The Human Genetics Commission ran a consultation to seek further views on the National DNA Database and on the issues highlighted by its Citizens Inquiry. The responses are to inform the development of the HGCs own conclusions and advice to Government. This consultation finishes today. Below are my answers.
1. What information should be given to people when a DNA sample is taken following their arrest?
When a DNA sample is taken following an arrest, individuals should be fully informed of at least:
a/ all the allowed uses of their DNA samples and profile (profile
matching, criminal proceedings, research projects, etc.)
The current restriction that the bioinformation is to be used only for purposes related to the prevention or detection of crime, the investigation of an offence or the conduct of a prosecution is so broad that it can easily be interpreted to allow uses that have not much to do with criminal justice.
b/ details of the data controllers for the NDNAD and the lab holding the samples - so the sampled individuals know who they can send data subject access requests to.
c/ the retention periods for the samples and profile.
d/ the procedure to attempt to have their profile deleted and samples destroyed.
As this information is complex, will often be communicated at a time when concerned individuals will likely be vulnerable and will mostly be useful later than at time of arrest, it should be provided in written form in a short leaflet. A summary, including uses, should be communicated verbally before the samples are taken.
2. In what way should the National DNA Database be populated?
To be able to answer this question it has to be made clear what is the role of the NDNAD.
The NDNAD should be considered for what it is: a crime-related intelligence database. This position has been stated by both the NDNAD Ethics Group (in its first annual report) and the Human Genetics Commission (in the findings the Citizens’ Inquiry into the Forensic Use of DNA and the NDNAD), however the NPIA claims that "The NDNAD is not a criminal records database. It holds very little information about a subject's identity - only their name, date of birth, sex and ethnic appearance. Inclusion on the DNA database does not signify a criminal record, and there is no personal cost or disadvantage by being on it" (in an FOIA response).
The current criteria for collection (sampling all CJ arrestees suspected of committing a recordable offence) and retention of bioinformation (forever) are not proportionate. (It is interesting to note that the retention period is unclear as conflicting, and confusing, statements have been issued ranging from the first time the individual reaches 100-year old, to the time of his death, to no limit; the latter being the most commonly mentioned).
For investigatory purpose, the police should be able to take DNA samples only from individuals who are charged, after they have been charged.
For elimination purpose, on a voluntary basis exclusively with revocable informed consent, the police should be able to take DNA samples from victims and witnesses on the express condition that no DNA profile is stored on the NDNAD and that the DNA samples and profiles are destroyed preferably after their use and at the latest at the end of the investigation for which they have been taken.
3. What, if any, profiles, other than those relating to individuals convicted of a criminal offence, should be retained indefinitely (or for periods of many years) on the NDNAD?
Retention period of DNA profiles should be limited as to not criminalise innocents. An additional risk is that the NDNAD holds information on the conviction status of individuals and this may be inaccurate (personal example). A further risk is that the data held in the NDNAD may be leaked through for example illegal access or transfer to organisations with even less safeguards (such as information sharing with other countries).
DNA profiles of individuals who have been charged should be retained for a limited period. The retention period should by default end when the sentence has been spent. This period could be extended for serious criminal offences for a limited time, possibly by a judge, in cases where for the offence committed there's a high repeat offending rate. The retention period must be proportionate to the offence and the sentence.
It is not proportionate to retain the DNA profile of volunteers. When samples are volunteered, as explained in the response to question 2, they should be destroyed preferably after their use and at the latest at the end of the investigation for which they have been taken. There should not be the need to upload the profile of such samples; if an exceptional need does occur then retention of the profile should at the longest be for the duration of the investigation for which they have been volunteered.
Crime scene profiles should be retained for as long as the crime has not be solved and there is no limitation.
4. In what circumstances, and for what reasons, should DNA be retained from individuals whose profiles are recorded on the database?
DNA samples contain so much of an individual's intimate genetic information that it is essential to limit the retention period to prevent future misuse when technological and scientific progress in DNA analysis happens. Once a profile has been uploaded to the NDNAD, the samples should be destroyed. My understanding is that to be admissible in court another DNA sample is always taken from individuals being prosecuted making it even less justifiable to retain DNA samples.
5. What evidence would be required to demonstrate the ‘forensic utility’ of the NDNAD?
It is difficult to establish an effectiveness criteria as the NDNAD is only one of many tools used by the Police. One way to demonstrate the ‘forensic utility’ of the NDNAD would be to show that it increases the likelihood of convicting criminals while either reducing or not increasing the chances of misidentifying innocents as suspects or even worse resulting in miscarriages of justice.
To keep retaining DNA profiles and samples of innocents, evidence must be shown that retaining DNA profiles and samples of innocents makes a significant difference in detecting and prosecuting criminals.
The retention of DNA from crime scenes appear to have a much better 'forensic utility' than the retention of DNA from individuals. The Home Office explained: "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". Helen Wallace provides further analysis of the data available and concludes that "the success of the Database is determined largely by the number of DNA profiles collected from crime scenes, not from individuals".
A much larger public debate needs to take place.
6. What will be the likely social impact of maintaining the database at current levels or expanding it substantially?
The expansion of the NDNAD is not proportionate.
Too many DNA profiles of innocents are already on the NDNAD: 14 to 21% of the individuals sampled by the England and Wales forces are innocents. This victimises innocents and is a breach of privacy.
The bias of having an over-representation in the NDNAD of individuals from some minorities (e.g., black males) compared to other groups is not acceptable. It shows likely prejudice by the Police (as they're the ones deciding when to take DNA samples) and it further criminalises the over-represented communities.
Experience has shown that the police - and the labs they employ - can't be trusted to limit their use of our bioinformation to those that are appropriate: leaks from supposedly secure and restricted databases such as the PNC are known to have happened, and it was revealed in FOIA requests obtained by the Observer and Genewatch that there already are likely illegal uses of the retained DNA by one of the processing labs used by the police.
A criminal database on which it is too easy to get on, with bias and from which it is near impossible to get off will be increasingly rejected as individuals resent being put on it for often no apparent good reason. In the current situation one would be most foolish to volunteer one's DNA.
7. What governance arrangements are necessary to secure confidence in the acceptable and appropriate management and use of the NDNAD?
An oversight committee should be created, not just in an advisory role, but with powers to act. This committee should be able to receive complaints from the public. It should be composed of a minority of involved parties (Police, Forensic Science Service, etc.) and a majority of independent members (Genewatch, Nuffield Council on Bioethics, etc.) with the chairperson being an independent member.
The creation of the NDNAD Ethics Group was a step in the right direction but it does not take any direct input from the public and its powers appear limited.
Public involvement through debate and representation in oversight is lacking.
8. What further uses might it be appropriate to make of the genetic information collected for the NDNAD in the future?
Any further use must be reviewed in a transparent manner. Today it is not even possible to find out if one's DNA has been used in a research project.
For one's DNA samples or profile to be included in any non forensic use, outside of the limited use to be communicated to those sampled, must require an informed opt-in consent. Consents should be revocable.
Familial searching is not proportionate, as again it will involve many innocents. This is an obvious and unwarranted invasion of privacy. Revealing genetic familial relationships not always known by family members is a clear breach of privacy that is unethical. This type of research has in the past been associated with eugenics, racism and discrimination.
Any new use should be publicly debated.
9. Are there circumstances in which it might be acceptable for information contained on the NDNAD to be shared or linked, perhaps anonymously, with other agencies or databases?
For bioinformation sharing to be acceptable, mechanism must be in place so that shared data is kept in sync. In particular, when a profile is deleted in the NDNAD it must be deleted wherever it has been shared. Obviously any sharing should only happen if the use of the shared profiles is a subset of the allowed use of the profiles in the NDNAD. Independent oversight of data sharing must be in place.
Safeguards for exchanges of bioinformation with police forces from other countries are unclear and standard data protection measures such as data correction are too often not required.
Any data sharing also imply that more individuals will have access to the DNA profiles further increasing the risk of information leaks.
10. Under what conditions or in what circumstances might arguments for an universal DNA database be persuasive?
A universal DNA database is not proportionate to the need of the criminal justice system in a democratic society. Furthermore current data seems to indicate that this would not increase the detection rate (see response to question 5).
DNA contains very personal intimate genetic information, and technological and scientific progress may help reveal more information from a DNA samples than is currently possible. The temptation to use new techniques on the NDNAD may become too tempting to the Home Office, the Police and the DNA labs. The risks would be even greater if we ever get a Government keen on misusing bioinformation to further restrict people's rights and freedoms.