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.

Does Mass DNA Collection work?

In 2007 the House of Lords started a select committee investigation into privacy,  entitled “The Impact of Surveillance and Data Collection upon the Privacy of Citizens and their Relationship with the State

The results of this report, published in 2009, where damning of the goverments invasion into peoples lives from CCTV to DNA, and called for a reduction in much of this state apparatus, including the taking DNA from every arrested individual, regardless of guilt.

Part of the evidence provided to the House of Lords was from GeneWatch, whose evidence is reported here.

In there report GeneWatch shows that while the collection of  DNA samples from crime scenes was important in the detection of crime, however the collection of DNA from everyone had little effect

“Since April 2003, about 1.5 million extra people have been added to the Database, but the chances of detecting a crime using DNA has remained roughly constant, at about 0.36%.  The Home Office appears to accept that the retention of DNA from innocent people has had little impact on crime detection rates  and seems unable to quantify the claimed benefits.”

GeneWatch also drew the distinction between DNA matches and detections, and showed that the figures reported in Parliment for benifits of mass DNA collection are a “high number of matches” do not stand up to scrutinty. If every person in the country had DNA taken, and every crime scene was checked for DNA, there would be a 100% “match” of DNA at every crime scene, but not necessarily a detection; this is because the matches of the innocent people who have been at the scene will be a “match” and the true offender may not have left and recoverable DNA.

GeneWatch Stated:

“In Parliament, ministers have repeatedly provided figures for DNA matches, rather than detections or convictions. DNA matches are much more frequent than successful prosecutions – they will include many matches with the DNA of victims and of passers-by. Despite the lack of evidence on successful prosecutions, the figures on matches have repeatedly been used by ministers to justify the changes in the law  and have also frequently been misreported as ’solved’ crimes.”

As well as the House of Lords, the ICO has also called into question the ethics of mass DNA collection.

With GeneWatch, the House of Lords, the ICO, and many other respected bodies comming out against mass DNA collection, as well as the ECHR finding against the UKs DNA retention policy, in the S and Marper case, when will the goverment change its direction.

S and Marper: Will the Police Delete your DNA?

After the  historic ruling at the ECHR  for S and Marper v United Kingdom, there is an expectation that the police will be forced to delete all of the DNA collected and retained from  innocent people.

While they [the Police] probably should delete the DNA samples collected from people who were never charged or found not guilty, there is no major announcement from the Home Office to that effect.

In fact, even if the UK creates a new law, based on this test case stating that Police cannot retain DNA from the innocent/non convicted people they may still not delete the data,  for a simple reason – there is no deterrent to keeping it, even if retaining the DNA is illegal.

In US Law there is the concept of “fruit of the poisoned tree”. This means that not only is evidence collected illegally inadmissible it also  means that all evidence found from that information is also inadmissible. For example if a search is illegal, and the search reveals evidence that proves a case, that evidence will not be accepted.

In the UK this is not the case, in fact there are specific laws addressing just this question.

Section 78 of PACE allows the courts to exclude information if it is has been collected illegally, but it does not require it. In fact there are several cases where data that has been collected illegally, has been allowed. Section 76 of PACE deals with similar issues, but in relation to coerced confessions.

Therefore if the police retained the DNA evidence, rather than deleting it it, and then used the DNA sample to locate somebody then that conviction would probably stand, i.e. there is no deterrent to reatining, illegally,  the DNA samples held.

In fact there is case law to support this exact case.

Test Case – ATTORNEY GENERAL’S REFERENCE NO. 3 OF 1999  (14 DECEMBER 2000)

In 1990s when the DNA collection laws where first created the police could only collect DNA after charging, and then had to delete the sample if the individual was found not guilty. This was prior to the laws changing in 2001 and 2004, which allowed the police to take DNA prior to charging and retain it even if the person was not guilty. It is this change in the law that led to the  S and Marper case.

In 1997, when the original DNA collection laws were in place, a male committed a particularly horrific rape of on a 66 year old woman. The offender was detected via a DNA sample left at the scene,  which was matched against the National DNA database. The offender was arrested and  new DNA sample taken (as there always is), and the DNA match confirmed. This DNA evidence resulted in the conviction of the offender. However, the defence team appealed this as the original DNA sample, which led to the arrest was obtained from crime he was not convicted of, and as such should have been deleted.

This argument was initially won, in the Court of Appeal, but was then referred to the House of Lords, at which point the House of Lords stated the DNA sample should have been allowed to be used. As the House of Lords is the superior court this means that the DNA samples that have been kept or obtained illegally can be used to detect offenders.

Therefore it is entirely possible that the following occurs:

The S and Marper case directs the UK to not collect more DNA samples prior to charging, and that those DNA samples of of innocent people that are retained should be deleted. But, the police do not delete the samples and continue to use them as evidence.

Will the police delete your DNA? Probably not.

DNA Database Ruling: S and Marper V United Kingdon

The critical test case of S and Marper V United Kingdom has just been published.

The ECHR found against the UK and for S and Marper.

The two men whose DNA was take despite not being convicted or even charged with any crime had requested that their DNA samples are removed from the Police Database, however the police refused this (as they are able to under the ACPO guidelines)  and the the two men, who are not related and were not involved in the same incident, pushed the case through the courts asking for the DNA to be removed. The case eventually ended up in the ECHR.

There was a unanimous decision, by the 17 judges, that the men’s rights, under Article 8 (right for privacy) had been breached.

With the UK Government storing large amounts of data on innocent people, the UK could/will be forced to scale back its DNA database. With known errors on the DNA databse, this could have profound effects for policing in the the UK

Posted in DNA, UK Law. Tags: , , , , . 4 Comments »
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