Sat, 06 Jun 2009

Sentenced to genetic probation

Either you are with the Home Office or you are against justice

The Home Office remains stubborn in its attempts to hold on to the personal and intimate data of innocents by refusing to delete their DNA profiles from the National DNA Database (NDNAD). It creates policies out of a vacuum, without evidence to support them, and in parallel, tables amendments to give itself powers to push these policies through secondary legislation. This arrogance was exemplified when the Home Office eventually published its consultation on Keeping the right people on the DNA database. Commons Leader Harriet Harman described those critical of the plans as "against justice". In the six months since the European Court of Human Rights' judgement in S and Marper v. UK, the Home Office has been marching on to implement its single-minded agenda.

First on the Home Office agenda was to address the few individual cases, that garnered too much publicity, for which Jacqui Smith had promised to take immediate steps. The day following the European Court judgement, the applicants' lawyer requested the destruction of their fingerprints and DNA samples. The government confirmed in January that the responsible police authority had destroyed them. A just satisfaction award of £35,501.56 was paid, in respect of costs and expenses, to S and Marper. And it took two full months, between the last day of December and early March, for a total of 96 DNA profiles of children under 10 to be removed by 31 police forces (pdf). This had been promised by Jacqui Smith in a speech to the Intellect Trade Association. Approximately 300,000 children 10 to 18-year old still have their DNA profile on the DNA database.

To comply with the European Court ruling, the government must implement general measures to prevent new violations, similar to that which happened to S and Marper, from occurring. In January, the UK provided information to the Committee of Ministers (CoM) of the Council of Europe about how it is going about changing laws and policies to end the "blanket and indiscriminate nature of the powers of retention of the fingerprints, cellular samples and DNA profiles of persons suspected but not convicted of offences". That information was supposed to be reviewed at the March meeting of the CoM, but was rescheduled to its June meeting. We've asked for this information under the Freedom of Information Act, but the Home Office has been delaying its release.

First time most anyone outside of the Home Office got wind of its intentions was early May when it published the consultation Keeping the right people on the DNA database. Neither the NDNAD Strategy Board, nor the NDNAD Ethics Group were consulted for their informed opinion or even just notified, prior to publication. The consultation "sets out our proposals which will remove the current 'blanket' retention policy and replace it with a retention framework which, in the words of the judgment, will 'discriminate between different kinds of case and for the application of strictly defined storage periods for data'". The Home Secretary is opting to get rid of the blanket indefinite retention for everyone and to replace it with three blankets of six years, 12 years and indefinite retention depending on how innocent you are or whether you are a convicted criminal; plus a few special cases.

Minimum six years of genetic probation

The consultation's proposals include retaining innocent people's DNA profiles and fingerprints for twelve years if they have been accused of a serious violent or sexual offence, or six years for a lesser offence. Children arrested but not convicted, or convicted of less serious offences, would have their DNA profiles retained for six years or until they turn 18*, whichever comes first. The taking of DNA samples and fingerprints would continue to happen at arrest and DNA profiles and fingerprints of anyone convicted of a recordable offence would be retained indefinitely as is the case now for criminals and innocents alike. DNA profiles of those volunteering their DNA would not be added to the database. In all cases the DNA samples, commonly mouth swabs, would be destroyed after a DNA profile has been derived from them.

Profiles already on the DNA database would follow this six/twelve year retention rule. There are currently approximately 350,000 DNA profiles of individuals who are definitely innocent and 500,000 DNA profiles that are not linked to Police National Computer (PNC) records and hence may be that of innocents... or not. The Home Office preferred option would be for the police to manually check each of the profiles they're not really sure about before considering deletion.

"The intended effect of this policy is to ensure the maximum number of detections where a crime scene is matched to an individual on the database thus helping reduce crime and protect the public whilst at the same time ensuring the right to privacy is protected" is the goal set in the impact assessment. To ask us to give up the presumption of innocence, the government must show solid evidence for the need to retain DNA profiles and fingerprints from any innocent when there's no further case or they are acquitted. Steve Bain, ex-member of the Human Genetic Commission and on the NDNAD Strategy Board, is direct: "It's essentially an evidence free zone", adding that the real issue is "how to make [the retention policy] ethically robust and socially acceptable."

What evidence is there that increasing the DNA database size, already containing more than five and half million DNA profiles, with additional DNA profiles of innocents helps to reduce crime? GeneWatch UK has shown that when "the number of individuals with DNA profiles on the Database ... doubled from 2 million to 4.5 million, ... there has been no corresponding increase in the number of crimes detected. The percentage of recorded crimes which involve a DNA detection has remained roughly constant at 0.36%". What makes a difference is retention of DNA of crime scenes (pdf). The Home Office said as much in 2005: "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). Geneticist and lawyer Brian Costello's research leads him to believe that not only adding DNA profiles of innocents to the database doesn't help catch criminals, but is likely to increase the risk of miscarriage of justice: "If a miscarriage based on an adventitious match has not occurred yet, it appears likely it will occur in the future as the NDNAD grows ever larger."

What is the new evidence the Home Office has found that would convince us to retain DNA profiles of innocents for years? The consultation's impact assessment makes it clear that any claim by ministers that deleting DNA profiles of innocents may prevent crime is an unsubstantiated claim: "It is therefore also not possible to say how many crimes would be prevented under different options." The few anecdotes repeated by ministers to provoke emotional reactions do not support the case for DNA retention of innocents, but the taking of DNA samples at arrest, which is not disputed; (whether this is indeed the right time to take DNA samples is not even discussed). We must look deeper in the documents published by the Home Office.

In search of strong evidence

Even though the Home Office has had many years to prepare in anticipation of the judgement of the European Court and six months since, the consultation and its annexes read as if they have been rushed out. The documents are marred by editing mistakes to the point they look like a very early draft. They are full of inconsistencies, samples used for statistical analysis are extremely small, data is not always sourced and the included research contradicts the proposed plans in several places. Has anyone really bothered to read the consultation before publishing it? A genuine consultative exercise would show more respect to its audience.

One annex is an independent report by Professor Ken Pease of the Jill Dando Institute titled DNA Retention after S and Marper. The data in the text and the tables don't match, but if you put that aside and try to figure out what was likely meant you soon realise that there's little to support the Home Office. First key data is about those re-arrested within three specified periods. Let's skip the fact that the "data underwent substantial and lengthy editing" to exclude irrelevant categories and "on the basis of lack of clarity as to the case outcome". After all this editing, the data appear to come from 532 cases from three samples in June over three consecutive years (either 1994-1996, according to the table, or 2004-2006, according to the text). However, an attentive reader will spot: "Given that data came only from the first of a month, and aware that errors of estimation will be magnified by multiplying the figures to give a monthly total...", so this data is in fact an estimation based on approximately 18 cases (532 divided by the number of days in June) taken over three days at one year interval, or 7, 8 and 3 samples for the respective days. And even among these few cases, one day may have to be discounted as a footnote explains: "The writer was concerned by the smaller number of cases in 2004. His best guess is that the date fell on the day following a Bank Holiday." (This is also a hint indicating that the text is right as May 31st was Spring bank holiday in 2004. This erroneous table is repeated in the main consultation document.)

Moving on, the author comments on a second analysis that is under way but not included in order not to delay publication: "The conclusion anticipated with confidence is that there will be little or no association between the seriousness of the events, ie that the seriousness of the initial offence will not predict the seriousness of subsequent offences. ... Its importance is that a policy of selective deletion is decided upon, based upon the seriousness of the offence leading to the initial offence, it will lose most of its potential in downstream detection." That conclusion directly undermines the Home Office's proposed plans for six and twelve years retention periods.

Based on a New York State study and illustrated with more local anecdotes (such as that of the Yorkshire Ripper), the author points out that "They found, regardless of the severity of an individual’s first adult offence a high degree of versatility for all but a minority of offenders". If you were to accept this analysis, then to ensure this high degree of versatility, an individual who committed a minor offence is likely to go on to commit a violent one and vice versa. Barring the fact that we're now talking about criminals, such a conclusion would favour retaining DNA for a shorter time for those associated with violent crimes!

The author admits that the data currently available is very limited, "There remains an outstanding research programme which would clarify the issues surrounding the S & Marper judgement". We wrote to Professor Ken Pease to enquire about the availability of a corrected version of his report, but are still awaiting a response.

Rushed out to be pushed without scrutiny

A further sign this consultation was rushed out is that the proposed plans (published in the main consultation document) are not consistent with the preferred option in the impact assessment (published in the annex). The impact assessment recommend destruction of all fingerprints after 15 years while, as explained earlier, the consultation recommends destruction of the fingerprints at the same time as for the DNA profiles. The different retention periods for fingerprints and DNA profiles is one of the five points Chief Economist John Elliott draws the reader's attention to in his examination of the impact assessment. So it appears he was not informed of the change of mind of the Home Office between when the impact assessment was written and the time the proposed plans were finalised. John Elliott does comment on the rush in three of his other points: "The associated costs are likely to be significant, but there has not been time to quantify them", "If deletion is not to be immediate, a retention period must be set. The decision to opt for 6 years is likely to receive considerable scrutiny but is based on only limited evidence. Ideally a fuller consideration of different retention periods would have been helpful but I accept this was not possible in the time available" and "The need to complete this work to a very short time table means that the modelling has not captured all costs and benefits as completely as I would ideally like to have seen. There may be a need to revisit this assessment before a final decision is made."

The costs and benefits model, in the impact assessment, is constructed on a tower of "key probabilities and assumptions", and some of the listed probabilities are misleading. For instance "The probability of committing an offence following an arrest, but no further action, is the same as the probability of committing and [sic] offence following conviction. The probability of this is 40%9". Note 9 lists the source for this statistics: Re-offending of adults 2006 cohort. The data in this report, from the Ministry of Justice, is about "the reoffending of adults released from custody or starting a community sentence", i.e., it has nothing to do with those offending for the first time after an earlier arrest. Interestingly, this report also includes the following analysis: "On average, offenders took in the 2006 cohort 119.7 days to reoffend (in 2000 the same value was 114.7 days). Offenders convicted of theft took the shortest number of days to reoffend for both 2000 and 2006, whilst in 2006 offenders convicted of robbery took the longest number of days to reoffend." The longest line in the figure showing the average number of days before re-offending took place, for those who re-offend, by index offence group is approximately 170 days.

Average time to re-offend
Average time to next offence

This report establishes that 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. On one hand the Ministry of Justice tells us that most re-offending happens in six months, and on the other hand, the Home Office is asking us to retain DNA profiles of innocents for six to twelve years (and indefinitely for criminals)!

Nothing in the proposed measures addresses the racial bias in the DNA database. Figures compiled a few years ago, using Home Office statistics and census data, showed that 37% of black men have their DNA profile on the database compared with 13% of Asian men and 9% of white men. Data published last year indicate an increase in the number of DNA profiles of black males to 42%. It is estimated that three quarters of young black men aged between 15 and 34 have their DNA profiles on the database. Innocent young black people are far more likely to be on the database than innocent young white people.

Perhaps, the Home Office realises how weak its arguments are as it is keen on avoiding parliamentary scrutiny. Several MPs have repeatedly demanded that basic protections regarding personal data, the DNA database and its oversight be embodied in statute after been given enough Parliamentary time. The Home Office has instead pushed through Parliament clauses 96 to 98 of the Policing and Crime Bill, which is now reaching Committee stage in the Lords. These give a blank cheque to the Secretary of State to implement by statutory instruments changes to the retention, use and destruction of DNA profiles and samples, fingerprints, footwear prints and photographs. A draft statutory instrument (zip) to implement the regulations proposed in the consultation has already been published. Only a week after the consultation. Will the Home Office read any response to its consultation?

Governance and additional powers

Another issue raised by the European Court is the "limited possibilities ... to have the data removed from the nationwide database [and] ... no provision for independent review of the justification for the retention according to defined criteria." As per the existing exceptional case procedure**, those with their DNA profile on the NDNAD would still be able to request deletion by writing to the chief constable of the force that took their DNA. What's proposed is for the procedure to be renamed "application process for record deletion" and for the grounds to be codified in regulations. Listed examples include wrongful arrest, mistaken identity, and where it turns out that no crime has been committed.

A likely aim for this change is to create a fairer process, as had been requested by the NDNAD Ethics Group. The Association of Chief Police Officers (ACPO) Criminal Records Office (with the recursive acronym of ACRO) has been tasked to create processes that would improve achieve some level of national consistency when considering the requests for removal. Chief constables would remain the owners of the DNA profiles they contribute to the NDNAD, but ACRO, a private company, would at least strengthen its existing consulting role, if not acquiring more power. The cost of increased consistency would be a loss of transparency and scrutiny.

The consultation details plans to have a greater mix of operational and independent members on the NDNAD Strategy Board and an independent monitoring structure on implementation of the regulations. However this latter structure will report directly to ministers. That the Home Office did not consult the NDNAD Strategy Board or the NDNAD Ethics Group when preparing its plans for the future of the DNA database as embodied in the consultation does not give confidence that any new structure or playing musical chairs in one of the existing advisory structure would have any more influence.

Additional powers sought for are to take a sample and fingerprints post arrest if the initial data is not of sufficient quality, post conviction of persons who were not sampled or fingerprinted during the investigation or court process, and from UK nationals and UK residents convicted of violent or sexual offences overseas. These additional powers are the only measures where the government is looking for new primary legislation and hence that would be subject to full Parliamentary scrutiny.

Jacqui Smith, in her speech to the Intellect Trade Association, explained the outcome she was looking for: "We need to ensure compliance with the [ECtHR] Judgment whilst ensuring that we meet the difficult job of balancing rights against protection". Professor Sir Alec Jeffreys, who discovered DNA profiling and invented its forensic use, finds the proposed plans do not achieve this outcome : "This seems to be about as minimal a response to the European court of human rights judgment as one could conceive. There is a presumption not of innocence but of future guilt here … which I find very disturbing indeed."

The judges in the European Court noted "Weighty reasons would have to be put forward by the Government before the Court could regard as justified such a difference in treatment of the applicants' private data compared to that of other unconvicted people." The current proposal to retain DNA profiles of innocents who happened to have been arrested for six or twelve years does treat them differently and further stigmatise them. The Committee of Ministers will review the situation this month, you have until August 7th to respond to the consultation, and the government has six more months to show substantial progress towards compliance with the ruling against it.


* Note that children convicted of a minor crime days before their eighteen's birthday would be on the NDNAD only for a very short time. If this aspect of the proposals is implemented we do not condone experimenting with this.

** The European Court's judgement is not directly binding on the police forces. Until the law or police guidelines change, the only way to get off the NDNAD is via a decision of a chief constable. A new website, Reclaim your DNA, was launched by GeneWatch UK, No2ID, Open Rights Group and Black Mental Health UK. It offers a step-by-step guide to innocents on the NDNAD as to what they need to do to request to be taken off this crime-related intelligence database and ensure that personal genetic information samples are destroyed.

(Two years ago I was one of 64 who asked the Metropolitan Police to have their DNA profiles purged and DNA samples destroyed. My request was one of 18 that were deemed exceptional enough to be granted that year.)

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