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 »

S and Marper v UK: Judgment

The judgement for the historic case of S and Marper v the United Kingdom is below.

The background case details for S and Marper are available here

Result for the case, in brief, are available here

The key question, of “Will the police delete DNA as a result of the ruling” is discussed here?


EUROPEAN COURT OF HUMAN RIGHTS

880

4.12.2008

Press release issued by the Registrar

GRAND CHAMBER JUDGMENT
S. AND MARPER v. THE UNITED KINGDOM

The European Court of Human Rights has today delivered at a public hearing its Grand Chamber judgment1 in the case of S. and Marper v. the United Kingdom (application nos. 30562/04 and 30566/04).

The Court held unanimously that:

· there had been a violation of Article 8 (right to respect for private and family life) of the European Convention on Human Rights;

· it was not necessary to examine separately the complaint under Article 14 (prohibition of discrimination) of the Convention.

Under Article 41 (just satisfaction), the Court considered that the finding of a violation, with the consequences that this would ensue for the future, could be regarded as constituting sufficient just satisfaction in respect of the non-pecuniary damage sustained by the applicants. It noted that, in accordance with Article 46 of the Convention, it would 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. The Court awarded the applicants 42,000 euros (EUR) in respect of costs and expenses, less the EUR 2,613.07 already paid to them in legal aid. (The judgment is available in English and French.)

1.  Principal facts

The applicants, S. and Michael Marper, are both British nationals, who were born in 1989 and 1963 respectively. They live in Sheffield, the United Kingdom.

The case concerned the retention by the authorities of the applicants’ fingerprints, cellular samples and DNA profiles after criminal proceedings against them were terminated by an acquittal and were discontinued respectively.

On 19 January 2001 S. was arrested and charged with attempted robbery. He was aged eleven at the time. His fingerprints and DNA samples2 were taken. He was acquitted on 14 June 2001. Mr Marper was arrested on 13 March 2001 and charged with harassment of his partner. His fingerprints and DNA samples were taken. On 14 June 2001 the case was formally discontinued as he and his partner had become reconciled.

Once the proceedings had been terminated, both applicants unsuccessfully requested that their fingerprints, DNA samples and profiles be destroyed. The information had been stored on the basis of a law authorising its retention without limit of time.

2.  Procedure and composition of the Court

The application was lodged with the European Court of Human Rights on 16 August 2004 and declared admissible on 16 January 2007. The Chamber to which the case was assigned decided to relinquish jurisdiction to the Grand Chamber on 10 July 20073.

The National Council for Civil Liberties and Privacy International were granted leave to intervene in the written procedure before the Grand Chamber.

A public hearing took place in the Human Rights building, Strasbourg, on 27 February 2008.

The judgment was given by the Grand Chamber of 17 judges, composed as follows:

Jean-Paul Costa (France), President,
Christos Rozakis (Greece),
Nicolas Bratza (United Kingdom),
Peer Lorenzen (Denmark),
Françoise Tulkens (Belgium),
Josep Casadevall (Andorra),
Giovanni Bonello (Malta)
Corneliu Bîrsan (Romania),
Nina Vajić (Croatia),
Anatoly Kovler (Russia),
Stanislav Pavlovschi (Moldova),
Egbert Myjer (Netherlands),
Danutė Jočienė (Lithuania),
Ján Šikuta (Slovakia),
Mark Villiger (Switzerland)4,
Päivi Hirvelä (Finland),
Ledi Bianku (Albania), judges,

and also Michael O’Boyle, Deputy Registrar.

3.  Summary of the judgment5

Complaints

The applicants complained under Articles 8 and 14 of the Convention about the retention by the authorities of their fingerprints, cellular samples and DNA profiles after their acquittal or discharge.

Decision of the Court

Article 8

The Court noted that cellular samples contained much sensitive information about an individual, including information about his or her health. In addition, samples contained a unique genetic code of great relevance to both the individual concerned and his or her relatives. Given the nature and the amount of personal information contained in cellular samples, their retention per se had to be regarded as interfering with the right to respect for the private lives of the individuals concerned.

In the Court’s view, the capacity of DNA profiles to provide a means of identifying genetic relationships between individuals was in itself sufficient to conclude that their retention interfered with the right to the private life of those individuals. The possibility created by DNA profiles for drawing inferences about ethnic origin made their retention all the more sensitive and susceptible of affecting the right to private life.

The Court concluded that the retention of both cellular samples and DNA profiles amounted to an interference with the applicants’ right to respect for their private lives, within the meaning of Article 8 § 1 of the Convention.

The applicants’ fingerprints were taken in the context of criminal proceedings and subsequently recorded on a nationwide database with the aim of being permanently kept and regularly processed by automated means for criminal-identification purposes. It was accepted that, because of the information they contain, the retention of cellular samples and DNA profiles had a more important impact on private life than the retention of fingerprints. However, the Court considered that fingerprints contain unique information about the individual concerned and their retention without his or her consent cannot be regarded as neutral or insignificant. The retention of fingerprints may thus in itself give rise to important private-life concerns and accordingly constituted an interference with the right to respect for private life.

The Court noted that, under section 64 of the 1984 Act, the fingerprints or samples taken from a person in connection with the investigation of an offence could be retained after they had fulfilled the purposes for which they were taken. The retention of the applicants’ fingerprint, biological samples and DNA profiles thus had a clear basis in the domestic law.

At the same time, Section 64 was far less precise as to the conditions attached to and arrangements for the storing and use of this personal information.

The Court reiterated that, in this context, it was essential to have clear, detailed rules governing the scope and application of measures, as well as minimum safeguards. However, in view of its analysis and conclusions as to whether the interference was necessary in a democratic society, the Court did not find it necessary to decide whether the wording of section 64 met the “quality of law” requirements within the meaning of Article 8 § 2 of the Convention.

The Court accepted that the retention of fingerprint and DNA information pursued a legitimate purpose, namely the detection, and therefore, prevention of crime.

The Court noted that fingerprints, DNA profiles and cellular samples constituted personal data within the meaning of the Council of Europe Convention of 1981 for the protection of individuals with regard to automatic processing of personal data.

The Court indicated that the domestic law had to afford appropriate safeguards to prevent any such use of personal data as could be inconsistent with the guarantees of Article 8 of the Convention. The Court added that the need for such safeguards was all the greater where the protection of personal data undergoing automatic processing was concerned, not least when such data were used for police purposes.

The interests of the individuals concerned and the community as a whole in protecting personal data, including fingerprint and DNA information, could be outweighed by the legitimate interest in the prevention of crime (the Court referred to Article 9 of the Data Protection Convention). However, the intrinsically private character of this information required the Court to exercise careful scrutiny of any State measure authorising its retention and use by the authorities without the consent of the person concerned.

The issue to be considered by the Court in this case was whether the retention of the fingerprint and DNA data of the applicants, as persons who had been suspected, but not convicted, of certain criminal offences, was necessary in a democratic society.

The Court took due account of the core principles of the relevant instruments of the Council of Europe and the law and practice of the other Contracting States, according to which retention of data was to be proportionate in relation to the purpose of collection and limited in time. These principles had been consistently applied by the Contracting States in the police sector, in accordance with the 1981 Data Protection Convention and subsequent Recommendations by the Committee of Ministers of the Council of Europe.

As regards, more particularly, cellular samples, most of the Contracting States allowed these materials to be taken in criminal proceedings only from individuals suspected of having committed offences of a certain minimum gravity. In the great majority of the Contracting States with functioning DNA databases, samples and DNA profiles derived from those samples were required to be removed or destroyed either immediately or within a certain limited time after acquittal or discharge. A restricted number of exceptions to this principle were allowed by some Contracting States.

The Court noted that England, Wales and Northern Ireland appeared to be the only jurisdictions within the Council of Europe to allow the indefinite retention of fingerprint and DNA material of any person of any age suspected of any recordable offence.

It observed that the protection afforded by Article 8 of the Convention would be unacceptably weakened if the use of modern scientific techniques in the criminal-justice system were allowed at any cost and without carefully balancing the potential benefits of the extensive use of such techniques against important private-life interests. Any State claiming a pioneer role in the development of new technologies bore special responsibility for striking the right balance in this regard.

The Court was struck by the blanket and indiscriminate nature of the power of retention in England and Wales. In particular, the data in question could be retained irrespective of the nature or gravity of the offence with which the individual was originally suspected or of the age of the suspected offender; the retention was not time-limited; and there existed only limited possibilities for an acquitted individual to have the data removed from the nationwide database or to have the materials destroyed.

The Court expressed a particular concern at the risk of stigmatisation, stemming from the fact that persons in the position of the applicants, who had not been convicted of any offence and were entitled to the presumption of innocence, were treated in the same way as convicted persons. It was true that the retention of the applicants’ private data could not be equated with the voicing of suspicions. Nonetheless, their perception that they were not being treated as innocent was heightened by the fact that their data were retained indefinitely in the same way as the data of convicted persons, while the data of those who had never been suspected of an offence were required to be destroyed.

The Court further considered that the retention of unconvicted persons’ data could be especially harmful in the case of minors such as the first applicant, given their special situation and the importance of their development and integration in society. It considered that particular attention had to be paid to the protection of juveniles from any detriment that could result from the retention by the authorities of their private data following acquittals of a criminal offence.

In conclusion, 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, failed to strike a fair balance between the competing public and private interests, and that the respondent State had overstepped any acceptable margin of appreciation in this regard. Accordingly, the retention in question constituted a disproportionate interference with the applicants’ right to respect for private life and could not be regarded as necessary in a democratic society. The Court concluded unanimously that there had been a violation of Article 8 in this case.

Article 14 in conjunction with Article 8

In the light of the reasoning that led to its conclusion under Article 8 above, the Court considered unanimously that it was not necessary to examine separately the complaint under Article 14.

***

The Court’s judgments are accessible on its Internet site (http://www.echr.coe.int).

Press contacts
Adrien Raif-Meyer (telephone: 00 33 (0)3 88 41 33 37)
Tracey Turner-Tretz (telephone: 00 33 (0)3 88 41 35 30)
Sania Ivedi (telephone: 00 33 (0)3 90 21 59 45)

The European Court of Human Rights was set up in Strasbourg by the Council of Europe Member States in 1959 to deal with alleged violations of the 1950 European Convention on Human Rights.

1 Grand Chamber judgments are final (Article 44 of the Convention).

2.  DNA stands for deoxyribonucleic acid; it is the chemical found in virtually every cell in the body and the genetic information therein, which is in the form of a code or language, determines physical characteristics and directs all the chemical processes in the body. Except for identical twins, each person’s DNA is unique. DNA samples are cellular samples and any sub-samples or part samples retained from these after analysis. DNA profiles are digitised information which is stored electronically on the National DNA Database together with details of the person to whom it relates.

3 Under Article 30 of the Convention, where a case pending before a Chamber raises a serious question affecting the interpretation of the Convention or the protocols thereto, or where the resolution of a question before the Chamber might have a result inconsistent with a judgment previously delivered by the Court, the Chamber may, at any time before it has rendered its judgment, relinquish jurisdiction in favour of the Grand Chamber, unless one of the parties to the case objects.

4 Judge elected in respect of Liechtenstein.

5 This summary by the Registry does not bind the Court.

S. and Michael Marper v. The United Kingdom (DNA Retention)

This site, Where is My Data?, again contacted the ECHR today in relation to the date the court expects a ruling on the case of S. and Michael Marper v. The United Kingdom

The ECHR are now stating that the case is due to receive a ruling “sometime this year”, and no further information is available on this, at the moment.

Full Case

DNA Cards – Vietnam | Where is My Data?

HA NOI — People suffering from hereditary diseases may benefit from a DNA-testing programme that Viet Nam plans to introduce by 2010.
The programme, implemented by the Ha Noi-based Centre for Genetic Analysis and Technologies, would include ‘DNA cards’ that help in early detection of 10 of the most common hereditary diseases, said Le Dinh Luong, the centre founder and president of the Viet Nam Genetics Society.
“Each hereditary disease is a sign of one or more errors in DNA,” said Luong. “Today’s genetics technology can find these errors in each person, and warn them of the potential that they may acquire a certain disease.”
Luong said the programme would include personal DNA cards, which would be made following medical tests on patients. These cards will include advice on treatment and how to prevent or slow down diseases.
“DNA disease detection cards could be personalised to find remedies for each disease and each person,” said Luong.

Full Story now available on the new site – DNA Cards – Vietnam | Where is My Data?.

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DNA: Statistics for Innocent People (2006)

UK legislation enables the police to take DNA and fingerprints from persons who have been arrested for, charged with, or informed they will be reported for a recordable offence and detained in a police station.

The same legislation also states that the DNA or fingerprints can only be used for the purposes of prevention and detection of crime, the investigation of an offence, the conduct of a prosecution or, since April 2005, for the purposes of identifying a deceased person.

Following arrest for a specific offence it may be decided not to proceed with a case against a person. It may be more difficult to establish whether someone who has had their DNA or fingerprints taken is entirely innocent of any crime. This may be for a number of reasons; it may be determined that they were not involved, or it may be that there is not sufficient evidence to proceed with a case. It is also the case that a number of those charged with an offence may not be proceeded against at court, or may be acquitted by a court. In all of these cases there will be no official ‘sanction disposal’ (conviction, caution or other penalty), but ‘innocence’ is not always clearly established.

From records held on the National DNA Database and Police National Computer we know that from over 3 million people sampled, roughly:
124,000 people have been arrested and not proceeded against for that offence

200,000 have been arrested and charged with an offence but have been subsequently acquitted, not proceeded against or the charges have been dropped.

In each of these situations, a number of people have gone on to be linked to further offences:

From those arrested but not proceeded against for a specific offence, more than 2000 people have been linked to over 3000 other crimes, including around 40 murders and 90 rapes. For those arrested and charged but not convicted or otherwise determined to have committed that specific offence around 8500 have been linke

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