Parliament overturned by 277 votes to 209 a Lords amendment to the Counter Terrorism Bill 2008 which aimed 'to try to spark a national debate about the retention of samples and to inform the public about what information is being held on them'. Several MPs told stories of their constituents fighting the system in attempting to get their DNA off the National DNA Database (NDNAD). Reading through the several interventions, I find surprising how poorly briefed many MPs are on this very serious issue affecting millions of individuals in the UK.
Damian Green (Shadow Minister, Home Affairs; Ashford, Conservative)
[...] The changes are necessary because of the worrying nature of the guidelines under which we operate. They are produced for the police, and go under the spectacularly opaque title "Retention guidelines for nominal records of the police national computer", which could almost have been designed to stop anyone finding out what the guidelines are for the use of DNA—a rather important term that the document carefully refuses to mention in its title. Frankly, the guidelines are draconian. They state:
"Chief Officers have the discretion to authorise the deletion of any specific data entry on the PNC 'owned' by them."
It is interesting that when a person's data are entered on to the PNC, they are owned by the police. The guidelines continue:
"They are also responsible for the authorisation of the destruction of DNA and fingerprints associated with that specific entry. It is suggested that this discretion should only be exercised in exceptional cases."
According to the guidelines, the discretion to destroy the information will rarely be exercised, which in itself is enough to raise eyebrows. The guidelines later state:
"In the first instance applicants should be sent a letter informing them that the samples and associated PNC record are lawfully held and that their request for deletion/destruction is refused".
Therefore, the standard guideline is, "Just say no, you can't have your records deleted." The last paragraph of this part of the guidelines states:
"It is not recommended that any proactive exercise is undertaken to determine potentially exceptional cases".
The police are therefore being told in their guidelines first that everything must be exceptional, and secondly that their first and standard response should be to say no. Indeed, elsewhere in the guidelines—I shall not detain the House by reading this out—is the standard template letter of refusal, in case the police cannot work out how to write a refusal letter. On top of that, they are instructed not to make any effort to tell people what they can do or what criteria they might have to fulfil to get their records out of the system. That approach is not satisfactory.
Compounding that, an example is given for those who want to know what an "exceptional case" is. It is the only such example in a 236-page document of what might be an exception. I shall quote it in full:
"For example, where a dead body is found in a multi-occupancy dwelling and the cause of death is not immediately obvious. All the occupants are arrested on suspicion of murder pending the outcome of a post mortem. All arrested persons are detained at the local police station and samples taken. It later transpires that the deceased person died of natural causes. No offence therefore exists, and all persons are released from custody."
That is the only example given in the guidelines of an allowable exception. The House will recognise that that is an absurdity and that the guidelines are clearly not an acceptable way in which to proceed.
This is a good summing up of the current situation (follow these links for a flowchart of the whole process and more details on getting off the NDNAD), but let's take a step back. These guidelines are issued by the Association of Chief of Police Officers (ACPO), a private company (hence not subject to the Freedom of Information Act). Should guidelines affecting so many individuals so intimately be decided by a private company behind closed doors?
Keith Vaz (Leicester East, Labour)
I do not disagree with anything that the hon. and learned Gentleman says. We do need a proper system, and the present system is totally inadequate. At the very least, if we had letters in reply to reasonable requests, providing information to the person who has asked for his or her profile to be removed, I could understand it. As it is, this is the first time that I have heard the guidelines as they were read out by the hon. Member for Ashford. I did not realise that although everyone is told that they have the right to have their DNA removed, it is only in very, very exceptional circumstances that it will be so removed. [emphasis added.] I am minded to vote for the Opposition's amendment, unless the Minister gives a clear sign to the House that the Government will radically alter the current guidelines on removal.
These retention guidelines replaced the 'ACPO General Rules for Criminal Record Weeding on Police Systems' on 2006-03-31 (according to the intro of version 1.3). They are the document describing what the Police are doing with our DNA. If you take out the cover page, blank pages, acknowledgment and the long lists offences, it's only 14 pages long of principles, guidelines, letter examples and flowcharts. (Most of the 236 pages, as mentioned above by Damian Green, is taken by Appendix 3, three long lists of offences.)
How come an MP attending a debate on amendments concerning the NDNAD has not read these 14 pages or been briefed about them? This is even more surprising for Keith Vaz considering he is the Chairman of the Home Affairs Committee and this Committee issued only last May a report including recommendations specifically about retention of the DNA profiles of innocents.
David Jones (Shadow Minister, Wales; Clwyd West, Conservative)
[...] In response to my request, I received a letter from the chief constable of North Wales police. The letter broadly followed the template that my hon. Friend the Member for Ashford mentioned—template A in appendix 2 to the ACPO guidelines. It followed the guidelines almost word for word, except that at one particular juncture the chief constable decided to ski off-piste. He said:
"The Criminal Justice and Police Act 2001 amended the Police and Criminal Evidence Act 1984, providing the police in England and Wales with the power to retain DNA samples and fingerprints, relating to persons following acquittal at court or other discontinuance of a case.
I must admit to being personally surprised by this decision and I am not sure parliament fully understood the implications of its decision. However, the Act is clear enough and I am bound to act by its provisions."
In other words, it would appear that the chief constable of North Wales police decided to enter the debate about the retention of DNA ahead of the House. He clearly thinks that the current legislation is nonsense. His letter continued:There is, therefore, almost no circumstance in which a chief constable will exercise that discretion, which is a lamentable state of affairs. Clearly, the present arrangements are opaque and unsatisfactory.
"If I were to exercise my discretion in this case, then I would have to exercise my discretion in similar cases, thus it would not be a rarity."
Section 82 of the CJA 2001 amends PACE 1984 so that 'samples may be retained after they have fulfilled the purposes for which they were taken'. It is not an obligation and chiefs of police forces can legally exercise their discretion in each case. Now the ACPO guidelines effectively give them a framework where exercising their discretion should be done only exceptionally: 'They have the discretion in exceptional circumstances, to authorise the deletion of any conviction, penalty notice for disorder, acquittal or arrest histories, "owned" by them'. Chiefs of Police for England and Wales forces exercised their discretion on average 222 times per year over 2005-2007.
Vernon Coaker (Minister of State (Policing, Crime & Security), Home Office; Gedling, Labour)
[...] The text of the amendment would require the Secretary of State to issue guidance relevant to all agencies holding DNA and fingerprint samples on the operation of their retention, use and destruction of fingerprints and samples. Let me say why the guidelines contained in the amendment are unnecessary. The rights of individuals from whom fingerprints and samples are taken by the police under PACE or under the Terrorism Act 2000 are already contained in guidance, including PACE codes C and D, the ACPO retention guidelines for nominal records on the police national computer, and guidance on subject access requests. However, let me say to my right hon. Friend and other hon. Members that I admit there is work to be done to publicise those rights more widely.
I undertake to work with the police to bring together the current guidelines covering the matters raised in the amendment, and to publish them more widely. The guidelines will need to be reviewed in the light of the outcome of the S and Marper case, and a PACE review is currently under way. However, I give my right hon. Friend an undertaking to ensure that the points that he and others have made are fed into the PACE guidelines review, so that we can improve the process.
Publicising the existing guidelines - especially among MPs - would be a good thing, but what is being asked by many including a majority of Lords, the NDNAD Ethics Group, the Human Genetics Commission, the Nuffield Bioethics Council, GeneWatch UK and Justice is a public debate with one possible outcome being to ensure that DNA profiles of innocents are not retained on the crime-related intelligence database that is the NDNAD.
Coincidentally, on the very same day, the Metropolitan Police Service Special Crime Directorate 12 (SCD12) issued version .2 of its 'Exceptional Case Requests - Consideration for the Removal of DNA, Fingerprints and PNC Records'. As its previous version (issued on 2008-06-27), these guidelines closely follow the ACPO ones. Slightly more interesting is the 'Roles and Responsibilities' section:
The Exceptional Cases Unit will process any request by preparing a report for the Commander for Operational Information, Intelligence and Learning for their consideration. This report will consist of information supplied by the applicant and the officer in charge of the case [or in some circumstances, the Criminal Justice Unit Manager]. The Association of Chief Police Officers [ACPO] designated Criminal Records Office will be contacted for their advice and recommendation.
So in the case of the MPS, the ACRO - an offshoot of a private company - will be consulted as to whether the case is exceptional enough that they don't feel they can refuse deletion.
If the decision to delete has been made, the Exceptional Cases Unit will contact the respective departments and agencies to ensure that the DNA, fingerprints and PNC records are deleted / destroyed accordingly. The Exceptional Cases Unit will send a response to the applicant notifying them of the decision of the Commander for Operational Information, Intelligence and Learning on behalf of the Commissioner. [...]
This is still very far from the process map SCD12 promised me. Which 'respective departments and agencies'? Does that include the private labs holding the DNA samples? How is the deletion of electronic records and destruction of physical samples tracked? etc. This still doesn't give much confidence that, in the few cases where the chief of police exercise his or her discretion, the samples and records are always properly removed.
There's more hope of progress and change in the retention of DNA material being pushed by institutions such as the European Court of Human Rights, the NDNAD Ethics Group, the Human Genetics Commission and other bioethics and human rights organisation than by either Parliament or the Police.