Police DNA retention – why we should be concerned
Picture the scene. You are driving along a road when you are asked to stop by police officers. Even though you have committed no offence, the officers tell you that they believe you may be in possession of drugs or weapons. You are arrested and taken to a police station where you are fingerprinted and a mouth swab is taken of your saliva – the process by which the police seize a sample your DNA. After a strip search at the police station and a number of hours in a police cell, you are told that you are free to leave, as you were not found to be in possession of anything illegal. The police tell you that even though you are not guilty they are keeping your DNA and fingerprints and they will not be destroyed. Would you object?
Under the Police and Criminal Evidence Act 1984 (PACE) the police have the power to take DNA samples from an individual under arrest at the police station if there are reasonable grounds to suspect that person has committed a recordable offence. That is, an offence which may be recorded on a criminal record.
The police can also ask a person to provide a DNA sample as a volunteer. If the person provides the sample as a volunteer and is subsequently ruled out of police enquiries, that person has a right to the samples being destroyed.
If, however, the person was under arrest when the samples were taken the situation is different. If that person is released from custody, without having been prosecuted or even charged, then under s.64(1A) of PACE such fingerprints and DNA may be retained “for purposes related to the prevention or detection of crime, the investigation of an offence or the conduct of a prosecution”. This means that if you are arrested but are found to be totally innocent of the offence in question, your DNA can still be, and most probably will be, retained by the police and stored on the National DNA Database.
The power for the police to retain the DNA of innocent members of the public was subsequently approved in the House of Lords case of R v Chief Constable of Yorkshire Constabulary ex parte Marper. In that case the House of Lords said, in essence, that the benefits to be derived from the retention of such DNA samples in detecting and fighting crime, outweighed any concerns about individuals’ privacy.
So, why should we remain concerned? Firstly, there is the privacy issue. In their submissions to the House of Lords, the campaign group Liberty said, amongst other things, DNA samples contain more information than is necessary for the police to hold in investigating crime – e.g – hereditary conditions, family relationships, behavioural tendencies- information the person may not even know himself.
There are further concerns, from a race-relations perspective. A recent report in the Guardian, in an article on 5 January 2006, noted that the DNA profiles of 37% of black men in the UK, 13% of Asian men and 9% of white men are on the police’s national database. The database now holds 3 million samples and at a recent conference held by the Metropolitan police and attended by ARA members, a police forensic scientist admitted that the system could have the capacity to hold the DNA of the entire population of the UK, approximately 60 million people.
There is a history of the objectivity of policing in the UK being tainted by racial bias, a sad fact which can be evidenced with reference to the proportion of black and Asian men in particular being stop searched by the police, compared to white counterparts. In recent times the terrible events of September 11 and July 7 have also led to officers choosing to stop and search increasing numbers of black and Asian men, sometimes under anti-terrorist legislation which does not require them to have any reasonable suspicion that the person has committed an offence.
Stop and search statistics indicate that you are more likely to come into contact with the police if you are black or Asian. It follows that you may therefore be more likely to be arrested if you are black or Asian, especially if the same bias used to justify your search is used to justify spurious grounds for your arrest. Although the police should have reasonable grounds to suspect an individual of an offence prior to their arrest, there are cases where the decision to stop, search and arrest is based more on a person’s race than on any objective evidence or intelligence.
The power to retain DNA could lead to police officers with racist tendencies deciding to arrest individuals from ethnic minority backgrounds simply in order to seize and retain their DNA. There is a real danger that officers may either base their decision to arrest on ever more slender evidence, or no evidence at all, in order to get a person at the police station, under arrest, and be able to take their DNA and run a check against a list of unsolved crimes. Being told that the data will be retained even after the search is done seems to suggest to many people that the police expect them to become involved in a crime later in their life – why else would the retention be required?
Of course it is in our interest that crimes are solved but, storage of highly personal data compromises individuals’ privacy, can lead to people feeling that they are being criminalised even if they are innocent and leads to those in positions of authority, who as an institution have previously exhibited a history of racial bias, having access to data which could be manipulated for improper purposes. Even the most stringent safeguards on the use of DNA data cannot prevent corrupt individuals manipulating DNA evidence. Those with access to the information may come under pressure to disclose the information to, for example, insurance companies who could use the information to assess the risk of genetic disorders. Furthermore, no computer system is entirely safe from hackers. Also, with regards the usefulness of DNA evidence in solving crimes, in many circumstances, DNA evidence simply places a suspect at the scene of a crime at some point in time. It does not establish that they are guilty of the offence.
The seizure and retention of personal DNA from innocent people does little to improve relations with those minority communities who have already suffered the indignity of having been targeted disproportionately on the basis of their race. It also adds to the suspicion that certain police officers suspect individuals of either being a criminal, or even worse expect them to become a criminal in the future, on the basis of the colour of their skin. If you were wrongfully arrested, spent hours in a police cell and were then told you were free to go, would you think you were still under suspicion if the police retained your DNA?
The ARA would like to hear from anyone who has been told their DNA will be retained after they have been detained at a police station and then released without charge. We can discuss the possibility of challenging decisions to retain DNA.