Liberty - Protecting civil liberties, promoting human rights

Liberty noted that the court’s decision, expected in several months, will not force the UK Government to abandon its DNA retention policy but will promote debate on the scope and proportionality of the national DNA database.

“Liberty’s Policy Director Gareth Crossman said:

“This case should mark the beginning of a rational debate on whether the national DNA database permanently retaining samples from innocent people is justified. The court will not dictate our Government’s policy but will decide if these men, who’ve never been convicted, have been treated properly. Some argue that every man, woman and child should be on the database while others say that DNA should not be kept at all – we need sensible debate to find a fair and proportionate solution.”

Contact: Liberty Press Office on 0207 378 3656 or 0797 3 831 128 Notes to Editors - Background on S and Marper v United Kingdom

1. S & Marper v United Kingdom, to be heard in the European Court of Human Rights on 27 February 2008, will establish if the automatic retention of DNA samples, profiles and fingerprints from those who are not convicted of any offence is a breach of the right to a private life under Article 8 of the European Convention on Human Rights. The government has repeatedly said it has no plans to create a universal database because it does not think the population is ready for the civil liberties implications of that. Liberty believes that the present arbitrary basis on which the database is built is both unsustainable and unjustifiable.

2. S & Marper concerns the legality of amendments to s64 Police and Criminal Evidence Act 1984 which enable the police to retain bodily samples, DNA profiles and fingerprints from anyone arrested for a recordable offence, whether or not they are charged, prosecuted or convicted. Virtually all offences (except the most trivial) are recordable. Current Government policy is to retain this information, including DNA on the National DNA Database (NDNAD), until the individual dies or reaches 100 years old. Samples, profiles and fingerprints can be destroyed on request in exceptional circumstances.
Facts

S was arrested in January 2001 when he was an 11 year old boy. He has no previous convictions, cautions or warnings. He was charged with the offence of attempted robbery and his fingerprints and samples were taken. Following a trial on 14.6.01 S was acquitted. He subsequently sought through his solicitors the destruction of his samples and fingerprints, but the police refused because of the legislative amendments referred to above (which came into force with retrospective effect on 11.5.01). Marper was 38 when he was arrested in March 2001. He had no previous convictions. He was charged with harassment of his partner and his fingerprints and DNA samples were taken. By the time of a pre-trial review in May 2001 he had reconciled with his partner who no longer wished to press charges. The proceedings were discontinued. The police refused his request for the destruction of his samples and fingerprints. European Court of Human Rights

S & Marper applied to the ECtHR to raise the following legal questions:

There is no justification for keeping the original bodily samples from which DNA profiles are generated. Whilst the profiles reveal a limited amount of information about an individual, the samples contain that person’s complete genetic makeup and to retain them requires a very strong justification which the government has not supplied. The government says the samples are needed for quality control purposes and in case it might need to upgrade the database in future. Liberty does not accept this. A future upgrade of the database is a hypothetical possibility which does not justify retention of the samples now. It is likely that the database will soon be so large that an upgrade of the all the profiles is in any event an unrealistic option.

There is insufficient justification for keeping DNA profiles from those not convicted of any offence. Although the profiles (a numerical representation of part of a person’s DNA) may be difficult to decipher to the untrained eye, there are a number of major privacy issues that arise from their retention on the database.

Firstly, the database is used for ‘familial searches’. If a DNA crime scene sample is loaded onto the database and does not ‘match’ any individual’s profile, the police will sometimes search for close matches in order to narrow down a list of possible suspects. They hope to identify a family member. They have been carrying out approximately 1.5 familial searches per week since 2004 (and some as early as 2002 at least, but they say they have no data prior to 2004). Each familial search can generate a long list of possibilities which is then narrowed down by using other intelligence such as geography, ethnicity and other ‘social assumptions’ such as the idea that people from criminal families are more likely to commit crime themselves. This is inherently discriminatory. Once narrowed down, the police will contact around 150 families for further investigations. The police may be disclosing to a person’s family that their details are on the database (and therefore that they have been arrested / possibly convicted) for the first time. The Information Commissioner has expressed concerns about familial searching which the police say they have addressed through a Best Practice Guide (written by Association of Chief Police Officers.)

Research is carried out on the database without the consent of those whose profiles are on it. This is only supposed to be for the ‘prevention or detection of crime’ but that is interpreted very broadly so that research into ethnicity for example would be acceptable provided it can be loosely associated with crime prevention or detection.

The NDNAD has an electronic link to the Police National Computer to enable the police to use it for intelligence purposes. The PNC is accessible from over 120,000 terminals in the UK, including non-police bodies. Previously, records held on the PNC were ‘weeded’ so that if you were acquitted or no proceedings were brought, the PNC record would be removed after around 40 days. Now, because of the link between the NDNAD and the PNC and because DNA profiles are kept until death/age 100, the PNC records are also kept. As a solution to the legal implications of this, the police propose to mask some of the information from ‘non-police users’ of the PNC but the system is not yet fully operational. Further, the Information Commissioner (ICO) considers that for the police to keep all this information even for themselves breaches the Data Protection Act 1998.

3. Britain’s DNA database is proportionately the largest in the world. Approximately 4.2 million people have their DNA permanently retained on the NDNAD. It is alleged to contain more than 100,000 DNA samples taken from children who have never been charged or convicted with any crime.

4. Black and ethnic minority males are over-represented on the National DNA database amongst BME males on the NDNAD. Fifty-seven percent of those added to the database by the Met Police who have not been convicted of any offence are of BME origin. Nearly 40% of black men, 13% of Asian men and 9% of white men are represented on the NDNAD.