Handouts for a presentation explaining the National DNA Database in the UK

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NDNAD Notes
Katie 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 samples
o 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 profiles
o Profiles could be kept indefinitely regardless of whether convicted or not
o 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
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

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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 especiallyin regards to children – and
this may impact on article 8 later in life
 Public interest/safety
o Accepted that this is “personal data” under definitions in the Data Protection
Act
o 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
 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

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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.
 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 indefinitely
Convicted 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 databasesin 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
a
In 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 individualas grounds for expecting them to reoffend”
(Prainsack and Kitzberger 2009).
b
The 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.