Thu, 18 Dec 2008

Don't delay: Delete your DNA today

Published in El Reg

El Reg's step-by-step guide to reclaim your DNANow that a European Court has decided that the retention of the DNA of innocent people is illegal - what should you do now?

Earlier this month, 17 judges on the Grand Chambers of the European Court of Human Rights (ECHR) ruled unanimously that the UK is in violation of the right to respect for private and family life (Article 8) by retaining the fingerprints, DNA samples and profiles of Messrs S and Marper. Mr S was arrested at the age of 11 and charged with attempted robbery. Mr Michael Marper was arrested and charged with harassment of his partner. Both were arrested in 2001, and both had their fingerprints and DNA samples taken. Later that same year Mr S was acquitted and the case of Mr Marper was formally discontinued, as he and his partner had become reconciled and the charge was not pressed.

The court found

that 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, as applied in the case of the present applicants, fails to strike a fair balance between the competing public and private interests and that the respondent State has overstepped any acceptable margin of appreciation in this regard. Accordingly, the retention at issue constitutes a disproportionate interference with the applicants' right to respect for private life and cannot be regarded as necessary in a democratic society.

Let's look at the consequences of this ruling. What you can you do - as soon as you've finished reading this article - and what is the likely impact on legislation and policies?

Don't delay - delete your DNA today

The ruling clearly affects the retention by England, Wales and Northern Ireland police forces of fingerprints and DNA samples, and derived DNA profiles of both those who have been acquitted and those for which a decision of no further action (NFA) was taken. If you are among the estimated 573,639 to 857,366 innocents whose DNA profile is on the National DNA Database (NDNAD), you should act now. Don't wait until the time the police will have to weed out these records and samples.

Writing to the chief of police

The first step is to write to the chief of police of the force that arrested you. This may seem obvious, but several responses to freedom of information (FOI) requests we sent out as part of the research for this article, before the outcome of the S and Marper UK case was known, reveal that few individuals have gone to the trouble of asking.

At one extreme, the Warwickshire Police force has not received any requests in the last three years even though they contributed 12,263 DNA profiles to the NDNAD in the same period. At the other end of the scale, the Metropolitan Police, which in the past three years has contributed 85,305 DNA profiles, close to a fifth of the DNA profiles added by all English and Welsh forces to the NDNAD, received only 23, 64 and 110 requests for the removal of DNA profiles from the NDNAD, and granted 11, 18 and 21 of these respectively for 2006, 2007 and 2008 (up to the end of November).

Even though the West Midlands Police has in recent years arrested for recorded crimes about a third the number the Met has, it has received a similar number of requests for removal: 58, 49 and 83, and granted 25, 7 and 28 of these respectively for 2006, 2007 and 2008 (to November 21). For forces with fewer arrests such as the Cheshire, Durham or Gwent Constabularies, you can count the number of requests granted, since recording them started, on one hand. Police guidelines (the Retention Guidelines for Nominal Records on the Police National Computer) ensured that received requests to get off the NDNAD were granted only exceptionally. As a consequence of the ruling, the exceptional will have to become the norm.

Several forces do not keep a tally of the requests they receive. For example, the Northamptonshire Police responded to our request for details: "There is no single database holding the information requested. Some information may be held on individual custody records but manual examination would take the request over the cost limit and any results would not be conclusive in any case." One force, the Derbyshire Constabulary decided "As a result of your request [I] have asked the staff who deal with exceptional cases to consider making a record of requests and decisions."

Dr Helen Wallace, Director of GeneWatch UK, a not-for-profit organisation that monitors developments in genetic technologies from a public interest perspective, which provided expert evidence on behalf of Messrs S and Marper to the ECHR, commented on the ruling: "[This] landmark decision vindicates all those innocent people who have struggled to get their DNA destroyed. It means that there must be strict new rules to limit DNA retention and prevent misuse."

How to write a formal request

Having decided to write to request destruction of your fingerprints and DNA samples, deletion of your DNA profile and deletion or updating of any other database records linking to this information, the next step is to figure out what you should write. You need to include enough information so the police can identify you, the circumstances in which you were arrested (and your fingerprints and DNA samples were taken), details of the NFA decision or of your acquittal, and the reason you are requesting your records to be deleted and your samples to be destroyed.

This initial letter doesn't have to be long but it must be precise otherwise the police won't be able to deal with it. In its FOI response, the Cheshire Constabulary explained that it "receives numerous 'requests' for the removal of DNA, [t]he majority of which could not be considered formal request as when asked why we should consider their request, they simply do not respond or they actually mean something different. We would seek to clarify requests to establish the identity of the requestor and the reasons why they are requesting removal of data. This is well before we can actually consider the merits of a request and whether or not it fits the requirements of the Exceptional Cases procedure."

GeneWatch suggests this as a reason to "[a]sk for them to remove your records and destroy your DNA in the light of the judgment of the European Court of Human Rights". You may want to send a copy of the letter to your MP and a copy of any reply to GeneWatch (and let us know how it goes as well).

Another suggestion is that you may also want to argue for the police to remove your records and destroy your DNA samples in "other cases (e.g. cautions, final warnings, spent minor convictions)". Although the ECHR decision only covers people who have not been convicted, it makes clear that an interference with personal informational privacy such as the retention and use of profiles and samples must be indispensable and proportionate with the legitimate aim of the criminal justice system (i.e., the seriousness of the offence).

The Court cannot, however, disregard the fact that, notwithstanding the advantages provided by comprehensive extension of the DNA database, other Contracting States have chosen to set limits on the retention and use of such data with a view to achieving a proper balance with the competing interests of preserving respect for private life... The Court considers that any State claiming a pioneer role [as the UK is] in the development of new technologies bears special responsibility for striking the right balance in this regard.

If you're in a situation where you find this balance has not been achieved, for example the indefinite retention for children given reprimands, then you may also benefit from this ruling.

Taking into account the ECHR ruling, the police are now likely to accept all legitimate requests as they would be in a very weak position if an innocent person were to seek a judicial review in case of refusal. Due to the small number of requests granted prior to the ruling, the actual deletions from the NDNAD and the Police National Computer (PNC) and destruction of samples is a very ad-hoc process. The Met promised a process last year and eventually did publish one (pdf), but it was not worth the wait.

Here's the process they go through: "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 National Police Improvement Agency (NPIA) realises that "following the judgement last week in the S & Marper case heard at the European Court of Human Rights the DNA sample retention and destruction requirements are being reviewed." At least, once a DNA profile has been deleted from the database, it would appear that these transactions are propagated to all backups in short time:

The NDNAD has both a regular internal and a regular off-site back-up procedure. All transactions carried out on the NDNAD are backed up each working day. The deletion of profiles from the NDNAD would be treated the same as any other NDNAD transaction within this back-up procedure. Any record of a DNA profile will also be removed from all back-up media within 10 days of its deletion from NDNAD.

Until a comprehensive process is published giving stronger confidence in the deletion process, once you get confirmation that your request has been granted you may want to ask to be present when the physical samples are destroyed and electronic data is deleted and updated. If you go for this, ask speedily or possibly even with your request letter, as in my case the deletion process was started before informing me of the decision!

Observing the process by a large number of individuals would be costly in time and money; an easier alternative would be for the labs used by the police to generate DNA profiles from the samples taken from individuals to systemically destroy the DNA samples once a DNA profile has been derived. The DNA samples are not used for identification.

Changes of legislation and policies

What does the ECtHR ruling change for the government and the police? Article 44 of the European Convention of Human Rights (ECHR) states that the "The judgment of the Grand Chamber shall be final" and article 46 that "The High Contracting Parties undertake to abide by the final judgment of the Court in any case to which they are parties" - so the UK government can't ignore this ruling. Jack Straw confirmed in Parliament that "The judgment... goes on to suggest that distinctions should be made between the nature of offences for which samples have been taken, and discusses whether they should be time-limited and whether there should be an independent review. Those matters will be considered by my right hon. Friend the Home Secretary in consultation across Government. We have an obligation to report initially to the Council of Ministers and the Council of Europe by March."

The Joint Committee on Human Rights explained the mechanism of abiding by such rulings in its 31st report:

The UK has undertaken to give effect to the ECHR and to give effect to the judgments of the ECHR. The UK must abide by ECHR judgments by: (1) putting an end to the breach identified by the Court (the obligation of cessation); (2) preventing any further violations in the future (the obligation of non-repetition); (3) repairing the damage caused to the individual (the obligation of reparation); (4) paying to an individual applicant any award of just satisfaction made by the ECtHR (the obligation to make just satisfaction).

The obligation of cessation

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" must cease. "The Court recalls that it has found that the retention of the applicants' fingerprint and DNA data violates their rights under Article 8. In accordance with Article 46 of the Convention, it will be for the respondent State to implement, under the supervision of the Committee of Ministers, appropriate general and/or individual measures to fulfil its obligations to secure the right of the applicants and other persons in their position to respect for their private life."

Solicitor Peter Mahy, a human rights specialist at Sheffield-based Howells LLP representing Messrs S and Marper, puts it succinctly: "It will be very interesting to see how the UK government respond. The government should now start destroying the DNA records of those people who are currently on the DNA database and who are innocent of any crime." Up to one in five of the more than five million DNA profiles may have to go.

A process has to be put in place to deal with the scale of this operation. The Scottish Police Services Authority (SPSA), a non-departmental public body (NDPB), centrally handles the removals of more than 20,000 Scottish DNA records every year. Police forces in England and Wales will likely look at this model. With its role of overseeing delivery of the NDNAD Service, the NPIA should be a candidate for a similar central function. In the meantime those innocents whose DNA is on the NDNAD should request removal as explained earlier.

The retention rules will have to change too. The legislation enables the police to take and retain fingerprints and DNA samples indefinitely, but it does not compel them. Section 64 of the Police and Criminal Evidence Act 1984 (PACE) as amended by the Criminal Justice and Police Act 2001 includes:

(1A) Where - (a) fingerprints or samples are taken from a person in connection with the investigation of an offence, and (b) subsection (3) below does not require them to be destroyed, the fingerprints or samples may be retained after they have fulfilled the purposes for which they were taken but shall not be used by any person except for purposes related to the prevention or detection of crime, the investigation of an offence or the conduct of a prosecution.

The police may take samples and may retain them indefinitely, but it's up to them. The current rules were not decided by Parliament; they are established in the Retention Guidelines for Nominal Records on the Police National Computer, a document issued by the Association of Chief Police Officers (ACPO). This document also provides a template for the letter sent by chiefs of police when refusing requests for destruction of DNA records.

Chris Sims, ACPO lead on Forensics and Chief Constable of Staffordshire Police announced: "We will study this judgment carefully and consider in detail implications which could have a profound impact on the way in which the police service makes use of DNA technology to protect the public and tackle crime... It is important to stress that the existing law on the taking and retention of DNA and fingerprints remains in place. Police will continue to take DNA from those people arrested for crimes and will investigate crimes and bring offenders before the court using DNA evidence until such time as there is a legislative change."

This statement is overly cautious - no legislative change is needed for the ACPO to change its guidelines. What must change is the retention of records and samples. Taking DNA from those arrested for a crime is not the issue. Home Office minister Vernon Coaker, agreed in a Parliament debate in November that the "[ACPO retention] 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."

The obligation of non-repetition

The recent PACE review made it clear that it will be amended in line with the judgment. "The Government does not intend to make any proposals at this time in area. That is because of an outstanding case in the European Court of Human Rights... a response in respect of this area of policy will be made following consideration of the Judgement by the Court."

It is necessary for the legislation to change so that it is no longer possible for the police to create and follow policies that violate our human rights. However, effective change of current retention practices can happen much sooner with a change of policy.

The obligations of reparation to make just satisfaction

The Court considers that "the finding of a violation, with the consequences which will ensue for the future, may be regarded as constituting sufficient just satisfaction in this respect. The Court accordingly rejects the applicants' claim for non-pecuniary damage." Hence the reparation will consist of deleting the DNA profiles and destroying the DNA samples and fingerprints of Messrs S and Marper. The government has to pay within three months, ie by March 4, the sum of €39,387 awarded by the Court in respect of costs and expenses.

The Committee of Ministers has the responsibility to monitor the measures taken by the UK to comply with the judgment. "[U]ntil the state in question has adopted satisfactory measures, the Committee of Ministers does not adopt a final resolution striking the judgment off its list of cases, and the state continues to be required to provide explanations or to take the necessary action."

Some misconceptions

Retaining DNA of a large number of individuals has not proved helpful. A GeneWatch analysis shows 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%... The Home Office recognises that the increased number of crime scene profiles added to the Database drove the increase in DNA detections."

Nothing in the ECHR ruling affects the ability of the police to take DNA samples from those they arrest during their investigations. Nor does the ruling ask for wholesale deletion of DNA records of convicted criminals, though it does note that in other Council of Europe member States "[t]he retention of DNA profiles of convicted persons is allowed, as a general rule, for limited periods of time after the conviction or after the convicted person's death. The United Kingdom thus also appears to be the only member State expressly to allow the systematic and indefinite retention of both profiles and samples of convicted persons."

The Joint Committee on Human Rights in the conclusions of its report notes "[d]elays of upwards of five years in resolving the most significant breaches of the European Convention are unacceptable unless extremely convincing justification for the delay can be provided." This only serves to reiterate that those who are innocent and on the NDNAD should not delay requesting the removal of their DNA records. ®

(The full text of the judgement is available on the British and Irish Legal Information Institute website and you can download a six minutes video of the reading of the judgment's summary from a hard-to-find page on the Council of Europe's website.)

El Reg Read and comment on this article at El Reg...

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