Wed, 21 Jul 2010

Adopting the Scottish approach to DNA retention

The coalition government has repeatedly promised it will follow the Scottish approach to change the rules for DNA retention. The coalition negotiations agreements reached in May listed 'Adopting the protections of the Scottish model for the DNA database' as one of its measures in the civil liberties section. Nick Clegg, soon after, confirmed that 'the DNA database [will be properly regulated], with restrictions on the storage of innocent people's DNA', and a month ago, Theresa May hinted that the process to create this new legislation has started:

As part of the development of a DNA retention model that provides the protections of the Scottish model, we are examining a range of options before bringing forward detailed proposals to put in place a system which provides protection to the public while respecting the rights of those who have been arrested for but not convicted of an offence.

Costs will be taken into consideration as part of the policy development process.

At no point this Scottish model has been explained and as usual in such situations, confusion leads to misinformation and the quality of the debate is lowered. For instance, the information sheet distributed by the Civil Liberties Panel of the Metropolitan Police Authority at its public meeting on the use of DNA in policing contained incorrect and misleading information in the note explaining the Scottish model.

The Scottish approach to the retention of DNA samples and profiles is defined in sections 18 and 18A of the amended Criminal Procedure (Scotland) Act 1995. As a public service I'll summarise the gist of these sections here and reproduce them in full in a bootnote.

If this model is incorporated in UK legislation, then the DNA profiles of all innocents, bar a few charged for serious sexual and violent offences will no longer be retained in England, Wales and Northern Ireland. No draft law has been published yet and no timetable announced.

Seven outstanding issues

In The DNA Database: what next? (pdf) briefing document, GeneWatch UK highlights six outstanding issues that need to be addressed before new legislation is adopted:

  1. Will the new law ensure that people’s records on the Police National Computer (PNC) are deleted at the same time as people’s records on the DNA and fingerprint databases?
  2. When does the Government expect to have the new law in place?
  3. What will happen to people who have cautions or old convictions for minor offences? Their records used to be deleted after five or ten years but are now kept indefinitely.
  4. Will there be a system of independent oversight to make sure that the police delete people’s records when they are supposed to?
  5. Will the Government review whether some DNA samples are being collected unnecessarily, when they are not relevant to solving the alleged crime?
  6. Will the new law contain tighter restrictions on how people’s stored DNA records can be used?

Check out the pdf for a detailed backgrounder of each of these issues. The first one is essential as the PNC is accessible by many organisations, including 56 non-police bodies. A related aspect, not included in the briefing, concerns the DNA report summary that is part of PNC records. These summaries include a marker for the status of the DNA sample. This information, that is accessible to all those who have access to PNC records, may be damaging especially if incorrect. For instance, for a while this marker in the DNA report summary of my PNC record was 'Confirmed', meaning 'on the database and a conviction has been achieved' even though I had no conviction (I was never even charged).

I would add at least a seventh item to GeneWatch's list: 'Will there be regular peer-reviewed publication of statistics and evidence-based analysis about the efficacy of DNA retention?' Reports published to justify options suggested by the previous government were of low quality, full of errors and not always relevant. To have a proper debate about what should be the use of DNA in policing with both aims of reducing crime and protecting our civil liberties, we need to have facts that can be trusted and inform this debate. For instance, while the previous government pushed for long retention periods with dubious arguments, it never arranged to publish data on how long DNA profiles of crime scenes and individuals had been retained, per crime type, when a DNA match or detection occurs. Another example: it is known the percentage of recorded crimes which involve a DNA detection is less than 0.4%, but not how many lead to convictions and whether DNA was even essential. There are few facts and much speculation. Hard evidence must be required to justify any measure that risk affecting innocents.

Bootnote Until the legislation changes, the exceptional case procedure is the only way to get off the National DNA Database. (The Crime and Security Act 2010 received Royal Ascent but none of its sections concerning the DNA database have come into force and now they won't.) The website Reclaim your DNA offers a step-by-step guide for innocents to request to be taken off this crime-related intelligence database and ensure that their personal genetic information samples are destroyed. Chief constables may claim that you need to wait until a change of guidelines; this is disingenuous as they have the power to destroy DNA samples and associated records.

Bootnote Sections 18 and 18A of the Criminal Procedure (Scotland) Act 1995

18. Prints, samples etc. in criminal investigations. —

(1) This section applies where a person has been arrested and is in custody or is detained under section 14(1) of this Act.

(2) A constable may take from the person, or require the person to provide him with, such relevant physical data as the constable may, having regard to the circumstances of the suspected offence in respect of which the person has been arrested or detained, reasonably consider it appropriate to take from him or require him to provide, and the person so required shall comply with that requirement.

(3) Subject to subsection (4) below and section 18A of this Act, all record of any relevant physical data taken from or provided by a person under subsection (2) above, all samples taken under subsection (6) or (6A) below and all information derived from such samples shall be destroyed as soon as possible following a decision not to institute criminal proceedings against the person or on the conclusion of such proceedings otherwise than with a conviction or an order under section 246(3) of this Act.

(4) The duty under subsection (3) above to destroy samples taken under subsection (6) [F6or (6A)] below and information derived from such samples shall not apply—(a) where the destruction of the sample or the information could have the effect of destroying any sample, or any information derived therefrom, lawfully held in relation to a person other than the person from whom the sample was taken; or (b) where the record, sample or information in question is of the same kind as a record, a sample or, as the case may be, information lawfully held by or on behalf of any police force in relation to the person.

(5) No sample, or information derived from a sample, retained by virtue of subsection (4) above shall be used—(a) in evidence against the person from whom the sample was taken; or (b) for the purposes of the investigation of any offence.

(6) A constable may, with the authority of an officer of a rank no lower than inspector, take from the person—(a) from the hair of an external part of the body other than pubic hair, by means of cutting, combing or plucking, a sample of hair or other material; (b) from a fingernail or toenail or from under any such nail, a sample of nail or other material; (c) from an external part of the body, by means of swabbing or rubbing, a sample of blood or other body fluid, of body tissue or of other material; (d) . . . .

(6A) A constable, or at a constable’s direction a police custody and security officer, may take from the inside of the person’s mouth, by means of swabbing, a sample of saliva or other material.

(7) . . . .

(7A) For the purposes of this section and sections 19 to 20 of this Act “relevant physical data” means any—(a) fingerprint; (b) palm print; (c) print or impression other than those mentioned in paragraph (a) and (b) above, of an external part of the body; (d) record of a person’s skin on an external part of the body created by a device approved by the Secretary of State.

(7B) The Secretary of State by order made by statutory instrument may approve a device for the purpose of creating such records as are mentioned in paragraph (d) of subsection (7A) above.

(8) Nothing in this section shall prejudice—(a) any power of search; (b) any power to take possession of evidence where there is imminent danger of its being lost or destroyed; or (c) any power to take prints, impressions or samples under the authority of a warrant.

18A Retention of samples etc.: prosecutions for sexual and violent offences. —

(1) This section applies to any sample, or any information derived from a sample, taken under subsection (6) or (6A) of section 18 of this Act, where the condition in subsection (2) below is satisfied.

(2) That condition is that criminal proceedings in respect of a relevant sexual offence or a relevant violent offence were instituted against the person from whom the sample was taken but those proceedings concluded otherwise than with a conviction or an order under section 246(3) of this Act.

(3) Subject to subsections (9) and (10) below, the sample or information shall be destroyed no later than the destruction date.

(4) The destruction date is—(a) the date of expiry of the period of 3 years following the conclusion of the proceedings; or (b) such later date as an order under subsection (5) below may specify.

(5) On a summary application made by the relevant chief constable within the period of 3 months before the destruction date the sheriff may, if satisfied that there are reasonable grounds for doing so, make an order amending, or further amending, the destruction date.

(6) An application under subsection (5) above may be made to any sheriff—(a) in whose sheriffdom the person referred to in subsection (2) above resides; (b) in whose sheriffdom that person is believed by the applicant to be; or (c) to whose sheriffdom the person is believed by the applicant to be intending to come.

(7) An order under subsection (5) above shall not specify a destruction date more than 2 years later than the previous destruction date.

(8) The decision of the sheriff on an application under subsection (5) above may be appealed to the sheriff principal within 21 days of the decision; and the sheriff principal's decision on any such appeal is final.

(9) Subsection (3) above does not apply where—(a) an application under subsection (5) above has been made but has not been determined; (b) the period within which an appeal may be brought under subsection (8) above against a decision to refuse an application has not elapsed; or (c) such an appeal has been brought but has not been withdrawn or finally determined.

(10) Where—(a) the period within which an appeal referred to in subsection (9)(b) above may be brought has elapsed without such an appeal being brought; (b) such an appeal is brought and is withdrawn or finally determined against the appellant; or (c) an appeal brought under subsection (8) above against a decision to grant an application is determined in favour of the appellant, the sample or information shall be destroyed as soon as possible thereafter.

(11) In this section—“the relevant chief constable” means—(a) the chief constable of the police force of which the constable who took or directed the taking of the sample was a member; (b) the chief constable of the police force in the area of which the person referred to in subsection (2) above resides; or (c) a chief constable who believes that that person is or is intending to come to the area of the chief constable's police force; and “relevant sexual offence” and “relevant violent offence” have the same meanings as in section 19A(6) of this Act and include any attempt, conspiracy or incitement to commit such an offence.

It may not be obvious from a naive reading of Section 18A(2) whether that condition for retention applies when someone is arrested or charged. The correct reading is that there can be retention only when someone has been charged for 'a relevant sexual offence or a relevant violent offence'. The exact meaning of when criminal proceedings are instituted is defined in section 15(2)(c) of the Prosecution of Offences Act 1985 (thanks to L for this reference):

(2) For the purposes of this Part, proceedings in relation to an offence are instituted— [...] (c) where a person is charged with the offence after being taken into custody without a warrant, when he is informed on the particulars of the charge;

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