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.
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.