In July this year, the Times reported a Whitehall briefing paper that discussed the use of portable equipment that provided the police with a DNA analysis within one hour, rather than the three days it currently takes. In ten years time, it easy to envisage that DNA checking will occur in real-time, raising the spectre of instant DNA checks for those stopped in connection with road traffic offences or with street incidents. If we are really lucky, such DNA checks might ensure that the biometrics associated with the much loved ID Card scheme work reliably.
Last Wednesday, to mark the 25th Anniversary of the discovery of the DNA technique, Professor Sir Alec Jeffreys of Leicester University told the BBC that "innocent people do not belong on that database". This contradicts the assertion made by the Home Secretary that if the DNA of innocent individuals who have been arrested but not convicted is removed, then criminals who have perpetrated horrific crimes will escape justice. This justification underpins the minimum six year retention period for DNA that has been proffered by Government in these cases.
My own view is that the portable equipment clarifies by the nature of the Data Protection debate over the DNA database. I am not going into the recent legal submissions from Michael Beloff QC that argue the Government’s proposals would constitute a continuing and unlawful breach of Article 8, but rather apply some rather basic data protection principles.
The starting assumption is that all relevant DNA samples from a crime scene are loaded onto the DNA database and that these records are retained until the crime is solved, Because DNA can be matched within an hour or quicker, then even in the coldest of cases of serious crime, a match should occur if an individual is arrested for whatever reason. As DNA from criminals can already be retained beyond the lifetime of the data subjects concerned, then a match will always occur if there is also a criminal record (even a caution).
I should add that the vast majority of the cases I have seen reported in the press, by politicians or in Home Office documents fall in this category: the DNA from the crime scene is on file and a person involved has been arrested at a later stage in relation to an unconnected matter. The DNA taken on the later arrest is then matched to the previous scene of crime.
It thus follows that the debate on the retention of DNA is a limited one. It focuses on retention in those circumstances when there has been an arrest, and where DNA sample does not match an entry in the DNA database, and when it has been decided not to proceed with the case or the individual concerned is acquitted. It follows that example of cases that do not fall into this narrow category (of which there are many) are frankly irrelevant.
I can see four broad reasons why there is not a match to a previous crime scene following an arrest:
1. The individual arrested is not linked to any previous crime scene (obvious but has to be stated).
2. Resources might have not been deployed in sufficient quantities to load DNA from a crime scene in the correct time frame (i.e. the individual has been arrested, released and DNA deleted before the DNA from the crime scene has been loaded onto the database).
3. The crime scene might not contain DNA in a form that can be analysed using current techniques (e.g too little).
4. The crime has not yet occurred or the crime scene has not been discovered.
In relation to reason 2, it can be seen that it is not common. In addition, I see no reason why DNA data should be retained merely because insufficient resources have been deployed. I have not seen the Government argue that it can’t meet the requirements of the security obligations in the Act so it should negate them in legislation. Why, therefore, should it do so in relation to retention? Instead of lengthy retention periods and mass data retention, the obvious solution is to increase the necessary resources and shorten the retention period to months.
In relation to reason 3, there is little to do except to identify those cases that can be reprocessed as soon as techniques improve. It cannot be justifiable to argue that DNA data should be retained en-masse for six years just in case there are technical improvements to come.
I thus conclude that the main reason for retention of DNA relates to reason 4. The purpose of retaining DNA of those arrested but who are not convicted is to provide intelligence as to the identification of such individuals on the basis that they may be involved in future crime. Note I say, may – because it is obvious that if DNA becomes a major intelligence technique used by the police, then leaving somebody else’s DNA at the scene of a crime will become the obvious counter-measure to employ. If this is the case, the result will be unfair processing because someone who is innocent may have to prove they were not guilty (i.e. not at the crime scene).
In general, there may be complex cases where there are arguments for retention of DNA in specific circumstances. If there are such exceptions, the answer lies in a mechanism for the police to argue in favour of retention on a case-by-case basis, and not in blanket retention of all DNA of those affected. For instance, if someone were to be arrested in relation to a sex offence and is subsequently acquitted.
That is why I think that any legislation to implement the Government’s six year retention proposal is intended to neuter the application of the Fifth, Third and First Principles. Such legislation is designed to permit the retention of personal data that are excessive to the policing purpose, and where their processing is not necessary for a policing purpose, and where unfairness to some data subjects is likely to result. It is for these reasons, that I also think that such processing is likely to be disproportionate in terms of Article 8.
Note readers who are interested in this subject should look at the document “Document discussing the relationship between the Human Rights Act/Data Protection Act and the DNA database - 2009” and “Evidence to JCHR re powers in Police and Crime Bill – 2009” which discusses the clauses that give Home Secretary control over regulation, retention and use of DNA database, CCTV, & ANPR images. Both are available as downloads from www.amberhawk.com
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