Fri, 07 Aug 2009

A response to the Home Office consultation on DNA retention

Below is my response to the Home Office consultation Keeping the right people on the DNA database. You still have the whole of Friday to engage in the DNA database debate and send yours in, if you haven't done so yet.

1) Introduction

There is a consensus that retention of DNA profiles of crime scenes has a direct positive effect on the detection rate. The Home Office explained in 2005 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”. There’s no such clear case about the impact of retaining DNA profiles of individuals; there’s even data showing the contrary. When the NDNAD doubled in size, the percentage of recorded crimes involving a DNA detection remained roughly the same (at 0.36% according to GeneWatch UK). Furthermore, according to Brian Costello's research, increasing the size of the NDNAD 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.”

Options that include retention of either DNA samples or profiles must be based on strong evidence. The default position has to be that samples and profiles of innocents must be destroyed and deleted unless solid evidence can be shown of the value of retention. No such evidence has been presented in the consultation.

It is most unfortunate for the consultation to be of such poor quality. The included research has many mistakes and surprisingly does not appear to always support the Home Office options. (I attempted to get a corrected version of this document from its author and correspondence about it from the Home Office, without success.) The consultation documents are flawed in other ways as well: for instance, the chief economist was given an earlier draft to review with different options, and the costing for removing DNA wrongly assumes each removal has to be individually reviewed. (This has been communicated to the Home Office Consultation Co-ordinator last month.)

The rules governing the NDNAD, including retention period of DNA profiles, should be properly debated in Parliament. That the Home Office has already published a draft Statutory Instrument to implement its proposal, only a week after starting the consultation period, does not give confidence in its capacity to listen to constructive criticism. The rules governing the NDNAD should be included in primary legislation instead of having an SI giving full discretion to the Secretary of State. As Mr Justice Beatson commented that “It appears that a decision was taken not to address the reasons for the [Strasbourg] Court’s conclusion in the Consultation Paper”, the Home Office may want to reconsider this decision.

2) DNA samples

The Home Office is to be commended for its plan to destroy all DNA samples.

Destroying new DNA samples as soon as an effective profile is loaded on the NDNAD is by far the best option. It ensures the associated DNA profiles are available for policing purposes while not holding on to the most intimate human biological data.

The Home Office mentions a retention “for up to six months maximum for possible re-examination purposes only”. Six months is an arbitrary period that is not justified. In the absence of evidence for this choice, I suggest reducing this period to two months at most.

The consultation estimates that 12 months will be needed to destroy the legacy samples as they amount to about 25 cubic meters. This seems overly long to effectively take the DNA samples of individuals out of freezers in bulk and securely destroy them.

3) DNA profiles of innocent individuals

To retain the DNA profile of innocents, after the police have decided to take No Further Action (NFA) or after they have been acquitted, is an attack on the presumption of innocence. This can be justified only with solid evidence in support of such retention. The research included in the consultation does not provide strong evidence. This has already been discussed at length by many (for e.g., see articles by Anna Fairclough, Dr Ben Goldacre, Professors Keith Soothill and Brian Francis, and several of my writings as well). There’s not much point rehearsing these arguments here. Instead I’ll offer an alternative approach.

The NDNAD is effectively a criminal database as opposed to an identity database. The NDNAD Ethics Group concurred in its first annual report with two of its 11 recommendations making it clear the National DNA Database (NDNAD) is a “crime-related intelligence database”, and the Human Genetics Commission regards it “as a criminal database”. There are potentially conflicting goals for the retention of DNA profiles of innocents: improving crime prevention while avoiding criminalising innocents. Of course there’s stigma for an innocent to be included in a criminal database. There are also risks.

William C. Thompson, in The Potential for Error in Forensic DNA Testing (and How That Complicates the Use of DNA Databases for Criminal Identification), clearly explains some of these risks: “Do innocent people really have nothing to fear from inclusion in government DNA databases? It should now be clear to readers that this claim is overstated. If your profile is in a DNA database you face higher risk than other citizens of being falsely linked to a crime. You are at higher risk of false incriminations by coincidental DNA matches, by laboratory error, and by intentional planting of DNA. There can be no doubt that database inclusion increases these risks, the only real question is how much. In order to assess these risks, and weigh them against the benefits of database expansion, we need more information.”

The ECtHR also requested more information: “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.”

Unfortunately the consultation does not provide the information we need to consider whether there are indeed situations where the risks of criminalising innocents are outweighed by the risk of a criminal offending who could have been found if his/her DNA profile had been retained before his/her first offence. (There is obviously no need for retention to match a criminal arrested after an offence where DNA was left at the crime scene and loaded on the NDNAD.)

Professors Soothill and Francis in Keeping the DNA link point out that “The notion of ‘arrest’ is the main criterion used for action in the consultation document. [...] 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. The most serious abuse to avoid is an arrest by the police at the end of a retention period in order to get a further retention period on the DNA database.” The ethnic bias of the NDNAD is likely a consequence.

“After all, one of the authors showed nearly 30 years ago (Soothill K, Way C and Gibbens TCN (1980) ‘Rape Acquittals’, Modern Law Review, 43(2), 159-172) that the subsequent criminal profiles of those acquitted of rape are almost identical to the subsequent criminal profile of those convicted of rape—in fact, a greater proportion of the former had subsequent violent convictions. However, there is no recourse to this kind of evidence. Their demand for a 12-year retention period is backed up by what we call the smokescreen of versatility. [...] More recently, McGloin et al (McGloin, JM, Sullivan, CJ and Piquero, AR (2009) ‘Aggregating to versatility: Transitions among offender types in the short term’, British Journal of Criminology, 49, 243-264) provide evidence that offenders may favour certain offence types during the short term, largely because of opportunity structures, but that because of changing situations and contexts over the life-course, their offending profiles aggregate to versatility over their criminal career as a whole.”

As there’s no evidence to justify the proposed six and twelve years retention periods, my recommendation is that DNA profiles of innocents must be deleted when the individuals are NFA’d or acquitted.

However, as there appears to be some other evidence suggesting that a proportion of those arrested for certain specific serious offences - rape and kidnap are the two mentioned in Keeping the DNA link - go on to commit a related offence in the short term, it may be proportionate to retain their DNA profile for the “short term” period where such criminal specialisation can be expected. The length of criminal specialisation, though, does not give the full picture, Liu, Francis and Soothill found in Kidnapping offenders: Their risk of escalation to repeat offending and other serious crime (published in the Journal of Forensic Psychiatry & Psychology), that the shape of the re-conviction curves is also important as it is offence-specific. Clearly more work needs to be done to find and analyse the existing peer-reviewed research and commission further research.

It may be difficult to complete substantive further research in the time scale for the legal changes this consultation addresses, so there’s an open question in how to deal, at this stage, with DNA profiles of those arrested and charged for a violent offence and subsequently acquitted. I consider three options: a) delete their DNA profiles at acquittal, b) set a maximum retention period in the regulations, and c) retain their DNA profiles indefinitely. Indefinite retention of DNA of innocents is clearly unacceptable so that leaves two options.

My recommendation is to set a maximum period of up to six years for the exceptional retention of the DNA profile of individuals charged for a violent offence and acquitted, and plan a review of this aspect of the regulations for when further validated research work has been conducted allowing to create evidence-based retention periods for specific violent offences.

4) DNA profiles of under 18s

The experience of being arrested and having one’s DNA taken can be especially traumatic for young kids. For individuals arrested under the age of 18, a DNA sample should be taken at arrest only for violent offences.

If an individual arrested before the age of 18 was not DNA sampled but is later convicted for that offence, then a DNA sample should be taken at conviction for DNA profiling.

5) DNA profiles of convicted individuals

Rehabilitation must also apply to DNA retention. The DNA profile of convicted individuals should be deleted at the end of their rehabilitation period (as defined in the Rehabilitation of Offenders Act 1974). The retention period could be exceptionally extended, as part of the sentencing, if deemed appropriate to the specific circumstances.

6) Legacy profiles

Legacy DNA profiles of innocents must be bulk deleted when the regulations come into force as the default position should be not to retain DNA profiles.

Legacy DNA profiles of convicted individuals should be deleted at the end of their rehabilitation period (as defined in the Rehabilitation of Offenders Act 1974).

Legacy unreconciled DNA profiles should preferably be manually reviewed for deletion when regulations come into force. If the time and cost is too great, then they could be automatically deleted after a set retention period suggested to be six years from arrest. I.e, all unreconciled DNA profiles more than six years old would be bulk deleted when regulations come into force and the remaining unreconciled profiles automatically deleted when they reach this retention period.

7) Governance and accountability

Increasing the independent membership of the NDNAD Strategy Board is welcomed, but it is of concern that the Home Office did not consult, or even inform, either 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. (This was confirmed in personal communications by members from both groups.) This does not give confidence that any new structure or playing musical chairs in one of the existing advisory structure would be effective. Changes in governance and accountability need to be stronger than currently proposed.

Renaming the existing ACPO exceptional case procedure to “application process for record deletion” and for the grounds to be codified in regulations is not enough. The ECtHR called for a “provision for independent review of the justification for the retention according to defined criteria.” The chief constable, owner the DNA profile and currently final arbiter, is not independent and there should be an appeal process to a genuinely independent body.

It appears that the involvement of ACRO with the NDNAD is growing. (Details are not known as they are not public and the Home Office exempted the FoI request I sent about this.) For instance, the ACRO appears to have been tasked to create processes that would improve achieve some level of national consistency when considering the requests for removal. Further involvement of ACRO, a private company, would be considered to reduce accountability and transparency and should be limited.

The creation of a strategic and independent advisory panel tasked with monitoring the implementation and operation of the new policy would be useful if it is given enough authority and power to do its job. If it is to be bypassed, as the NDNAD Strategy Board and the NDNAD Ethics Group recently were, then its creation would be useless. This advisory panel must report to Parliament, instead of to Ministers as is proposed.

Regular publication of the key statistics on NDNAD numbers, speculative searches, deletions and applications for deletions is welcomed. A review of past NDNAD-related Parliamentary questions and Freedom of Information requests would give a good idea of the kind of data that is found useful. The Home Office should also ensure that proper peer-reviewed research on the efficacy of the NDNAD is commissioned.

8) Taking Samples – Additional Categories

Additional provisions to take samples may be justified in specific circumstances, from individuals who are considered to pose a potential danger to the public, but need to be narrowly constrained to avoid any risk of harassment by the police. In particular, any additional sampling would have to be for a serious offence and only during the period for which it would be legal to retain the DNA profile.

9) Fingerprints

Having retention policy for fingerprints (and palm prints) in line with that of DNA profiles is attractive as it will allow for deletion of both at the same time minimising the risk of error.

The Home Office is proposing to remove the ability to witness the destruction of one’s fingerprints. Any aspect of the process that increases the transparency of the police and offers a chance for positive interactions between the police and the public, such as witnessing this operation, should be reinforced. Removing this entitlement must be justified.

10) Volunteer Samples and Profiles

The proposed option of not storing DNA profiles of volunteers and deleting all the legacy DNA profiles of volunteers is fully supported.

First published on 2009-08-06; last updated on 2009-08-07.

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