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APPLICATION NOS. 30562/04 30566/04
IN THE GRAND CHAMBER OF
THE EUROPEAN COURT OF HUMAN RIGHTS
BETWEEN:
(1) 'S'
(2) MARPER
Applicants
-v-
THE UNITED KINGDOM
Respondent
_____________________________________
STATEMENT OF DR HELEN WALLACE
_____________________________________
Introduction
1. GeneWatch UK is a not-for-profit policy research group concerned with
the science, ethics, policy and regulation of genetic technologies.
GeneWatch‟s aim is to ensure that genetics is used in the public interest. I
am GeneWatch UK‟s Director, and I have a PhD in applied mathematics
and I have provided written and oral evidence on the issues outlined below
to ministers and Members of Parliament and to a wide range of
investigations and committees, including: the House of Commons Science
and Technology Committee and Home Affairs Committee; the House of
Lords Constitutional Affairs Committee; the Scottish Parliament‟s Justice
2 Committee; the Nuffield Council on Bioethics; the Human Genetics
Commission.
2. The Government has presented evidence which purports to show that:
the benefits of retaining fingerprints, DNA profiles and samples from
the Applicants are compelling and have not been disputed;
fingerprints and DNA profiles have “intrinsic veracity” and are not
records susceptible to any subjective commentary;
1
expansion of the DNA Database will inevitably increase its
effectiveness;
the approach of the United Kingdom does not differ significantly from
the approach in other European jurisdictions;
it is only in circumstances where a person is involved in a future crime
that his/her record will give rise to potential identification;
records and samples are kept for no longer than is required for “the
purpose for which data is stored”;
no misuse from the retention, storage or use of fingerprints, DNA
profiles or samples has arisen, and no detriment from having one‟s
records stored has been identified;
anonymity is maintained by separating identifying information from
the DNA profiles themselves and retention is expressly regulated by
law;
no information beyond the DNA profiles has been derived from
retained samples, no such use is legally or technologically possible,
and sample retention is necessary to permit upgrading and guard
against miscarriages of justice.
3. All the above claims are factually incorrect, for the reasons outlined
below.
BACKGROUND
The nature of DNA and fingerprints and linked databases
4. DNA and fingerprints differ from other „biometrics‟, such as photographs
and iris scans, because they do not require equipment to be installed in
particular places (such as at a border control) in order to trace or record
where an individual has been. Both DNA and fingerprints may be left
wherever a person goes. The retention of DNA and fingerprints from an
individual on a database therefore allows a form of biological tagging or
“biosurveillance”, which can be used to attempt to establish where they
have been. This purpose goes beyond mere “identification”, to establishing
2
an individual‟s movements, including (but not limited to) establishing their
likely presence at a crime scene.
5. Unlike fingerprints, DNA can also be used to investigate biological
relationships between individuals (including paternity and non-paternity).
A person‟s DNA also contains some other private information about their
health and other physical characteristics. Some of this information (such as
carrier status for a genetic disorder and non-paternity) may be highly
sensitive and/or unknown to the individual. Biological relationships can be
deduced from computerised DNA profiles by searching for partial matches
between profiles (an indication of relatedness), a process known as
„familial searching‟. Health information can currently only be deduced by
undertaking additional genetic analysis of stored samples. In England and
Wales, part of each sample collected by the police is kept permanently by
whichever company has analysed it. The sample is linked to the
individual‟s record on the DNA Database using a unique barcode
reference number.
6. People who have been arrested also have an arrest summons number
(ASN) included in their record on the National DNA Database (NDNAD),
which provides a link to other information on the Police National
Computer (PNC). When the NDNAD was established in 1995, records
were supposed to be removed at the same time as an individual‟s criminal
record.1 However, the change in legislation allowing DNA records to be
retained has subsequently been used to justify a change in policy which
means that all PNC records are now kept permanently. 2 Retention of the
PNC records enables the police (who do not have direct access to the
NDNAD) to establish whether or not a DNA sample has already been
taken from an arrested person. However, PNC records may also be
accessed by a much wider range of individuals and agencies than the DNA
Database, and used for other purposes, such as pre-employment checks.
Categories of persons on the databases and practice elsewhere in Europe
3
7. The Applicants belong to the category of persons who have been charged
with a recordable offence, but who have had proceedings dropped or been
acquitted by a court. Until the Criminal Justice Act 2001 was
implemented, retention of their fingerprints, DNA profiles and samples
would have been unlawful in England and Wales, and it remains unlawful
for persons arrested in Scotland.
8. When the National DNA Database (NDNAD) was first established, the
original policy included time limits on the retention of records, so that
records on both the NDNAD and PNC were supposed to be removed not
only on acquittal or no further action, but also after a number of years
depending on the nature of the offence (Home Office Circular 16/95).
However, an estimated 50,000 profiles from acquitted persons may have
been kept illegally on the Database before the law was changed in 2001.3
9. Subsequently, the NDNAD has expanded further, due to a 2003 decision
to take DNA on arrest for all recordable offences, rather than on charge.
The category of recordable offences has also been expanded: it includes
begging, being drunk and disorderly, taking part in an illegal
demonstration, and minor acts of criminal damage caused by children
kicking footballs or throwing snowballs. In England and Wales (but not
Scotland), all DNA samples are kept permanently by the companies that
analyse them, and the computerised DNA profiles and personal data (such
as name and ethnic group) are also kept permanently on the NDNAD. 4,5 In
addition to the category to which the Applicants belong, there is therefore
now an additional category of persons who have been arrested but not
charged with a recordable offence, who also have their linked data,
samples and police records retained indefinitely. The number of
individuals with their data held is not known exactly, because a number of
records appear to be replicates of the same DNA profile, associated with
different names. The latest estimates of the breakdown of individuals on
the Database are given in Table 1, based on figures given in response to a
Parliamentary Question (PQ).6
4
Table 1: Estimated numbers of individuals on the NDNAD at end June 2006.
Original PQ* Recalculated**
Unconvicted persons with a PNC record 605,069 605,069
Persons who have received non-custodial 1,681, 284 1,681, 284
sentences or cautions, recorded on the PNC
Persons who have had a custodial sentence, 636,271 636,271
recorded on the PNC
Estimated total no. individuals on NDNAD 2,922,624 2,922,624
with a PNC record
Estimated total no. of individuals on 534,376* 429,501**
NDNAD with no PNC record (includes
18,056 volunteers).***
Estimated number of individuals with 3,457,000* 3,352,125**
profiles on the NDNAD
Estimated number of replicate profiles 427,270* 532,145**
Total number of individuals’ DNA 3,884,270 3,884,270
profiles on the NDNAD
* Assuming the 11% replication rate then in use.
**Assuming the 13.7% replication rate now in use.
***These individuals have no record of conviction, but were arrested when police records – but not
records on the NDNAD - were still being deleted on acquittal or if proceedings were dropped.
10. The UK Government has recently proposed expanding its databases
further by taking DNA and fingerprints on arrest for any offence
(including offences not normally recorded by the police, such as dropping
litter), in Short-Term Holding Facilities in shops and town centres, rather
than at police stations.7 If implemented, all data, samples and police
records would be permanently retained.
11. England and Wales are the only countries in the world which keep
fingerprints, DNA profiles, linked police records and samples from
unconvicted persons and from people convicted of minor offences until
after their death (the legislation allows indefinite retention, current policy
is to retain for 100 years).
12. The Scottish Parliament voted against indefinite retention of DNA profiles
and samples from persons acquitted or not proceeded against, in May
2006.8,9 Instead, police powers were expanded to allow temporary
retention (for up to 5 years, with judicial oversight) from a much smaller
number of people who had been charged but acquitted of a serious violent
5
or sexual offence.10 The Scottish Government is currently conducting a
review of this decision in order to assess whether the temporary retention
of data from this more limited category of unconvicted persons is
appropriate.11 In conducting its review, the Scottish Government has
expressly ruled out the indefinite retention of fingerprint and DNA data
acquired from individuals who are not convicted of any crime.
13. The law in England and Wales is out of step with that in other European
countries and with the principles adopted by bodies such as the Council of
Europe12, which require time limits on retention for all but the most
serious offenders. As explained below, retention of DNA profiles and
fingerprints has no value in criminal investigations unless the individual
whose data has been retained commits a future crime. Although there is no
common standard, all other European countries apply a the same general
principle – namely, that the detriment to the individual involved in the
retention of their data must be weighed against the likelihood that they will
commit a future crime for which DNA evidence may be relevant. Some
countries require a specific assessment of the likelihood of re-offending by
a court, but, for practical reasons, most base their legislation on the
category of offence committed by the individual. In both cases, only
people who have committed serious crimes have their data retained
permanently.
14. The Government has accepted that its current legislation is not based on
likelihood of future offending. In response to a Parliamentary Question on
9th October 2006 (House of Commons Hansard Column 492W), the Home
Office minister with responsibility for the National DNA Database, Joan
Ryan MP, stated: “As far as we are aware, there is no definitive data
available on whether persons arrested but not proceeded against are more
likely to offend than the population at large.”
15. Persons with DNA profiles on the National DNA Database are treated
differently from members of the police, whose profiles are stored on a
6
separate Police Elimination Database, which is not subject to „speculative
searches‟ (discussed below) and not linked to records on the PNC.
Purpose of retaining fingerprints, DNA profiles and DNA samples
16. It is important to be clear about the purposes of collecting and retaining
fingerprints, DNA profiles and samples from individuals, when
considering whether personal data processed for any purpose is being kept
for longer than is necessary for that purpose (one of the Data Protection
principles). There are a number of different purposes involved.
17. Firstly, DNA and fingerprints may be taken from known suspects for a
specific crime, where DNA or fingerprints have been obtained, or are
expected to be obtained, from the scene of the crime. The benefits of this
process for criminal investigations are undisputed, and such forensic
evidence, combined with other evidence, may either implicate or exonerate
a suspect. In England and Wales, DNA from the individuals and crime
scenes involved in such a process are routinely entered on the National
DNA Database, and successful matches in such cases are reported as one
of the benefits of the Database. However, strictly speaking, such a
comparison does not require a database, or any retention of data from
individuals. Of the practical examples provided by the UK Government
(their Annex 1), numbers 9 and 10 are of this type: they do not
demonstrate the value of the DNA Database, only the use of DNA in
criminal investigations (example 9 in fact took place before the Database
existed).
18. Secondly, DNA and fingerprints may be taken from arrested and/or
charged persons in order to perform a „speculative search‟ to see whether
there is a match with any crime scene DNA profiles or fingerprints stored
from a past crime. Every night a „speculative search‟ of the DNA Database
is run, to look for new DNA profile matches which can be provided as
intelligence information to the police. In England and Wales, where DNA
is taken on arrest for any recordable offence, the majority of individuals do
7
not have a record entered on the DNA Database in order to investigate a
specific crime, since DNA evidence is relevant to less than 1% of crimes.
The purpose of taking their DNA is therefore usually to include their
DNA profile on the Database and perform a „speculative search‟. This
process takes place routinely, without consent, for all persons aged ten or
over who have been taken to a police station under arrest for a recordable
offence.
19. Use of the database in this way requires the retention of crime scene DNA
profiles (and sometimes of crime scene samples, some of which have been
re-analysed later as technology improves) and the entering of DNA
profiles from individuals on the Database. However, it does not require the
retention of any information from those individuals, like the Applicants,
whose DNA profiles or fingerprints have not resulted in a match report. Of
the practical examples provided by the UK Government (their Annex 1),
number 1 and numbers 4,5,7 and 8, report successful cases of this type.
However, matches with persons other than the perpetrator will also occur,
for a variety of reasons, discussed further below.
20. Thirdly, DNA profiles and fingerprints may be retained and be subject to
all future speculative searches of the Database. A match between the
individual‟s DNA profile and a DNA profile obtained from the scene of a
future crime, may then lead to the individual being identified as a possible
suspect for that crime. This purpose (a form of biological surveillance)
requires retention of computerised DNA profiles from individuals on the
Database. In addition to speculative searches, other uses of retained data
may be made, including (for example): research uses and „familial
searching‟ (discussed further below). Of the cases listed by the UK
Government in their Annex 1, cases 2 and 3 provide examples where the
retention of DNA profiles from individuals are claimed to have led to a
subsequent conviction (in both cases, for rape). Case 2 involves a person
who was charged but not proceeded against (the same category of person
as the Applicants); case 3 involves a person who was arrested but not
charged (a category of persons subsequently added to the database). The
8
two cases involve alleged possession of an offensive weapon and alleged
violent disorder, respectively.
21. In a small number of cases, retention of an individual‟s profile may lead to
a subsequent match with a DNA profile obtained from a past crime as a
result of re-analysing an old crime sample, using new technology.
However, only a very small proportion of these cases will involve the
identification of a new suspect, not previously convicted of a crime or
identified as a suspect in the original case. Of the Government‟s examples,
case 6, which involved the sending of hoax letters, is of this type –
however, unlike the Applicants, the individual identified had been
cautioned, not acquitted.
22. In summary, the „added value‟ of putting individuals on a database is only
to introduce new suspects into an investigation, not to exonerate innocent
individuals who are already suspects for a crime (from whom DNA can
always be taken in relation to that crime, without entering their details on a
database). Entering DNA profiles on a database, combined with
speculative searching, may introduce new suspects into an investigation –
however, not all matches will be with the perpetrator of the crime. The
purpose of retaining individuals‟ DNA profiles on a Database is to
increase the chances of identifying them should they commit a future
crime. However, because matches will occur with persons who are not the
perpetrator, and retained data and samples may be used for a variety of
other purposes, there are number of potential harms that may occur to such
individuals, which are discussed further below.
23. The retention of samples (after the omputerized DNA profiles have been
obtained from them) plays no direct role in the identification of potential
suspects. The claimed benefits relate to other purposes which might
possibly require re-analysis of samples, such as quality assurance or
upgrading the profiling system at some future time.
9
DISPUTED FACTS
24. The disputed facts fall into two categories, considered in turn below. The
first category of claims made by the UK Government relates to the process
of obtaining match reports from speculative searches of the Database and
the benefits claimed for its expansion. The second category of claims
relate to harms and potential harms due to other uses and poor practices,
including limited oversight and retention of samples.
The process of obtaining matches and claimed benefits of the NDNAD
expansion
25. The Government‟s claimed facts relating to DNA matches are that: the
benefits of retaining fingerprints, DNA profiles and samples from the
Applicants are compelling and have not been disputed; fingerprints and
DNA profiles have “intrinsic veracity” and are not records susceptible to
any subjective commentary; expansion of the DNA Database will
inevitably increase its effectiveness; the approach of the United Kingdom
does not differ significantly from the approach in other European
jurisdictions.
26. However, the conclusion that the retention of DNA samples from persons
acquitted or not proceeded against have played a major role in the
detection and prosecution of serious crime, has repeatedly been disputed
by GeneWatch UK and by others. The figures provided by Dr Bramley,
and subsequently by the UK Government, significantly overestimate the
role of Section 64(1A) because:
DNA matches are not successful prosecutions and many matches occur
with the DNA of individuals who are not the perpetrator of the crime,
including victims and passers-by, or are false matches;
The reported matches are not actual matches obtained with individuals‟
profiles retained on the NDNAD following acquittal, but are an
10
estimate based on a number of questionable assumptions;
The retention of DNA samples has not contributed to the detection and
prosecution of serious crime – only the retention of computerised DNA
profiles on the NDNAD is necessary to obtain a match.
27. Table 2 shows the UK Government‟s claimed matches involving DNA
profiles retained from persons who have been acquitted or not proceeded
against.
Table 2: Claimed matches involving DNA profiles retained from persons who have been
acquitted or not proceeded against.
To end March 2004 To end March 2005 To end March 2006
Estimated DNA 128,517 198,000 200,300
profiles retained after
acquittal
Matches with crime 5,922 7,591 8,500, corresponding
scene profiles to 6,290 individuals
Total offences 6,280 10,754 13,964
Murders 53 88 114
Attempted murders 33 45 55
Rapes 94 116 116
Sexual Offences 38 62 68
Aggravated burglary 63 91 119
Supply of drugs 56 94 127
28. Whilst these figures appear impressive, many matches are not with the
perpetrator of a crime. For example, at the scene of a burglary or murder,
DNA may have been deposited by many people other than the perpetrator;
and for alleged rape, the issue of consent, rather than identity, is often a
matter of dispute.
29. Matches also include false matches, often because DNA profiles obtained
from crime scenes are not complete. For example, the National DNA
Database Annual Report 2005/06 states that between May 2001 and April
2006, 50,434 matches with crime scene profiles, or 27.6% of the total
number of match reports, involved a list of potential suspects, not a single
suspect, being given to the police, because matches with multiple records
on the NDNAD were made.
11
30. Roughly speaking, eight DNA matches lead to four detections, two of
which lead to convictions, one of which will involve a custodial
sentence.13 However, only about half of these are „new‟ detections, which
require the Database – in the other cases the suspect will already have been
identified prior to collection of their DNA. These figures are dominated by
volume crimes, such as burglaries, and separate figures are not available
for more serious crimes such as rape and murder, for which the Database
is less effective.14
31. Although DNA often provides important evidence in murder cases, it is
extremely rare for a suspected murderer to be first identified via a „cold
hit‟ on the Database. Similarly, most rapes involve disputes about consent,
not about identity. Although the National DNA Database is by far the
largest in Europe, the conviction rate for rape is lower in England and
Wales than in other European countries. The Database can sometimes play
an important role in solving „stranger‟ rapes, however its role is usually as
a means to identify, and perhaps deter, potential repeat offenders, who,
unlike the Applicants, have a previous conviction.
32. The match figures provided by the UK Government are not based on the
tracking of actual cases. Rather, they are based on a statistical estimate of
the numbers of matches that may have occurred between crime scene
DNA profiles and the DNA profiles of persons who were charged but not
proceeded against or acquitted. The estimates are based on a “retained
acquittals” flag used to mark NDNAD records between May 2001, when
the legislation allowing the Applicants‟ records to be retained was
adopted, and December 2005, when software for the PNC was modified to
allow retention of the corresponding records on the PNC. However, as
explained by Dr Bramley in his evidence, only an estimated 86% of
records marked as “retained acquittals” were removed from PNC as a
result of the person having been not prosecuted or acquitted and an
estimated 26% replication rate has been assumed among these records. It
therefore remains unclear how many records have actually been retained
from persons who have been acquitted or had proceedings against them
12
discontinued, and how the numbers of matches corresponding to these
individuals have been estimated.
33. Overall, analysis of Home Office data shows that collecting more
DNA from crime scenes has made a significant difference to the number
of crimes detected using DNA, but keeping DNA from increasing numbers
of individuals has not. In its 2006 report, the Home Office states:
“Evaluation of the [DNA Expansion] Programme has shown that the
number of matches obtained from the Database (and the likelihood of
identifying the person who committed the crime) is ‘driven’ primarily by
the number of crime scene profiles loaded onto the Database” [emphasis
added]. Since April 2003, about 2 million extra people have had records
added to the Database, but the total number of DNA matches has actually
decreased. The chances of detecting a crime using DNA has remained
roughly constant, as shown in Table 3.
Table 3: Percentage of recorded crimes involving DNA detections
Year 2002-03 2003-04 2004-05 2005-06 2006-07
Number of 2,099,964 2,371,120 2,802,849 3,534,956 3,976,090
individuals’ DNA
profiles on NDNAD†
DNA matches 43,904 39,335 40,879 44,611 42,208
DNA detections 21,098 20,489 19,873 20,349 N/A
Recorded crimes 5,920,156 6,042,991 5,623,263 5,556,513 5,428,273
Percentage of 0.36% 0.34% 0.35% 0.37% N/A
recorded crimes
involving DNA
detections
† These figures include some repeat records (an estimated 13.7% of the total). The 2006/07 figure
is an estimated figure to 10th June. N/A = Not Available.
34. Numerous Members of Parliament have sought
information on the numbers of crimes that have been detected or
solved as a result of the retention of unconvicted persons on the
National DNA Database, by asking Parliamentary Questions (for
example, in: House of Commons Hansard 1 Mar 2006 : Column
842W; 14 Dec 2006, Column 1315W; 25 July 2007, Column 1172W).
In each case, ministers have replied that this information is not
available. Calls for the Government to undertake or commission an
13
assessment of the benefits of retention of DNA profiles from
unconvicted persons have been made by academic researchers,
GeneWatch UK, the House of Commons Science and Technology
Committee and the Nuffield Council on Bioethics, all of whom have
questioned the benefits of the Government‟s approach. No such
assessment has been made. In 2005, the Police Liaison Officer for the
Scottish DNA Database stated: “It is arguable that the general
retention of profiles from the un-convicted has not been shown to
significantly enhance criminal intelligence or detection”15 and in 2006,
the Justice 2 Committee of the Scottish Parliament sought further
information regarding the benefits of DNA retention from unconvicted
persons from the police. They were provided with only speculative
cases.
35. The UK Government is fully aware that the DNA
matches cited misrepresent the value of the DNA Database expansion
in solving crimes. GeneWatch UK published its first analysis of the
UK Government‟s claims regarding the benefits of retaining DNA
profiles from unconvicted persons in February 2006 and sent a copy of
its report to Andy Burnham MP, then the Parliamentary Under
Secretary of State at the Home Office with responsibility for the
National DNA Database. In his reply of 15th March 2006, the minister
stated: “…You raise important points about understanding the impact
of DNA. The interpretation of statistics in the context of the processes
which they represent is vital and your analysis of that set of crimes
for which DNA provided a first link to a suspect is sound. These
crimes are not the only ones in which DNA provides a useful
contribution, however. Despite the apparent ‘losses’ through the
investigative process that you note, the presence of DNA can have
additional benefits not represented in the statistics, such as reducing
the time of the investigation, stopping criminals earlier in their careers
and reducing subsequent court time”. [Emphasis added]
14
36. Although some of the “additional benefits” identified by the
minister may possibly exist, there are also difficulties for the police
caused by the provision of large numbers of match reports which
identify a list of individuals, rather than the perpetrator of a crime.
Further, the House of Lords judgment in the Marper case relied heavily
on the statistical evidence of Dr Bramley, then Custodian of the
National DNA Database (NDNAD). According to the judgment:
“These statistics show that fingerprints and samples, which may under
section 64(1A) be retained, have in the last three years played a major
role in the detection and prosecution of serious crime.”
37. This judgment appears to be based on a misunderstanding of the
nature of the statistical evidence provided.
38. In summary: the benefits of retaining fingerprints, DNA profiles and
samples from the Applicants are not compelling and have been
repeatedly disputed; fingerprints and DNA profiles do not have
“intrinsic veracity” and multiple matches with the same crime scene
DNA profile are frequently supplied to the police; expansion of the
DNA Database has not demonstrably increased its effectiveness,
presumably because the probability of unconvicted persons committing
future crimes for which DNA evidence is relevant is extremely low.
The approach of the United Kingdom differs significantly from the
approach in other European jurisdictions because no evidence of
likelihood of re-offending – or indeed any evidence that an individual
has committed an offence, or that an offence has even taken place - is
considered necessary to justify the retention of an individual‟s data.
39. The Government has provided only limited and speculative
evidence of benefit resulting from the practice of retaining data from
the category of persons charged but acquitted or not proceeded against,
to which the Applicants belong. Further it has provided no evidence
that the Applicants themselves pose a risk to society which could be
15
prevented or limited by retention of their data. Nor has it considered,
as the Scottish Government is doing, whether more limited retention
from a smaller category of unconvicted persons, might provide the
benefits it claims without requiring the indefinite retention of
fingerprints, DNA profiles, samples and linked police records from the
Applicants.
Misuses and poor oversight
40. The Government‟s claimed facts relating to potential harms are
that: it is only in circumstances where a person is involved in a future
crime that his/her record will give rise to potential identification;
records and samples are kept for no longer than is required for “the
purpose for which data is stored”; no misuse from the retention,
storage or use of fingerprints, DNA profiles or samples has arisen, and
no detriment from having one‟s records stored has been identified;
anonymity is maintained by separating identifying information from
the DNA profiles themselves and retention is expressly regulated by
law; no information beyond the DNA profiles has been derived from
retained samples, no such use is legally or technologically possible,
and sample retention is necessary to permit upgrading and guard
against miscarriages of justice.
41. The Government‟s claim that it is only in circumstances where a
person is involved in a future crime that his/her record will give rise to
potential identification is false. This is because: (i) DNA matches
frequently occur with the DNA profile of an individual who is not the
perpetrator of a crime, whose details are then passed to the police; (ii)
the Database has been searched by name and it is not unlawful to do
so; (iii) a partial match is sometimes used to attempt to identify the
relative of a suspect, in a process known as „familial searching‟; (iv)
the PNC records are also retained, linked to the NDNAD, and may be
accessed by a wide range of agencies and persons; (v) misuse and
16
inadvertent identification can occur during the process of collection,
analysis and storage of the DNA and data.
42. The majority of matches do not lead to a conviction, as described
above, and are either false matches (usually, but not necessarily) with a
partial crime scene profile, or matches with another person who was at
the crime scene at some point but was not the perpetrator of the crime.
As noted above, a list of potential suspects, rather than the name of a
single individual, was sent to police in 27.6% of the total match reports
made between May 2001 and April 2006. DNA evidence is not
foolproof: false matches can occur by chance, especially if the DNA
profile from the crime scene is not complete, or if an individual on the
Database is related to the perpetrator. Other types of error can occur,
and the increasing use of Low Copy Number (LCN) DNA analysis –
which allows a DNA profile to be extracted from a single cell – has led
the Director of the Forensic Institute in Edinburgh to warn that
innocent people may be wrongly identified as suspects as a
consequence of being on the NDNAD16.
43. Other uses of the DNA Database may also identify an individual.
„Research uses‟ include a wide range of activities such as:
the creation of statistics used to assess the performance of the
Database;
attempts to identify the relatives of a suspect on the Database
(„familial searching‟);
attempts to find named individuals on the Database;
the selection of records from the Database on the basis of criteria
such as ethnic origin or “having typical Muslim names”;
the use of DNA profiles and other information, selected or
otherwise, for research;
the use of the original DNA samples for genetic research.
44. GeneWatch UK obtained information about the research uses of
the DNA Database and samples as a result of a series of Freedom of
Information requests made in 2006.17 The list of projects included
some „operational requests‟, including one on behalf of the police, to
check the Database for named individuals. One research project
17
involved the selection of some groups of individuals from the Database
on the basis of „having African name’, „having typical Muslim names‟,
or „having typical Hindu/Sikh names’. In this case, this information
was used for research on match probabilities, rather than to identify or
track the people in these categories. However, it would not be unlawful
for the police to use such a process to identify groups of individuals,
provided the use of the Database could be claimed to fall within the
broad definition of “purposes related to the prevention or detection of
crime”.
45. Familial searching is sometimes used when a DNA profile from a
crime scene does not match an individual‟s profile on the Database.
Since it is possible that a relative of the suspect is on the Database,
looking for a partial match between profiles might identify a parent,
child, brother or sister of the suspect, who can then be interviewed by
the police. Familial searching usually produces a long list of names of
people to be interviewed and raises ethical concerns because it is
possible that it could reveal cases of paternity or non-paternity that the
people interviewed did not know about, and also reveal to relatives
who is on the Database.
46. PNC records are available to a wide range of agencies, although a
plan is being developed to „step down‟ records so that access will be
limited to the police after similar time-frames to those which used to
result in their removal.18 However, information contained in these
records may continue to be made available to others as the result of an
Enhanced Criminal Record Check. Employers may also lawfully
require an individual undertake his or her own subject access request to
the police and reveal this as a condition of employment (known as
„enforced subject access‟). The retention of permanent records of arrest
may have serious potential consequences for an individual, including:
refusal of visas or access to visa waiver schemes (such as that operated
by the US); refusal of employment in any occupation not covered by
the Rehabilitation of Offenders Act (including all jobs working with
18
children or young people, and a wide range of professions, such as the
legal profession); and excessive Government or police surveillance (of
individuals or selected groups of people).
47. Although access to the DNA Database itself is supposedly
restricted, there have been a number of incidents and practices which
cause serious concern:
Five employees of the Forensic Science Service (FSS), which manages
the Database, have been suspended whilst allegations that they
“copied, retained and/or adapted software and/or other confidential
information” are investigated.19
Emails supplied to GeneWatch UK as a result of a Freedom of
Information request revealed that the commercial company LGC kept a
“mini-database” of information sent to it by the police, including
individuals‟ demographic details, alongside their DNA profiles and
samples.20,21 Thus, contrary to the Government‟s claim, anonymity is
not maintained by separating identifying information from the DNA
profiles themselves, because identifying information is sent by the
police to the commercial laboratories which analyse the samples.
48. The Government‟s claim that no information beyond the DNA profiles has
been derived from retained samples and no such use is legally or
technologically possible, is also incorrect. Two research projects approved
by the NDNAD Board allowed access to the samples. Both involved
genetic research on the male Y chromosome. At least one of these projects
involved an attempt to predict ancestry or ethnicity from DNA. This type
of research is controversial, because it attempts to identify a genetic basis
for a person‟s „race‟. Contrary to established ethical principles, it is
undertaken without consent and without any information provided to
participants (in fact, persons who are arrested are not even informed that
their samples or DNA profiles may be used for research). The Y-
chromosome also contains some genes, many of which are expressed in
the male testes and some of which have been linked to infertility.
19
49. Although the ability to predict risk of common diseases from a person‟s
DNA remains limited, many thousands of genetic disorders exist and
analysis of samples can identify carrier status for these, indicating the
likelihood that a person may pass a condition to their children. Analysis of
samples to provide such information is technologically possible. In most
cases it would be unlawful, but there are circumstances where the
identification of a rare genetic variant (which might be health-related)
could be used in criminal investigations.
50. The Government‟s claims that sample retention is necessary are also
incorrect. Individuals‟ samples are destroyed in some other countries, such
as Germany, once the DNA profiles used for identification purposes have
been obtained. Retention of individuals‟ DNA samples increases privacy
concerns and the Home Office has recognised that retaining samples is
“one of the most sensitive issues to the wider public”22. The Human
Genetics Commission has concluded that the reasons given for retaining
them are “not compelling”. 23,24 Only temporary, not permanent, storage is
necessary for quality assurance purposes and a new sample can always be
taken from the suspect if a DNA profile requires checking or upgrading.
According to the National DNA Database Annual Report 2004/525 the cost
of upgrading all profiles on the Database to SGM Plus has been
prohibitive and the police are now encouraged only to upgrade profiles
involved in matches. Only about 9% of individuals‟ SGM profiles and
about 0.23% of crime scene sample records have been upgraded to the
newer SGM Plus system.
51. In summary: there are many circumstances in which the retention of an
individual‟s DNA profile and linked data will give rise to potential
identification – only in the minority, not the majority, of cases does this
involve the identification of the individual as the perpetrator of a crime.
Many individuals identified through matches on the Database will be
subject to investigation by the police, but are subsequently acquitted of
any crime. The purpose of data retention is quite different from the
20
purpose of collection, since it is a form of surveillance based on the idea
that the individual, or a relative of theirs, may commit a future crime, not
that they have already committed one. Records and samples are also used
for a much broader range of purposes than they were originally collected,
including use for genetic research without consent.
52. Misuses of the retention of DNA profiles, samples and linked records have
already arisen, because retained police records may lawfully be allowed to
form the basis of the rejection of a visa or a job and the DNA Database
and samples may also be used for research without consent, contrary to
established ethical principles. In addition to the risk of being falsely
identified as a suspect for a crime, the detriment from having one‟s records
stored includes loss of the right to keep the circumstances of one‟s arrest
private from potential employers, and the loss of the right to refuse to
consent to controversial genetic research. Anonymity is not maintained by
separating identifying information from the DNA profiles themselves,
since copies of identifying information are sent to the private laboratories
which analyse the samples.
53. Information beyond the DNA profiles has already been derived from
retained samples – such uses are both legally and technologically possible
provided they are claimed to fall within the broad definition of “purposes
related to prevention or detection of crime”, which has been interpreted to
include attempts to predict the physical characteristics of individuals
(including ethnic appearance) from their DNA. Sample retention is
unnecessary to permit upgrading and guard against miscarriages of justice,
because a fresh sample can always be taken from a suspect before a case
comes to court.
Conclusion
54. In its evidence, the United Kingdom Government states that it is “highly
significant” that the expansion of the DNA Database has not resulted in
any misuse or harm and that this must be contrasted with the “very
21
significant benefits achieved in the prevention and detection of crime”.
The Government states that: “This is highly significant in assessing
whether a fair balance has been struck between the rights of the individual
and the general interest of the community, a balance which (as the Court
has frequently said) is inherent in the Convention as a whole”.
55. However, the Government‟s evidence contains numerous errors of fact, as
outlined above. In particular:
Expansion of the DNA Database to include persons acquitted or not
proceeded against has not led to any significant benefits in the
prevention or detection of crime;
There have already been misuses of the Database and samples and
there is considerable actual and potential harm to individuals whose
data and samples are retained.
56. In retaining linked databases of fingerprints, DNA profiles, samples and
police records from unconvicted people indefinitely, the UK Government
has gone far beyond the practice and legislation of other European
countries. In doing so, it has totally abandoned the principle that retention
of such data, which erodes the privacy of individuals and allows them to
be subjected to continuing surveillance, should be justified by some
evidence of the likelihood of re-offending. The claimed benefits to society
of abandoning this principle are largely speculative and not supported by
the evidence. These speculative benefits are clearly outweighed by the
potential harms, as demonstrated by actual and potential misuses of the
databases and the samples.
I believe that the facts stated in this witness statement are true.
……………………………………………..
22
Signed by Dr. Helen Wallace Date
1
Home Office Circular 16/95.
2
Coates F (2006) Police to file all offences for life. The Times. 21 Jan 2006.
http://www.timesonline.co.uk/section/0,,2086,00.html
3
Her Majesty‟s Inspectorate of Constabulary (2000) Under the microscope. 1 July 2000.
http://inspectorates.homeoffice.gov.uk/hmic/inspect_reports1/thematic-
inspections/utm001.pdf .
4
GeneWatch UK (2005) The police National DNA Database: Balancing crime detection,
human rights and privacy. GeneWatch UK. January 2005.
http://www.genewatch.org/HumanGen/Publications/Reports/NationalDNADatabase.pdf.
5
GeneWatch UK(2005) The police National DNA Database: human rights and privacy.
GeneWatch UK Briefing Number 31. June 2005.
http://www.genewatch.org/publications/Briefs/brief31.pdf.
6
House of Commons Hansard, 9 Oct 2006 : Column 493W
7
Home Office (2007) Modernising Police Powers. Review of the Police and Criminal
Evidence Act (PACE) 1984. Consultation Paper. Home Office, March 2007.
8
Scottish Parliament Justice 2 Committee Official Report 28 March 2006.
http://www.scottish.parliament.uk/business/committees/justice2/or-06/j206-0902.htm#Col2146
9
Scottish Parliament Official Report. Police, Public Order and Criminal Justice (Scotland) Bill:
Stage 3. 25 May 2006.
http://www.scottish.parliament.uk/business/officialReports/meetingsParliament/or-06/sor0525-
01.htm
10
http://www.scotland.gov.uk/News/Releases/2007/01/29133555 .
11 rd
Scottish Government Review, 3 December 2007.
12
Recommendation No. 92 on the use of analysis of deoxibonucleic acid (DNA) within the
framework of the criminal justice system (adopted on 10 February 1992).
13
GeneWatch UK (2006) The DNA expansion programme: reporting real achievement?
February 2006.
http://www.genewatch.org/uploads/f03c6d66a9b354535738483c1c3d49e4/DNAexpansion_bri
ef_final.pdf .
14
Home Office (2006) DNA Expansion Programme 2000-2005: Reporting achievement.
Forensic Science and Pathology Unit. http://police.homeoffice.gov.uk/news-and-
publications/publication/operational-policing/DNAExpansion.pdf .
15
Ross T (2005) Police retention of prints and samples: proposals for legislation. Comment
prepared by Thomas Ross, Police Liason Officer/Office Manager, Scottish Police DNA
Database.
http://www.scotland.gov.uk/Resource/Doc/77843/0018258.pdf .
16
Morgan J (2006) Guilty by a handshake? The Herald, 2 May 2006.
17
GeneWatch UK(2006) Using the police National DNA Database – under adequate control?
GeneWatch Briefing. June 2006. Available on: www.genewatch.org
18
ACPO (2006) Retention guidelines for nominal records on the Police National Computer. 16
March 2006.
19
Gallagher I, Myall S (2007) Five civil servants suspended over “DNA espionage”. Mail on
st
Sunday. 31 March 2007.
http://www.dailymail.co.uk/pages/live/articles/news/news.html?in_article_id=445902&in_page
_id=1766&in_a_source=&ito=1490
20
http://www.genewatch.org/uploads/f03c6d66a9b354535738483c1c3d49e4/AnswerFOI8May.p
df .
21 th
Barnett A (2006) Police DNA database is „spiraling out of control‟. The Observer, 16 July
2006. http://observer.guardian.co.uk/uk_news/story/0,,1821676,00.html .
22
Home Office (2005). Supplementary Memorandum, Appendix 20. In: House of Commons
Science and Technology Committee (2005) Forensic science on trial, Volume II. HC 96-II,
www.publications.parliament.uk/pa/cm200405/cmselect/cmsctech/96/96ii.pdf .
23
Human Genetics Commission (2002). Inside information. May 2002.
http://www.hgc.gov.uk/UploadDocs/DocPub/Document/insideinformation_summary.pdf .
23
24
Human Genetics Commission (2005) HGC response to the Scottish Executive consultation
on police retention of prints and samples.
http://www.scotland.gov.uk/Resource/Doc/77843/0018244.pdf .
25
The National DNA Database Annual Report 2004/05.
http://www.homeoffice.gov.uk/documents/NDNAD_AR_04_051.pdf .
24
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