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<strong>Overlooked</strong>: Surveillance and personal privacy in modern Britain 69 • The need to adopt the least intrusive method of taking bioinformation. If a mouth swab would suffice there is arguably no justification for the taking of a blood sample. • The need for particular sensitivity when taking DNA from victims and other vulnerable people. • The need for a clear explanation of the reason and legal power being used to take the sample. Guidance on the applicable rules on retention and use of the sample need to ensure that these issues are considered. At present Code D of the Codes of Practice issued under the Police and Criminal Evidence Act 1984 covers the regime allowing for the taking of DNA samples. Retention of Samples The Criminal Justice Act 2003 provides for the retention of DNA samples and profiles regardless of whether a person is prosecuted or cleared of an offence. It means that even if a person is never charged with an offence for which s/he was arrested his/her DNA will be retained on the Database indefinitely. A person who has had their DNA retained can apply to the police to destroy the sample but the police’s discretion to do so is not frequently exercised. This wide ranging power of retention is the reason the UK holds a far greater proportion of its population on its database than any other country. Powers of retention may soon be extended further so that arrest for any offence (rather than just recordable offences) will allow the taking of a sample. This is what seems to be implied in the Home Office consultation ‘Modernising Police Powers: Review of the police and Criminal Evidence Act (PACE) 1984’ which states, “The absence of the ability to take fingerprints etc in relation to all offences may be considered to undermine the value and purpose of having the ability to confirm or disprove identification and, importantly, to make checks on a searchable database aimed at detecting existing and future offending and protecting the public. There have been notable successes particularly through the use of the DNA database in bringing offenders to justice” 146 . The consultation does not specifically state the NDNAD when applying biometric retention for all arrests, using the slightly vague ‘fingerprints etc’. However the reference to the DNA database at the end of the paragraph is a strong indication of what ‘fingerprints etc’ might entail. If the power to take and retain DNA is expanded in this way it will mean that offences such as dropping litter might be included 147 . Should this occur, a wholesale expansion of the DNA database is likely. As described earlier, justification for retention is usually described in terms of a vague wider societal benefit through crime detection accruing from the taking of DNA. However many of the arguments in favour of the retention of DNA profiles of everyone arrested do not stand up to close scrutiny. There must be a rationale justifying the DNA retention of those who have been arrested but not charged or cautioned of an offence as opposed to retention from a random sample of the population. This rationale must be that retention from these people will result in an overall improvement in DNA use for the detection of crime as compared with random sampling. However, there does not seem to be any evidence to support this assumption. This was accepted by the Government on 9th October 2006, when Home Office Minister Joan Ryan 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” 148 . As a consequence there does not seem to be any basis for distinguishing 146 http://www.homeoffice.gov.uk/documents/cons-2007-pace-reviewview=Binary at paragraph 3.33. 147 Dropping litter is an offence under S.87 Environmental Protection Act 1990. 148 8th October 2006, HC Deb, Col 491W.
70 <strong>Overlooked</strong>: Surveillance and personal privacy in modern Britain these people from the population as a whole. The current approach therefore seems to discriminate against those sampled on the basis of arrest. Without evidential backing it appears that the policy basis for permanent retention of those arrested can be little more than ‘people who are arrested are probably criminal even if nothing can be proven in this case’. Given the disproportionately high number of Afro-Caribbean males on the NDNAD this is a worrying conclusion. The assertions put forward by police and Government as to the number of ‘matches’ made to the DNA profiles of unconvicted persons are highly misleading since (a) ‘matches’ only result in convictions in a small proportion of cases and no conviction information is given; (b) no information is given as to whether those persons were already suspects or would have been otherwise identified through traditional policing methods; and (c) the figures are probably inflated by the inclusion of a high (but necessarily diminishing) proportion of ‘cold cases’ relating to crimes committed before the police had today’s capacity to use DNA in crime detection. In addition, there is no evidence that the detection of crime is improved by increasing the size of the Database. This is illustrated by the fact that, although there has been a massive extension of the NDNAD over the last three to four years, the rate of crime detection using the Database has stayed at about 0.35% of all recorded crime. If extending the size of the NDNAD had been successful one would expect this proportion to have increased. One limiting factor is that the usefulness of the Database is driven by the ability to obtain DNA from the crime scene. In many cases DNA is not available. Regardless of advances in DNA technology it remains the case that DNA is relevant only in a limited number of cases. Primarily these will be investigations involving sexual assault or violence. These represent a small proportion of overall crime 149 . In many allegations involving sexual assault, consent rather than identity will be the defining issue. Similarly, evidential issues around violent crime will often be based on self defence or degree of involvement rather than establishing actual presence. Overall the importance of DNA attaches to a very small number of cases. However, its importance as an evidential tool is dramatically enhanced in the public consciousness when DNA provides the ‘magic bullet’ allowing an historic crime to be solved. The fact that these crimes tend to be of an extremely serious and dramatic nature tends to mask the relatively small impact DNA has on the criminal justice system as a whole. The retention of DNA from individual demographic groupings raises particular issues over the retention of children’s DNA on the Database. An estimated 50,000 of those whose DNA has been taken and retained on the database are children. There are also a disproportionate number of black men on the NDNAD. As stated in the introduction to surveillance almost 40% of black men have their DNA profile on the database compared with 13% of Asian men and 9% of white men 150 . Within the Metropolitan Police area, 51% of the innocent (uncharged/unconvicted) people whose DNA is held on the Database are of black or other minority ethnic origin. The NDNAD does not exist in a vacuum and its privacy implications are arguably exacerbated by its connection with other sources of information and other Government databases: 149 According the British Crime Survey Statistics for 2005-2006 there were 40,300 Serious Violent Crimes Against the person (including sexual assault and firearms offences) out of a total of 5,556500 total recorded crimes. This is about 0.7% of the total. 150 See footnote 12 above.
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