An informed debate on the benefits and risks of sampling the
DNA of all arrestees and retaining their DNA profiles in the National
DNA Database (NDNAD) is necessary. This is why we have been lamenting
the poor quality of the Home Office Keeping the right people on the
DNA database consultation as it is distracting
from a discussion of the substantive issues. With just over two weeks
left to contribute responses, it is helpful to find an
analysis by academic experts questioning the scientific
argument for 'how long innocent people should be adjudged as
“honorary” criminals' and their DNA profiles kept
on the NDNAD. Keith Soothill,
emeritus professor of social research, and Brian Francis,
professor of social statistics, both from Lancaster
University published Keeping
the DNA link in the New Law Journal
[the article is no longer available online but it may re-appear on
the publication page
of the ESRC National Centre for Research Methods].
The authors found in earlier works that even though offenders may have a
diverse criminal career, that the risk for sex offenders and kidnappers
to repeat offending is greater soon after their first conviction.
Much has been written in this blog and elsewhere about the confusion in the consultation of the use of data about offenders to justify options about arrestees – who have never been convicted of or admitted to an offence. The authors raise a related issue: 'In fact, arrests are useful indicators of police action but not of guilt. Re-arrests are dangerous indicators and making arrests the pivotal criterion encourages the notion that we are moving towards becoming a police state.' This is made worse by the option suggested by the Home Office where 'DNA information would not be deleted after a certain number of years from first arrest, but from their last arrest.'
An essential confusion between two distinct approaches is made by Soothill and Francis:
In much of the consultation document there is confusion between two types of discourse—a discourse relating to crime and a discourse relating to criminals. A discourse on crime interests the police and largely underpins the scientific analysis in Annex C of the consultation, while a discourse on “honorary” criminals who are created by retention policies interests those concerned with civil liberties. The danger is to assume a one-to-one relationship between a crime and a criminal. In fact, there are many more crimes than criminals. Indeed, there is a remarkable lack of discussion about persistent criminals—a topic that has exercised the mind of the Home Office in recent years. In brief, there is widespread evidence that around 7% of the population account for one-half of all convictions.
This paragraph efficiently clarifies issues in framing investigations and debates about the retention of individuals' DNA. Here's an excerpt from the author's conclusion.
We believe that a more appropriate analysis is needed to justify a retention period of six years. Second, if one is making a case for longer retention periods for those arrested for serious offences, then the only reason for them to be treated differently is that they have a greater risk of a serious offence. In contrast to the consultation document, we do believe that one can measure a heightened risk of a subsequent serious offence, and it should be on this basis that one moves forward with a longer retention period.
A couple of other articles than Keeping the DNA link, also looking at the post ECtHR ruling in S & Marper v UK situation, have recently been published:
[...] It appears that a decision was taken not to address the reasons for the [Strasbourg] Court’s conclusion in the Consultation Paper. This means that this has yet to be done. [...] The issues involved raise difficult scientific and technical questions, and the policy choices in this area also have constitutional and civil liberties implications. The need is for an objective, impartial and balanced assessment in which the public can have confidence. Bearing these factors in mind, I suggest that the issue is one on which, for most of the twentieth century, advice would have been sought from a Royal Commission made up of the leading experts in all the relevant disciplines or a body such as the Law Commission. [...] The Consultation Paper, our first considered official reaction to the judgment, has not taken on board or addressed and rebutted the Court’s criticisms of our systems. We need to do so if we are to address the challenge of producing a legal and regulatory regime which encourages the benefits of DNA profiling to be appropriately available for the detection and deterrence of crime while being clearly compatible with the European Convention on Human Rights.
[...] The proposal to destroy all DNA samples is stunning, goes well beyond the ruling, and is to be applauded. The 6- and 12-year retention times, on the other hand, seem excessive, and they may be reduced further depending on public reaction. [...] The European Court of Human Rights is, I think, correct to emphasize the differences between democracies and police states as reflected in the types of personal information police are permitted to collect and retain about citizens. Each individual point of data may seem insignificant, but when data sets are merged, privacy is effectively destroyed. No one has made the privacy point better than Aleksandr Solzhenitsyn in his novel Cancer Ward, in which he writes that, in a totalitarian state, people are obliged to answer questions on a variety of forms, and each answer “becomes a little thread” permanently connecting him to the government [...]
You have until 2009-08-07 to send your response before the consultation period closes.
First published on 2009-07-20; last updated on 2009-08-12.