Straw said that DNA taken from suspected criminals will be available to the police forever. When this Bill became law it removed the requirement to destroy DNA samples of those later found to be innocent.
Last year Labour relented and decided to reform the law changes they made with the Crime and Security Bill. In May 2009 the Government published a consultation paper “Keeping the Right People on the DNA Database” to collect responses from individuals about the database. Then in November 2009 Alan Johnson, Secretary of State for the Home Department, announced proposals on a new retention framework for DNA and fingerprints in the Crime and Security Bill which had its first hearing in the House of Commons.
During the Bill’s second reading in the House of Lords Parliamentary Under-Secretary of State, Lord West of Spithead said (as printed in Hansard): “The DNA database exists to provide justice for victims of crime. That is why we have placed the rights of victims at the heart of the DNA proposals in the Crime and Security Bill. Of course, we must be careful to strike the right balance between collective security and personal rights to privacy.”
The debate around the removal of innocent DNA profiles from the database was reignited when the European Court of Human Rights (ECHR) ruled in 2008, in the case of S and Marper v the UK, that it was a breach of human rights to keep DNA profiles indefinitely on the database.
The two applicants were S (who wished not to be named) who was arrested and charged with a robbery in 2001 when he was 12-years-old but later cleared, and Michael Marper who was arrested in 2001 and charged with harassing his partner but the case was dropped a few months later. They complained that their DNA profiles had been kept by the police even after they had been proved innocent, breaching their human rights.
The court ruled that “the blanket and indiscriminate nature of the powers of retention of the fingerprints, cellular samples and DNA profiles of persons suspected but not convicted of offences … fails to strike a fair balance between the competing public and private interests and that the respondent State has overstepped any acceptable margin of appreciation in this regard.”
As a result of the ruling in the ECHR the government proposed to change UK law and the Crime and Security Act 2010 was passed in April. The Act sets new time limits for the retention of DNA profiles and fingerprints, as well as extensions to the circumstances where samples can be collected. The Act says that after six-months the actual DNA sample would be destroyed with only the digital code that forms the profile kept for reference. Then after six years the digital DNA profiles of those who were arrested but never convicted will be deleted and only be kept for longer in exceptional circumstances, such as national security. This new national system should see the end of the postcode lottery that currently exists with innocent DNA profiles.
Speaking in the House of Commons second reading of the bill in January Ms Diane Abbott, MP for Hackney, North and Stoke Newington (Labour), said: “Much of the unhappiness about keeping the DNA of innocent people would be avoided if there were a clearer, consistent national system for the removal of innocent people’s DNA from the database. At present, it varies from one police authority to another and the unfairness breeds discontent”
Also speaking at the second reading of the Bill, Home Secretary, Right Honourable Alan Johnson MP, said: “Currently, those seeking to have their DNA profile removed from the database may apply to the Chief Constable, who is, however, under no obligation to fulfil this request. The Bill will place a legal duty on the Chief Constable to remove the DNA records in circumstances where the arrest was unlawful, the taking of the biometric data was unlawful, the arrest was based on mistaken identity, or where there were other circumstances relating to the arrest or the alleged offender that would make it appropriate to destroy the material.”
Tom Marsh*, 18, a student from Upminster, Essex, was arrested last April for carrying an imitation firearm, a BB gun (an air gun that uses compressed air to fire ball bearings), but released the next day with no charge. However the police still have his DNA on file.
“I was in my car with a couple of friends and we were just driving around, being idiots pretty much. We were in McDonald’s car park when we fired a BB gun. They must have thought it was a real gun and rang the police because later, when I was outside one of my mates’ houses dropping them off, the police came up and dragged us out of the car with guns,” said Tom.
Tom’s father, Frank Marsh, 45, an engineer also from Upminster, said: “They had clocked the car at the traffic lights and followed them to his friend’s house where they sat and waited for the armed response teams. When they arrived they closed the road off and pounced on them. They pulled them out the car, threw them on the floor and them handcuffed them up with the cuffs that have spikes.”
Tom and his friends were taken to Romford police station where their DNA was taken with a cheek swap, as well as their fingerprints. He then spent the night in a cell with no real idea about what was going on. “We didn’t realise what was going on until the next day and only went along with it as they had guns. The cell was really boring; there are just four walls and a raised concrete floor area for a bed,” he said.
They were released without charge the following lunchtime after police interviews, but they still have his DNA on file. Tom said: “I don’t really remember it that well, so I don’t really think, oh they have my DNA they can track me down and whatever, because I don’t intend to get involved with them again.”
Frank said: “Just because you have been arrested for possessing an imitation gun, which is pretty minor, you could later be held up for something more because of that one in a billion chance that someone’s DNA profile could match yours. It’s alright having the DNA stored, as we’re law abiding, but there’s still that little chance as it’s never absolutely unique on the digital profiles.”
Currently where they live in Havering, which comes under the Metropolitan Police, 24 per cent of profile removal requests are granted, that’s just 97 removed for every 412 requests. With regards to this Frank said: “Everyone should be treated the same no matter where you live.”
Further pressure was put on the Government for change when the Information Commissioner’s Office issued a statement issued in February regarding the Home Office proposals for the retention of DNA profiles, Christopher Graham, the Information Commissioner, said: “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.”
Hulya Ahmet, a spokesperson for the Direct Communications Unit in the Home Office on behalf of Alan Johnson MP (Labour), said: “The inclusion of DNA profiles on the National DNA Database and the retention of fingerprints do not indicate either innocence or guilt. These databases are used by the police to provide intelligence leads on the possible identity of the offender by matching DNA taken from a person with DNA found at or collected from the scene of a crime.”
The decision as to whether or not to remove a DNA profile currently lies with the Chief Constable of the police force that took the sample. Guidelines issued by the Association of Chief Police Officers (ACPO) in 2006 say that in exceptional cases “Chief Officers have the discretion to authorise the deletion of any specific data entry” as well as the destruction of DNA and fingerprints related to the entry. The ACPO Retention Guidelines also suggest “that this discretion should only be exercised in exceptional circumstances.”
Hulya Ahmet, continued: “In 2008-09, there were 36,727 crimes with DNA scene-subject match. Specifically on persons who have been arrested but not proceeded against, the DNA database has yielded a match with a crime scene stain in over 3,000 offences. These links may never have been made had the police not been given powers to take and retain DNA samples on arrest.”
Some forces are taking the ACPO guidelines more literally than others as the figures uncovered by Damian Green show. The police force most likely to remove your DNA is South Yorkshire, with 83 per cent of requests being fulfilled, but there are some that refuse to remove any, these include Cambridgeshire, Nottingham and Gloucestershire. The West Midlands Police for example received 227 requests in 2009 for DNA to be removed and of them only 55 were granted, that’s just 24 per cent. And Sussex, who received just 28 requests, only removed 1 profile.
Despite the ECHR ruling in December 2008 stating that it was contrary to human rights to keep DNA indefinitely the practice still continues. Jenny Willott, a Liberal Democrat MP for Cardiff Central, also found disturbing results about the database. Using parliamentary questions she discovered that in just one month, November 2009, 32,467 profiles were added to the database from England and Wales with only 22 being removed.
Currently in Scotland, the law on DNA profiles and fingerprints is very different to the rest of the UK. The law in Scotland has tried to achieve a balance between human rights and crime solving. In 2006, Scottish Parliament rejected a proposal allowing the police to store all DNA taken indefinitely and instead agreed to only retain some innocent DNA profiles in exceptional circumstances, such as violent or sexual offences, with the majority removed once acquitted.
Helen Wallace, Director of Genewatch, said: “The government has to implement the decision of the ECHR. Innocent people’s DNA should be removed from the database. Currently people have to ask their Chief Constables for removal and the system is biased and unfair. We encourage people to contact their MPs and get them to vote for new legislation similar to the law in Scotland which takes people off the database straight away if they’re not convicted and just keep some people’s DNA temporarily.”
The Crime and Security Act will now bring the UK more in line with Scottish law and the ECHR 2008 ruling as it is suggested that there will no longer be a blanket retention of innocent profiles. Profiles would be kept for six years and then removed, with the actual sample being destroyed after six months of it being taken. The legal duty to be placed on Chief Constables to remove DNA profiles on request should also stop the postcode lottery that currently exists in forces across the UK.
A year after Tom Marsh’s arrest and it still haunts him, he said: “The experience has changed me, because every time I hear a police car behind me I think it’s for me. You’re a lot more aware of the police. Before I wouldn’t have thought anything of the police being there, but now you’re just frightened of them really. And because we didn’t know that we were doing anything wrong it could happen again.”
BOX OUT 1: PROFILE
Dr Peter Gill, a Senior Lecturer at Strathclyde University, Glasgow, worked with the man who pioneered the use of DNA in policing. Here he explains how DNA fingerprinting is done and how reliable the method is.
It has been 25 years since Sir Alec Jeffreys first discovered that individuals were able to be identified from their DNA and a quarter of a century later it has dramatically changed the way crimes are investigated.
In 1985, Dr Peter Gill worked alongside Alec Jeffreys to publish the first paper on DNA profiling called Forensic Application of DNA Fingerprints. They didn’t know it then, but this discovery was to change the way crime scenes were searched and the way criminals were caught.
“It’s surprising that everything happened the way it did, but it did. When you do these things you don’t really know where they are leading to so you don’t really think of it,” said Dr Gill.
In 1986 when Dr Gill worked for the Forensic Science Services (FSS) he was called upon to double check results found by Dr Jeffreys on behalf of the police.
It was a breakthrough for DNA. A local boy named Richard Buckland had confessed to the rape and murder of 15-year-old Dawn Ashworth in Enderby. Leicestershire Police had found a similar case in a neighbouring village that happened three years earlier, when 15-year-old Linda Mann had been murdered, and they suspected that Buckland was guilty of both, but they had no evidence. This led them to contact Alec Jeffreys for help.
A crime scene DNA analysis had never been attempted before. The results showed that both girls were indeed killed by the same man, but the results also showed that the man was not Buckland, despite his confession and he was the first man to be cleared by DNA evidence.
Police expanded their search and collected DNA samples from 5,000 men in the area. In 1988 a local baker, Colin Pitchfork, became the first person convicted of murder in Britain using DNA evidence and was sentenced to life imprisonment.
“The technique of DNA fingerprinting had not been used in criminal cases before, so the FSS were asked by the police to confirm what Dr Jeffreys had found. We carried out further tests which indeed showed that the prime suspect could be excluded,” continued Dr Gill.
At this time though DNA profiling was in its infancy, a great deal of DNA was needed for a match and this was not always possible to get from a crime scene. But as technology has developed this is no longer a problem and scientists are now able to extract DNA from the smallest pieces of evidence, even if they cannot be seen by the naked eye.
Deoxyribonucleic acid, known as DNA, is found in all cells of the body and it is this that carries our genetic information. Every persons DNA is unique, except for identical twins that carry identical patterns.
When the police take a sample of DNA from a person they generally use a cotton swab and scrap some cells from the inside of the cheek, but other methods include plucking hair roots and taking a blood sample.
Dr Gill explains more: “We can extract the DNA and then we’re interested in certain parts of it which are very variable. We use a method called polymerase chain reaction (PCR) which then grows up in areas of interest to look like a bar chart. Then we’re able to visualise these areas on machines called automated sequencers. It’s like looking for a barcode on an individual and everybody has a different barcode.”
PCR is a technique used to amplify a small piece of DNA so that scientists can see it broken down, enabling us to compare different profiles. The outcome from the machines is like something straight off CSI with a sheet showing a series of bars with lines stopping at different points, which alter slightly between individuals.
Before this technique was discovered police had no DNA help in finding the culprit, they just had to rely on clues from the scene and the help of witnesses. Now with the DNA database police can look back into old cases that were never solved because of lack of evidence and test the DNA and look for matches. This is called cold case review where police try to find a new lead with the help of technology that didn’t exist back when the case was originally open.
The developments have proved invaluable to the police, but are they reliable?
Dr Gill said: “We put a probability analysis on it, which is the measure of the reliability. If it’s a full profile then the probability analysis will be about one in a billion chance of the profile belonging to the wrong person, but if the profile is poor or very bad, then the probability analysis can be really low. It’s on a sliding scale so we don’t think of it as reliability as such, we think of it in terms of strength of evidence.”
Dr Gill said: “New methods are coming along that would make the DNA database more reliable by increasing the power of the statistic.”
The National DNA Database was launched in 1995 and as of 2009 when the 07-09 Annual Report on it was published the database was estimated to hold the profiles of 4,859,934 individuals. Dr Gill said: “It’s very effective because you have around a 30 per cent chance of detecting a criminal if you put an unknown crime stain on the database, so it’s very effective. It’s something that is very useful to society.”
BOX OUT 2: WHO IS FIGHTING FOR US?
As with other issues affecting the privacy of our personal information there are plenty of campaign groups and organisations around trying to make sure our rights are not abused. Listed below are a few of these groups with reasons as to why they object to how far the database has gone.
NO2ID www.no2id.net
NO2ID is a UK campaigning organisation fighting solely against the threat of privacy due to the DNA database and national ID cards. They work with of organisations to battle against the ever growing database state.
With regards to the DNA database they say that although there has been much consultation of the matter there has been no change in practice, with no one being removed from the database.
Privacy International www.privacyinternational.org
Privacy International was formed as a watchdog to look into invasions into surveillance and privacy by governments. They believe that privacy is the foundation of their freedom and it is their goal to always try and preserve this.
On their website say they “have campaigned across the world to protect people against intrusion by governments and corporations that seek to erode this fragile right.”
Action on Rights for Children www.archrights.org.uk
Action on Rights for Children (ARCH) is an internet-based organisation focusing on children’s civil rights. They work to improve children’s human rights and conduct research to encourage policy makers of their obligations to children.
Up until 1998 a child was said not to have sufficient maturity to be guilty of a crime, but the Crime and Disorder Act 1998 removed that and now any child over 10 can be arrested for a criminal offence, which means their DNA can be added to the database.
Genewatch UK www.genewatch.org
GeneWatch UK is a non-profit group that looks at the developments in genetic technologies and believes that individuals should have a choice in how these are used.
They are urging people who have their DNA kept on the database, even after they have been acquitted or the charges dropped, to write to the Chief Constable of the police force that arrested them to ask for their sample to be destroyed because of the judgment made in the European Court of Human Rights in 2008.
Big Brother Watch www.bigbrotherwatch.org.uk
Big Brother Watch, a campaign set up by the founders of the TaxPayers’ Alliance, is a group that fights injustice and campaigns to regain a balance of power between the state and individuals to return liberties and freedom.
They are opposed to the retention of the DNA of innocent people and on their website they say “that anyone who has their DNA taken and is later found to be innocent should be entitled to expect, rather than have to request its removal from the database.”
Information Commissioner Office www.ico.gov.uk
The Information Commissioner’s Office (ICO) is not technically a group set up to fight for our right to privacy, but it is still important. The ICO is a non campaigning UK independent public body set up in 1984 when the Data Protection Act was enforced. They maintain information rights by promoting good practice, handling complaints and take action when the law is broken.
BOX OUT 3: WHERE IT ALL BEGAN
1953 The structure of DNA was first identified by James Watson and Francis Crick.
1984 It was Alec Jeffreys at the University of Leicester who discovered the technique of DNA fingerprinting that allowed an individual to be identified by their DNA.
The Police and Criminal Evidence Act 1984 gave the police powers to take fingerprints and DNA samples from any person charged with a recordable offence.
1985 DNA fingerprinting first used in a double murder inquiry in Leicester.
1995 The world’s first national DNA database was set up by the then Conservative government under John Major, to store profiles of those convicted of a crime.
1997 Legislation to allow DNA tests to be carried out on 7,750 prisoners convicted of serious violent or sexual offences before 1995 clears Parliament.
1998 Data Protection Act is passed which means that processing personal data is subject to certain criteria.
1999 Home Secretary Jack Straw reveals proposals which allow police to keep DNA samples given by the innocent to compare with potential matches found at crime scenes.
2000 Five years after the launch of the database and the number of DNA profiles held passes a million.
2001 Under the Criminal Justice and Police Bill, Home Secretary Jack Straw says that DNA taken from suspected criminals will be available to the police forever.
The Criminal Justice and Police Act 2001 removed the requirement to destroy DNA samples relating to those acquitted at court or later proven to be innocent.
2003 Criminal Justice Act 2003 granted the police powers to take DNA profiles of everyone arrested for a recordable offence without consent and these profiles can be kept indefinitely, even if the person is later proven to be innocent.
2006 A set of guidelines for the retention of fingerprint and DNA information by ACPO called Retention Guidelines for Nominal Records on the Police National Computer were released.
2008 A European Court of Human Rights Judgement in the case of S and Marper v the United Kingdom brought to light issues surrounding the DNA database.
The killer of 23-year-old Rachel Nickell was eventually successfully convicted because of DNA evidence. The police had wrongly believed the murderer was local man, Colin Stagg, but a test on the DNA found on Rachel’s clothes revealed it was actually Rober Napper, a convicted sex offender.
2009 The Home Office said the number of profiles held on database has reached over five million.
The Government proposed to change UK law and published a consultation paper “Keeping the Right People on the DNA Database”.
Alan Johnson, Secretary of State for the Home Department announced proposals on a retention framework for DNA and fingerprints in the Crime and Security Bill.
2010 Royal Assent was granted to the Crime and Security Bill making it law.
