Freedoms Bill: Gov may U-turn on personal data and DNA retention

Law and order: Coalition's intent

Following last week's U-turn on prison sentencing, I think there is a possibility that the government could change its approach to the retention of personal data on the DNA database. Ministers are clearly worried that they are being labelled as "soft on law and order", especially by the tabloid press.

At last week's Prime Minister's Questions (PMQs), David Cameron said that he would look into whether the police should retain the DNA of those arrested but not charged because of "evidence" that such retention has been important in successfully prosecuting rape cases.*

Ed Miliband, Labour leader, had challenged Cameron to comment on a statement of Angie Conroy, policy officer from Rape Crisis, who said: "with the reporting of rapes on the increase and conviction rates still shockingly low, the evidence this database provides is vital. The more of this data we hold, the more chance we have of catching rapists." She was also quoted as saying: "This really is a no brainer" (see references).

The PMQ exchange followed the Sunday Times (19/6/2011) article of 19 June (behind paywall) which reported, on page 1, that "thousands of men who have been accused of rape will have their details removed from the DNA database under government plans". The story then quoted Shadow Home Secretary Yvette Cooper, who claimed that the government policy on DNA retention will undermine future rape prosecutions.

Ms Cooper said: "David Cameron and Theresa May's restrictions on DNA use will make it harder for the police to bring rapists to justice, and harder to catch serial offenders too. The Prime Minister may have been unaware of this policy, and its consequences, but now he is he needs to do the right thing and U-turn quickly in this latest disaster for criminal justice policy too."

So what is Ms Cooper's policy preference if she thinks the government's policy in relation to DNA retention is wrong? She has not put forward any new counter-proposals to the current ideas in the Freedoms Bill: these are for indefinite retention of DNA if an individual is found guilty and three to five year retention if not (see references for full detail).

If Ms Cooper's argument is that, with respect to DNA retention, rapists who are not convicted are treated differently, or treated exactly the same as convicted rapists, then she should say this. Given the real difficulty in prosecuting this offence, this is not an untenable position to hold, especially if there is evidence of serial offending or incidence of rape involving the same individual.

However, equally possible is that Ms Cooper is in favour of the status quo when her Party was in government. This status quo policy was to keep DNA indefinitely on those arrested who are not convicted (about 1,000,000 entries in total).

Does Ms Cooper maintain this policy? Sadly, nobody has any idea except Ms Cooper _ who is keeping mighty schtum.

The old Labour policy towards DNA retention was justified on 18 January 2010 when Alan Johnson, then Home Secretary in the previous administration, told the House of Commons that in 2008-09 there had been 79 matches to innocent DNA profiles in cases of rape, murder and manslaughter and that in 36 cases the DNA match had been "vital to securing a conviction".

In particular, the Home Secretary highlighted three cases to prove his argument.

Case 1: Paul Hutchinson. "... That was underlined yet again when Paul Hutchinson was convicted just before Christmas of the 1983 murder of 16-year-old Colette Aram, the subject of the first ever appeal on the television programme Crimewatch. Hutchinson was traced only because DNA had been taken from one of his relatives, who had been convicted of a minor offence in 2008."

Comment on Case 1: This case has nothing to do with the deletion of DNA of non-convicted persons; it was familial searching using DNA relating to an existing criminal. The current proposals are to keep DNA samples of those convicted indefinitely and this applies to the DNA of the relative.

Case 2: Matthew Fagan. "In 2006, he was sacked from a London company. In January 2007, he returned to the offices at the weekend to steal computers and was disturbed by a former colleague, Cathy Marlow, whom he brutally murdered. A significant factor in Matthew Fagan's conviction was that DNA retrieved from under Cathy Marlow's fingernails matched his profile, which was on the database because he had previously been arrested but not convicted for a disorder offence."

Comment on Case 2: DNA of those arrested and not convicted are to be kept between three to five years (three years at least); we do not know whether the "disorder offence" occurred within those three years. In addition, the comment that the DNA evidence was "a significant factor" implies that the DNA evidence was not the only piece of evidence the police had (eg, the DNA might have been taken when the police had enough other evidence to make an arrest in relation to the murder).

Case 3: Abdirahman Ali Gudaal. He was arrested in July 2006 for robbery, but not convicted. His DNA was sampled and his record retained. In June this year (ie, in 2009), he was found guilty of the brutal rape and kidnap of a woman in Coventry, his DNA having matched samples found at the crime scene.

Comment on Case 3: The case is just within the DNA retention threshold of three years (but well within the maximum five-year period). In this case also, we do not know again whether the DNA was the crucial evidence or the evidence that merely confirmed the rest.

In other words, two (and possibly all) the cases that the Labour Party Home Secretary highlighted to Parliament do not make the case that Ms Cooper might be espousing.

In order to nail the government as not having the right policy on DNA retention, those campaigning against the changes, including Ms Cooper, have to provide evidence. For example, that that the matches achieved from the database of the "innocents" on the DNA database are far greater than the matches achieved from a comparable database of one 1 million-plus DNA profiles taken from males (excluding criminals) picked at random.

The fact that there are matches in a database of a million “innocent” DNA profiles is not enough. For instance, if I bought 1 million lottery tickets, I am sure many tickets would win a prize.

In short, Ms Cooper, Shadow Home Secretary, has to understand that she needs more than tabloid attracting rhetoric to back her claims. ®

* Note: there is evidence that Mr Miliband, in Parliament, has been misrepresenting the Rape Crisis Centre's position. As can be seen on Rape Crisis' website, the organisation clearly does not call for indefinite retention of DNA of those "not convicted" of rape. Instead it calls for a careful discussion of the issues.

References

  • Home Secretary Alan Johnson's speech on the DNA database, 18 Jan 2010.
  • DNA retention conditions proposed in the Freedoms Bill (2nd reading) stage: Download DNA retention periods (PDF)

    Readers who wonder where the three to five years retention period comes should look at table 2 in the attachment. If one assumes that those "arrested and are not convicted" are actually "criminals who got off", and assume that the recidivism rate is the same for these two groups, then the Tables show those who "got off" are likely to re-offend within three to five years. The article also explains why the DNA database, through the development of familial techniques, is likely to be able to map most of the UK population within 20 years. Download the DNA article here (PDF).

This story originally appeared at HAWKTALK, the blog of Amberhawk Training Ltd.

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