Robert Henderson
There was a time when being arrested in England did not matter very much. Before digital technology came of age your fingerprints and mug shot might be taken, but if no charges were laid or, if you were brought to trial, a conviction was not obtained for the alleged offence which had caused your arrest, the chances of the ordinary law abiding person being inconvenienced in the future by the fact that those details were held by the police were small. There was no Police National Computer (PNC) until 1974 – which was a very rudimentary system in the beginning and for a long period of time afterwards laughably underpowered with what we have now – and the widespread use of personal computers was almost two decades after that. DNA identification did not come into play until the 1980s and was very cumbersome procedure for years afterwards. Before computers arrived police had to rely on their knowledge of the “usual suspects”, modus operandi and informers to hunt down the guilty. They would look at the records of those suggested by such avenues of inquiry, but had no ready way of searching large numbers of records on spec or of moving their search to the records of other police forces. On spec searches of criminal records for the entire country were out of the question.
Today not only are fingerprints and mug shots taken but DNA samples as well if some is arrested on suspicion of committing a recordable offence (http://www.legislation.gov.uk/uksi/2000/1139/contents/made). Prior to the Criminal Justice and Police Act 2001 (http://www.legislation.gov.uk/ukpga/2001/16/section/82) fingerprints and DNA samples would be destroyed if someone was not found guilty. After the 2001 Act samples could be taken without the permission of the suspect at the time of charge. The Criminal Justice Act 2003 (http://www.legislation.gov.uk/ukpga/2003/44) allowed samples to be taken on arrest for a recordable offence. Presently, all records are held indefinitely on the PNC, a database which holds records for the entire country and can be accessed by any police force in the country. Currently, the data is held indefinitely regardless of whether an arrested person is convicted, tried and found not guilty or released without charge. There is the Protection of Freedoms Bill which is still going through Parliament which places some restrictions on the holding of data of those not convicted of a crime, but even if these become law –and they could be amended before the Bill is passed – these still allow considerable opportunity for the storage of fingerprints, DNA and mug shots of the unconvicted, viz:
Protection of Freedoms Bill proposals
The following details relate to the Protection of Freedoms Bill, introduced on the 7 February 2011. As this has not yet been agreed by Parliament, these proposals are subject to change.
What if I am arrested for a minor offence, but not charged or convicted?
The provisions of the Protection of Freedoms Bill as introduced in Parliament provide that in the future these will not be retained at all.
What if I am arrested for, but not charged with a serious offence?
The provisions of the Protection Of Freedoms Bill as introduced in Parliament provide that the police will only be permitted to retain DNA and fingerprints in very tightly controlled circumstances. We will be establishing an independent commissioner to oversee DNA retention and they will make a decision whether retention is necessary, taking into account the age and vulnerability of victim of the alleged offence and their relation to the person arrested.
What if I am arrested for and charged with a serious offence, but not convicted?
The provisions of the Protection Of Freedoms Bill as introduced in Parliament provide that in these cases we propose to retain the DNA and fingerprints for three years, with the option of a single two-year extension by a court.
What if I am convicted of an offence?
The provisions of the Protection Of Freedoms Bill as introduced in Parliament provide that all adults convicted of any recordable offence will have their DNA and fingerprints retained indefinitely.
We are proposing a separate retention regime for those under 18 years of age who are convicted of an offence. Those convicted of a serious offence will have their DNA and fingerprints retained indefinitely. For those under 18 who are convicted of a minor offence their DNA will be retained for five years on a first conviction (plus the length of any custodial sentence) and then indefinitely following a second conviction. (http://www.homeoffice.gov.uk/police/powers/dna-and-fingerprints/)
DNA is especially important, because unlike fingerprints it can be readily deposited by someone else at the scene of a crime or inadvertently picked up by someone committing a crime or by the victim of a crime. In principle this could also happen with fingerprints if someone deliberately or inadvertently picks up something with someone’s fingerprints on it and leaves it at the scene of a crime or a victim does so inadvertently. But the scope for framing someone in that fashion is much less than it would be for DNA because of the difficulty in both obtaining and retaining a clear print inadvertently or leaving something with a clear print on it which could be plausibly seen by the police as being left inadvertently.
Fingerprints obtained in the messy real world encountered by the police are generally a far from certain identifier because of their incompleteness . Even where a clear whole print is available, the identification is not absolutely watertight, not least because the scientific basis of the system has been questioned successfully enough to prevent fingerprint evidence being used in trials in the USA, viz: “U.S. District Court Judge Louis H. Pollak last week ruled that such evidence does not meet standards of scientific scrutiny established by the U.S. Supreme Court, and said fingerprint examiners cannot testify at trial that a suspect’s fingerprints “match” those found at a crime scene. “ (http://abcnews.go.com/US/story?id=91996&page=1#.UHVvghVZWSo).
It is worth adding that justice systems around the world accept different numbers of “points of similarity” in fingerprint evidence as indicative of a positive match. It is all very messy and unavoidably subjective to a significant degree.
DNA is a different matter, or at least is thought to be a different matter. DNA identification is based not on the subjective judgement of visible differences by humans, but the machine matching of strings of DNA code. This gives them an appearance of scientific rigour. However DNA may be degraded or mixed with someone else’s DNA which can make identification far from certain. Identification is also debatable with the controversial “low copy number” DNA testing which deals with minute samples of DNA (http://www.mccannfiles.com/id190.html) Moreover, there will always be false positives. The likelihood of those is strong when a database holds millions of individual DNA samples. The numbers would be small but for those involved the results would be traumatic even if no conviction results. The worst case would be a false conviction for a serious crime.
Apart from false positives, there are three ways an innocent man or woman could fall victim to an police investigation based on the DNA. The first is it could have been planted deliberately by someone. This could have been done to either harm the person whose DNA was planted or it might have been an attempt to mislead the police by someone committing a crime. In the latter case the person whose DNA was planted need not have been known to the person doing the planting. They simply pick up something like a cigarette butt or a used tissue which they have either seen someone leave or they simply find after the person has deposited the item and gone.
The second circumstance would be if someone is the victim of a crime and they inadvertently pick up something carrying DNA , for example a lost hair or blood left by someone. A truly disturbing and astonishing example of what can happen involved Mark Minick. Minick was arrested on suspicion of rape. He had a criminal record for robbery and his DNA matched that taken from a hair found on the victim. The problem was that Minick is white and small (5’6”) and the victim identified her attacker as black and large. Notwithstanding this, the CPS proceeded with the case which was only dropped at the first court hearing where the prosecution offered no evidence (http://www.dailymail.co.uk/news/article-512980/DNA-farce-My-nightmare-white-man-charged-hunt-black-rapist.html#ixzz28ooimkcD). How did the victim have a hair of Minick’s? He was working as a porter at the hospital at which the girl was treated. Most probably she picked up the hair there. Minick’s case shows emphatically how powerful a grip DNA evidence has on the police and Crown Prosecution Service (CPS): they were both willing to ignore the fact that the victim had identified her attacker as large and black while Minick was small and white because they had a DNA match from a source which could have come innocently and inadvertently into the victim’s possession.
The third opportunity for gratuitous involvement in a police investigation would be the use of near DNA matches as a pointer to who might be involved in a crime. Suppose someone, most probably a near relative, has their DNA on the PNC. The police may investigate the close relatives of that person in connection with a crime, regardless of whether the relatives have a criminal record or there is any evidence that they might be guilty. (section 5 http://www.genewatch.org/uploads/f03c6d66a9b354535738483c1c3d49e4/NationalDNADatabase.pdf). Even if nothing happens beyond an investigation this is a considerable intrusion into their lives. Moreover, even if completely, innocent human nature being what it is, others who know of the police involvement may conclude there is no smoke without fire. Nor, as the Minick case showed, can there be any rational belief that the police and CPS will not allow DNA evidence to drive investigations and prosecutions where there is no other strong evidence of guilt.
The fact that even under the reforms proposed in the Protection of Freedoms Bill considerable numbers of people who have never been convicted of or even charged with a criminal offence will remain for years on the PNC means that tens of thousands of people at least will potentially become suspects in future investigations for anything up to five years despite having a clean bill of legal health. If the Protection of Freedom Act is not retrospective when it is passed , that is, it only applies to new arrests, then the numbers the innocent people involved could be millions. To penalise the innocent is unjust and immoral because it is based on the unethical idea that the greater good of the greater number is reason enough to mistreat individuals. If only the DNA and fingerprints of the convicted were held the risks of gratuitous police investigations of the innocent would be greatly reduced.
Nor is the injustice restricted to those with a clean criminal record. The DNA and Fingerprints of anyone convicted of a recordable crime will be held indefinitely. That means people who have committed minor offences such as common assault or driving without due care and attention without causing an accident (often only once in their lives) will be subject to the same risk of further gratuitous investigation based on false positives and so on as those with no convictions who remain on the PNC. This is disproportionate.
Here is a question which I have never seen publicly posed: why are fingerprints and DNA taken from every person arrested regardless of the suspected crime? It is easy to see that they might be useful in the case of criminals such as murderers, burglars and rapists, but what purpose does it serve for people such as fraudsters and those convicted of dangerous driving? It is very improbable that fingerprints or DNA records will be useful in solving future crimes by people who are convicted of fraud or driving offences if they commit similar offences. It is also a fact that most people, including career criminals, tend to commit the same type of crime if they commit more than one. There is a strong civil liberties case for saying fingerprints and DNA ( or any other future biometrics identifier) should only be taken where they are likely to help solve a crime or series of crimes. If that practice was followed it would also greatly reduce the likelihood of people being harassed unnecessarily by the police.
There is also a broader question of the keeping of data other than fingerprints and DNA, for example, notes of unsubstantiated complaints of crime or even reports of behaviour which might be considered suspicious. These can have profound effects on lives because Criminal Records Bureau (CRB) checks are now required by huge numbers of adults for the purpose of gaining employment or taking part in voluntary activities – the requirements have even been ludicrously extended to parents watching their children take part in school sports or Nativity plays (http://www.dailymail.co.uk/news/article-2210724/Parents-criminal-record-checks-banned-watching-kids-play-school-sport.html).
CRB checks are of two kinds :
•standard CRB check – for certain specified jobs, licences and entry into certain professions
•enhanced CRB check – for those carrying out certain activities or working in regulated activity with children or adults; applicants for gaming and lottery licences; and judicial appointments…
What you’ll find on a criminal record check
Standard CRB checks will contain details of all spent and unspent convictions, cautions, reprimands and final warnings from the Police National Computer (PNC).
The enhanced CRB check will include any information from the PNC and may also search:
•information held by local police forces
•lists of people barred from working with children and adults which are kept by the Independent Safeguarding Authority (ISA) (http://www.direct.gov.uk/en/Employment/Startinganewjob/DG_195809)
Millions of innocent people could find themselves barred from employment or voluntary activities through no fault of their own. Not only that, where a CRB check is failed, unsubstantiated or simply wrong highly damaging information held by the police will be in the hands of people who know the person who has failed the check and knowledge of a failure to pass a check, even if the details of the failure are not known, will cast doubt over the integrity of the person who has failed the check.
Police records are just part of an ever expanding portfolio of state and private enterprise databases which can affect lives, frequently without the individual even knowing. But police records and the ever swelling reach of the CRB check are by far the most intrusive and controlling of the surveillance apparatus which exists at present in England. They need to be severely controlled.
As a bare minimum we should return to position that no person’s DNA and Fingerprints should be retained if they remain unconvicted and there should be no record kept of their arrests, charges or trials on the national database. The removal of all records of investigations from the national computer is necessary because otherwise innocent people may still be unreasonably investigated simply because they have been arrested, charged or tried but found innocent for a similar crime before.
More broadly, it is pernicious to have information which the police have received which may not even have led to an arrest or any, indeed, contact with the police being disclosed on CRB checks. They should reveal only convictions and arguably only convictions relevant to job for which the check is made. If someone has, for example, if someone has been convicted of driving without due care and attention when they were 17 and is applying for a teaching job when they are 35 the conviction is scarcely relevant. In fact, there is a good case for doing away with CRB checks, because there is no evidence they have reduced the type of offences they are meant to reduce, most particularly child abuse of one form or another. Their main effects have been to dissuade many people from engaging in voluntary work, increased costs for organisations (especially schools) and creating a general and unhealthy climate of suspicion in Britain.
These authoritarian policies will become ever harder to remove the longer they remain in place and technology improvements make the temptation to expand the surveillance through an ever expanding menu of biometrics irresistible to those with power. We need to act now.
