In the S and Marper v. UK case, compliance by the UK government with the European Court of Human Rights ruling is supervised by the Committee of Ministers (CoM) of the Council of Europe. (See Sentenced to genetic probation for a complete recap of what happened in the six months since the ruling.) In January, the Home Office provided information to the CoM about the general measures it intends to implement to prevent new violations, similar to that which happened to S and Marper, from occurring and end 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".
This article introduces the full text the Home Office sent to the CoM about the general measures, the meeting notes of the CoM meeting that reviewed this information as well as an excerpt from the information sent by non governmental organisations (NGOs) to the CoM. The tone and level of details of these three documents is very different.
The Home Office's letter is very brief and high-level. The one information it reveals is the composition of the implementation group established by the Home Office to advise it on these general measures. Unsurprisingly, there's a strong presence from both government and police, and no-one from NGOs. More peculiar is that there's no representation from either the National DNA Database Strategy Board (at least from its independent members), which provides governance and oversight of the operation of the NDNAD, or the National DNA Database Ethics Group, an advisory Non Departmental Public Body (NDPB), established to provide independent advice on ethical issues related to the NDNAD to Home Office Ministers and the strategy board.
The minutes from the CoM mostly takes note of what it was sent by the Home Office but also adds some salient data. The minutes record that the CoM will postpone decisions to later this year when it will receive more information on the outcome of the Keeping the right people on the DNA database consultation and on the progress of the Policing and Crime Bill. The letter from the NGOs is the most extensive and practical, suggesting some immediate interim steps.
When we requested from the Home Office the document describing its response to the general measures, it initially failed to respond and then wrote that this document is in the public domain as the CoM has the authority to publish it. The Home Office has since apologised for these mistakes. The Secretariat of the Committee of Ministers was prompt in sending us a scan (TIF) of the one page document. Here's a text version converted with OCR:
Deputy Permanent Representative of the United Kingdom to the
Council of Europe
StrasbourgNOTE FOR COMMITTEE OF MINISTERS: S AND MARPER CASE
General Measures
3. Publication: the full text of the judgment is available on the Home Office webpage for police powers and procedures
http://police.homeoffice.gov.uk/operationalpolicing/powers-pacecodes/pacecodeintro/.A Summary of the Case has been published in The Times Law Report on 8 December 2008
http://business.timesonline.co.uk/tol/business/law/reports/article5303455.eceA summary of the case has been reported on Lawtel (an online legal information service) with reference LTL 411212008, document no AG 0003290, also containing a link to the judgment
An article Reversal of fortune by Timothy Pitt-Payne is in the New Law Journal (N.L.J. 2009, 159(7352), 5253).
A link to the case is also available on the website of the British and Irish Legal Information Institute. See: http://www.bailii.org/cgi-bin/markup.cgi?doc=/eu/cases/ECHR/2007/110.html&query=marper&method=boolean
4. Dissemination: the link to the judgment has been circulated to chief officers of police and to chief crown prosecutors.
5. Other general measures: The Government intends to hold a public consultation on the retention policy for biometric information taken in criminal investigations and the measures and options available to implement the Court's judgment.
The Government has established an Implementation Group to consider the measures required to implement the judgment, the options available and the impact of those options, which will inform the public consultation exercise. The Group consists of representatives from Government Departments at the Home Office, the Ministry of Justice, the Northern Ireland Office, the Attorney General's Office and the Crown Prosecution Service; representatives from the Scottish Government; representatives from the Association of Chief Police Officers, the Police Federation and the National Policing Improvement Agency; and representatives from the Association of Police Authorities.
The Group will report their findings to Ministers for consideration of the content of the public consultation exercise. It is aimed to conduct the public consultation during summer 2009 over a period of three months.
Steps have been taken to remove samples and profiles for persons under the age of 10 years old from the National DNA Database.
Home Office
Policing Powers and Protection Unit
19 January 2009
The information sent by the Home Office was initially scheduled to be reviewed at the March meeting of the CoM, but this was rescheduled to its June meeting:
General measures: The European Court noted in particular “the blanket and indiscriminate nature of the power of retention” (§119). Observing: “ … material may be retained irrespective of the nature or gravity of the offence … or of the age of the suspected offender …[and] the material is retained indefinitely.” (§119). The European Court also noted that there are “limited possibilities … to have the data removed from the nationwide database [and] … no provision for independent review of the justification for the retention according to defined criteria” (§119).
The European Court also made reference to the provisions and principles in a number of other Council of Europe texts applying to retention of personal data including:
- Recommendation R(92)1 of the Committee of Ministers on the use of analysis of DNA within the framework of the criminal justice system
- Recommendation R(87)15 of the Committee of Ministers regulating the use of personal data in the police sector
- Article 7 of the Data Protection Convention1) The DNA database: The United Kingdom authorities confirmed that steps have been taken to remove the samples and profiles for children under the age of 10 from the National DNA database (10 being the age of criminal responsibility in the UK).
• Information from the House of Commons Library - Standard Note SN/HA/40409 of 09/04/2009 [pdf]: As at 01/01/2009 there were 5 140 940 profiles on the National DNA database for an estimated 4 457 195 individuals. Of those, 96 profiles belonging to children aged under 10 were deleted. As at 05/03/2009 there were no profiles of children under 10 on the database.
As at 31/03/2008, 857,366 people with profiles on the National DNA database had no record of a criminal conviction according to police records.
2) Public consultation: The United Kingdom authorities confirmed that they will hold a public consultation on the measures and options available to implement the European Court’s judgment. The consultation will be open for three months during the summer of 2009.
The government has established an Implementation Group to consider the measures required to implement the judgment, the options available and the impact of those options. The Group consists of representatives from the Home Office, the Ministry of Justice, the Northern Ireland Office, the Attorney General’s Office, the Crown Prosecution Service, the Scottish Government, the Association of Chief Police Officers, the Police Federation, the National Policing Improvement Agency and the Association of Police Authorities. The Group will report their findings to government ministers for consideration in relation to the content of the public consultation.
• Information is awaited on the progress of the consultation.
3) Policing and Crime Bill: The Policing and Crime Bill was debated in the House of Commons, in Committee (a select group of MPs) on 26/02/2009. The Bill is not yet law. In that debate, the government proposed the inclusion of three new clauses which would amend the Police and Criminal Evidence Act 1984 and the Police and Criminal Evidence (Northern Ireland) Order 1989 to give the Secretary of State the power to make regulations governing the retention of fingerprints and DNA. These clauses will be the legal basis for any regulations that the government makes following the public consultation. During the debate, the clauses were strongly criticised by MPs as the powers they create mean that any regulations made following the consultation will be passed as secondary legislation under the “affirmative resolution procedure”. This means that parliament will not be able to debate the content of the regulations but only vote to adopt or reject them in their entirety without time allocated for a full parliamentary debate.
• Information is awaited: on the progress of the relevant clauses in the Policing and Crime Bill.
4) Publication and dissemination: The judgment was widely published in the legal press and on the Home Office website. It was reported inter alia in The Times Law Reports on 08/12/2008, Lawtel Ref LTL 4/12/2008 and the British and Irish Legal Information Institute. The judgment was disseminated to chief police officers and to chief crown prosecutors.
The Deputies decided to resume consideration of this item at the latest at their 1072nd meeting (1-3 and 4 (morning) December 2009) (DH), in the light of information to be provided on general measures.
Non governmental organisations GeneWatch UK, Liberty, Privacy International, Actions on Rights for Children, and No2ID sent a detailed five-page joint letter to the CoM in April (.doc). It concludes with the following suggestion:
<snip>
We note that the Committee of Ministers may adopt interim resolutions, notably in order to provide information on the state of progress of execution or, where appropriate, to express concern and/or to make suggestions with respect to the execution of the judgment (Rule 16). We also note that where supervision of the execution of a final judgment is hindered by a problem of interpretation of the judgment, the Committee may refer the matter to the Court for a ruling on the question of interpretation (Rule 10).
In the light of our concerns, we respectfully urge the Committee to consider adopting an interim resolution covering the following matters:
- The need for the implementation of minimum safeguards in primary legislation in a timely manner, providing for immediate automatic removal of records from the majority of unconvicted persons;
- The need for strict time limits on retention following acquittal for data from any category of persons considered to be exceptional, alongside clear justification for such exceptions, judicial oversight, and a procedure for appeal;
- The need for a presumption in favour of removal of the data of unconvicted persons, not a requirement for individuals to petition for removal case-by-case;
- The need for clear rules which avoid the potential for abuse and arbitrariness;
- The importance of the Court’s particular concerns in relation to minors;
- The need for consultation on more detailed rules and safeguards.
In our view, the setting of minimum safeguards to protect the right to privacy in a timely manner would not preclude or obviate the need for timely consultation on more detailed matters. Large numbers of innocent people with records on the relevant databases are currently awaiting deletion of their data, and are looking to the Council of Europe to assist the UK Government in its interpretation of this important judgment.
The CoM decided not to adopt an interim resolution at this meeting and will reconsider how the Home Office complies with the European Court ruling later this year. You have until 2009-08-07 to respond to the Home Office consultation.
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[Briefing prepared for the Coalition against Secret Evidence.]
The right to a fair trial, an essential principle of the legal system enshrined in both domestic and international law, is limited by the use of secret evidence in judicial proceedings. For justice to be served, an accused person must know the case against him and be able to scrutinise and challenge the evidence used against him in a fair, open and public hearing.
The use of secret evidence has become all too common in deportation and terrorism cases. The Special Immigration Appeals Commission (SIAC) deals with appeal hearings against decisions made by the Home Office to deport someone on grounds of national security. When the government deems that the publication of some evidence could pose a risk to national security, appellants, and their counsel, are denied access to the full evidence against them. They cannot properly prepare a defence. To mitigate this situation, special advocates – state-appointed barristers who represent the detainees in closed sessions – are given access to the secret evidence. However they are prohibited from discussing anything that takes place in these sessions with either the detainees or their lawyers.
This closed court process does not give confidence that the evidence can be properly examined or that it has been obtained in a wholly legal manner. Former Special Advocate, Dinah Rose QC describes the great difficulties she encountered taking evidence in closed sessions when the Home Office had applied to revoke a detainee’s bail on the basis of secret evidence: “I can still recall my deep feeling of shame when I heard the appellant ask the judge the question: why are you sending me to prison? To which the judge replied: I cannot tell you that. I could not believe that I was witnessing such an event in a British court. I could not believe that nobody protested or made a fuss. They simply took him to jail, without any explanation at all.”
The reliability of secret evidence is questionable; it may consist of hearsay evidence possibly obtained though bribery or coercion or even from torture. Information received from friendly countries, such as Pakistan, Algeria and the United Arab Emirates, as well as from Guantánamo Bay, likely to have been obtained through the torture of alleged terror suspects cannot be used in an open court in the UK. However, it can and has been passed as secret evidence. On the basis of secret evidence concealed from them, individuals – sometimes not even charged – have been detained in high-security prison units for years without ever knowing what they are accused of. Around 20 individuals are currently waiting for SIAC to hear their appeals against deportation, and several dozen have passed through SIAC since 2001. Some have been deported. Some are let out of prison, but given bail conditions so restrictive that they choose to risk torture instead by seeking ‘voluntary’ return to their countries.
Like SIAC proceedings, control orders - and the state's defence against appeals to end or modify them - may invoke secret evidence. Forty, or more, have had to live under the severe conditions of the control-order regime (a breach of which becomes crime). With restrictions on visitors, use of phones or internet, these orders affect their families as well. They can have their property confiscated, bank account frozen, face travel restrictions and curfews of up to 16 hours per day. Their movement outside the home may be limited to a few streets. These conditions, continuing for years, have led some to contemplate suicide. Control orders can be imposed indefinitely, although they are renewed every 12 months. Seventeen such orders are currently in force.
When the government invokes national security as a ground to introduce the use of secret evidence, the accused has no chance. There is no way to challenge either the evidence or the decision to use it, whether it is justified or whether it is a politically motivated catch-all excuse. Gareth Peirce explains: “‘Security’ is such a dramatic yet ill-defined concept that those in power are able to curb criticism and shut down debate by invoking it and by claiming to possess vital knowledge (which cannot, of course, be safely revealed) to support their actions or policies. Those in power draw on traditions of deference and non-partisanship when it comes to security, making it unnecessary for governments to provide reasoned justification when security is said to be at stake. There is therefore a dangerous circularity to the entire process. Deference is fed in part by ignorance, and ignorance is fed in turn by claims that secrecy is indispensable. The public receives only the barest of justifications, which it is supposed to take on trust, while the government machine ignores or short-circuits normal democratic processes.” As the role of the UK in complicity with torture is being revealed little by little, we discover that “national security” is a convenient excuse to hide possible culpability by agents of the government.
SIAC is not the only form of legal proceedings to make use of secret evidence. Foreign Secretary David Miliband has repeatedly tried to stop the High Court from disclosing information about what Britain's security and intelligence agencies knew of the torture of Binyam Mohamed. This case was only brought after the government refused a request by the lawyers to make public “secret evidence” that could exculpate Mr. Mohamed in an American case. Miliband has argued that publication would cause irreparable harm to Britain’s relationship with America.
A government proposal, in the Coroners and Justice Bill, to hold some inquests in secret where issues of national security were involved was dropped in May 2009, only after vociferous campaigning by CAMPACC, Inquest and other organisations. However, the government can also use powers under the Inquiries Act 2005 to substitute an inquiry for an inquest and to hold part of the inquiry in secret in inquests involving the military or, again, when questions of national security arise. Solicitor Louise Christian adds “Rule 54 of the employment tribunal procedures allows an order for secret evidence and "special advocates" even in employment cases. Government employees such as immigration or customs and excise officers from whom security clearance is withdrawn – all of whom just happen to be Muslims – are not told the reasons they have lost their jobs. Instead they are faced with secret evidence and orders for "special advocates" in their race discrimination claims.” Secret evidence can also be used to refuse or revoke British citizenship – those affected have no right to know the reasons for these actions.
In February, the European Court of Human Rights ruled that when the open evidence is insubstantial and that the evidence relied upon is largely to be found in the closed material that those accused are not “in a position effectively to challenge the allegations against them”. This constitutes a violation of Article 5(4) of the European Convention on Human Rights, which states: “Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.” Earlier this month, the House of Lords ruled unanimously that the use of secret evidence to impose control orders on individuals in situations was a breach of their right to a fair trial (Article 6 of the European Convention of Human Rights), that “everyone is entitled to the disclosure of sufficient material to enable him to answer effectively the case that is made against him.” [7] This reliance upon secret evidence by the United Kingdom has also been condemned by other international bodies including “the Eminent Jurists Panel” of the International Committee of Jurists, the UN Committee on Human Rights, the UN Special Rapporteur on Human Rights, the European Committee for the Prevention of Torture and the European Commissioner for Human Rights.
An Early Day Motion (EDM 1308), tabled by Diane Abbott MP, declares “this House believes the use of secret evidence in UK courts is fundamentally wrong [...] and calls on the government to begin an immediate independent review into the use of [secret] evidence” in UK courts. Several concerned NGOs and individuals have set up the Coalition Against Secret Evidence (CASE) and will be lobbying against the use of secret evidence in the UK courts.
To find out how you can help and learn more, check out the CASE website.
(Many thanks to the CASE supporters who reviewed this article and offered corrections and improvements.)
Bootnote: my MP, Labour, has not (yet) signed the EDM; I am still waiting to hear from her as to whether she will. She wrote me last month:
As a lawyer the use of secret evidence to detain terror suspects is of great concern to me. The principles that the accused should know the case against him and be able to challenge and that scrutiny of the evidence and decision should be possible are at the central to achieving justice. Terrorism cases where the publication of evidence poses a risk to national security present real challenges to our judicial system and to these principles.
The Special Immigration Appeals Commission plays an important part in meeting these challenges by allowing evidence that could not be heard in an open court to be examined by a Special Advocate and we must have confidence that they are able to perform this role with as little obstruction as possible. I was therefore very alarmed to read the reported comments of the former Special Advocate, Dinah Rose QC who described the great difficulties she encounters in defending her clients and exposing the falseness of evidence presented by the prosecution.
Further reading:
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The Home Office consultation Keeping the right people on the DNA database (see Sentenced to genetic probation) explains in Annex B: 'All NDNAD records have the same structure consisting of 36 data fields. However, some of these fields are only relevant to subject profiles, and some are only relevant to crime scene profiles. Therefore, no record will have all data fields completed.' The list included is mostly correct but still manages to miss a couple of fields, and doesn't describe at all the second screen of information. Below is the complete list with explanations and a graphic guide that was sent by a reader of this blog.
The National DNA Database (NDNAD) holds both DNA profiles derived from samples taken from known individuals (referred to as subject samples) and DNA profiles derived from samples left at unsolved crime scenes from unknown individuals (referred to as crime scene samples). DNA subject profiles consist of a set of markers, currently ten, plus a gender marker.
When a suspect is arrested for a recordable offence and detained at a police station, two DNA samples are taken unless the arrestee already has a PNC record and it indicates that their DNA profile is already on the DNA Database. (Even when a DNA profile is already loaded, the police may exceptionally take a new sample.) The DNA samples and a form are put in a sealed bag and sent to a private forensic lab. The lab processes one of the samples to obtain a DNA profile and keeps the other one in a freezer. The DNA profile is then loaded onto the National DNA Database.
1. Sample status
1a. DNA sample barcode. Reference of the barcode sticker that was put on the sealed tubes holding each sample. The DNA sample barcode number for DNA samples of those arrested begin with a 9 (Police elimination sample barcode numbers begin with a 7). Following the introduction of a new PACE DNA sampling kit on 2005-04-01, all profiles from arrestees are of evidential standard; this can be recognised by the first two digits of the barcode number (96 and above).
1b. Arrest summons number (ASN). The ASN is one of the unique reference numbers used to identify the sample.
1c. Supplier. The forensic provider whose lab profiled the sample.
1d. Class code. Identifies how the sample is treated on the database and whether the sample was from an arrestee, a volunteer etc.
There are two classifications of criminal justice sample records on the NDNAD, namely 'SA' and 'SP'. In April 2004 the style of kits used to take DNA samples was changed to tie in with the implementation of changes to the Police and Criminal Evidence Act 1984 made under the Criminal Justice Act 2003. 'SA' is the code for samples taken prior to April 2004 and 'SP' is the code for those taken post April 2004 using the revised DNA kits.
1e. Police national computer (PNC) status. Reconciled or non-reconciled; denotes whether there is a link to PNC.
The consultation explains:
6.27 There are approximately 850,000 legacy profiles [of people arrested but not convicted or acquitted] of which approximately 500,000 have no linked PNC Record. This means it is not possible to tell whether the latter profiles relate to persons arrested and not convicted or subject to no further action, or to people who have been convicted.
Curiously, as I reported in The DNA database and you, the National Police Improvement Agency detailed in a Freedom of Information response last year that:
Data obtained from the Police National Computer (PNC) on 31 March [2008] indicates [...] 573,639 persons (14% of persons on the NDNAD sampled by forces in England and Wales) had no current conviction, caution, formal warning or reprimand recorded on PNC. The PNC records for the other 283,727 persons (7% of persons on the NDNAD) had been removed from the PNC.
That's a total of 857,366 legacy profiles as of end of March 2008, basically the same as the more recent recent approximate 850,000 overall number of the consultation. As we know that only a few hundreds profiles were deleted between these two data (e.g., 274 for the calendar year 2008; xls), the huge decrease in number of profiles of definite innocents (from 573,639 to 350,000) and corresponding increase in the number of unreconciled profiles (from 283,727 to 500,000) doesn't make sense. As we have shown in Sentenced to genetic probation that there are several mistakes in the consultation, the most like explanation that the data in the consultation is mistaken. From the data, on can hazard the guess that possibly the numbers of definite innocent profiles and unreconciled profiles were swapped.
The PNC record also includes data about the DNA profile. Here's an excerpt of the relevant section from a copy of my PNC record from 2006, with some explanations (in some of the entries I have replaced digits with the character 'n'):
DNA report summary
A/S ref: 05/0000/00/nnnnnnA. The arrest summons reference number, the first two digits are for the year.
DNA status: Confirmed. Marker indicating the status of the DNA sample and profile and whether the arrestee has been convicted.
(Note that the DNA status in this example is incorrect, 'Confirmed' indicates that the profile is on the database and a conviction has been achieved. I have never been convicted. At the time this PNC record copy was obtained, this field should have been set to 'Profiled' indicating only that my DNA profile was on the database.)Sample barcode: 96nnnnnn. Barcode number of the sample.
Date of sample: 28/07/05. Date the sample was taken.
Sent to lab: Forensic Science Service. Forensic provider's laboratory to which the sample was sent to, i.e., FSS.
Sample type: Swab. The sample type, i.e., mouth swab.
DNA FS/Ref: 01MS/CUSnnnn/05. Custody record number for this arrest, i.e., 01 stands for the Met, MS for Walworth police station, CUSnnnn is the custody number, and 05 is the year.
1f. Criminal Record Office (CRO) number. Identifier given to an individual when fingerprints are taken (the last two digits (/nn) in a CRO number indicates year of issue. When the CRO number is retained, the minimum information that is held consists of the surname, forname(s), sex and date of birth of the subject.
1g. Police national computer (PNC) ID number. The PNCID is automatically allocated as a unique identifier when the PNC record is created. The PNCID and CRO number are two different numbers issued by two different systems although both can be held on the PNC.
2. Case details (relates to crime scene samples)
2a. Case lab code.
2b. Case year.
2c. Case number.
2d. Offence code.
2e. Job number.
2f. Item number.
2g. Crime Number.
3. Customer details
The customer is the police force that took the sample. The chief constable of that force is the owner of the DNA samples and profile.
3a. Police force code.
3b. Police force name.
3c. Station. A list of station code for the Met is available in the National Archives.
4. Personal details
4a. Name.
4b. Date of Birth.
4c. Alias 1. Aliases do not originate from the PNC record and are not often used.
4d. Alias 2.
4e. Gender.
4f. Ethnic code. Identity codes: 1 for White - North European, 2 for White - South European, 3 for Black, 4 for Asian, 5 for Chinese, Japanese, or other South East Asian, 6 for Arabic or North African or 0 for unknown.
4g. Ethnic appearance.
5. Profiling details
5a. Sample type. One or two digits code that refers to the type of sample provided (i.e., whether from saliva, hair, blood).
Usually a buccal scrape is taken. A sample is obtained via rubbing inside the suspect's inner cheek with a mouth swab to loosen and collect skin cells. The sample is then put into a plastic tube. The process is repeated with the other cheek so that two samples are taken. This is sample type 3.
Types of samples recovered from crime scenes are more varied. The quality varies and crime scene profiles often have fewer markers.
5b. Batch number. Laboratory batch identifier.
5c. Batch year. Laboratory batch identifier.
5d. Number in batch. Laboratory batch identifier.
5e. Track number. Laboratory batch identifier. Denotes the position of the sample in the gel.
5f. Date sample taken. The date the sample was taken from the subject. It originates from the PNC.
5g. Date sample loaded. The date the PNC stub record was uploaded to the database.
5h. Gel number. Laboratory batch identifier.
5i. Gel year. Laboratory batch identifier.
5j. Test method. DNA profiling technique used (SGM prior to 1999 and SGM+ since)
5k. Date batch first added. Date this batch of DNA profiles was uploaded to the database. (Used in 1990s but no longer used for loading profiles.)
5l. Date profile loaded. Date this specific DNA profile was uploaded to the database.
5m. Forensic supplier. Code for the forensic provider's laboratory.
5n. Whether record searchable. Yes or no answer to the question: is the profile currently searchable on the database?
6. Amplified sample/case details
6a. Sample barcode. Reference of the barcode sticker that was put on the sealed tubes holding each sample.
6b. Case lab. Relates to crime scene samples.
6c. Case. Relates to crime scene samples.
6d. Case year. Relates to crime scene samples.
6e. Batch. Laboratory batch identifier.
6f. Batch year. Laboratory batch identifier.
6g. No in batch. Laboratory batch identifier.
6h. Proc unit. Code for the forensic provider's laboratory.
6i. Gel. Laboratory batch identifier.
6j. Gel year. Laboratory batch identifier.
6k. Sample type. One or two digits code that refers to the type of sample provided (i.e., whether from saliva, hair, blood). See 5a.
6l. Sample description. 'Buccal cells', 'Hair roots', 'Blood', etc.
6m. Control flag. 'Control' for subject sample and 'Stain' for crime scene stain sample.
7. Profile results
The technique used to obtain the DNA profile from a DNA sample, called SGM+, only looks at specific areas known as short tandem repeats (STRs). STRs are places in the DNA where a short section of the genetic code repeats itself. People have varying numbers of repeats, which is how STRs can be used to identify individuals. Ten different STRs are analysed in each DNA sample. Because each STR is made up of two strands – one inherited from the mother and one from the father – this analysis produces 20 bits of information, known as alleles.
The DNA subject profile consists of a string of numbers indicating the number of repeats at each of the ten STRs plus a gender marker.
7a. Locus. Area of the DNA that is tested to create the profile.
7b. Low allele. The number of time the tested sequence is repeated.
7c. High allele. The number of time the tested sequence is repeated.
The custodian of the National DNA Database is the National Police Improvement Agency (NPIA), but the Forensic Science Service (FSS) is responsible for the operation and maintenance of the database. If your DNA profile is on the database and you want to check that the information recorded is accurate, you can obtain this information by sending a data subject access request to the attention of the data protection officer at the FSS. Kevin Reynolds did just that. You can check out how a real records – Kevin's – looks like in last year's post DNA retention of unconvicted people. His story shows how being an innocent with a DNA profile already retained on the DNA database didn't prevent the police from suspecting him of murder. They ignored his retained DNA profile when it should have eliminated him from suspicion.
To get off the DNA database, if you're innocent, write a letter to the chief constable of the force that arrested to reclaim your DNA. If you're successful but have any doubt, requesting a copy of your DNA profile is a way to double check that it has indeed been deleted. Last December, Kevin Reynolds did get confirmation that the deletion of all his samples and records had taken place. It's only when he contacted the FSS that he discovered that only the latter of his two DNA profiles and associated DNA samples had been deleted. He his still awaiting deletion of his earlier DNA profile.
You have until 2009-08-07 to respond to the Home Office consultation.
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It's official defending yourself from an accusation you don't know is unfair! Common sense and justice prevail, eventually.
The House of Lords ruled unanimously in the case of Secretary of State for the Home Department v AF, FC and another and one other action that the use of secret evidence to impose control orders on individuals is a breach of their right to a fair trial (Article 6 of the European Convention of Human Rights). This poses a considerable challenge to the control order regime brought in through the Prevention of Terrorism Act 2005.
This follows a ruling in February by the European Court of Human Rights, that when open evidence is insubstantial and the evidence relied upon is largely to be found in the closed material that those accused are not “in a position effectively to challenge the allegations against them”. This constitutes a violation of the right to liberty and security (Article 5(4) of the European Convention on Human Rights), which states: “Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.”
Coincidentally, Justice, the independent legal human rights organisation, which intervened in AF, released a 238-page report entitled Secret Evidence (pdf) detailing the use of secret evidence in British courts since 1997. Over to Justice's press release:
In an historic 9-0 ruling, the House of Lords this morning held that the use of secret evidence against control order suspects in situations where they did not know the case against them was unfair.
The Law Lords ruled that, unless a suspect was given ‘sufficient information about the allegations against him to enable him to give effective instructions to the special advocate’, there would be a breach of Article 6 of the European Convention on Human Rights.
As Lord Phillips, the senior Law Lord said, ‘a trial procedure can never be considered fair if a party to it is kept in ignorance of the case against him’ (paragraph 63 of the House of Lords judgment).
Lord Hope of Craighead said:
The principle that the accused has a right to know what is being alleged against him has a long pedigree .... The fundamental principle is that everyone is entitled to the disclosure of sufficient material to enable him to answer effectively the case that is made against him (para 78).
And:
The consequences of a successful terrorist attack are likely to be so appalling that there is an understandable wish to support the system that keeps those who are considered to be most dangerous out of circulation for as long as possible. But the slow creep of complacency must be resisted. If the rule of law is to mean anything, it is in cases such as these that the court must stand by principle. It must insist that the person affected be told what is alleged against him (para 79).
Lord Scott of Foscote said:
An essential requirement of a fair hearing is that a party against whom relevant allegations are made is given the opportunity to rebut the allegations. That opportunity is absent if the party does not know what the allegations are. The degree of detail necessary to be given must, in my opinion, be sufficient to enable the opportunity to be a real one. The disclosure made to each of these appellants was insufficient to afford him a real opportunity for rebuttal. He did not, therefore, have a fair hearing for Article 6(1) purposes and these appeals must be allowed (para 96).
The judgment coincides with the release of a major report by JUSTICE revealing the growth of secret evidence in British courts over the past decade. JUSTICE, which intervened in AF’s case, this morning published a 238-page report revealing that, since 1997:
- Secret evidence has been used in a wide range of court proceedings from deportation hearings before SIAC, pre-charge detention hearings in terrorism cases, employment tribunals, asset-freezing cases, parole board hearings, and control order cases in the High Court and Court of Appeal (Parts 2 and 3 of report);
- More than 90 special advocates have been appointed since 1997. However no central figures are published and even the government may not know the total number of special advocates that have been appointed (pages 184-188);
- Defendants in some criminal cases are now being convicted on the basis of evidence that has never been made public. Criminal courts have issued judgments with redactions to conceal some of the evidence relied upon. Evidence from anonymous witnesses has also been used in criminal trials and is widespread in ASBO hearings (Part 3 of report);
- In a series of cases before SIAC, the Home Secretary breached a parliamentary assurance that secret evidence would not be used when assessing the risk of torture on return (page 42);
- In a case before the Parole Board, the Prison Service allegedly urged a witness to give false testimony in open court in order to conceal the source of secret evidence (page 98).
The report, the first comprehensive survey of the use of secret evidence since SIAC was created in 1997, shows how, over the last twelve years, the British traditions of open justice and the right to a fair hearing have increasingly been undermined by the use of secret evidence in closed hearings. It sets out recommendations for the reform of the current law and procedure in order to guarantee that all defendants are able to know the evidence against them.
In relation to the House of Lords judgment, Eric Metcalfe, JUSTICE’s director of human rights policy, said:
The House of Lords judgment marks a turning point. The government can decide to limp on with the use of secret evidence for the sake of ever diminishing returns. Or Parliament can act to end its use once and for all.
Either way, the unfairness of secret evidence is clear.
In relation to JUSTICE’s report on secret evidence, he said:
Twelve years of secret evidence are enough.
Secret evidence is always unreliable, unnecessary, undemocratic and unfair. Because it has never been properly tested, it breeds complacency and false confidence in its results. Secret evidence damages public trust in our courts and in the rule of law itself.
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Yesterday evening, I was invited to speak about the DNA database and my experience in getting on and then off it. The event was organised by the Pan African Society Community Forum (PASCF) and happened near Oval. Even with the tube strike starting at the same time as my presentation the room filled up with what looked like more than sixty people.
The black community is disproportionally represented on the National DNA Database (NDNAD). As mentioned in the earlier post Sentenced to genetic probation, figures compiled a few years ago show that 37% of black men have their DNA profile on the database compared with 13% of Asian men and 9% of white men. Data published last year indicate an increase in the number of DNA profiles of black males to 42%. It is estimated that three quarters of young black men aged between 15 and 34 have their DNA profiles on the database. Innocent young black people are far more likely to be on the database than innocent young white people.
Other speakers were Doreen Bishop speaking about her son Ricky Bishop who died in police custody on 2001-11-22; Samantha Rigg-David speaking about her brother Sean Rigg who died in police custody on 2008-08-21; and Minkah who was arrested and charged after enquiring about two white men, who happened to be police officers, questioning a young black man, and who spoke about stop and search and the involvement of the black community in refusing this police violence. The meeting was very well chaired by a kid from the Marcus Garvey Next Generation (MGNG), an organisation for young African people who want to contribute to a unified approach to tackling issues related to young people. It's great to have people of all generations involved in such events. (Doreen, Samantha and Minkah were speaking at the Stop the violence event last month and you can find videos of their speech on Indymedia.)
Every year, usually on the last Saturday of October, the United Families and Friends Campaign (UFFC) organises a silent procession along Whitehall. At last year's event a give away listed the names of 2,533 individuals, whose name was known, who had died since 1969 in the care of the Police, prisons, secure psychiatric units and immigration detention centres. See the list in the post Deaths in custody & Jean Charles de Menezes inquest.
There was great interest in practical measures: what to do to get off the NDNAD, how to raise awareness of all the deaths in custody (the Rigg family is holding a vigil outside Brixton police station every Thursday), how to get more people out at demonstrations (the United Campaign Against Police Violence (UCAPV) will organise a protest at the IPCC on 2009-07-10), etc. It felt like many of the attendees were keen to do more than just spend a Tuesday evening hearing a few speakers; this is the aspect I found most encouraging. Discussions continued well after the end of the formal presentations, and the evening was both productive and very enjoyable. To those who attended and may be reading this post, the website I recommended is ReclaimYourDNA.org.
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Either you are with the Home Office or you are against justice
The Home Office remains stubborn in its attempts to hold on to the personal and intimate data of innocents by refusing to delete their DNA profiles from the National DNA Database (NDNAD). It creates policies out of a vacuum, without evidence to support them, and in parallel, tables amendments to give itself powers to push these policies through secondary legislation. This arrogance was exemplified when the Home Office eventually published its consultation on Keeping the right people on the DNA database. Commons Leader Harriet Harman described those critical of the plans as "against justice". In the six months since the European Court of Human Rights' judgement in S and Marper v. UK, the Home Office has been marching on to implement its single-minded agenda.
First on the Home Office agenda was to address the few individual cases, that garnered too much publicity, for which Jacqui Smith had promised to take immediate steps. The day following the European Court judgement, the applicants' lawyer requested the destruction of their fingerprints and DNA samples. The government confirmed in January that the responsible police authority had destroyed them. A just satisfaction award of £35,501.56 was paid, in respect of costs and expenses, to S and Marper. And it took two full months, between the last day of December and early March, for a total of 96 DNA profiles of children under 10 to be removed by 31 police forces (pdf). This had been promised by Jacqui Smith in a speech to the Intellect Trade Association. Approximately 300,000 children 10 to 18-year old still have their DNA profile on the DNA database.
To comply with the European Court ruling, the government must implement general measures to prevent new violations, similar to that which happened to S and Marper, from occurring. In January, the UK provided information to the Committee of Ministers (CoM) of the Council of Europe about how it is going about changing laws and policies to end 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". That information was supposed to be reviewed at the March meeting of the CoM, but was rescheduled to its June meeting. We've asked for this information under the Freedom of Information Act, but the Home Office has been delaying its release.
First time most anyone outside of the Home Office got wind of its intentions was early May when it published the consultation Keeping the right people on the DNA database. Neither the NDNAD Strategy Board, nor the NDNAD Ethics Group were consulted for their informed opinion or even just notified, prior to publication. The consultation "sets out our proposals which will remove the current 'blanket' retention policy and replace it with a retention framework which, in the words of the judgment, will 'discriminate between different kinds of case and for the application of strictly defined storage periods for data'". The Home Secretary is opting to get rid of the blanket indefinite retention for everyone and to replace it with three blankets of six years, 12 years and indefinite retention depending on how innocent you are or whether you are a convicted criminal; plus a few special cases.
Minimum six years of genetic probation
The consultation's proposals include retaining innocent people's DNA profiles and fingerprints for twelve years if they have been accused of a serious violent or sexual offence, or six years for a lesser offence. Children arrested but not convicted, or convicted of less serious offences, would have their DNA profiles retained for six years or until they turn 18*, whichever comes first. The taking of DNA samples and fingerprints would continue to happen at arrest and DNA profiles and fingerprints of anyone convicted of a recordable offence would be retained indefinitely as is the case now for criminals and innocents alike. DNA profiles of those volunteering their DNA would not be added to the database. In all cases the DNA samples, commonly mouth swabs, would be destroyed after a DNA profile has been derived from them.
Profiles already on the DNA database would follow this six/twelve year retention rule. There are currently approximately 350,000 DNA profiles of individuals who are definitely innocent and 500,000 DNA profiles that are not linked to Police National Computer (PNC) records and hence may be that of innocents... or not. The Home Office preferred option would be for the police to manually check each of the profiles they're not really sure about before considering deletion.
"The intended effect of this policy is to ensure the maximum number of detections where a crime scene is matched to an individual on the database thus helping reduce crime and protect the public whilst at the same time ensuring the right to privacy is protected" is the goal set in the impact assessment. To ask us to give up the presumption of innocence, the government must show solid evidence for the need to retain DNA profiles and fingerprints from any innocent when there's no further case or they are acquitted. Steve Bain, ex-member of the Human Genetic Commission and on the NDNAD Strategy Board, is direct: "It's essentially an evidence free zone", adding that the real issue is "how to make [the retention policy] ethically robust and socially acceptable."
What evidence is there that increasing the DNA database size, already containing more than five and half million DNA profiles, with additional DNA profiles of innocents helps to reduce crime? GeneWatch UK has shown that when "the number of individuals with DNA profiles on the Database ... doubled from 2 million to 4.5 million, ... there has been no corresponding increase in the number of crimes detected. The percentage of recorded crimes which involve a DNA detection has remained roughly constant at 0.36%". What makes a difference is retention of DNA of crime scenes (pdf). The Home Office said as much in 2005: "the number of matches obtained from the Database (and the likelihood of identifying the person who committed the crime) is 'driven' primarily by the number of crime scene profiles loaded onto the Database" (emphasis in the original). Geneticist and lawyer Brian Costello's research leads him to believe that not only adding DNA profiles of innocents to the database doesn't help catch criminals, but is likely to increase the risk of miscarriage of justice: "If a miscarriage based on an adventitious match has not occurred yet, it appears likely it will occur in the future as the NDNAD grows ever larger."
What is the new evidence the Home Office has found that would convince us to retain DNA profiles of innocents for years? The consultation's impact assessment makes it clear that any claim by ministers that deleting DNA profiles of innocents may prevent crime is an unsubstantiated claim: "It is therefore also not possible to say how many crimes would be prevented under different options." The few anecdotes repeated by ministers to provoke emotional reactions do not support the case for DNA retention of innocents, but the taking of DNA samples at arrest, which is not disputed; (whether this is indeed the right time to take DNA samples is not even discussed). We must look deeper in the documents published by the Home Office.
In search of strong evidence
Even though the Home Office has had many years to prepare in anticipation of the judgement of the European Court and six months since, the consultation and its annexes read as if they have been rushed out. The documents are marred by editing mistakes to the point they look like a very early draft. They are full of inconsistencies, samples used for statistical analysis are extremely small, data is not always sourced and the included research contradicts the proposed plans in several places. Has anyone really bothered to read the consultation before publishing it? A genuine consultative exercise would show more respect to its audience.
One annex is an independent report by Professor Ken Pease of the Jill Dando Institute titled DNA Retention after S and Marper. The data in the text and the tables don't match, but if you put that aside and try to figure out what was likely meant you soon realise that there's little to support the Home Office. First key data is about those re-arrested within three specified periods. Let's skip the fact that the "data underwent substantial and lengthy editing" to exclude irrelevant categories and "on the basis of lack of clarity as to the case outcome". After all this editing, the data appear to come from 532 cases from three samples in June over three consecutive years (either 1994-1996, according to the table, or 2004-2006, according to the text). However, an attentive reader will spot: "Given that data came only from the first of a month, and aware that errors of estimation will be magnified by multiplying the figures to give a monthly total...", so this data is in fact an estimation based on approximately 18 cases (532 divided by the number of days in June) taken over three days at one year interval, or 7, 8 and 3 samples for the respective days. And even among these few cases, one day may have to be discounted as a footnote explains: "The writer was concerned by the smaller number of cases in 2004. His best guess is that the date fell on the day following a Bank Holiday." (This is also a hint indicating that the text is right as May 31st was Spring bank holiday in 2004. This erroneous table is repeated in the main consultation document.)
Moving on, the author comments on a second analysis that is under way but not included in order not to delay publication: "The conclusion anticipated with confidence is that there will be little or no association between the seriousness of the events, ie that the seriousness of the initial offence will not predict the seriousness of subsequent offences. ... Its importance is that a policy of selective deletion is decided upon, based upon the seriousness of the offence leading to the initial offence, it will lose most of its potential in downstream detection." That conclusion directly undermines the Home Office's proposed plans for six and twelve years retention periods.
Based on a New York State study and illustrated with more local anecdotes (such as that of the Yorkshire Ripper), the author points out that "They found, regardless of the severity of an individual’s first adult offence a high degree of versatility for all but a minority of offenders". If you were to accept this analysis, then to ensure this high degree of versatility, an individual who committed a minor offence is likely to go on to commit a violent one and vice versa. Barring the fact that we're now talking about criminals, such a conclusion would favour retaining DNA for a shorter time for those associated with violent crimes!
The author admits that the data currently available is very limited, "There remains an outstanding research programme which would clarify the issues surrounding the S & Marper judgement". We wrote to Professor Ken Pease to enquire about the availability of a corrected version of his report, but are still awaiting a response.
Rushed out to be pushed without scrutiny
A further sign this consultation was rushed out is that the proposed plans (published in the main consultation document) are not consistent with the preferred option in the impact assessment (published in the annex). The impact assessment recommend destruction of all fingerprints after 15 years while, as explained earlier, the consultation recommends destruction of the fingerprints at the same time as for the DNA profiles. The different retention periods for fingerprints and DNA profiles is one of the five points Chief Economist John Elliott draws the reader's attention to in his examination of the impact assessment. So it appears he was not informed of the change of mind of the Home Office between when the impact assessment was written and the time the proposed plans were finalised. John Elliott does comment on the rush in three of his other points: "The associated costs are likely to be significant, but there has not been time to quantify them", "If deletion is not to be immediate, a retention period must be set. The decision to opt for 6 years is likely to receive considerable scrutiny but is based on only limited evidence. Ideally a fuller consideration of different retention periods would have been helpful but I accept this was not possible in the time available" and "The need to complete this work to a very short time table means that the modelling has not captured all costs and benefits as completely as I would ideally like to have seen. There may be a need to revisit this assessment before a final decision is made."
The costs and benefits model, in the impact assessment, is constructed on a tower of "key probabilities and assumptions", and some of the listed probabilities are misleading. For instance "The probability of committing an offence following an arrest, but no further action, is the same as the probability of committing and [sic] offence following conviction. The probability of this is 40%9". Note 9 lists the source for this statistics: Re-offending of adults 2006 cohort. The data in this report, from the Ministry of Justice, is about "the reoffending of adults released from custody or starting a community sentence", i.e., it has nothing to do with those offending for the first time after an earlier arrest. Interestingly, this report also includes the following analysis: "On average, offenders took in the 2006 cohort 119.7 days to reoffend (in 2000 the same value was 114.7 days). Offenders convicted of theft took the shortest number of days to reoffend for both 2000 and 2006, whilst in 2006 offenders convicted of robbery took the longest number of days to reoffend." The longest line in the figure showing the average number of days before re-offending took place, for those who re-offend, by index offence group is approximately 170 days.
Average time to next offence
This report establishes that average time to re-offend, for convicted criminals, is three months at one end of the spectrum and less than six months at the other. On one hand the Ministry of Justice tells us that most re-offending happens in six months, and on the other hand, the Home Office is asking us to retain DNA profiles of innocents for six to twelve years (and indefinitely for criminals)!
Nothing in the proposed measures addresses the racial bias in the DNA database. Figures compiled a few years ago, using Home Office statistics and census data, showed that 37% of black men have their DNA profile on the database compared with 13% of Asian men and 9% of white men. Data published last year indicate an increase in the number of DNA profiles of black males to 42%. It is estimated that three quarters of young black men aged between 15 and 34 have their DNA profiles on the database. Innocent young black people are far more likely to be on the database than innocent young white people.
Perhaps, the Home Office realises how weak its arguments are as it is keen on avoiding parliamentary scrutiny. Several MPs have repeatedly demanded that basic protections regarding personal data, the DNA database and its oversight be embodied in statute after been given enough Parliamentary time. The Home Office has instead pushed through Parliament clauses 96 to 98 of the Policing and Crime Bill, which is now reaching Committee stage in the Lords. These give a blank cheque to the Secretary of State to implement by statutory instruments changes to the retention, use and destruction of DNA profiles and samples, fingerprints, footwear prints and photographs. A draft statutory instrument (zip) to implement the regulations proposed in the consultation has already been published. Only a week after the consultation. Will the Home Office read any response to its consultation?
Governance and additional powers
Another issue raised by the European Court is the "limited possibilities ... to have the data removed from the nationwide database [and] ... no provision for independent review of the justification for the retention according to defined criteria." As per the existing exceptional case procedure**, those with their DNA profile on the NDNAD would still be able to request deletion by writing to the chief constable of the force that took their DNA. What's proposed is for the procedure to be renamed "application process for record deletion" and for the grounds to be codified in regulations. Listed examples include wrongful arrest, mistaken identity, and where it turns out that no crime has been committed.
A likely aim for this change is to create a fairer process, as had been requested by the NDNAD Ethics Group. The Association of Chief Police Officers (ACPO) Criminal Records Office (with the recursive acronym of ACRO) has been tasked to create processes that would improve achieve some level of national consistency when considering the requests for removal. Chief constables would remain the owners of the DNA profiles they contribute to the NDNAD, but ACRO, a private company, would at least strengthen its existing consulting role, if not acquiring more power. The cost of increased consistency would be a loss of transparency and scrutiny.
The consultation details plans to have a greater mix of operational and independent members on the NDNAD Strategy Board and an independent monitoring structure on implementation of the regulations. However this latter structure will report directly to ministers. That the Home Office did not consult the NDNAD Strategy Board or the NDNAD Ethics Group when preparing its plans for the future of the DNA database as embodied in the consultation does not give confidence that any new structure or playing musical chairs in one of the existing advisory structure would have any more influence.
Additional powers sought for are to take a sample and fingerprints post arrest if the initial data is not of sufficient quality, post conviction of persons who were not sampled or fingerprinted during the investigation or court process, and from UK nationals and UK residents convicted of violent or sexual offences overseas. These additional powers are the only measures where the government is looking for new primary legislation and hence that would be subject to full Parliamentary scrutiny.
Jacqui Smith, in her speech to the Intellect Trade Association, explained the outcome she was looking for: "We need to ensure compliance with the [ECtHR] Judgment whilst ensuring that we meet the difficult job of balancing rights against protection". Professor Sir Alec Jeffreys, who discovered DNA profiling and invented its forensic use, finds the proposed plans do not achieve this outcome : "This seems to be about as minimal a response to the European court of human rights judgment as one could conceive. There is a presumption not of innocence but of future guilt here … which I find very disturbing indeed."
The judges in the European Court noted "Weighty reasons would have to be put forward by the Government before the Court could regard as justified such a difference in treatment of the applicants' private data compared to that of other unconvicted people." The current proposal to retain DNA profiles of innocents who happened to have been arrested for six or twelve years does treat them differently and further stigmatise them. The Committee of Ministers will review the situation this month, you have until August 7th to respond to the consultation, and the government has six more months to show substantial progress towards compliance with the ruling against it.
Notes:
* Note that children convicted of a minor crime days before their eighteen's birthday would be on the NDNAD only for a very short time. If this aspect of the proposals is implemented we do not condone experimenting with this.
** The European Court's judgement is not directly binding on the police forces. Until the law or police guidelines change, the only way to get off the NDNAD is via a decision of a chief constable. A new website, Reclaim your DNA, was launched by GeneWatch UK, No2ID, Open Rights Group and Black Mental Health UK. It offers a step-by-step guide to innocents on the NDNAD as to what they need to do to request to be taken off this crime-related intelligence database and ensure that personal genetic information samples are destroyed.
(Two years ago I was one of 64 who asked the Metropolitan Police to have their DNA profiles purged and DNA samples destroyed. My request was one of 18 that were deemed exceptional enough to be granted that year.)
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Brian Costello's Are DNA ‘cold hits’ resulting in miscarriages? is an analysis into whether false DNA matches will lead to miscarriages of justice, if they have not done so already. He questions whether chance DNA matches are occurring but are not being recognised.
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Due to the current size of the NDNAD [National DNA Database], full profile chance matches (“adventitious matches”) are now actually expected to have occurred. A truly staggering 2.5 trillion odd comparisons have been made: 500,000 (Crime Scene Samples) x 5,000,000 (Subject Samples) = 2,500,000,000,000. Under ideal conditions, a full SGM+ profile is generally predicted to occur with a frequency of 1 in 1 trillion (although a figure of 1 in 1 billion is routinely given in court as it is perceived to be highly conservative in favour of the defence). With the NDNAD at its current size, and taking the 1 in 1 trillion chance match figure, a simple mathematical analysis indicates that two full SGM+ matches are expected to have occurred between a Crime Scene Sample and an unconnected Subject Sample. Put another way, it is expected that two suspects have been wrongly identified as linked to a crime scene by a false match.
Unfortunately, a simple mathematical analysis will not give the true picture. Two factors will increase the probability of adventitious matches: firstly, the condition of crime scene samples may lead to incomplete profiles; and secondly, individuals who are related are more likely to share the same profile than unrelated individuals.
A crime scene sample can be uploaded onto the NDNAD where results have been generated at only eight out of 10 loci (loci are DNA analysis sites), and a speculative search can be conducted where only six of 10 loci have produced results. Where results are obtained from less than the full 10 loci, the random match probability is reduced; it is more likely that a match will occur by chance alone. The comparison of incomplete profiles suggests that the prediction of only two adventitious matches could be a significant underestimate. Depending on the number of incomplete Crime Scene Samples uploaded, the number of expected adventitious matches could easily run into double digits. It would also appear that the problem of adventitious matches is set to increase with the expansion of low copy or low template DNA tests (“LtDNA”). LtDNA testing frequently produces incomplete profiles. If these incomplete profiles are uploaded to the NDNAD, or speculatively searched against it, the probability of obtaining adventitious matches will increase. Even more concerning is the fact that in a LtDNA test the entire DNA sample collected from a crime scene can be consumed, preventing further testing that would exonerate a person wrongly linked by an adventitious match.
People who are related share genetic material derived from their common ancestors. The closer the relationship the greater the chance their DNA profiles will match. In court, this would be expressed by a reduced match probability for a scenario that a relative committed the crime (e.g. match probability 1 in 1 billion for an unrelated individual, but one in several hundred thousand for a full sibling). It is a known fact that the NDNAD contains the profiles of a large number of related individuals. However, due to the level of duplication on the database – currently estimated to be around 13% of all samples – it is quite possible that two related (or unrelated) individuals share a full SGM+ profile, but the adventitious match has not been identified as it has incorrectly been attributed to duplication.
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Given that further adventitious matches have been predicted, but none have been identified, there must be real concern that an innocent person has been wrongly convicted on the basis of an adventitious match; perhaps because they were not prepared to identify a family member and so entered a guilty plea, or perhaps because unlike Mr Easton they did not have compelling evidence of their innocence. If a miscarriage based on an adventitious match has not occurred yet, it appears likely it will occur in the future as the NDNAD grows ever larger. Greater use of the LtDNA technique will further increase the probability of such a miscarriage.
Brian Costello is completing a third six period of pupillage at One Inner Temple Lane and as a result of his concern is researching the discrepancy between predicted and identified adventitious matches. As part of that research he is interested in hearing from any defence practitioners who have:
If that's your case, then get in touch with him at Brian.Costello@1itl.com.
(Hat tip: Are DNA ‘cold hits’ resulting in miscarriages? was published in the excellent CrimeLine newsletter.)
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Mobile phone tracking
The cost of having your movements tracked by your university? A free iPhone. The School of Social Informatics at Tokyo-based university Aoyama Gakuin is giving students free iPhones that will be 'used as a tracking device with which the university can control if its students are physically on campus or not (the main goal is to prevent cheating during roll calls).'
Last month I wrote about the mobile phone as self-inflicted surveillance. If you don't carry this voluntary electronic tag, then you must have something to hide. Frank Stajano, a senior lecturer at in the Computer Laboratory at University of Cambridge who was involved with developing the Active Badge system at ORL twenty years ago has just written an article on location privacy issues.
Data remanence and information accountabilityThe security research team in the Computer Laboratory at University of Cambridge ran an experiment to test what happens when data deleted from the cloud. They 'found that most [of 16 social-networking, blogging, and photo-sharing web sites] failed to remove image files from their photo servers after they were deleted from the main web site. It’s often feared that once data is uploaded into “the cloud,” it’s impossible to tell how many backup copies may exist and where, and this provides clear proof that content delivery networks are a major problem for data remanence.' The issue of data take-down is being looked into by the W3C Social Web Incubator Group.
Data take-down is only one tactic addressing a larger issue, and one that is not working well as the Cambridge research has shown. An interesting and more general approach is one based on information accountability. See my post Forgetting. Consequences. Bruce Schneier also posted a useful essay on Privacy in the Age of Persistence.
Earlier this week... Making location data an integral part of user experience and having user's data reside in the cloud, with the mobile device acting as a cache, were two key directions participants to the Mobile User Experience (MEX09) conference saw the industry moving to. The mobile industry has to take much more responsibility for the dataveillance and data remanence scenarios it is creating.
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Jacqui Smith pre-announced in The Observer, she will publish this week the government's plans for the destruction of the DNA profiles and/or DNA samples of innocents. Details are currently lacking. A first welcomed step in complying the European Court of Human Right's ruling would be the bulk destruction of the DNA profiles, DNA samples, fingerprints and associated PNC records of innocents.
Tomorrow, Thursday, at 8.1015am I'll be interviewed by Eamonn
Holmes on Sky News Sunrise
about my experience
getting off the National DNA Database (NDNAD).
Update 1 - From press reports, the Home Office plans include:
(The consultation document has still not yet been published.)
Update 2 - I arrived at the Westminster studio early. This allowed time for a recorded interview (I don't think this interview was used), with Joey Jones, about my views on the NDNAD and the announced changes. The destruction of the DNA samples is a positive step, but the retention of DNA of innocents for years is not acceptable.
While I wait, Vernon Coaker shows up with three minders. Two of them write down what he says when he's on air. I make a mental note to debunk some of his more outrageous claims such, e.g., the large size of the NDNAD helps with crime detection. The detection rate remained about the same when the number of individual profiles on the database doubled. What makes a big difference is the number of DNA profiles of crime scenes, not of individuals. (See Ten myths about the NDNAD for more myths debunking.) A few minutes after the quartet leaves Sky News, one of the minder comes back to pick up a document she had forgotten on a table; unfortunately no journalist had noticed this possibly interesting material!
Then it's eventually my turn. The set up is very disconcerting as there's no one else in the studio and the only feedback is audio. I sit in a fixed chair and am told to look at a spot which is between the camera lens and a red light situated above it. Two strong lights are directed at whoever is in the chair, hence the regular blinking. I listen to the previous segment while staring at this dark spot behind the lights and above the camera. A voice introduces itself as the producer and asks me if I hear the audio feedback fine and eventually it all starts. At no point can I see what image is broadcast or the reaction of the interviewer. Joey Jones told me earlier it was likely to be Eamonn Holmes, but not being that familiar with his voice I do not really know who's interviewing me.
I had prepared some points I wanted to talk about. Some I mentioned in the recorded interview (why such a large database, because this database state is keen on collecting as much data as it can on us; it is a criminal intelligence database for the purpose of crime detection), many others I didn't (databases have mistakes, are accessed illegally, get forgotten on trains, etc. DNA can be used to identify children and parents as well, the samples and profiles are used for research without consent, etc. and some practical advice: the current system of the 'exceptional procedure', that if you're on the NDNAD you should go to the new Reclaim your DNA website, and in any case you must respond to this consultation.) As Eamonn Holmes was under the impression that my DNA profile was still on the NDNAD, I explained several of the actions I had to take in the two years it took me to manage to eventually successfully reclaim my DNA. I had the impression we had just started, but several minutes had already gone and it was all over! So I had the time for much less than I was hoping to communicate. Click on either of the two pictures to download the video (16.5 MB), if you must.
On my way out, I bumped into Helen Wallace of GeneWatch UK, the leading UK organisation providing independent information on genetic technologies, on her way to do some interviews. Read GeneWatch's reaction to the government plans at Home Office drags its feet on DNA database removals.
I wonder who decides on the captions identifying people on TV? I didn't think 'Former suspect' was neutral enough when this was used in an earlier appearance. This time, the caption changed through the interview. It started with 'Mistaken suspect' and finished with 'DNA campaigner'. The former is obviously wrong and is likely why it was changed, but the latter is still a shortcut: DNA is not a campaign. I am campaigning, with many others, to ensure that innocents are no longer treated as 'yet to be convicted' and that means full compliance with the ECtHR ruling condemning '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'.
Update 3 - The consultation Keeping the right people on the DNA database has now been published. It closes on 2009-09-07. With more than five million profiles on the NDNAD, about one in ten persons in the UK, either you're on it or you likely know someone who is. After a critical reading of the documents, do respond to voice your views. For reliable independent information on most aspects of the NDNAD, check GeneWatch UK.
Until the consultation closes and the government decides what it will do, hopefully more in line with the spirit of the unanimous ruling of the ECtHR, the 'exceptional' rule still apply. If you're innocent and on the NDNAD, write to the chief constable of the force that arrested you to reclaim your DNA.
First published 2009-05-06; last updated 2009-05-07.
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So you have not been convicted or cautioned for any crime - you are innocent - but your DNA profile is still held on the National DNA Database (NDNAD) and a commercial lab is storing a sample of your DNA. You need to get off this crime-related intelligence database and ensure that your personal genetic information sample is destroyed.
Maybe, you read the articles Don't delay: Delete your DNA today and Three months on, you still can't get off the DNA database, wanted to write to reclaim your DNA but didn't really know how to get started? The new Reclaim your DNA, website launched by GeneWatch UK, No2ID, Open Rights Group and Black Mental Health UK guides you step-by-step through the process:
Innocent urged to reclaim their DNA from reluctant Government
Launched today, a new ‘Reclaim your DNA’ website helps innocent people contact the police to seek destruction of their DNA and database records. The coalition of rights groups supporting it accuses the Government of dragging its feet in removing innocent people from the National DNA Database. The European Court of Human Rights ruled last December that the retention of innocent people’s DNA and fingerprints is unlawful.
Dr Helen Wallace, Director of GeneWatch UK, said: “If Scotland can remove innocent people from the DNA database, why can’t this happen everywhere? It’s time for people in the rest of Britain to demand their rights”.
Phil Booth, Co-ordinator of NO2ID, said: “The principle is simple and fair. When charges are dropped, DNA samples should be destroyed. No charge, no DNA – stop treating the innocent as criminal suspects”.
Jim Killock, Executive Director of Open Rights Group, said: “We have human rights: we need to exercise them if we want to successfully defend them. The digital age means data is constantly easier to collect, store, and analyse, so when government goes too far, it is vital citizens act to defend their right to privacy”.
Matilda MacAttram, Director of Black Mental Health UK, said: “The fact that three quarters of Britain’s young black men and over half of black Londoners are on it clearly shows that the DNA database has criminalised a whole community, whilst most real criminals are still not on it. Black Mental Health UK welcomes this new website. It will enable thousands of innocent people who are currently being criminalised by a system that clearly doesn’t work to get their genetic data back.”
The website also provides advice if you are not sure if the police have your DNA, you were cautioned or convicted of a minor offence, or you gave your DNA to the police voluntarily.
Act now to reclaim your DNA and/or show your disagreement with this unlawful government policy!
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Dinah Rose QC is a barrister with direct experience of working with the Special Immigration Appeals Commission (SIAC), which assesses deportation cases, often taking evidence in closed sessions. At a meeting calling for an end to secret evidence, she told this anecdote:
I can still recall my deep feeling of shame when I heard the appellant ask the judge the question: why are you sending me to prison? To which the judge replied: I cannot tell you that. I could not believe that I was witnessing such an event in a British court. I could not believe that nobody protested or made a fuss. They simply took him to jail, without any explanation at all.
Are you shocked that this happens in this country? Don't you feel the urgent need to make a fuss?
As an outcome of this meeting, an Early Day Motion (EDM 1308) has been tabled by Diane Abbott to call on the Government to bring about an independent review into the use of secret evidence in UK courts. If you care about the fundamental right of anyone to receive a fair and open hearing, the right not to be imprisoned or subjected to draconian control orders or bail conditions based on secret evidence, the rule of law and habeas corpus then write to your MP to ask him or her to sign this EDM:
That this House believes the use of secret evidence in UK courts is fundamentally wrong;
notes that secret evidence is evidence held by the Home Office against an individual that neither the individual, nor their legal representation, may see;
further notes that in recent cases secret evidence has been used to detain individuals in prison for up to three years without charge or trial;
further notes that these individuals may also be put under a control order or severe bail conditions, greatly limiting their movements and ability to lead a healthy life;
believes that the use of secret evidence by the state against individuals runs entirely contrary to Habeas Corpus;
recognises the European Court of Human Rights' ruling that detaining individuals on the basis of secret evidence is unlawful because detainees had not been able to effectively challenge the allegations against them;
and calls on the Government to begin an immediate independent review into the use of evidence that is not ever heard by the defendant or their lawyer but which is used to justify indefinite detention, severe bail conditions or control orders.
On Monday March 30, in a committee room in the House of Commons, Diane Abbott MP chaired a meeting entitled, 'Britain’s Guantánamo? The use of secret evidence and evidence based on torture in the UK courts, to discuss the stories of some of the men held as 'terror suspects' on the basis of secret evidence, and to work out how to persuade the government to change its policies. Andy Worthington has done a fantastic job reporting on this meeting. Below are links to the relevant posts. I recommend you set aside some time and read them all.
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Twelve suspects were arrested around Northwest England on 2009-04-08. They were accused of being part of a 'major terrorist plot', as Gordon Brown called it. The police have released the 12 suspects without charge. Some of them were subsequently served with deportation orders and are in the custody of the UK Border Agency. This has all the elements of propaganda: much hyped arrests, no bomb making equipment found at all, followed by all the arrestees released with none being charged.
They are still described in the media as 'suspects', 'terror suspects', 'terror raid men', etc., but they are all innocent. So a more appropriate description would be 'innocent men' or 'students'. Even GMPGMP Chief Constable Peter Fahy conceded this point: 'We can only operate to one standard, and that standard is that people are innocent until they are proved guilty.'
Soon they're likely to find themselves described as 'former suspect'. Here's what I wrote at the time this expression was used in captions to describe me:
In both the Sky News Today and the Politics Show interviews, the caption introduced me as 'Former Suspect'. Is that more appropriate than say ‘London resident’ or ‘Tried to take the tube’? Such captions have to be short, but this shortening of what is really ‘Formerly considered by the Police to present a suspicious behaviour’ can give the impression of a universality. This would erroneous. Let me know how you react to this label.
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Sir Ken Jones, ACPO president, said this Sunday on police public order tactics:
Unlike many other countries we do not have standing "riot police" and using this term does not aid understanding. In policing demonstrations and the like we need to mobilize hundreds, sometimes thousands, of police officers from other work. The so called "riot police" we see on TV are mostly everyday officers from our neighborhoods and communities who would rather be somewhere else. Our officers are trained and deployed according to what works best to deliver people's democratic rights against the rights and needs of the majority who are not involved. It has to be said that there are many who get involved in street protest who are intent on creating riots, damaging property and attacking our officers. The presence of such groups, well organised and determined, is sadly an increasing feature of public protest across Europe. They pose a very real threat to legitimate protestors, public and police. Police officers are only human but know that their standards of behavior in all situations must be beyond reproach, no matter what provocation is offered. Those who cross the line must be dealt with. However there is a need to approach this objectively and look at the issue from all perspectives. And those who do not cross the line, the vast and overwhelming majority, deserve our support.
Philip Zimbardo, infamous for his 1971 Stanford Prison Experiment, defined the Lucifer Effect as 'the point in time when an ordinary, normal person first crosses the boundary between good and evil to engage in an evil action'. In 2004 Zimbardo served as an expert witness for the defence in one of the Abu Ghraib court-marshal hearings. Here's an extract from the review of his book in Discover Magazine:
Situational forces mount in power with the introduction of uniforms, costumes, and masks, all disguises of one’s usual appearance that promote anonymity and reduce personal accountability. When people feel anonymous in a situation, as if no one is aware of their true identity (and thus that no one probably cares), they can more easily be induced to behave in antisocial ways.
In both cases from the G20 demonstrations independently investigated by the IPCC - the worst cases of identified police brutality - the police officers involved were not wearing any visible identification. The officer who hit and pushed Ian Tomlinson also wore a balaclava. These are apparently used to protect officers when there's a risk of fire; in that instance there was no such risk. The balaclav