UK policy on DNA sampling

It’s not unusual to hear criticism of UK law enforcement policy on the taking/retention of DNA samples; the National DNA Database (NDNAD or “nidnad”, as I suppose it should be pronounced) has generated controversy and even attracted a ruling from the European Court of Human Rights that the retention of the DNA profiles of innocent people is illegal.

Tellingly enough, UK policy in that regard has not changed since the ruling, which is now more than 6 months old. Some 850,000 people are reckoned to have their DNA profiles on the database and their samples stored, despite the absence of either an arrest, a charge or a conviction.

Not that this has been a short-term issue. In one sense, it started 3 1/2 years ago with the introduction of the Serious Organised Crime and Police Act 2005, which removed from English and Welsh law the notion of an “arrestable offence”. Essentially, it made all offences arrestable. The measure was described, in December 2005, as maintaining ” the crucial balance between the powers of the police and an individual’s rights”… by the recently-departed boat-rocker Hazel Blears (then a minister at the Home Office).

In March 2009, a retired senior police officer, David Gilbertson was quoted as follows in this Guardian article:

“People can now be (and have been) arrested and detained under Section 110 for not wearing a seatbelt, dropping litter, shouting in the presence of a police officer, climbing a tree, and building a snowman.”

The relevance of ‘arrestable offences’ here is that if you’re arrested, you can be required to give a DNA sample. So, if a police officer really wants a sample from you, all he or she has to do is wait until you do something which can be described as giving rise to an offence (such as climbing a tree, building a snowman or, presumably, stepping on the cracks in the pavement), nick you and swab away.

The police can also ask witnesses and victims to provide a sample “to eliminate them from enquiries”… but once that purpose has been served, current practice has apparently been to retain the samples. In December 2005 the NDNAD included over 15,000 profiles from witnesses who had provided them voluntarily.

So much for context. I mention all this because the latest criticism also comes from a police officer – this time, it’s an officer from the Met, who is quoted (here) as saying that people as young as 10 are being targeted for arrest (and therefore DNA profiling) on the following basis:

“It is part of a long-term crime prevention strategy. If you know you have had your DNA taken and it is on a database then you will think twice about committing burglary for a living.” [Thanks to the folks at Privacy International for Twittering a pointer to the story]

Aside from the possibility of a challenge under the UK Human Rights Act 1998 (which, as noted above, can end up in front of the ECHR), it seems to me that this policy, if it’s real, also violates the data protection principles relating to “purpose of collection” and “purpose of use”.

It is, as far as I know, still illegal to require a DNA sample on the basis that someone “might be thinking of committing burglary for a living”; therefore that cannot be a justifiable purpose of collection, and yet it is being cited here as the “purpose of use”.

If these news stories accurately reflect the state of UK law enforcement policy in this area, they paint a depressing picture, not least because the ECHR ruling on DNA retention was so unequivocal:

“In conclusion, the Court finds 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, fails to strike a fair balance between the competing public and private interests and that the respondent State has overstepped any acceptable margin of appreciation in this regard. Accordingly, the retention at issue constitutes disproportionate interference with the applicants’ right to respect for private life and cannot be regarded as necessary in a democratic society.”

The court dismissed all arguments brought by the UK Government, stating that “England, Wales and Northern Ireland appear 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”.

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