The report recommends that police stop automatically taking DNA
samples in England and Wales when someone is arrested and says that
they should be given guidance on when and when not to take a DNA
sample.
The report, Nothing to hide, nothing to fear?, says
that it was told by a retired senior police officer that it was
routine for police to make arrests whenever they could so that DNA
samples can be collected.
"It is now the norm to arrest offenders for everything if there
is a power to do so … it is apparently understood by serving police
officers that one of the reasons, if not the reason, for the change
in practice is so that the DNA of the offender can be obtained,"
said that former officer's evidence to the HGC. "It matters not, of
course, whether the arrest leads to no action, a caution or a
charge, because the DNA is kept on the database anyway.”
The DNA database has been a source of controversy and legal
action. The European Court of Human Rights told the UK that the
practice of police forces in England and Wales of keeping the DNA
of anyone arrested regardless of whether they were found guilty of
a crime or even charged was a breach of their human rights.
It said that the "blanket and indiscriminate" collection of
profiles was a "disproportionate interference with the applicants'
right to respect for private life", as guaranteed by the European
Convention on Human Rights.
The Government's initial response was to say that DNA records of
innocent people could not be kept for longer than 12 years. It has
since reduced that period to six years.
A different procedure exists in Scotland, where DNA samples can
be taken but are deleted samples of those who are not convicted,
except in the case of some sexual offences.
The HGC has said that the database itself was not created by
Parliament or by the specific will of any Government, but has
simply evolved. It should be the subject of parliamentary debate
and should be controlled by primary legislation, it said in its
report.
"The purpose of the database has altered over time and has never
been stated in sufficiently clear terms," said its report. "The
National DNA Database should be established in law through new
primary legislation."
"The permitted uses of the records constituting the National DNA
Database should be simply, unambiguously and explicitly defined in
legislation, and any use of the database that falls outside those
permitted uses should be made an offence subject to strict
penalties … The legislation that establishes the National DNA
Database should be accompanied by a full privacy impact assessment
with advice from the Information Commissioner, so that these
impacts can be considered when the legislation is debated openly in
Parliament."
To counteract any actions by individual police officers who may
be making arrests purely to collect DNA samples, the HGC said that
guidance for officers should be published and their adherence to it
monitored.
"We recommend that new guidance is given on when it is
appropriate to take a DNA sample following arrest and to record a
resulting DNA profile on the National DNA Database," it said.
"Furthermore, we recommend that an independent panel reviews, at
regular intervals, evidence relating to arrests and the taking of
DNA samples, in order to ensure that (1) the guidance is
sufficiently robust and (2) the guidance is being appropriately
followed."
The report said that the UK's DNA database is the largest in the
world, with five million records.
"DNA evidence plays a significant role in bringing criminals
before the courts and securing convictions," said HGC Chair,
Professor Jonathan Montgomery. "But it is not clear how far holding
DNA profiles on a central database improves police investigations.
We have to strike a proper balance between identifying offenders
and protecting privacy, including that of innocent people – we
should not compromise that privacy without good reason."
"There has been a steady 'function creep', allowing more and
more people’s DNA to be kept, but it is not clear that this is
matched by an improvement in securing convictions. There
needs to be a regular review of the positive value we get from the
database - its 'forensic utility'," he said.
The case which led to the European Court of Human Rights's
ruling was that of Michael Marper, a man who was arrested and
released without charge and who argued that the retention of his
DNA was a breach of his human rights.
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