UK to destroy DNA profiles retained on innocents

It seems the Home Secretary's efforts to find a way round a European Court of Human Rights judgement last December have faltered. The full Grand Chamber of the court declared, in S. and Marper v the UK, that the UK's routine systematic retention of fingerprints and DNA of innocent people was in breach of Article 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, which covers the right to respect for private life. (Note that the court website issues transient IDs for access to the decisions, so you may just need to type 'Marper' into the hudoc search engine to locate the decision in full).

The Home Secretary Jacqui Smith and various other members of the government have routinely, since the heavy defeat in the case, declared their intentions to continue to retain the fingerprint and DNA data in their (non-sequitur-ial) determination to "maintain robust powers to tackle crime and disorder". It looks like Ms Smith's committee set up to review the case, however, finally convinced her that the judgment was so damning it left no room for manoeuvre and she had no choice other than to comply. And so the Guardian reports:

"DNA profiles of almost a million innocent people are to be destroyed as part of a major overhaul of the police national database. They include people who have been arrested and never charged, and those taken to court but found not guilty.

Civil rights groups gave a cautious welcome to the proposals - which will be announced by the home secretary, Jacqui Smith, this week - but said more needed to be done.

An estimated 800,000 of the 5.1m DNA profiles on the database belong to people in England and Wales who have no criminal conviction."

I said at the time of the decision that it should have significant implications for the UK in terms of the practice of retaining the DNA and fingerprints of suspects not charged or convicted of a criminal offence. Perhaps from Ms Smith's (and possibly even significant numbers of law enforcement folks's perspective the 800,000 innocents, as characterised by the Guardian, would be 800,000 not yet proven to have participated in criminal activity but suspicion should be enough to give them 'worthy of special attention' status.

Yet the DNA and fingerprints databases are too important as crime detention and prevention tools to pollute with the data-noise of millions of innocent people. Counter-intuitively significantly more 'DNA matches' get thrown up in large databases than might be commonly believed. One crime laboratory analyst found 122 subtantively similar DNA data pairs in an Arizona database of 65000 convicted felons. That's a roughly 1 in 2000 chance of a match compared to the standard 1 in 13 billion chance of a DNA match generally quoted ever since Alec Jeffreys developed the technique in the 1980s. That doesn't mean DNA profiling is a poor authentication technique but it does mean that the statistics surrounding this stuff are non-trivial and we should be careful about jumping to selective conclusions, something the European Court, the Nuffield Council on Bioethics, the Human Genetics Commission and several NGOs have accused the UK government of doing on the retention of DNA. The court said:

"115. ...the Government argue that their retention has been shown to be indispensable in the fight against crime. Certainly, the statistical and other evidence... appears impressive, indicating that DNA profiles that would have been previously destroyed were linked with crime-scene stains in a high number of cases."

They then go on to accept an interpretation of these statistics offered in the Nuffield Council on Bioethics report, a report which had systematically and forensically demonstrated that the government's claims were false. So though the Court did not directly accuse the government of lying they did say the government made claims about statistics that appeared impressive but the Court preferred to accept an interpretation of the numbers outlined in a report that said the government's claims were false and misleading.

It all remains a tangled tale and it will be interesting to see the details of how the government is proposing to destroy the 800,000 data sets and samples. It will have to be handled carefully. I wonder if Mark Thomas has had his details deleted yet?