Currently, police officers can only take such samples once
suspects have been charged with an offence. The samples are then
added to the National DNA database, which currently holds 1.8
million samples.
But the Government's proposal, if accepted by Parliament, would
allow samples to be taken at arrest and added to the database
irrespective of a future charge. This means the legislation will
permit the storing of profiles and samples of "innocents" – such as
those arrested but subsequently released without charge, or those
prosecuted and found not guilty.
According to the Home Office the move "enables officers to
verify the identity of arrested suspects where their fingerprints
have been taken before" – which prevents suspects escaping custody
by providing a false identity. The ability to perform DNA matching
from those arrested means that DNA found at crime scenes which have
no connection with the arrest can be connected with the arrested
person.
Home Office statistics show that the police make 1.3 million
arrests, of which one million are brought before the courts. This
means that 300,000 arrests per year (i.e. 30% of the one million
prosecuted) are not brought proceeded with to the courts. Also, the
statistics show that approximately one in three males and one in
ten females under the age of 40 have a criminal record. Together,
these statistics identify the eventual upper limit to the numbers
of entries in the DNA database: close to half the male population
and one in eight of the female population.*
Legitimacy in relation to the retention of such records will be
determined by a case which is to be decided by the House of Lords,
an appeal against last year's Court of Appeal ruling, which upheld
a High Court ruling. That ruling said that the retention by the
police of fingerprints and DNA samples of individuals who had been
the subject of a criminal investigation but who had not
subsequently been convicted of any offence was not incompatible
with the Human Rights Act, which requires respect for private
life.
The compatibility with human rights legislation arose because
the sample was only used in relation to an offence (e.g.
when matching DNA found at the scene of a crime). If the DNA did
not match, the individual would not suffer interference with his
private and family life, whereas if there was a match, the
individual was a suspect in a crime, in which case interference
would be justified.
Dr. Chris Pounder of Masons, the firm behind OUT-LAW.COM, and
Editor of Data Protection and Privacy Practice, said:
"Databases on this scale change the nature of society. For
instance, if a criminal were to deposit someone else's DNA sample
at the scene of a crime, then that someone else might have to prove
themselves innocent. Additionally, the procedure does raise
questions about rehabilitation of offenders when details like this
are retained - indeed, if 30% of those in the database relate to
those who are not prosecuted, perhaps there should be a concept of
rehabilitation of non-offenders."
Dr. Pounder continued:
"In my view, it is inappropriate for a Government to present
such a major change without a proper public consultation process
where all elements to this proposal could be considered."
On 12th September last year, at the British Association's
science festival in Leicester, Professor Sir Alec Jeffreys, the
founder of the DNA technique said that he now believed that the
practice of storing the genetic profiles of suspects who have not
been found guilty of a crime was a step too far. His radical
solution is a national DNA database from the entire population held
by a specially created body so that everybody was treated
equally.
Dr. Pounder commented, "The Home Office scheme will result in a
DNA database which goes a long way towards the scheme suggested by
Professor Jeffreys, except that there is no statutory body which
would independently monitor use of the database".
Details of Data Protection and Privacy Practice (and a free
copy) can be found among our Data Protection, Freedom of
Information and Human Rights Acts Services.
The text of the Criminal Justice Bill, not including this
amendment, is here.
* Statistics showing that the police make 1.3 million arrests
per year are in this PDF on the Home Office site.
Other Home Office statistics (on page 32), state that 1.86
million offences are committed but 838,000 are summary motoring
offences (e.g. parking offences). This leaves 1,000,000 offences
prosecuted in the Courts. If there are 1,300,000 arrests and
1,000,000 prosecutions it follows that there are 300,000 cases
where those arrested are not proceeded with (e.g. not been charged,
found innocent by the Courts). This is 30% on top of those who are
prosecuted.
If we assume that over time (10-20 years) the one third of males
have a criminal record will also have provided a DNA sample, and
then add on the 30% figure for males arrested (30% of a third is a
tenth), then the percentage of males on the database is 1/3+1/10=
13/30 of the whole or 44%. For females the figure is 1/10+3/100 or
13%.
Details of Professor Jeffreys comments are on
this page of the BBC web site.
Footnote: Dr Chris Pounder was a consultant with Pinsent Masons until September 2008. He now runs a new training business, Amberhawk.
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