Permanently Detained
by Helen Wallace

“I'm worried that it will scar my record for life. It might come up if I went for jobs, such as with children — not that I've been in trouble, but just that I'm known to the police.”1  These are the words of Caitlin Bristow, aged fifteen, who was arrested in England in 2005 and had her DNA and fingerprints recorded. She had reported an assault and a counter-claim had been made against her, but she was never charged, let alone convicted, of any offense.

Likewise, Ashley Martins, aged twelve, was arrested on suspicion of stealing a mobile phone but was never charged with any offense. His worried mother complained to the police about the permanent retention of his DNA — children who are arrested in England and Wales are now routinely swabbed, without consent, from the age of ten. Detective Constable Andy Gill, of Hounslow police, was reported as saying, "In the case of Ashley Martins we acted within the established protocol. At the age of ten, children should know the difference between right and wrong and we will take DNA from anyone we bring in.”2

Student David Atkinson has fared slightly better — after a six-month battle he has finally had records of his DNA and fingerprints destroyed at the discretion of the police force that arrested him, though he no longer has a legal right to their destruction under English law. In 2005, David was arrested on suspicion of criminal damage. His DNA and fingerprints were taken but he was never charged because someone else confessed to the offense. Subsequently, he was accused of the theft of some Christmas cards that had been stolen and recovered by the police. David was not the thief — in fact, his fingerprints and DNA were on the Christmas cards because he was the person who had mailed them to relatives five years before. He told his local newspaper: "I wasn't against the laws previously but when you become a victim of it, it changes your mind. I won't trust the police again. I will still send Christmas cards by post — I'll just have to put rubber gloves on in future".3 

These are just a few of the rapidly growing number of people being added to Britain's National DNA Database (NDNAD). The police in England and Wales now routinely take a DNA sample on arrest, without consent, for any “recordable” offense, which include all but the most minor crimes, and keep it permanently. (Please see GeneWatch 19-1 for more background on the Database and related developments in the USA). Once a database of convicted criminals, NDNAD now contains the DNA profiles of over 3.5 million people, most of whom have been arrested, but many of whom have never been convicted of any offense. Volunteers who give their DNA during an investigation, including the victims of a crime, can also have their records and samples kept permanently if they sign a form giving “irrevocable consent'” — which many do without being aware of the implications. People convicted of minor offenses — including begging, being drunk and disorderly or taking part in an illegal demonstration — may also find themselves in the Database for life.

Children and young people form a growing number of the people in the Database — around a quarter of all arrests are of people under eighteen years old. Like Caitlin, Ashley and David, many are innocent. Many others — for example, a thirteen-year-old schoolgirl arrested for throwing a snowball that broke the window of a police car — are far from the high-risk violent offenders that spring to mind when discussing crime and DNA.4 In total, there are about 700,000 children in the Database.5 More than 51,000 have never been charged with any offense, including 30 under the age of ten, but have had DNA samples taken by the police. Nearly half of these children are still under the age of eighteen.

Perhaps not surprisingly, the Database also contains a shockingly high proportion (around 40%) of the black male population, prompting Britain's Black Police Association to call for an investigation.6 In some regions of the U.K., black people are almost five times as likely as white people to have their DNA recorded.7 

Until recently, public awareness of the existence of the Database has been low, and people have generally supported the role of DNA evidence in solving serious crimes. But there is growing concern that the recent rapid expansion of the Database is undermining public trust in the police use of DNA. Research has found that both parents and children have reservations about samples being taken for petty crimes and feel that there are dangers in stigmatizing young people for a single incident.8 

How did the NDNAD expand so rapidly from a database of convicted, serious offenders, to one containing so many children and innocent people? Has the Database's rapid expansion improved crime detection and have safeguards been adequate to protect privacy and rights? These questions are particularly important because many governments around the world are keen to adopt similar expansion programs.

The DNA Expansion Programme and the “active criminal population”

The National DNA Database was originally established as a database of convicted criminals in 1995. From 1996 through 2003, U.K. police powers to take and retain DNA were continually expanded.9 In 2000, Prime Minister Tony Blair announced the DNA Expansion Programme, aiming to include “virtually the entire active criminal population” — an estimated 3 million people — in the NDNAD by the year 2004.

Three major changes have taken place as part of the DNA Expansion Programme in England and Wales. These are:

• A 2000 change in practice that enabled police to start collecting much more DNA from scenes of volume crime (such as burglary and car theft);

• A 2001 change in the law that allowed DNA profiles from people who had been charged, but were subsequently acquitted or not proceeded against, to be permanently retained.

• An April 2003 change in the law, which began to be enforced in April 2004, which meant DNA was collected on arrest rather than on charge, and that such samples could be permanently retained.

Scotland has its own DNA database, and it also exports DNA profiles to the NDNAD. However, the Scottish Parliament recently rejected legislation, which would have allowed the DNA of innocent people to be kept permanently. And while DNA profiles are not yet routinely exported from Northern Ireland to the NDNAD, there has recently been controversy about retention of children's DNA there.10  

In England and Wales, all DNA samples are kept permanently by the companies that analyze them, and the DNA profiles and personal data (such as name and ethnic group) are also kept permanently on the computer database, even if a person is never charged or is acquitted.11,12 One estimate, based on the numbers of people who are arrested at least once, suggests that under current laws the Database will expand to include 25% of the adult male population, along with about 7% of adult women.13

Is DNA retention helpful in solving crimes?

 “Evaluation of the Programme has shown that the number of matches obtained from the Database (and the likelihood of identifying the person who committed the crime) is 'driven' primarily by the number of crime scene profiles loaded onto the Database.” UK Home Office (2006).14  [Emphasis added]

In January 2006, the U.K. Home Office published the first detailed figures on its DNA Expansion Programme. Detections are crimes that have been “cleared up” by the police — usually by charging, cautioning or warning an individual. An analysis of the Home Office figures, published by GeneWatch UK, shows that the number of crimes detected using the DNA Database fell in 2004/05, when the DNA profiles of 124,347 people who had been arrested but subsequently not charged or cautioned were first retained in England and Wales.15 More recent figures show that there were 20,349 direct DNA detections in 2005/06 (i.e. there were 20,349 crimes detected in which a DNA match report was available)  — this compares to 20,489 in 2003/04 and 19,873 in 2004/05. This means that, despite the ballooning of the Database to contain 1.5 million more individuals, the detection of crimes using DNA has not increased.16 The most likely explanation is that the people added to the Database since April 2004 — people like Caitlin, Ashley and David, as well as thousands of others convicted of minor offenses — are not at high risk of committing further crimes, or at least not the kind of crimes for which DNA evidence is relevant.

In fact, the analysis shows that the success of the Database is determined largely by the number of DNA profiles collected from crime scenes, not from individuals. The chances of matching a DNA profile from a crime scene to the DNA profile of an individual who is subsequently prosecuted or cautioned for a crime (the DNA detection rate) has not significantly increased despite the number of individuals' DNA profiles in the Database expanding from 2 million (in 2002/03) to 3 million (in 2004/05). Only 0.35% of crimes were detected using DNA in 2004/05 and this percentage has stayed constant for the last three years. Most of these are volume crimes, such as burglaries and thefts. This figure overestimates the value of the Database, because only about half were new detections (i.e. had not already been made by other police work) and many detections do not lead to convictions.

The U.K. Home Office appears to accept that the retention of DNA from innocent people has had little impact on crime detection rates and seems unable to quantify the claimed benefits in terms of successful prosecutions.17,18  In Parliament, ministers have repeatedly provided figures for DNA matches, rather than detections or convictions. This tends to exaggerate the contribution of the Database and its expansion to solving crime. DNA matches are much more frequent than successful prosecutions — they will include many matches with the DNA of victims and of passers-by. Entering profiles on the Database is sometimes useful to detect past crimes, but retaining profiles from innocent people is more controversial and it is this practice that appears to contribute little to tackling crime. Despite the lack of evidence on successful prosecutions, the figures on matches have repeatedly been used by ministers to justify the changes in the law and have also been misreported as “solved” crimes.19,20

Properly managed and controlled?

“It is extremely regrettable that for most of the time that the NDNAD has been in existence there has been no formal ethical review of applications to use the database and the associated samples for research purposes. The recent initiation of negotiations with the Central Office for Research Ethics Committees is too little too late.” House of Commons Science and Technology Committee, March 2005. 21 

There is no specific piece of legislation governing the operation of the National DNA Database. Instead, a series of laws have established the circumstances under which the police may take and retain DNA samples and data.22 The Criminal Justice and Police Act of 2001 contains a clause that restricts the use of retained fingerprints and DNA samples, stating that they “shall not be used by any person except for purposes related to the prevention or detection of crime, the investigation of an offense or the conduct of a prosecution.” However, this supposed restriction is extremely broad and could easily be interpreted to allow potentially controversial uses — for example, research seeking to identify “genes for criminality.”

In practice, the NDNAD is routinely used for research without consent, although this research is yet to include behavioral genetics. In March 2005, the Home Office was severely criticized by the House of Commons Science and Technology Committee for implying that it had resolved concerns about research uses of the National DNA Database by including a member of the Human Genetics Commission (a Government advisory committee) on its Board. An ethics committee, which Members of Parliament were told was being discussed, has still not been established.

Freedom of Information requests by GeneWatch UK to the NDNAD Board have now shown that since the year 2000, nineteen research projects have been allowed and fourteen were refused.23 The requests revealed that stored DNA samples have been used for genetic studies of the Y-chromosome without the consent of the people involved, as part of a controversial attempt to predict ethnicity from DNA. This type of research could also inadvertently reveal other genetic characteristics. Emails supplied to GeneWatch also show that the commercial company LGC, which analyzes some DNA samples for the police, has retained its own “mini-database” of DNA records, despite claims that access to the DNA Database is carefully restricted and controlled. Despite numerous requests for information, the list of research projects is still incomplete and, in addition, the decision making process for authorizing such research remains inadequate and unclear.

The research that has been done using the Database with the aim of trying to predict an individual's ethnic appearance from their DNA is particularly controversial. It is part of the research and development of a new commercial product: a DNA test to predict ethnicity or ancestry. This research has used both the DNA profiles in the computer Database and the stored DNA samples. The expected role in criminal investigations of predicting ethnicity or ancestry from DNA is to try to build up a “genetic photo fit” of a suspect, purely from a crime scene DNA sample. Several companies are already selling this type of test, using various different methods. However, these methods all have major limitations.

Predicting Ethnicity or Ancestry from DNA

Historically, genetic explanations of race have been used against ethnic minority groups, causing stigma and discrimination, and to justify racism, colonialism and eugenics.24  More recent research suggests that there is a complicated relationship between genetic differences and what is commonly called “race.” Human beings are all one species and biologically distinct races do not exist.25  The relationship between skin color and ancestry is also complex,  and is influenced by social factors.26-28

To some extent, broad geographical ancestry (like African, European or Asian heritage) can be predicted from the frequency of different genes.29 Many companies are now selling genetic ancestry tests commercially, to the police as well as individuals. There are two main techniques:30   

1. Lineage-based tests, which try to trace the inheritance of some of a person's DNA through the male or female line. Maternal lineage-based tests use mitochondrial DNA (mtDNA), which a person inherits only from their mother. Paternal lineage-based tests use the Y-chromosome, which men inherit from their father. Some relatively rare lineages can be traced to particular ethnic groups or locations using this method, but most others are much harder to place. Predictions in mixed urban populations are likely to be much less reliable.31

2. Bio-geographical ancestry tests use the statistical distribution of different genetic markers in different countries and different ethnic groups. These tests try to estimate a person's ancestry from the percentage of these markers that they have. However the results are of questionable reliability because they depend on the regions considered, the number of genes tested and the extent to which populations have mixed in the past.

There are some serious concerns about using DNA to predict ethnic appearance because predictions are inevitably uncertain and may mislead the police or reinforce existing prejudices about who may have committed a crime. The first use of a DNA test to predict ancestry in a British police investigation has already caused serious controversy. In April 2004, police reported for the first time that they had used DNA profiling in Britain to predict a suspect's heritage. This approach was used in a widely-publicized hunt for a serial rapist, who had attacked 31 elderly women in the south-east of England in the previous twelve years. The man's DNA was said to contain “strands from America, Europe and sub-Saharan Africa,” a combination claimed only to be found in the Caribbean. Based on this information, the police announced that they were looking for a suspect from the Caribbean and, furthermore, that over two hundred police officers with Caribbean backgrounds were being asked to volunteer for DNA tests to help determine which island the suspect might have come from.32 

This declaration ran counter to the conclusions of DNA Print Genomics, the company that actually carried out the DNA analysis in this case. Zach Gaskin, their technical director, was quoted as saying, “That's not what our test indicated”. He explained that although broad ethnic ancestry can be determined from DNA, geneticists cannot say with any certainty that an individual comes from a specific country.33  The targeting of men of Caribbean origin (including police officers) for DNA samples by this investigation has therefore been highly controversial.34

Balancing crime detection, privacy and rights

“It is important the Police maintain the support and consent of the public in order to effectively undertake their duty to investigate crime. Any proposed legislation to introduce blanket retention will serve to diminish this support”. The Police Liaison Officer, Scottish DNA Database, 2005.35  

Since the decision to retain large numbers of innocent people in the Database in England and Wales, there has been an increase in requests for removal.36 The number of people volunteering to be included has also fallen.37  

Controversy has raged about the inclusion of children in the Database, its bias towards the inclusion of black men, and the release of data to foreign countries. The increasing use of a new technique called Low Copy Number (LCN) DNA analysis — which allows a DNA profile to be extracted from a single cell — has led the Director of the Forensic Institute in Edinburgh to warn that innocent people may be wrongly identified as suspects as a consequence of being in the Database.38 

Recently, proposals to bring Scottish law in line with England and Wales were dropped in favor of a much more limited expansion of police powers. In May 2006, the Scottish Parliament rejected the law already adopted in England and Wales and adopted a new compromise amendment, which allows the temporary retention of DNA from people charged with but not convicted of serious violent or sexual offenses in Scotland, for a period of up to five years. Retention beyond three years requires the police to apply for approval from the courts. In Scotland, DNA is not taken routinely on arrest, but only at the discretion of the police, and a much smaller proportion of DNA profiles in the Scottish DNA Database are from children, most of whom are awaiting hearings. However, the DNA of people convicted of relatively minor offenses — including the catch-all crime of Breach of the Peace — is retained permanently in Scotland.

GeneWatch UK recognizes the extremely important role that DNA can play in some criminal investigations. We are not opposed to the existence of the Database, but are deeply concerned that its rapid expansion is spiraling out of control. The law should be changed to improve safeguards for people on the Database and to limit the circumstances in which DNA can be taken and retained. More public debate is needed to determine the appropriate balance between crime detection, human rights and privacy. However, necessary safeguards include:

• time limits on the retention of people on the Database, related to the seriousness of the offense and whether a person has been convicted;
• destroying individuals' DNA samples once an investigation is complete, after the DNA profiles used for identification have been obtained;
• an end to the practice of allowing companies to undertake controversial genetic research using the Database and samples;
• the creation of an independent, transparent and accountable governing body.

The law already adopted in England and Wales is being discussed and promoted in many other countries. There are many governments throughout the world that would like to similarly expand their DNA databases. It is important to remember that the expansion of the NDNAD to include large numbers of innocent people has not delivered any noticeable increase in the number of crimes solved using DNA. Nor have existing safeguards proved adequate to protect people on the Database from misuse of their genetic information.

Helen Wallace, PhD is Deputy Director of GeneWatch UK.

References

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