DNA retention after arrest: balancing privacy and protection Andromachi Tseloni & Ken Pease Nottingham Trent University

Background “1. In conclusion, the Court finds that the blanket and indiscriminate nature of the powers of retention of the fingerprints, cellular samples and DNA profiles of persons suspected but not convicted of offences, as applied in the case of the present applicants, fails to strike a fair balance between the competing public and private interests and that the respondent State has overstepped any acceptable margin of appreciation in this regard. Accordingly, the retention at issue constitutes a disproportionate interference with the applicants' right to respect for private life and cannot be regarded as necessary in a democratic society.” European Court of Human Rights, Grand Chamber, S & Marper v United Kingdom. Applications and , Judgement of 4th December 2008

Background “104. The interests of the data subjects and the community as a whole in protecting the personal data, including fingerprint and DNA information, may be outweighed by the legitimate interest in the prevention of crime (see Article 9 of the Data Protection Convention).” and “112….The Court observes that the protection afforded by Article 8 of the Convention would be unacceptably weakened if the use of modern scientific techniques in the criminal-justice system were allowed at any cost and without carefully balancing the potential benefits of the extensive use of such techniques against important private-life interests”. European Court of Human Rights, Grand Chamber, S & Marper v United Kingdom. Applications and , Judgement of 4th December 2008

Research Question What is the utility of DNA profiles in detecting future crime? In particular, what is the prognostic significance of such profiles taken from those arrested but not subject to subsequent criminal justice process? Are the levels of and time to subsequent criminality of those arrested with no further action taken roughly comparable to the subsequent criminality of those cautioned or proceeding to court, ie those cases in which DNA retention was not challenged under S & Marper? Definitions »NFA= No Further Action »PNC= Police National Computer

NFA’s DNA retention and public safety S & Marper judgement:“2. Lord Steyn also referred to statistical evidence from which it appeared that almost 6,000 DNA profiles had been linked with crime-scene stain profiles which would have been destroyed under the former provisions [ie arrestees with no further action]. The offences involved included 53 murders, 33 attempted murders, 94 rapes, 38 sexual offences, 63 aggravated burglaries and 56 cases involving the supply of controlled drugs.” Cost savings Witness avoidance of court process Closure

Is DNA profiling relevant to subsequent detection? Clear-up and charge rates improved for sexual assault, robbery, burglaries (domestic and commercial) and (the latter) assault but not for vehicle-related crime (Dunsmuir, Tran & Weatherburn, 2009). At least double detection rates for domestic burglary, theft from vehicle criminal damage and total recorded crime in the UK (Smith, 2004) At least double number of suspects identified, arrested and accepted for prosecution (Roman, Reid, Reid, Chalif, Adams & Knight, 2008)

The present research Pilot study MPS area (Greater London) Those arrested from whom DNA samples were taken. On 1st June 2004, 1st June 2005 and 1st June Follow-up or risk periods of 54, 42 and 30 months respectively.

Table 1. Offence type in respect of which sample taken by year and sample attenuation. Offence Total Property Violence/Weapon Vehicle-linked Drug Other Total Excluded Total MPS

Table 2: Action taken by year sampled. Action taken Total NFA Warning Non-custodial Custodial Other Total

Figure 1: Action taken by year sampled.

Post-DNA variables Time (months) to first subsequent dated event. Number of subsequent separate dated events (leading to arrest, warning, conviction). Whether any subsequent dated events involved violence or weapon possession. The most severe sanction imposed.

Key points A Time to re-arrest described a similar time course for NFA-arrestees and others overall and with respect to specific offence type … Except perhaps in 2005 and … Except within vehicle-linked (NFA group re-appeared in the PNC sooner than those who received non-custodial sentences) and other offences (NFA group re-appeared later than those given caution).

Figure 2: Most severe subsequent process by action taken (NFA and Others)

Key points B No difference in subsequent most sever action between NFA and others. Factors which are related to faster re-appearance in the PNC, especially with respect to the NFA’s: –Violence /possession of weapon –Repeat subsequent appearances. Younger arrestees re-appear sooner and more often in the PNC but this is so whether they were NFA’s or further processed originally. Seriousness of second offence unrelated to the offence in respect of which DNA sample was taken.

How to best inform the DNA retention debate? A bigger and better replication of the study reported here, across forces across Europe, with numbers allowing analysis by ethnicity. The ‘murders etc prevented’ work by Lord Steyn should be updated, extended to cover all forces and nations and the results expressed cumulatively across time or as a rate per NFA sample taken. A study to assess the deterrent effects of presence on DNA databases should be undertaken. A public opinion survey of retention policy across Europe.