NDNAD NotesKatie Burke https://prezi.com/orkyq9r8skjo/your-biometric-data-in-the-uk-the-fight-over-your-dna/

1. National DNA Database (NDNAD)

Note that the age of responsibility in England and Wales is 10 years old, whereas Scotland is 8 years old – this will also be different amongst EU countries and abroad

The first forensic DNA database set up in 1995 by the Forensic Science Service

Short Tandem Repeats (STRs) are analysed and processed into data for the database - typically between 8-30+ repeat units

Helps police apprehend suspects, exclude 'innocent people' and acts a deterrent

Main argument is 'nothing to fear, nothing to hide' – see Crossman (2008) Nothing to Hide, Nothing to Fear? International Review of Law, Computers and Technology, 22:1-2, pp. 115-118. DOI: 10.1080/13600860801925003

2. Who is on the NDNAD? What happens to this data?

Not just criminals but also others:o Volunteers:

Dragnet – people asked to give their DNA in order to be discounted from an investigation, usually asked based on an area. Implications for those who do and don’t agree to give the profile as to whether they are considered suspects

Legitimate reasons for leaving DNA – profiles from a crime scene left legitimately. This may or may not be needed because of contamination of profiles

Victims – especially for those whose remains are unable to be identified in other ways or in crimes where DNA evidence could be vital (e.g. rape)

o Those charged and not convicted, and those arrested although not charged, for a ‘recordable offence’ although not traffic offences

DNA sampleso Whether taken voluntarily or ‘by force’ the samples would

not be destroyed, as it could be needed in court as evidence (retesting by defence etc.)

DNA profileso Profiles could be kept indefinitely regardless of whether

convicted or noto To have the data removed an application was made and a

police commissioner was able to decide whether it should be taken off or not

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o There has been evidence that children under 10 were on the NDNAD

3. S. and Marper Vs. UK (2008)Background

S. was an 11 year old when biometric data was taken but was later acquitted

Marper was an adult whose biometric data was taken when arrested but the case was dropped pre-trial

Both asked for data to be removed through existing channels but was refused. It was then taken through the courts

o Court of Appeal upheld previous decisions (2002) Fingerprints and DNA profiles only reveal limited

personal data The law doesn’t allow DNA samples to be used for

anything but forensics Risks are not great and do not outweigh the benefits

in prosecuting and preventing crime It was then taken to the European Courts of Human Rights

(ECHR)

Main Arguments Right to Privacy (article 8 of European Convention of Human

Rights)o “Right to Respect for Private and Family Life”o DNA is part of identity and the individual has the right to

control that information – it was argued that this was accessible to others permanently

o Samples could lead to more data being used later without permission (and not legal basis)

Prevention of Discrimination (article 14 of European Convention of Human Rights)

o Social stigma and psychological effects especially in regards to children – and this may impact on article 8 later in life

Public interest/safetyo Accepted that this is “personal data” under definitions in

the Data Protection Acto Made a distinction between taking the DNA/data and the

retention of that DNA/data “…retention did not interfere with the physical and

psychological integrity of the persons; nor did it breach their right to personal development, to establish and develop relationships with other human beings or the right to self-determination”

o Maintained that samples would not be used for other purposes

o NDNAD has only numbers which is only useful when compared to another samples

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Familial searches occur in rare cases with restrictions

Police and Criminal Evidence Act 1984 (PACE)

Meant to provide a balance between the rights of the police and the individual. In particular it refers to codes around stop and search, arrest, detention, investigation, identification and interviewing detainees.

Data Protection Act 1998 (DPA)

Controls how data can be used by organisations, businesses and/or the government. Stronger protections are given to information such as ethnicity, political opinions, religious beliefs, health and criminal records

Retention Guidelines For Nominal Records On The Police National Computer 2006

Guidelines more for who can access police data rather than the deletion of what is on the databases

Outcomes/Implications Court’s decision:

o Agreed that DNA retention was important for criminal investigations

o Agreed there was a violation of privacy in this instance since there was no conviction

o Did not think it was necessary to look at article 14 (discrimination)

o Application for ‘compensation’ was upheld insofar as the UK had to cover the legal costs

Main object of ECHR is to ‘blanket and indiscriminate’ retention – prevents the idea of a population-wide database (Hepple, 2009)

Hepple (2009) also argues that the UK was more utilitarian in its approach to the retention issue whereas the ECHR was more rights-based

This then had to be put into domestic law

4. Protection of Freedoms Act 2012

Did not just cover biometric data but other forms of surveillance such as CCTV

All samples are now deleted after 6 months – this is considered long enough to get the profile on the NDNAD

o Only exception is when this may be needed as evidence in a court case. This may be asked for by the defence, for example.

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The profile on the NDNAD will be a string of numbers – 10-17 pairs – and two letters which would be coded for gender (XX for women, XY for men)

Convicted adults Profiles retained indefinitelyConvicted minors Profiles retained for 5 years

after prison sentence (if 1st offence), indefinitely if 2nd offence or sentenced for more than 5 years in prison

Arrested or charged for a ‘qualifying offence’ (e.g. sexual, violent, terrorist and burglary offences)

Profile kept for 3 years and can be extended by 2 years (indefinitely number of extensions)

Arrested or charged for a minor offence

Not retained. If convicted of a recordable crime it would be then retained indefinitely

Any profiles that not longer qualify should be taken off the database

Created a new position – Biometric Commissioner – who is meant to be independent. Their role is to oversee any extensions and responsible for

5. DNA databases in Other Countries

EU have an international treaty – Prüm Treaty – which enables cooperation and the exchange of biometric data

o Main offences were international crimes, terrorism, and illegal immigration

o Can find a ‘hit’ but need to contact the different authorities to get more information including names

o Also meant that countries without such databases needed to create them

Interpol also maintains a DNA database allowing access to other jurisdictions (DNA Gateway)

o Differs from the EU as it is a separate database, not just having access to other countries’ databases

o Countries can exclude countries that it does not want to have access to – this is not just for political reasons. E.g. EU countries exclude each other because of other arrangements

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Table 1 and 2 – Santos et al. (2013) Forensic DNA databases in European Countries: is size liked to performance? Life Sciences, Society and Policy 9:12, pp.5-6 http://www.lsspjournal.com/content/9/1/12

Country Criteria for inclusion of profiles

Criteria for removal of profiles

France Suspects and individuals convicted of serious crimes

Convicted offenders – 40 years after end of sentence or after individuals reach the age of 80; suspects – removed when retention is no longer considered necessary by a law official (or at the request of the party concerned)

Germany Official suspects charged with crimes and individuals convicted of serious crimes or re-offending with other crimes

Profiles reviewed 10 years (adults), 5 years (young people) or 2 years (children) after inclusion. Removal of profiles of convicted offenders depends of a court decision

Austria Individuals suspected and/or convicted of a dangerus assaulta

Convicted: 5 years after death or at 80 years of age if the individual has not been forensically identified in the last 5 years; Minors: removed if s/he is not forensically identified in the previous three years; Acquitted suspects have to apply for removal and/or the authorities will decide if the acquitted suspect’s profile is no longer necessary.

Scotland Individuals detained for any crime

Suspects – deletion after acquittal or extension of retention period in cases of relevant sexual or violent offences; convicted offenders – indefinite retention

UK – England and Walesb

Individuals detained for any recordable offence

Indefinite retention

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aIn Austria, as defined in Section 16 (2) of the Sicherheitspolizeigesetz [Security Police Act], serious crimes are understood to be any threat against a legal asset by committing a premeditated crime punishable by law. In addition to the type of crime, the profile of an individual may be included when “the police cite the nature of the crime or the 'personality’ of the respective individual as grounds for expecting them to reoffend” (Prainsack and Kitzberger 2009).

bThe S. & Marper v. UK decision of the ECHR is reflected on the Protection of Freedoms Act 2012 in England and Wales, which will require all DNA samples to be destroyed within six months of being taken. It will still allow for speculative searches on the DNA profiles of non-convicted individuals, but eliminates their indefinite retention by establishing retention periods (until three years, plus two years if extended by court decision) differentiated according to the seriousness of the suspected offence. By October 2013, the Act will officially come into force.

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