If you are an innocent who happened to have been arrested in England or Wales, you're unlikely to be able to go to the United States of America, ever again. Retention of DNA is not the only long term effect of an arrest. Having been arrested also disqualifies one from the Visa Waiver Program (VWP). The alternative is attempting to obtain a visa to enter the USA, a long and costly process with an uncertain outcome.
Not being able to travel to the USA may, of course, affect job prospects. There's very little chance of redress about this consequence of an arrest as responsibility is shared by the English police force that made the arrest, Parliament that passed the laws giving police the powers to do the arrest (if the arrest was lawful), and the U.S. Department of State who is responsible for visa rules for travel to the USA.
The practicalities of attempting to travel to the USA from the UK is described on the website of the London Embassy in the Additional Administrative Processing : Criminal Convictions page of its Nonimmigrant Visas section:
Under United States visa law, people who have been arrested at anytime are required to declare the arrest when applying for a visa. If the arrest resulted in a conviction, the individual may be permanently ineligible to receive a visa. In order to travel, a waiver of the permanent ineligibility is required. The Rehabilitation of Offenders Act does not apply to United States visa law. Therefore, even travelers with a spent conviction are required to declare the arrest and/or conviction. [emphasis added]
The introductory sentence in the paragraph above, the first paragraph on the page, clearly shows the need for arrestees to apply for a visa. An initial essential step, for those willing to start this quest, is to obtain and 'furnish a police certificate from the Association of Chief Police Officers (ACPO) issued within 6 months of the date of the visa interview.' Until a few years ago, one was required to get a copy of his or her Police National Computer (PNC) record by submitting a data subject access request to the National Identification Service at New Scotland Yard. In 2008, this changed and one must now obtain a certificate from the ACPO Records Office. You can read more about this change in the post ACPO police certificates coming out of nowhere required for those going somewhere.
Another requirement, before being able to schedule an appointment with a U.S. consular officer, is to fill in the Nonimmigrant Visa Application form (DS156). Box 38 on this form is upfront about the limited chance of getting a visa:
38. IMPORTANT: ALL APPLICANTS MUST READ AND CHECK THE APPROPRIATE BOX FOR EACH ITEM.
A visa may not be issued to persons who are within specific categories defined by law as inadmissible to the United States (except when a waiver is obtained in advance). Is any of the following applicable to you?
- Have you ever been arrested or convicted for any offense or crime, even though subject of a pardon, amnesty or other similar legal action? Have you ever unlawfully distributed or sold a controlled substance(drug), or been a prostitute or procurer for prostitutes?
Yes No
- Have you ever been refused admission to the U.S., or been the subject of a deportation hearing or sought to obtain or assist others to obtain a visa, entry into the U.S., or any other U.S. immigration benefit by fraud or willful misrepresentation or other unlawful means? Have you attended a U.S. public elementary school on student (F) status or a public secondary school after November 30, 1996 without reimbursing the school?
Yes No
- Do you seek to enter the United States to engage in export control violations, subversive or terrorist activities, or any other unlawful purpose? Are you a member or representative of a terrorist organization as currently designated by the U.S. Secretary of State? Have you ever participated in persecutions directed by the Nazi government of Germany; or have you ever participated in genocide?
Yes No
- Have you ever violated the terms of a U.S. visa, or been unlawfully present in, or deported from, the United States?
Yes No
- Have you ever withheld custody of a U.S. citizen child outside the United States from a person granted legal custody by a U.S. court, voted in the United States in violation of any law or regulation, or renounced U.S. citizenship for the purpose of avoiding taxation?
Yes No
- Have you ever been afflicted with a communicable disease of public health significance or a dangerous physical or mental disorder, or ever been a drug abuser or addict?
Yes No While a YES answer does not automatically signify ineligibility for a visa, if you answered YES you may be required to personally appear before a consular officer. [emphasis added]
The Nonimmigrant Visas section page quoted earlier clarifies that 'may be required' should be read 'you are required':
Applying for the visa
You are required to schedule an appointment for an interview with a U.S. Consular Officer.
For those innocents unfortunate enough not only to have been arrested, but also to be male aged 16 to 45, the next hurdle is mastering their powers of recollection as they need to fill in the Supplemental Nonimmigrant Visa Application Form DS-157. This form includes questions such as 'List All Countries You have Entered in the Last Ten Years (Give the Year of Each Visit)', 'List all Professional, Social and Charitable Organizations to Which You Belong (Belonged) or Contribute (Contributed) or with Which You Work (Have Worked)' and 'List all educational institutions you attend or have attended. Include vocational institutions but not elementary schools.'
Once the police certificate is obtained (and paid for), all the forms completed, and a mugshot is in hand, it's time to pay the visa application fee and schedule an appointment. The timer for how long it takes to go through the whole process – whatever the outcome – starts at this stage. Processing of the visa application when box 38 is ticked is much longer. Detailed information about processing time is no longer published, but here's an excerpt from a page from the US Embassy website as it was in 2006:
Routine visa applications take approximately 5 workdays to process from the date of the visa interview. [...] Applicants who are advised at the visa interview that their application requires additional administrative processing should allow at least 60 days for this stage of the application to be completed. Applicants who tick yes to box 38 can expect to wait a minimum of 14 to 16 weeks before being advised of the outcome of their application. [emphasis added]
Current information on visa waiting time doesn't include any specific information for those who ticked yes in box 38, but has this vaguer note:
Typical Wait Time (Workdays**) for a Nonimmigrant Visa To Be Processed****: 4 Days [...]
****IMPORTANT NOTE: Processing wait time DOES NOT include the time required for administrative processing. These procedures require additional time. Most administrative processing is resolved within 60 days of application. When administrative processing is required, the timing will vary based on individual circumstances of each case. Therefore, before making inquiries about status of administrative processing, applicants or their representatives will need to wait at least 90 days from the date of interview or submission of supplemental documents, whichever is later. Processing wait time also does not include the time required to return the passport to applicants, by either courier services or the local mail system.
Fourteen weeks being 98 days, arrestees applying for a visa still likely have to wait 14 to 16 weeks. There's no guarantee that after all this time, a visa will be issued. The wording on the embassy's website strongly suggests that if you've been arrested, while you're welcome to apply for a visa, you're unlikely to be eligible.
Arrestees not only have to spend time but money as well, for the police certificate, for the non returnable fee to apply for the visa, the additional issuance fee in the eventuality of the visa being granted and for calling the US embassy (the only published phone number is a premium number). For someone who has been arrested the visa application process is complex and lengthy with at best a very uncertain outcome. An innocent who has never arrested benefits from the Visa Waiver Program while someone arrested but not convicted or for whom there was no further action has to answer yes to box 38 and face not being able to travel to the USA.
For those who went on the four or five months US visa quest and are among the lucky few found not to be ineligible, this is still not a guarantee of being admitted in the USA:
A visa is issued by a U.S. Embassy or Consulate. A visa entitles the holder to travel to the United States and apply for admission; it does not guarantee entry.
An immigration inspector at the port of entry determines the visa holder's eligibility for admission into the United States. [emphasis in the original]
While visas are issued by the US Embassies, admission into the US is administered by the Customs and Border Protection (CBP):
Also, If you are an alien, CBP Officers may decide that you should not be permitted to enter the United States. There are many reasons why this might happen (see INA § 212(a)). You will either be placed in detention, or temporarily held until return flight arrangements can be made. If you have a visa, it may be cancelled. [emphasis added]
For an innocent who's been arrested, following the legit option guarantees five months of nightmares, with a likelihood of not being allowed in the USA anyway. This has been an incentive for those who've been arrested – whether innocent or convicted – to forget their arrest, travel on the Visa Waiver Program, and lie when asked about any prior arrest. As CBP officers do not have access to the UK Police National Computer, many have travelled illegally without problem. However those tempted by this illegal route should bear in mind that it is possible that the USA compiles a database of public mentions of arrests and convictions from the press and/or court proceedings. It has also been reported for immigration officers to Google the name of travellers at the border, finding incriminating information against them and deciding to refuse them entry to the USA (read the stories of Andrew Feldmar and Hossein Derakshan for instance).
Home Office Minister Alan Campbell sees three distinct categories of people: those who are guilty, those who are convicted and those who are arrested but not convicted. The latter category is victim of extra-judicial punishments – e.g., DNA retention and disqualification from the VWP – affecting their privacy, and their job and travel prospects. The Home Office and U.S. Department of State's rejection of the presumption of innocence is making the cost of an arrest, lawful or not, very high for innocent people.
First published on 2010-01-29; last updated on 2014-08-25 to fix some broken links.
The Home Office ran a review on the Police and Criminal Evidence Act (PACE) from 2008-10-13 til 2008-11-28. One of its proposals is about police use of short term holding facilities (STHF) located in shopping centres or town centres to detain suspects in order to take their fingerprints, photograph and DNA samples. A summary of responses to this specific proposal would be useful in the context of the current parliamentary debates and committees' investigations into the measures of the Crime and Security bill.
For some unstated reason, the responses to this consultation appear to be extremely difficult to summarise! Here's the 'What's new' section of the PACE Review consultation progress page as it was first created in July 2009:
What's New
10 July 2009
The government’s proposals in response to the Review of PACE (new window) were subject to a 3 month public consultation at the end of 2008. The summary of responses and the table of respondents summarised comments will be published here before the end of August 2009.
In September 2009, I queried when the Home Office was realistically expecting to publish these summaries. The Policing Powers and Protection Unit (PPPU) of the Home Office responded that '[t]he draft document is currently being considered by the PACE Review Board and we will look to publish as soon as possible.' The website was then silently updated:
What's New
10 July 2009
The government’s proposals in response to the Review of PACE (new window) were subject to a 3 month public consultation at the end of 2008. The summary of responses and the table of respondents summarised comments will be published here before the end of autumn.
Earlier this month (January 2010), I queried the Home Office, again, about the publication of these summaries and was informed that '[t]he Summary of responses is currently with Ministers and PACE Strategy Board Members. As soon as we have received feedback on the document we will make it available on the Home Office website. In the mean time I will ensure that the website is updated to reflect the delay.' Last week, the page was silently updated:
What's New
10 July 2009
The government’s proposals in response to the Review of PACE (new window) were subject to a 3 month public consultation at the end of 2008. The summary of responses and the table of respondents summarised comments will be published here in early 2010.
A Freedom of Information response revealed that 187 organisations and 18 individuals responsed to this PACE Review consultation. Of the twelve Home Office consultations for which I received data, it's only in seven position for the total number of respondents, so nothing that should overwhelm the Home Office. With more than twice the total number of respondents, it took just three months to publish the summaries of responses for the Keeping the right people on the DNA database consultation (which closed eight months later).
It is awfully nice of the Home Office to update its website every time I contact them about this consultation. It's curious that they're so forgetful about updating the date of the what's new section. It would, however, be even more helpful for the summary of responses to emerge from the reviews by the PACE Review Board, the PACE Strategy Board, the Ministers, etc. and get published for all to read.
Update: the Home Office has eventually published a Summary of responses to the public consultation on the Review of the Police and Criminal Evidence Act 1984 (PDF). The document is dated March 2010. Its Annex A contains six pages of proposed legislative changes. Among these, a draft guidance about the Short Term Holding Facilities will be circulated in Spring 2010; 'Proposals to arrest [and obviously take a DNA sample] without warrant, detention, transportation and bail between home jurisdictions' are 'Awaiting a suitable legislative vehicle'. The PACE Review consultation progress page has not yet been updated and still displays its July 2009 news.
First published on 2010-01-25; last updated on 2010-03-05.
On one of his blogs, professional photographer Peter Marshall neatly summed up the experience of too many when taking photographs in public places in the UK with the call to arms:
If you’ve got a camera, use it. Otherwise soon you won’t be able to.
This Saturday, the campaign I'm a photographer, not a terrorist! (phnat) is calling everyone who values visual imagery, not just photographers, to a mass gathering at noon in Trafalgar Square in defence of street photography. (A few related posts: Stop'n'search gets touchy-feely, Hostile reconnaissance - no conviction yet but trials coming, Snap a copper and get ten years in the slammer - (mis)interpretations.)
Also on Saturday, London NoBorders is having two demonstrations on the theme of Life is too short to be controlled! The first one, at 2pm St. Pancras International, to protest against the e-Borders controls put up by the UK Border Agency. The second, at 4.30pm in Piccadilly Circus, is against the constant remote CCTV observation by security and police. (Some related posts: A web of indifferent watching devices, Missing CCTV footage - again, Sean Rigg - no justice, no peace, no CCTV footage.)
Update: Look at some pictures I took at the phnat and NoBorders demonstrations. Read Peter Marshall's excellent photo reports on the phnat and NoBorders protests. Read the NoBorders' report on London Indymedia and see the press clippings for the phnat gathering on Marc Vallee's blog.
First published on 2010-01-21; last updated on 2010-01-27.
The Home Affairs Committee was having another evidence session about the National DNA Database (NDNAD). This time, it was short as the committee had only two witnesses and they talked about their personal experience, so there was none of that litany of errors and misunderstandings that riddled the previous session.
Greg
Hands, a Tory MP, had his DNA taken when his 80-year-old uncle
died two months after he had been found at his home with a 14 inches
barbecue skewer in his neck. Mr Hands was not close to his uncle and
had never visited his home. He also had a very strong alibi as he was
in Parliament when it happened. He was not arrested and doesn't
recollect whether he volunteered his DNA sample or just didn't refuse
a request. It's not clear why it was necessary for the police to take
his DNA sample. More surprising is that according to Greg Hands, as
far as he's aware, the police did not have a DNA sample from
the crime scene. Even though the police didn't have a crime scene DNA
profile to compare the DNA profiles of the individuals sampled in
connection with this death, they travelled all over England to get
DNA samples from all the relatives of Mr Hands' uncle, including that
of old relatives who'd been incapable of using a skewer in such a
way. At the inquest, which returned an open verdict, the police
admitted it could have been a freak accident. Mr Hands asked the
chief constable of the West Midlands Police for his DNA profile to be
deleted and his DNA sample to be destroyed on several occasions, but
in two years didn't get satisfaction. He had more success putting
down a Parliamentary Question, a process only accessible to MPs. He
was told by the Home Office that his DNA profile had been removed,
but he still has not had any confirmation from the police and won't
be convinced until he gets confirmation of when it happened.
Jonathan Leighton, a computer science student in Oxford, had his DNA taken when he was arrested on suspicion of littering. At a protest against the expansion of a shopping centre he tried help an activist who had been in a tree for ten days by throwing him a bottle of water, but missed. When the bottle fell to the ground, a police officer rushed to arrest him. With the help of a solicitor, it took him close to a year to reach a settlement with Thames Valley Police (TVP) and get his DNA profile removed and DNA sample destroyed.
These cases are further evidence of the effort and expense the police go through to collect DNA of individuals, at a time when funding for what makes a provable difference in crime detection, getting more DNA profiles of crime scenes, may be cut. The police appears, at least in some cases, to be driven more by its willingness to add DNA profiles of individuals than by any other operational matter. This has been denied by the police, however a retired police officer wrote in a response to a Human Genetics Commission consultation that 'It is now the norm to arrest offenders for everything if there is a power to do so ... It is apparently understood by serving police officers that one of the reasons, if not the reason, for the change in practice is so that the DNA of the offender can be obtained: samples can be obtained after arrest but not if there is a report for summons. It matters not, of course, whether the arrest leads to no action, a caution or a charge, because the DNA is kept on the database anyway.'
The experience of these two witnesses was interesting, but hopefully the committee members realise that these two cases are exceptional as both witness did manage to reclaim their DNA. There was little more than an average of one DNA profile deleted a day in 2009; it was much less in the five preceding years.
From a brief chat after the evidence session, Mr Leighton is unsure whether his Police National Computer (PNC) record has been deleted as well. PNC records should be deleted at the same time as DNA profiles, fingerprints and palm prints happen are deleted, and DNA samples destroyed, under the current 'exceptional case procedure'. The government and the police are apparently keen to retain PNC records even when DNA profiles are deleted, hence the Crime and Security bill being silent about PNC records. Andy Handley, a photographer who also reached a settlement with TVP, after being unlawfully arrested for taking a picture from behind a police cordon, did 'receive notification from TVP that all records have been deleted including on the PNC'. The deletion of his DNA profile and fingerprints has been widely reported.
In related news, the Crime and Security bill had its second reading on Monday. Home Secretary Alan Johnson introduced the bill to a mostly empty chamber (as is common, MPs came in just at the end when it was time to vote). Most of the interventions were in opposition to the bill solely because of its clauses about the NDNAD. Ex-Home Office minister Tony McNulty MP and Tory David TC Davies MP were lone voices in support the Home Office current proposals; Labour Keith Vaz MP, Diane Abbott MP and Neil Gerrard MP all spoke out against the DNA clauses. The Conservatives were supportive of adopting a legislation similar to that of Scotland, and the Lib Dems favoured getting all innocents off the NDNAD. David Davis MP, in his interventions, mentioned several times the excellent submission to the Home Affairs Committee by GeneWatch UK and Unreliable evidence? Time to open up DNA databases, an article in the New Scientist questioning how many random probability matches really happen. The bill was 'read a second time' with 272 Ayes and 197 Noes.
Bootnote
If you're innocent and your DNA profile is on the NDNAD, find help to get off the NDNAD at Reclaim Your DNA. If you succeed, request a detailed list of what has been deleted and destroyed. You can check if your DNA sample, profile, fingerprints, palm prints, photographs, PNC record, etc. has been retained by sending a data subject access (Data Protection Act) to the police force that arrested you asking for any personal information you believe they may still have retained.
GeneWatch UK has published two excellent documents which should be on on the reading list of everyone with an interest in the government's plans for the National DNA Database. Below are the recommendations concluding the 5-page GeneWatch UK Parliamentary Briefing on the Crime and Security Bill (doc). This document is timely as the second reading of the bill has been tabled for this coming Monday.
The Human Genetics Commission (HGC) has recommended that the Government establishes a Royal Commission to “give focus to, and to learn from, the public debate, and to ensure that its outcomes will be taken forward and reflected in future framework legislation”. The HGC, Nuffield Council on Bioethics and others have recommended that the DNA Database be put on a statutory basis. However, the need to ensure that innocent people’s DNA profiles in order to ensure that the Database is compliant with the judgment of the European Court of Human Rights is also urgent. GeneWatch UK therefore recommends that:
- In the Crime and Security Bill 2009/10:
- The destruction of all DNA samples within 6 months is adopted;
- The provisions for retention of innocent people’s DNA are amended to implement automatic immediate deletion of most DNA profiles unconvicted persons, with an exception allowing temporary retention of DNA profiles and fingerprints for some persons arrested for serious or violent sexual offences, based on Scotland’s approach;
- The Bill is amended to ensure that Police National Computer (PNC) records are deleted at the same time as DNA profiles and fingerprints;
- Deletion of all records is applied retrospectively to all innocent persons on the relevant databases;
- The provisions relating to the expansion of DNA collection are deleted, pending review (see below).
- A Royal Commission is established with a view to putting the National DNA Database on a statutory basis. It considers:
- DNA collection, including whether this should take place on arrest or charge, or for a narrower range of offences; whether collection should apply retrospectively and/or to some persons convicted overseas; and whether there should be special provisions for children.
- Uses and restrictions on uses.
- Retention guidelines for convicted persons (including persons given cautions, reprimands and final warnings).
- Governance, including a process for appeal against retention of data.
The Commission’s proposals should be followed by a public consultation before further legislation is drafted.
The parliamentary briefing refers to the 26-page GeneWatch UK submission to Home Affairs Committee: the National DNA Database (doc). If you read Sorry Affairs Committee, my notes of the committee's last evidence session, you are aware that some elements of the evidence given were erroneous and that the committee members showed a poor understanding of the workings of the NDNAD and knowledge of the Crime and Security Bill. GeneWatch's submission is a clear and comprehensive document that addresses all these issues. Another evidence session is scheduled for this Tuesday. Below are excerpts to give you a taster:
[...] GeneWatch has consistently argued that new legislation governing the DNA Database could be adopted which significantly improves protection for human rights, is compliant with the European Court of Human Rights’ judgment on this issue, regains much of the loss of public trust in policing, and does not have an adverse impact on crime detection or prevention. [...]
Number of solved crimes
Chief Constable Sims, of the Association of Chief Police Officers (ACPO), stated in evidence to you that 33,000 crimes (0.67% of recorded crimes) had been solved last year “solely or largely by the DNA database”. This claim was reiterated by the minister. This claim is incorrect: it is a significant overestimate of the number of solved crimes. [...]
Thus we can estimate that, in 2008/09, 2006 direct DNA detections and 1660 indirect detections might have been lost or delayed if a DNA database of individuals’ profiles did not exist at all. Using the Home Office figure cited above, about half of these detections (1883) could be expected to lead to convictions. This is 0.033% of recorded crimes (Table 1), more than an order of magnitude lower than the figure provided to you by ACPO. Moreover, a high proportion of these crimes would be solved later rather than not solved at all because, provided the crime scene DNA profile is still stored, the same individual’s profile could be matched later if they are arrested or charged on suspicion of committing another future crime. It should be noted that the vast majority of these will be volume crimes such as burglary and theft (discussed further below).
Solved crimes due to retaining innocent people’s DNA profiles
[...] We can therefore estimate that somewhere between 40 and 200 convictions may have resulted from the retention of DNA profiles from innocent people in 2008/09. It should be stressed that this is very much an estimate, due to uncertainty in the figures provided by the Home Office and gaps in information. Most of these convictions would relate to volume crimes (only 1% of DNA detections relate to rapes and 0.4% to murder/manslaughter, see below) and most detections would be delayed rather than lost because, provided the crime scene DNA profile is stored, the DNA match will occur if the individual is arrested or charged with another offence in the future. This figure includes both direct and indirect detections. [...]
Impact of changes in legislation on DNA detections
[...] Thus, the available data allows us to conclude that neither the Criminal Justice and Police Act 2001, nor the Criminal Justice Act 2003 have led to a noticeable increase in the number of crimes detected using DNA, despite a massive increase in the number of individuals’ DNA profiles that have been collected and retained. In contrast, the policy decision to collect DNA from scenes of volume crimes, such as burglaries and thefts, has been successful. This is because the number of crimes detected is driven primarily by the number of crime scene DNA profiles loaded, not the number of individuals’ profiles loaded or retained. [...]
Role in volume crimes and breakdown by crime type
Chief Constable Sims stated that 40% of burglaries were solved using DNA. This is incorrect. [...]
Role in murder and rape
In his evidence, Chief Constable Sims claimed that 83 murders and 163 rapes had been solved in 2008/09 by the DNA database. He also stated that the DNA database plays a much more significant part in solving serious crimes than it does in volume crimes. Both claims are incorrect. [...]
GeneWatch UK has been unable to identify any murders that have been solved as a result of the retention of innocent people’s DNA profiles since 2001. We have examined every Parliamentary Question on DNA since 2005, all published reports, and the Government’s evidence to the European Court of Human Rights. A figure of zero solved murders to date as a result of retaining innocent people’s DNA profiles is consistent with our statistical analysis.
In total, five rape cases have been cited by the police as having been solved due to the retention of an innocent person’s DNA profile (these are described further below in the section on Scotland’s legislation). One of these was a cold case which could have been solved more rapidly if old crime scene DNA evidence from serious cases was analysed more promptly (this is also explained below, in the section on cold cases). The other cases may be addressed by a targeted approach, similar to Scotland’s legislation. Our statistical analysis suggests that these are probably the total number of solved rapes that involved the retention of an innocent person’s DNA profile, not a subset of a much larger number of crimes. It seems likely that considerably more crimes involving violence against women could be prevented or solved if the money spent on expanding the DNA database was spent differently (see the section on costs, below).
Misleading claims about the figures for murders and rapes
A long series of misleading claims have been made by ministers, including the Prime Minister, about the number of murders and rapes solved due to retaining innocent people’s DNA profiles on the Database. [...]
Misleading claims about individual cases
The minister cited the Wright case in the Westminster Hall debate held on 9th December 2009, and it was used in cross-examination by Committee members as an example of a case that was solved as a result of the retention of an innocent person’s DNA profile on the DNA Database. This case (and many other high profile cases cited by ministers) did not rely on the retention of an unconvicted person’s DNA. [...]
Home Office Research
The minister stated in evidence that research commissioned by the Home Office had shown that innocent persons whose profiles will be retained on the DNA database for six years had been shown to have a greater risk of offending than the general population. This is not the case. [...]
Link to Police National Computer Records
[...] For innocent persons on the DNA Database, the provisions in the Crime and Security Bill 2009/10 are worse than the current ‘exceptional cases’ removal procedure followed by Chief Constables, because records of arrest on the Police National Computer (PNC) will be retained indefinitely. Retention of these records gives rise to stigma and discrimination and can lead to refusal of a visa or a job. [...]
Racial bias
The minister claimed that the proposals in the Bill would have neither and an adverse nor a positive effect on disproportionality and that the answer to this problem lies elsewhere. This is incorrect. [...]
The decision not to include deletion of Police National Computer (PNC) records at the same time as DNA and fingerprint records in the Crime and Security Bill 2008/09 will have a particularly negative impact on members of black and ethnic minority communities who are disproportionately represented on these databases. It is the PNC record that the police use when they ‘name check’ someone, and which can lead to stigma and discrimination, including refusal of visas or a job. [...]
Priorities and costs
The minister stated that no assessment of cost-effectiveness of expanding the DNA database compared to other approaches had been carried out. This is one of the few claims that is correct. [...]
We noted above that the cold case review of serious crimes has solved many important cases, but that this may be axed due to lack of money.40 In GeneWatch’s review, cold case reviews should be prioritised, since obtaining crime scene DNA profiles from these cases could continue to produce important benefits for victims and their families. This may include the exoneration of innocent persons (who, as explained above do not need to have their DNA profile on a DNA database, but do need the crime scene DNA profile to be available). The more quickly this is done, the better. [...]
False matches and data sharing across the EU
[...] Neither the minister nor the police discussed concerns about the increasing likelihood of false matches between crime scene DNA profiles and stored individuals’ profiles. There is significant concern within the Home Office and amongst forensic scientists about the potential for false matches to occur once sharing of DNA profiles across the EU beings in 2011, as a result of an extension of the Prüm Treaty Europe-wide. [...]
Threshold for arrest
The minister stated that the threshold for arrest is high and that “we are talking about serious offences”. This is not the case. [...]
Volunteers
The minister urged Committee members to consider amending the Bill to allow the inclusion of volunteers on the DNA Database. PACE was in fact amended to allow the inclusion of volunteers on the Database by the Criminal Justice and Police Act 2001 and 36,093 profiles on the database are estimated to have come from volunteers. [...]
Get GeneWatch's submission to the Home Affair Committee and its parliamentary briefing, from its web page on the Crime and Security Bill 2009.
The illegal prison camp at
Guantánamo Bay opened on 2002-01-11. Today, eight years later,
there are still 198 persons detained. President
Obama pledged
to close down the camp by 2010-01-22; this deadline will not be met
next week.
A demonstration organised by the London Guantánamo Campaign was held today outside the US embassy to commemorate this eigth anniversary, and to call for liberty and justice for prisoners held in Guantánamo Bay and to close down the detention facility there. Read the excellent photo-reportage by Peter Marshall published at Indymedia and, with more pictures, on his My London Diary site. (The picture in this post is from his report).
To find out details of the 779 prisoners held at Guantánamo since the prison opened eight years ago, check out Guantánamo: The Definitive Prisoner List (Updated for 2010), the authoritative work by Andy Worthington.
Some actions you can take: write to your MP and to David Miliband, Foreign Secretary to put more pressure on the Foreign Office to demand the return of Shaker Aamer, a Saudi national who was resident in London, and of Ahmed Belbacha, an Algerian asylum seeker who was living in Bournemouth. Neither man has been charged or tried. Encourage your friends in other European countries to lobby their governments to provide homes to those still detained in Guantánamo.
Innocent detainees, the majority, must be released to safety as soon as possible, and the few who have been charged must have a speedy trial (although it may be difficult for them to receive a fair trial after the years of abuse they have suffered and if 'evidence' obtained from torture is introduced).
First published on 2010-01-11; last updated on 2010-01-12.
On Tuesday, the Home Affairs Committee was taking evidence on the National DNA Database (NDNAD). Unfortunately, this was a sorry show of how politicians work. The committee members showed an poor understanding of the NDNAD and of the Crime and Security bill. This was exemplified even before the start of the proceedings in the one page leaflet present on the chairs in the room where the evidence session was held at Portcullis House:
Today's evidence session–The National DNA Database
This is a one-off evidence session. The purpose of the session is to examine the allegations of over-representation of young black people on the National DNA Database, and in particular to inquire why the police think it necessary to retain samples [sic] from those never charged or subsequently found not guilty of any offence.
The proposed plan is to destroy DNA samples after DNA profiles have been produced and no later than six months after they were taken. The debate is about the retention of DNA profiles of innocents. The DNA samples are the buccal swabs (or sometime hair) taken at arrest containing the full genome of individuals. The DNA profiles are a series of 20 numbers produced from the analysis of DNA patterns (from what is today considered non-coding regions of the genome) of one of the sample. DNA samples are kept in fridges in the forensic labs contracted to do the analysis, while DNA profiles are held in the National DNA Database. For more on DNA profiles see Information retained in the National DNA Database profile records. The prompt destruction of the DNA samples is the one measure that everyone, but the forensic labs (who are paid to maintain the freezers), is happy with.
This confusion between samples and profiles was common, however it is rather inoffensive as one can usually guess what is it that is talked about solely from the context. A much more embarrassing confusion was between the loading of DNA profiles on the NDNAD and the retention of these profiles. A clear understanding of the difference between the two is essential to review the proposed legislation. The government has helped create this confusion by regularly highlighting examples of horrific crimes solved where a criminal was identified when his DNA profile matched, just after it was loaded on the NDNAD, that of an earlier crime scene, and then using that anecdote as a justification for the retention of DNA profiles. When matches happen as the DNA profile is just loaded on the NDNAD, retention is irrelevant.
For instance, Mark Dixie, convicted for the murder of Sally Ann Bowman, was identified when, following his arrest for a pub brawl, his DNA profile was uploaded to the NDNAD and matched that recovered from the murder scene. This case can be used to justify the taking of DNA at arrest, but is irrelevant in a debate about retention of DNA profiles. (Ironically, this case also illustrates that retention of the DNA profile of an innocent, Kevin Reynolds, was not used to eliminate him immediately from the investigation.) During the evidence session, David Winnick MP mentioned the case of Steve Wright several times. What no-one explained, unfortunately, is that this case didn't rely on DNA evidence at all to identify this murderer. Steve Wright was linked to the five Ipswich prostitute murders during the investigation, not by his DNA, but by his car figuring in CCTV footage in proximity to several victims. Liberty has debunked the reporting of some of these cases, including those of Dixie and Wright.
The NDNAD Annual Report 2007-09 explains that:
The average match rates between crime scene and subject profiles when:
- a crime scene profile was loaded to the NDNAD during 2008/09 was 58.7%
- a subject profile was loaded to the NDNAD during 2008/09 was 2.3%.
In most cases, what is useful is the check against unsolved crimes for which DNA has been recovered when the individual's DNA profile is loaded, the further retention of the DNA profile is of little help. In a recent post, Home Office gets DNA database funding priorities wrong, I explored this further.
Leaks or stitch-up? 0.67% or 0.36%?
After a question is answered, Keith Vaz MP, the Committee's chairman turns to the MP whose question is next. Chief Constable Chris Sims, the Association of Chief Police Officers' (ACPO) lead on the NDNAD revealed that he had received the list of questions he was going to be asked, the previous day:
- Chis Sims: Sorry, we're jumping to the last question?
- Keith Vaz: Have you had a list of questions?
- Chis Sims: I have, yes, is that wrong?
- Keith Vaz: It is unusual.
- Chis Sims: Oh, I do apologise.
- Keith Vaz: How did you get them?
- Chis Sims: It's arrived in my email system.
- Keith Vaz: Right, how extraordinary!
- Chis Sims: How extraordinary!
- Keith Vaz: Do you know who sent them to you?
- Chis Sims: I could find that out, I've no doubt.
Keith Vaz MP appeared shocked. Not being familiar with the working of these committees, it is unclear whether his apparent surprise at this unusual revelation was genuine or for the records. Without Chris Sims' blunder, I would not have even known the questions were prepared before the session, especially from the apparent lack of preparation of the MPs on this topic. From their answers, it was obvious that Diane Abbott MP and Isabella Sankey, Policy Director, Liberty who were first to give evidence, had not been given sight of the questions.
Some MPs were trying to find out how useful the NDNAD is and whether money spent on it could be more useful for other policing activities. This lead Chris Sims to state that 33,000 of the 4.9 million crimes the police recorded last year were solved solely or largely because of the DNA database. At Keith Vaz MP's request, committee's staff helpfully calculated that this represented 0.67% of the recorded crimes – negligible was the general reaction. Chris Sims, helped by Gary Pugh, Chair, NDNAD Strategy Board, added that DNA matches play a much more important role in solving certain type crimes. That the percentage was around 40% of for burglaries. These figures have been widely reported, without any questioning, by the press.
Based on the official data on recorded crime (Table 2.04
of Crime
in England and Wales 2009/09) and on the NDNAD (Tables 2 and 3
of NDNAD Annual
Report 2007-09), it is easy to find that these numbers don't add
up. The mention of 4.9 million recorded crimes shows that Chris Sims
was referring to 2007/08. As data is also available for 2008/09, I've
made the calculations for both years! The second number mentioned,
33,000 crimes solved as a result of a DNA match, doesn't seem to be
correct [see update below]. The number of matches for that year was slightly higher,
however number of matches are not very interesting in this
context. Matches 'include cases where the individual had an innocent
reason for being at the crime scene and cases where it was not
possible to take the investigation forward'. More interesting is the
number of detections where a DNA match was available. In these cases,
the crimes has been solved. Even then, it does not mean that it is
the DNA match that helped solved the crime. As can be seen from the
tables below, even when you look at the much larger, but not much
relevant, number of matches, it is nowhere near 40%.
Update: An attentive reader pointed out that '[t]he 0.67% is because they have included "indirect" detections (e.g. extra crimes that the suspect confesses to after a DNA detection with the first crime). The main problem with this figure is it is NOT the number of detections made due to their being a database, only a minority of these detections would disappear if there was no database of individuals at all (let alone if you only took innocent people off).' The figure for total DNA-related detection – DNA detections and additional detections – was 33,034 (0.67% of recorded crimes) in 2007/08 and 31,915 (0.68% of recorded crimes) in 2008/09. (The NDNAD Annual report doesn't even bother to break down these numbers by types of crime).
What the committee should have found out by itself when preparing for this evidence session, what Chris Sims should have answered, and what journalists should have written, is that 17,463 crimes (0.37%) of the 4.7 million crimes the police recorded in 2009/09 were solved in which a DNA match was available.
GeneWatch UK had been highlighting this percentage for a long time and found that '[s]ince April 2003 [to 2006], about 1.5 million extra people have been added to the Database, but the chances of detecting a crime using DNA [as a percentage of recorded crimes] has remained constant, at about 0.36%.' As explained in an earlier post in more details, this data shows that retaining DNA profiles of individuals indiscriminately does not help solve crime.
| 2007/08 | Recorded crimes | Crimes
with a DNA scene-subject match |
Detections
of crimes in which a DNA match was available |
||
| Homicide | 784 | 363 | 46.30% | 83 | 10.59% |
| Other Violent Offences | 960,391 | 1,766 | 0.18% | 849 | 0.09% |
| Rape | 12,639 | 540 | 4.27% | 184 | 1.46% |
| Other Sex Offences | 40,838 | 163 | 0.40% | 64 | 0.16% |
| Robbery | 84,751 | 1,432 | 1.69% | 617 | 0.73% |
| Domestic Burglary | 280,708 | 8,043 | 2.87% | 3,443 | 1.23% |
| Other Burglary | 303,006 | 7,211 | 2.38% | 3,886 | 1.28% |
| Theft from Vehicle | 432,387 | 3,544 | 0.82% | 2,201 | 0.51% |
| Theft of Vehicle | 170,016 | 4,223 | 2.48% | 1,379 | 0.81% |
| Criminal Damage | 1,036,236 | 5,432 | 0.52% | 3,180 | 0.31% |
| Drugs Offences | 229,903 | 1,000 | 0.43% | 321 | 0.14% |
| All other recorded crime | 1,399,845 | 3,659 | 0.26% | 1,407 | 0.10% |
| Total of 12 crime types | 4,951,504 | 37,376 | 0.75% | 17,614 | 0.36% |
| 2008/09 | Recorded crimes | Crimes
with a DNA scene-subject match |
Detections
of crimes in which a DNA match was available |
||
| Homicide | 648 | 252 | 38.89% | 70 | 10.80% |
| Other Violent Offences | 903,345 | 1,819 | 0.20% | 861 | 0.10% |
| Rape | 13,133 | 580 | 4.42% | 168 | 1.28% |
| Other Sex Offences | 38,355 | 175 | 0.46% | 106 | 0.28% |
| Robbery | 80,104 | 1,462 | 1.83% | 603 | 0.75% |
| Domestic Burglary | 284,445 | 8,188 | 2.88% | 3,702 | 1.30% |
| Other Burglary | 296,952 | 7,110 | 2.39% | 3,830 | 1.29% |
| Theft from Vehicle | 396,990 | 3,484 | 0.88% | 2,036 | 0.51% |
| Theft of Vehicle | 147,470 | 3,699 | 2.51% | 1,298 | 0.88% |
| Criminal Damage | 936,729 | 5,149 | 0.55% | 2,886 | 0.31% |
| Drugs Offences | 242,907 | 1,110 | 0.46% | 397 | 0.16% |
| All other recorded crime | 1,362,736 | 3,699 | 0.27% | 1,506 | 0.11% |
| Total of 12 crime types | 4,703,814 | 36,727 | 0.78% | 17,463 | 0.37% |
Minister forgets his bill
Could it get any worse? It did when Alan Campbell MP, Parliamentary Under-Secretary of State for Crime Reduction, Home Office got the proposals, in the Crime and Security bill concerning children who have been convicted, wrong. He failed to remember them! None of the committee members came to his rescue so they probably didn't have a copy of the bill, or of the much shorter standard note published by the House of Commons Library (SN/HA/4049 Retention of fingerprints and DNA data). Eventually, several of the minister's minders jumped up from their seats to provide him with this basic and essential information (see picture). If you need to refresh your memory see the preceding post: Home Office still wants your DNA profile, and your PNC record.
Alan Campbell was very clear about his willingness to get rid of the presumption of innocence. He sees three distinct categories of people: those who are guilty, those who are convicted and those who are arrested but not convicted. Having their DNA profile retained for a certain number of years is a price those in this latter group have to pay as 'our research says [...] they are more likely to offend in the next six years'. The minister remains convinced that this bill will be completed before the next general election. He promised that the second reading of the Crime and Security Bill would happen very soon, but wouldn't commit as to whether it'll happen this month or when a date will be set.
Just before the end, there was a rather surreal moment. David TC Davies, Conservative MP (not to be confused with David Davis MP) expressed that his views are 'fairly close to those of the minister on this' (less than a week after his party launched a 'Return my DNA' campaign!). He went on to suggest, 'as a fellow supporter, that the minister would 'allow people to opt-in to get on this database.' He also attempted to get Alan Campbell to agree with him that, 'if there's an issue that young black men are over-represented [on the NDNAD], surely that may be because they're committing more crime?' The minister didn't 'accept this rather simplistic account'. (Home Office research indicates 'people from BME groups are over-represented at each stage of the criminal justice process from initial contact to sentencing. Evidence also suggests that it is not because people from BME groups are more likely to offend.')
Not having much experience of evidence sessions and as the leaflet introducing this session stated this was 'a one-off evidence session', I can only hope that regular sessions are conducted in a more professional manner. You can watch the session now on Parliament TV; uncorrected transcripts will eventually be published on this page. Even though, this was a one-off session, Keith Vaz MP announced that there would be another session next week with Sir Alec Jeffreys and possibly another mystery guest.
Bootnote: If anyone from the Home Affairs Committee is reading this post and didn't get the email I sent to the generic email address of the committee, some answers to the question, by Tom Brake MP, of how many requests for deletion of DNA profiles were received by police forces and how many were acted upon can be found in the article Don't delay: Delete your DNA today I wrote a year ago.
First published on 2010-01-06; last updated on 2010-01-07.
After facing opposition from all quarters to its initial plan to establish new rules to regulate the sampling and retention of DNA via secondary legislation, the Home Office belatedly introduced clauses about DNA in the Crime and Security Bill 2009-10. Opposition to a blank check for the Secretary of State was so predictable that introducing these clauses, among many other unrelated ones, close to a year after the European Court of Human Rights (ECtHR) ruling against the UK appear the result of deliberate delaying tactics. There's no date set yet for when the bill will progress to the second reading stage.
One change introduced in the bill got most of the attention: the proposition to retain DNA profiles of innocents for six years instead of 12. Another figure picked out of thin air with little justification. Missing in the bill is any mention about retention rules of the associated Police National Computer (PNC) records, and it would seem that the Home Office is now keen to hold on to these even when it will relent and delete DNA profiles, fingerprints and palm prints. Here are high level details about what's in store, extracted from the Explanatory notes accompanying the Crime and Security Bill 2009-10:
30. Subsection (6) re-enacts the existing power to take non-intimate [DNA] samples after conviction. But it also now includes a power to take non-intimate samples following a caution, reprimand or warning (which is already possible in the case of fingerprints). [...]
31. The power [to take non-intimate samples after conviction] may be exercised in relation to convictions, cautions, reprimands and warnings occurring before commencement. [...]
46. The retention periods for the various categories of data depend on a number of factors including the age of the individual concerned, the seriousness of the offence or alleged offence, whether the individual has been convicted, and if so whether it is a first conviction. The different categories can be summarised as follows:
- Adults - convicted: indefinite retention of fingerprints, impressions of footwear and DNA profile (see substituted section 64(2));
- Adults - arrested but unconvicted: retention of fingerprints, impressions of footwear and DNA profile for 6 years (see new section 64ZD);
- Under 18 year olds - convicted of serious offence or more than one minor offence: indefinite retention of fingerprints, impressions of footwear and DNA profile (see substituted section 64(2));
- Under 18 year olds - convicted of single minor offence: retention of fingerprints, impressions of footwear and DNA profile for 5 years (see new section 64ZH);
- 16 and 17 year olds - arrested for but unconvicted of serious offence: retention of fingerprints, impressions of footwear and DNA profile for 6 years (see new section 64ZG);
- All other under 18 year olds - arrested but unconvicted: retention of fingerprints, impressions of footwear and DNA profile for 3 years (see new sections 64ZE and 64ZF);
- Persons subject to a control order: retention of fingerprints and DNA profile for 2 years after the control order ceases to have effect (see new section 64ZC);
- All DNA samples: retained until profile loaded onto database, but no more than 6 months (see new section 64ZA).
49. The clause also contains provision in new section 64ZB for material which has been given voluntarily to be destroyed as soon as it has fulfilled the purpose for which it was taken, unless the individual is subsequently convicted, has previous convictions or consents to its retention.
50. In addition, where fingerprints or DNA profiles would otherwise need to be destroyed because of the expiry of a time limit set out in the above clauses, new section 64ZK enables a chief officer of police to determine that, for reasons of national security, those fingerprints or DNA profiles may be retained for up to two further years on that basis. It is open to chief officers to make further determinations to retain material where the necessity continues to exist.
62. Clause 19 requires the Secretary of State to make a statutory instrument prescribing the manner, timing and other procedures in respect of destroying relevant biometric material already in existence at the point this legislation comes into force. This will enable the Secretary of State to ensure that the retention and destruction regime set out in this Bill is applied to existing material, while recognising that this exercise may take some time to complete; there are some 850,000 profiles of unconvicted persons on the National DNA Database. The statutory instrument will be subject to the negative resolution procedure. [emphasis added]
As can be seen, innocents will have their DNA profiles (as well as their fingerprints, palm prints and possibly footwear impressions - held on the IDENT1 database) retained for at least six years (reduced to three years for those who were arrested when under 18 and only for a minor offence). Furthermore, a chief constable would be able to extend this every two years, indefinitely, on the basis of 'national security'. This is extremely pernicious, as the opaque concept of national security prevents any scrutiny or objection. Even the judiciary system does not have the competence to scrutinise matters of national security, as was pointed out at a recent SIAC hearing. It is curious that a national security decision rests with chief constables and not the Home Office as this is essentially a political matter. Deleting the DNA profiles of innocents already on the NDNAD will require further secondary legislation and so will be delayed even further.
Policy-based evidence
The Home Office has again attempted to justify its plans by including irrelevant research of unknown quality. In Sentenced to genetic probation, I showed many holes of the research by the Jill Dando Institute that was included in the consultation document; even the Institute's director later disavowed the findings. The Home Office published alongside the summary of responses to the consultation: DNA Retention Policy: ReArrest Hazard Rate Analysis, a paper authored by the Association of Chief Police Officers (ACPO) Criminal Records Office (ACRO). It was not peer-reviewed either. It's 22-page long, and one wonders why it was published at all, after reading its first page:
However, the research does not take account of when the samples were originally taken, and hence cannot say how much increasing the retention period above zero might reduce the number of DNA matches – and hence possible detections – which are lost. It also does not say anything about the possible impact of DNA and retention periods on other offence types. Therefore, although providing a prima facie justification for a policy, the ACRO research does not provide evidence to inform the length of any general DNA retention period. [emphasis added]
Another example of policy driven evidence. Chose your statistics wisely and reach any number: using Ministry of Justice data I found that the '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.' Using UK National Statistics, Chris Pounder found 'a three year retention period for DNA appears optimal in that it would allow most reoffending (82%) to be caught (assuming that the DNA was the only means of identifying the offender)'. Note that both Chris Pounder and my analysis are about 're-offending', i.e., individuals who had been previously found guilty.
The ‘state’ should not hold personal information on innocents says everyone else
The Home Office has demonstrated its willingness to ignore the responses to its own consultation as well as the Strasbourg ruling. As many as 402 individuals (and 101 organisations) took the effort to respond to the Keeping the right people on the DNA database consultation. (See my response). A high number when compared to other recent Home Office consultations. This shows that, although the National DNA Database is a complex topic, there's widespread concern about it and a willingness to have a wide debate. Three hundred and eighty four respondents commented on the retention of profiles of those 'arrested but not convicted or no further action' (i.e. innocent):
This topic generated most responses with the significant majority opposed to any form of retention of profiles and fingerprints for persons arrested and against no further action was taken or acquitted. Most of those opposed to any form of retention considered that the ‘state’ should not hold personal information on an individual when they are innocent in the eyes of the law. It was entirely inappropriate that a person should be treated the same as a person who had been found guilty and it went against the principle of ‘innocent until proven guilty’. [emphasis added]
The Committee of Ministers of the Council of Europe, in charge ensuring compliance of states with ECtHR rulings, still remains critical of the government's general measures after seing the draft bill:
5. [The Deputies] welcomed that the new proposals foresee that all cellular samples should be retained for a maximum of six months from the date on which they were obtained and that time limits for the retention of fingerprints and DNA profiles should be introduced, with special provisions for minors;
6. nevertheless noted that a number of important questions remain as to how the revised proposals take into account certain factors held by the European Court to be of relevance for assessing the proportionality of the interference with private life here at issue, most importantly the gravity of the offence with which the individual was originally suspected, and the interests deriving from the presumption of innocence (see paragraphs 118 – 123 of the judgment), and requested, accordingly, that the Secretariat rapidly clarify such questions bilaterally with the United Kingdom authorities;
7. noted that further information was also necessary as regards the institution of an independent review of the justification for retention in individual cases;
MPs have had to deal with more complaints from their constituents and many are better informed about the NDNAD. (The House of Commons Library published a Standard Note, SN/HA/4049 Retention of fingerprints and DNA data, which is a good concise summary). In her opening speech of a parliamentary debate about the NDNAD on 2009-12-09, Diane Abbott MP summed up the single-mindedness of the Home Office position:
Of course, if somebody is proven guilty in a court of law, no one objects to their DNA being kept in principle. The issue is the indiscriminate collection of innocent people's DNA. I spell that out right at the beginning because, sadly, when Ministers talk about the DNA database, they tend to merge and elide innocent and guilty people. It is almost as if the Government have a third category: rather than someone being wholly innocent, they might be not really innocent. As a Parliament, we must stand firm on one of the oldest British traditions: innocent until proven guilty.
The Select Committee on Home Affairs has decided to hold an inquiry into the DNA database. Be sure to attend or watch, the first evidence session this Tuesday 2010-01-05 at Portcullis House.
Holding on to PNC records indefinitely
Currently, for those who have been DNA sampled by the police, the way to get off the NDNAD is to send a request to the chief constable of the force that arrested them. The chief constable must be convinced that the case is 'exceptional' enough before they may eventually relent. (See ReclaimYourDNA for some help.) Success means the DNA samples will be destroyed and the DNA profile, fingerprints, palm prints and Police National Computer (PNC) record will be deleted. The PNC record is created at arrest and contains details about the arrests and also details of the corresponding entry in the NDNAD, but not the DNA profile itself. (For details, see this blog post about NDNAD records.)
You may have noticed that the bill's explanatory notes quoted at the start of this post, do not mention the PNC record at all. According to The Observer, this is because the government wants to hold on to the PNC records – of innocents and criminals alike – indefinitely. The current retention rules about the PNC (and the NDNAD), are specified in an Association of Chief Police Officers (ACPO) guideline. The Equality and Human Rights Commission requested the ACPO to change the guidelines, but ACPO's response has not been made public and no change has been announced. With the bill being silent about the PNC, ACPO would be free to change its guidelines to extend the retention period of PNC records indefinitely, even if the associated DNA profile eventually gets deleted. The Observer:
The names of nearly a million people who have not been convicted or cautioned for any crime will continue to be stored on the police national computer, even though the government is changing the law so that their DNA profiles are deleted.
The revelation has provoked outrage among human rights groups who warn that it could affect the job prospects of the innocent. They fear that whenever an employer carries out an "enhanced criminal records" check on a potential employee, the system would flag up the fact that the person had been arrested. [...]
"Keeping permanent records of arrest is unprecedented in British history and is open to serious abuse," said Helen Wallace, director of the campaign group GeneWatch UK. "Failing to delete police records of people who are innocent means business as usual for the surveillance state."
The office of the information commissioner has warned: "All records held on the [police national computer] are readily accessible to any serving police officer acting in his or her official capacity and this access is frequently used to run a 'name check' on individuals who come into contact with the police. Given this level of access, the commissioner is concerned that the very existence of a police identity record created as a result of a DNA sample being taken on arrest could prejudice the interests of the individual to whom it relates by creating inaccurate assumptions about his or her criminal past."
The presence of information about a DNA profile on a retained PNC record can affect innocents not solely when revealed in an enhanced criminal record. For instance, the BBC published the story of a Mancunian who when stopped by the police, after a PNC check, was told 'You're on the [DNA] database. So you've obviously done something wrong. What are you trying to conceal now?' The PNC is accessible not only by the police, but also by 56 non-police bodies.
This tactic of changing an arbitrary large number (say 12 years) to another arbitrary large, but smaller, number (say six years) is obviously not a new one. When the government was pushing for 90 days pre-charge detention, and eventually getting the 28 days amendment through, many MPs claimed this compromise as a success apparently forgetting that innocents could be locked up for four weeks and have their life ruined. In the case of the NDNAD, the proposed change from 12 to six years for the retention period has at least succeeded in the editor of Sunday national newspaper cancelling a story about the NDNAD for which I had been interviewed. A small success for the Home Office.
With this bill, the Home Office is single-mindedly pushing for an abandon of the principle of ‘innocent until proven guilty’ by proposing to retain DNA profiles of innocents for six years or more and their PNC record indefinitely, for an abandon of the principle of rehabilitation by proposing to keep retaining DNA profiles of convicted adults indefinitely, for avoiding parliamentary scrutiny of its (unannounced) plans to deal with the existing records of innocents and for getting more people's DNA profiles on the NDNAD in the first place by getting a DNA sample when someone receives or has received a caution, reprimand or warning. The creeping up of national security purposes in general legislation is dangerous as it creates powers that can't be checked. In addition to the impact on people's life, the cost of storing these DNA profiles (about £4.50 per profile per year) would be better spent on measures for which there's evidence they improve crime detection, or even on prevention.
There's a wide consensus that adding DNA profiles of crime scenes has a direct impact on detecting crimes. However views differ widely as to what is achieved by retaining the DNA profiles of millions individuals, including that of many innocents, when there's a lack of evidence demonstrating this helps detect crimes. Hence, it is surprising to learn that while the Home Office is keen to waste money on retention of DNA profiles of millions of individuals, it is to stop funding and put at risk Operation Stealth, a national operation to review unsolved murders. Detectives have had great successes when loading the DNA profiles of such cold cases. Continued funding of Operation Stealth should remain a priority.
The Times revealed that Police spending cuts may spell the end for unsolved murders unit:
Cold case units are frequently staffed by retired detectives, who can be laid off more easily than serving police officers. With the cutbacks looming, The Times has also been told that the Forensic Science Service (FSS) is reducing its charges for cold case work to try to encourage police forces to continue the work. FSS labs, which are reviewing more than 200 cases, have assisted in most cold case convictions since 1999.
The success of historic inquiries, which has spawned a spate of TV dramas such as New Tricks and Waking The Dead, is due largely to rapid advances in DNA technology. Two decades ago large amounts of DNA material had to be found at a crime scene to obtain a profile; today offenders can be identified from a few microscopic cells.
Detectives have been able to reopen and keep under constant review unsolved cases from the 1970s, 1980s and 1990s. [...]
The bulk of successful cold case convictions have been for rapes and sex assaults but since 2007 there has been a concerted drive to re-examine murders. Operation Stealth provides financial and investigative help to forces to reopen murder files. Some 46 murders are under review.
The police service’s national lead on homicide inquiries, Jon Stoddart, Chief Constable of Durham, has been been pleading with the Home Office to continue the project until 2012. As yet, however, no agreement has been reached to finance it beyond April next year.
Geoff White, project manager for Stealth, said: “It’s about equality of service. For today’s victim, the police respond with the 2009 toolbox — DNA and telephone evidence are available. Why not look at yesterday’s victim and where material still exists allow detectives to use today’s toolbox to try to find the killer? It is a moral argument, a theoretical argument, but it’s a strong one.”
The Human Genetics Commission, in its Nothing to hide, nothing to fear? (November 2009) report, highlighted that money would be better spent by adding more DNA profiles of crime scenes than that of individuals:
Improved composition – Efforts have been made to calculate an optimum size for the NDNAD [National DNA Database]. In its strategic plan Confident Communities in a Secure Britain: The Home Office Strategic Plan 2004-08, the Home Office estimated that half of all crime in England and Wales was committed by a stable pool of 100,000 offenders, with just 5,000 offenders being responsible for 9% of all crimes.7 It went on to say, however, that “most of these [100,000] offenders are known to the police and other agencies” and are therefore, by implication, already recorded on the database, although there is a 20% turnover each year, with 20,000 new offenders estimated to join the pool of prolific offenders to replace a similar number who leave it. (We note that this is a substantial number in relation to the number of new profiles added to the database each year – around 700,000 in the two most recent years for which data is available.8) It is not clear where the data on which the claim about the 100,000 core offenders was sourced (the source is described as ‘Home Office’) nor whether those who commit the remaining half of crimes are ‘occasional’ or ‘one-off ’ offenders. However, we can infer from these figures that half of all crimes are committed by approximately 2.2% of the people who are currently recorded on the database (assuming that those who are ‘known to the police’ have previously been arrested and their profiles stored on the NDNAD). In this connection we note that others, for example GeneWatch UK and the Nuffield Council on Bioethics, have concluded that putting more effort and resources into the recovery of DNA samples from crime scenes could yield significantly better detection rates than the indiscriminate expansion of criminal justice samples taken from arrestees; we share this view. [emphasis added]
The Home Office, along the years, has offered supporting views – when it's not been busy trying to expand the National DNA Database (NDNAD) by any means. Six months after publication of the National Policing Plan 2004-20079 (November 2003), the Home Office claimed in the Police Science and Technology Strategy: 2004 - 2009 (May 2004):
Significant milestones achieved since this strategy was first published include:
• The profiles of the majority of known active criminal population (2.5 million) on the national DNA database.
(The expressions 'criminal population', 'active criminal population' and 'known active criminal population' are used in several Home Office documents and websites without being clearly defined. I am awaiting an overdue response to a Freedom of Information request for definitions sent on 2009-11-09.)
The Home Office was most clear about retention of what kind of DNA profiles achieves detection of crimes, in the DNA Expansion Programme 2000–2005: Reporting achievement (October 2005, no longer online) by its Forensic Science and Pathology Unit:
Evaluation of the Programme has shown that 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]
GeneWatch UK looked at the data over four years in its background web page (2006) to the The Nuffield Council on Bioethics consultation and found that:
Since April 2003 [to 2006], about 1.5 million extra people have been added to the Database, but the chances of detecting a crime using DNA [as a percentage of recorded crimes] has remained constant, at about 0.36%.
In the Annex: DNA detection model: validation issues (Word) to its response to the Home Office consultation (2009), GeneWatch UK found that the percentage of recorded crimes which involve a DNA detection was again 0.36% in 2007/08.
The National Police Improvement Agency (NPIA), in its National DNA Database Annual Report 2007-09, makes the same point, again:
A crime is said to have been detected when a suspect has been identified for that crime and there is sufficient evidence to charge the suspect. DNA matches are a powerful aid to crime investigation and detection: where DNA profiles from crime scenes are added to the Database the rate of detection can be significantly increased. [emphasis added]
In the graphs below, the curves representing crimes with a DNA crime scene to subject DNA profile matches and crimes detected in which a DNA profile match was available show very close correlation with those for the number of DNA profiles from crime scenes loaded each year on the NDNAD. This is consistent with the consensus that loading DNA profiles of crime scenes is what drives detection. Adding millions of individuals' DNA profiles does not make that much of a difference.
(Source data for both these graphs: National DNA
Database Annual Report 2007-09.)
The annual report explains the correlations by a causal relation. When fewer DNA profiles of crimes scenes are loaded, irrespective of the number of DNA profiles of individuals added, there are fewer matches. The report also makes the point that the vast majority of matches happen when DNA profiles of crime scenes are added, reinforcing the position that core offenders are already on the NDNAD and adding DNA profiles of innocents or those committing minor offences does not help detect crimes.
During 2007/08, one or more subject profiles were matched with 40,406 crime scene profiles. The total represents a decrease of 8.6% of the total number of crime scenes for which one or more suspects were nominated in the previous year. The fall is due to fewer new crime scene profiles being loaded within the period. [...]
A key objective in recent years has been to ensure that the majority of the active criminal population is represented on the NDNAD, and this has led to a steady increase in the likelihood of a crime scene profile matching to a subject profile already held on the NDNAD upon being loaded. This is referred to as the crime scene to subject match rate.
Matches to crime scenes also occur when, upon being loaded, a subject profile matches to a crime scene profile already held on the NDNAD. This subject to crime scene match rate is a much lower figure. As previously explained, this is because the majority of recorded crimes do not have a crime scene (for example, minor assault, drugs offences, theft, fraud etc.) and consequently there is no crime scene examination. [emphasis added]
In time of tight budgetary constraints, the Home Office and the police can afford not to retain DNA of innocents. Their priority must be to load DNA profiles from crime scenes whether new or old.
Vocabulary note (based on definitions in the NDNAD annual report):
‘Matches’ include cases where the individual had an innocent reason for being at the crime scene and cases where it was not possible to take the investigation forward as well as cases where the individual is eventually convicted.
A ‘DNA detection’ means that the crime was cleared up and a DNA match was available.
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