DNA Rention Limits – More of the Same

The Home Office is due to formally  state that their plan is to maintain the DNA data, of innocent people, for 6 years.

This is, of course, a lot longer than the zero time of many other countries and the UK less than a decade ago, but still a lot less than the previous policy of “forever”.

This statement now follows on from the previous statement in May 2009 by the government of the intention to retain the data fro 12 and 6 years, depending on the offense.

For those not acquainted with the reasons behind this change in the law this is due to the S and Marper V United Kingdom test cases in the ECHR, where they challenged, successfully the UK law on detaining, indefinitely the DNA samples of innocent.

 

 

DNA: Does the DNA database work?

Following the Marper case in the ECHR, the defeat of the Government, the House of Lords report on privacy, and finally the Governments decision on how to enforce the ECHR decision [retain DNA for up to 12 years], there has been a lot of speculation on the pros and cons of a DNA database, does it work, is it good? Does it cut crime? Below are some of the arguments for and against the DNA database.

Argument for the DNA database:

It works, it’s reliable, and it’s used the world over.

It takes seconds for a person to give a DNA sample, and it is hardly “intrusive” nothing more than a tooth brush is used.

The more DNA samples the government has the more crimes that can be detected. There are plenty of examples of individuals being convicted of crimes years after they committed that crime, and others.  Some of people were only caught after they were arrested for another crime, often a trivial one, e.g. driving without tax. If the police had not taken the DNA for such a small crime they would have never caught the offender. There is no reason for people not to be on a national DNA database, and only those who are criminals need to be concerned by this. 

The “human rights” of criminals are not as important as the rights of victims, potential victims, and the public in general.

Argument against the DNA database: (This argument is based, in part, on the assumption that there are finite resources and humans are fallible)

DNA is an impressive technology, and can solve crimes that traditional policing methods cannot; however mass DNA sampling does not work, in fact DNA sampling follows the laws of diminishing returns. The more DNA that is taken, the less useful it is, as the more likely it is that a false match is made. For example, if DNA is taken from a murder scene the DNA of the murder victim, the murderer, anybody who went to the scene will be there. If 100% of the population is on the DNA database, there is a 100% chance that, if there are 3 DNA samples at the murder scene, one will be a false match.

Then there is the cost. There is a significant cost to collecting and processing DNA from somebody, and the more that is collected the greater the costs. But the world’s largest DNA database will not detect a single crime by itself, it’s matching DNA at the scene which allows the detection of crime, and this also costs money. With finite resources it is, statistically, better to put the resources into DNA collection and sampling at the scene, rather than from collecting DNA from the whole population.

The idea that the DNA would not be misused by the government is optimistic, at best. The UK Government has already changed the law several times, to increase the DNA collection from only the guilty to anyone arrested, including the innocent.  The government loses and misuses data over and over again, it is highly likely that the DNA samples would be used for medical research, profiling, sold, lost or used illegally. It will also move between countries, so even those who trust the UK government, may not trust the US, Italian, or Turkish governments with their DNA profile.

There are already 4.5 million on the UK Nationla DNA samples on the database, making it the world’s largest. Yet the UK still has a far higher crime rate than coutnries with a tiny DNA database. Those who commit crime over and over again, e.g. those who have 200 plus convictions, have had their DNA taken many times, showing that the DNA database is not a deterrent. Collection of more samples, in addition to the 4.5 million will only significantly increase the amount of innocent people on the database, rather than the criminal population on the database. If more resources were put into DNA sample collection and processing at crime scenes then the current DNA database could be used more effectively, rather than growing it further and not using it effectively.

DNA sampling is not perfect, and errors are made. Humans, simply put, make mistakes. The more DNA is taken, the more errors there will be. Finally,  use DNA, use it wisely, and target the resources where they are most effective.

DNA: S and Marper – Governments decision

In 2004 the UK government changed the law on DNA collection, and retention, to allow the police to take DNA from people who have not been charged, i.e. innocent poeople

Following this there was a test case, brough by two individuals, “S” and “Marper”, resulting in a case that went all the way to the ECHR, and resulted in a verdict against the UK Government in Decemebr 2008.

Following this there was an expectation by many that the UK government would delete innocents people data from the data base. Though this site, bucked the trend and suggested that the police would not delete DNA from innocent people.

Despite comments by the Home Secretary, repeated in answer to questions in the House of Commons, that they would follow the ruling of the ECHR, this is not really the case.

The government does intend to retain data of innocent people, they have just put a time limit on it. It is 12 years if your accused of a  violent of sex crime, and the emphaiss here is on accused, rather than charged, convicted, or there been any evidence against you at all.  If its  a lesser crime it wil be 6 years.

Though in 6 years time the governmetn could change the law again, or they could just chose to not delete the data.

 

The net result is if your arrested, regardless of the circumstances, your DNA will be taken and kept.

DNA Error or DNA Success?

Sean Hodgson was recently freed after 27 years in prison for a murder he did not committ. This was not a case of the police knowing they had the right man and a technicality getting the individual of, but rather a case of a innocent man being freed, thanks (in part) to DNA testing.

DNA, which is often used to prove a conviction, showed that the Sean Hodgson was innocent, and the judge stated that it was not possible for Sean to have committed the crime.

The reasons Sean went to prison are no longer relevant as the UK police force’s  and laws have change beyond  all recognition since the original case in 1982 (the major change being the introduction of the Police and Criminal Evidence Act 1984, enacted in 1986).

What is relevant to the UK, and this site, is the reasons Sean was not freed adecade ago.

11 years ago the FSS, Forensics Scientific Service, conducted a review of the case and told the defense team that the that case exhibits had not been retained, when in fact they had. It is these same case exhibits that resulted in the freeing of Mr Hodgson in 2009.

Since the  revelation of this failure by the FSS,  which resulted in the an additional 11 years behind bars for Mr Hodgson, it has emergeged that there is an intent to sue the Forensic Scientific Service by the lawyers for Mr Hodgson.

It is the error over a decade ago, which poses the major concern now. Exhibits were booked in, lost, believed to be destroyed and then found again.

Due to the sheer volume of exhibits and data that the FSS handle, this is not in the least bit surprising; errors happen.

There is no suggestion that the error was malicious, or part of a cover up, mearly an error. But this is the problem with DNA sampling, its belived to be infalliable, but people  make mistakes, in labelling, sampling, and even following procedures.

This will always happen, its happened before, and will happen again, in fact DNA errors are more common than people may think. In addition to this there can be errors in the DNA databases itself, and errors can be made during the collection.

Therefore at every point in the DNA testing chain of evidence, from collection, sampling/comparison, and storing there can be, and will be, errors.

In this case an error with the DNA system failed to free a man, though equally an error could put an innocent behind bars. Though it should be remembered that the same system that failed to free Sean Hodgson, was later used to prove his innocence.

Due to the statistical errors involved in DNA comparison (collection, testing, storing) the more DNA tests that are carried out the more errors there will be, and this can not be avoided.

With the UK databases having grown so much in the past decade, there are questions as to how many other errors have occured. With the recent S and Marper v United Kingdom ruling, it means that less DNA should be taken, though this does not seem to have happened, but if it does, the potentail for accidental errors will decrease.

Though the potentail for deliberate errors will remain the same.

DNA: US Law, DNA and the Fourth Amendment

As the US prepares to expand its DNA collection program, an interesting document has been passed to WikiLeaks from the Congressional Research Service

The US fourth amendment relates to the issue of  “unreasonable searches and seizures” has been considered for its implications for DNA collection

Abstract. Despite relying on different legal standards, courts have generally upheld laws authorizing law enforcement’s compulsory collection of deoxyribonucleic acid (DNA) as reasonable under the Fourth Amendment of the U.S. Constitution. However, several developments might call this judicial consensus into question. Despite relying on different legal standards, courts have generally upheld laws authorizing law enforcement’s compulsory collection of deoxyribonucleic acid (DNA) as reasonable under the Fourth Amendment of the U.S. Constitution. However, several developments might call this judicial consensus into question.

Full Article.

DNA: US follows UK

In a controversial move the US is following the UK in creation of laws to acquire DNA from suspects (i.e innocent and guilty people), rather than only the guilty.

Currently the US laws are mixed, with some states allowing collection of DNA prior to conviction or charge, but others allowing it on arrest.

The current laws are set to allow the US federal agents (e.g FBI, DEA, ATF, etc) to collect DNA on arrest of any person committing a “felon”, and any non-US citizen connecting any crime.

The UK laws have followed similar changes, though are around 5 years ahead of the US.

The laws in the UK initially allowed the DNA to be taken only from those charged and kept only if they were convicted. Then it was change so that the DNA could be kept even if the person was later found not guilty.

Then it was changed again, allowing the police to take DNA from any person, regardless of the crime upon arrest. There was no longer a requirement to convict or even charge people to obtain, or retain, the DNA.

However the UK has now gone through the cycle and these laws have been tested in the European Court of Human Rights – the equivalent of the US Supreme Court.

In the case of S and Marper v United Kingdom, it was found that the UK had over stepped its remit and breached the basic rights of the individuals “S” and “Marper” whose DNA had been retained, despite not being convicted of any crime.

In addition to this it is well known that there are errors with DNA databases, and that mass DNA databases do not work as effectively as politicians imply.

It should be remembered that as laws change, so do the goal posts of what is an is not acceptable.

Originally DNA was only taken from the guilty, then it was only retained from the guilty, now it can be taken from anyone.It used to be that the DNA would only be used for law enforcement purposes, but in the UK that has already changed as DNA samples have been sold onto other companies.

Laws change, and once the DNA data exists it can be used or misused, as much as the government allows.

No doubt the US will follow suit on this as well.

ACPO Guidelines for DNA Retention

On 24th April 2006 the Association of Chief Police Offices (ACPO) produced a memo in relation to the retention of DNA and similar records.

ACPO recognized that people would be requesting that their DNA, fingerprint and PNC records destroyed if they were innocent of any crime; ACPO stated that There is an increase in the number of requests being made to Chief Constables for the removal of DNA, fingerprints and PNC. This has been brought about by changes to PACE and a recent decision made in the Royal Courts of Justice by the Information Tribunal affecting the retention of criminal conviction history on PNC” and added Chief Constable are able to request the deletion of fingerprint, PNC, and DNA records of data they “own”, i.e data which their force processed.

ACPO even went as far as to define the occasions when DNA and fingerprints would be removed. The memo stated that:

Exceptional cases will, by definition, be rare. They might include cases where the original arrest or sampling was found to be unlawful. Additionally, where it is established beyond doubt that no offence existed, that might, having regard to all the circumstances, be viewed as an exceptional circumstance. 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.

This memo comes after the 2005 ACPO Guidelines for Good Practice on DNA handling, where they simply state:

It is not necessary to destroy the DNA profile if an individual is arrested and subsequently cleared of the offence, or a decision is made not to prosecute (s.64, PACE, 1984). Therefore, profiles of DNA samples taken from individuals who are not prosecuted, released without charge, against whom proceedings are discontinued or who are acquitted will remain on the NDNAD and will be the subject of continuing searches. DNA samples are retained in cold storage at less than -15 degrees C by the laboratory that analysed them. They are used mainly for upgrading the profile with the most current profiling system and for quality assurance purposes.

In these guidelines ACPO make no mention, either way, about the ethics of deleting DNA of an innocent individual, probably something not deemed relevant at the time. Therefore surely the 2006 memo should take precedence?And, if deletion ‘where appropriate’ is the ACPO stated policy why did the UK government fight the case of Marper and S in the ECHR and lose!

If the police had applied a common sense approach, they would have not had the test case in ECHR and therefore lost the powers they claim to need.

Follow

Get every new post delivered to your Inbox.

Join 30 other followers