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The proposed EU Council Resolution on the exchange of DNA analysis results

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11 October 2000

Submission to the House of Lords Select Committee on the European Union concerning the proposed Resolution on DNA analysis (8937/00 ENFOPOL 36, 29.5.2000)

Documentation

The draft Council Resolution considered below is the third EU proposal on the exchange of DNA analysis results and harmonisation of DNA profiling techniques. If adopted, it will allow member states to begin exchanging DNA profiles [reference:  29.5.00  8937/00  ENFOPOL 36; full text: Council of the European Union]

The draft Resolution has now been slightly amended. Section III, point 3 calls for future consideration of the placing of a server at Europol "to the extent that such data relates to types of crime falling within Europol's sphere of competence". The amendment replaces "sphere of competence" with competence pursuant to the Europol Convention. [reference:  17.7.00  8937/1/00  ENFOPOL 36 REV 1; full text: Council of the European Union]

Introduction

This proposal is an improvement on the draft Framework Decision on this matter submitted by the Finnish Presidency (see 11634/99 ENFOPOL 65 and also 11634/1/99), but still does not provide adequate safeguards for the rights of citizens.

Data protection

The proposal contains inadequate safeguards in respect of data protection and the exchange of DNA profiles with other countries.

The proposed form for use in exchanging DNA profiling results (Annex II) should only be applied subject to agreement on data protection principles governing the exchange of such data.
Otherwise there is a risk that such data will be copied on to national databases and subsequently exchanged with other national databases and the databases of other Member States, third states and international organisations without any effective rules guaranteeing:

- individual access to a file;
- individual challenges to the use of data;
- individual notification of the use of data;
- security of data processing;
- rules concerning expiry of a file and correction and deletion of files;
- rules on jurisdiction over complaints and damages claims;
- principles governing independent data protection supervisory bodies;
- and ‘marking' of data to ensure its correction or deletion if required.

The proposed Resolution should be redrafted to provide that any exchange of information of DNA analysis results between Member States should be suspended for the present, until the Council has reached agreement on data protection rules to apply at EU level (except where existing independent national data protection supervisory bodies have fully approved the data protection provisions contained within a bilateral agreement concerning the exchange of DNA analysis results agreed between particular Member States).

Other legal safeguards

The proposed Resolution, unlike the 1997 Resolution on the subject, does not include or even refer to the legal safeguards contained in other measures. Even in the 1997 Council Resolution on the exchange of DNA analysis results, the legal safeguards were considered by some to be insufficient (Point III):

1. It is up to each Member State to decide on the conditions under which, and the offences regarding which, the DNA analysis results may be stored in a national database.

2. The taking of DNA material for the purpose of storing DNA analysis results should be subject to safeguards designed to protect the physical integrity of the person concerned.

3. National rules on personal data will have to be in accordance with European Convention No 108. Recommendation (87) 15 of the Council of Europe Committee of Ministers and Recommendation (92) 1 of the Council of Europe Committee of Ministers should be taken into consideration, where appropriate.

Both the 1997 Resolution and the proposed new Resolution only refer to the use of DNA evidence as regards ‘the investigation of crime', but the European Union should not just be concerned with securing the ‘free movement of investigations and prosecutions', but more broadly the ‘free movement of criminal justice'.

Unlawful retention/use of DNA samples

A survey by Her Majesty's Inspector of Constabulary dated July 2000 showed that (at the time of the survey) 752,718 DNA profiles of "criminals" were held on the UK database. The UK has profiled a far greater proportion of its population than any other EU member state.

The UK allows the police to forcibly take DNA samples from anyone suspected, charged or convicted of a recordable offence. However, profiles can only be added to the to the UK's national database following charges being made - profiles from people who are not prosecuted or acquitted must be destroyed (samples can also be retained if they are connected to a matter resulting in a conviction which may subsequently be reviewed but these profiles should not be used for any other purpose). Despite these rules, the above survey showed that between 82,500-112,500 profiles of the total figure were illegally held and should have been removed.

On 26 May 2000, the Court of Appeal overturned Michael Weir's conviction for murder on the grounds that the DNA profile which originally linked him to a DNA sample found at the crime scene had been illegally retained. The Court affirmed the provision in Section 64 (3B) of PACE Act 1984 (as amended by the CJPO Act 1994) which states that :

"information derived from the sample of any person entitled to its destruction... shall not be used - (a) in evidence against the person entitled; or (b) for the purposes of any investigation of an offence. If the sample was used for purposes of an investigation then all evidence resulting from that information must be excluded."

A particular concern in the Weir case was that the police apparently "matched" the suspects' DNA to the crime scene through the national UK DNA database, found that the sample should lawfully have been destroyed, and then chose to take another sample from the suspect and proceed with the prosecution on the basis of a new sample taken lawfully in connection with their investigation.

Therefore specific provisions need to be added to the Resolution to ensure access to the use of DNA evidence if relevant to the defence in a criminal trial or to a challenge to an earlier conviction.

Neither the government nor the Forensic Science Service (which has responsibility for the UK DNA database) appear to be taking steps to ensure that illegally held profiles are destroyed. There is therefore a possibility that illegally held samples could be exchanged with third parties and that after such an exchange an individual's DNA profile data would be processed without any of the guarantees set out above.

The UK government must therefore ensure that all illegally held samples are destroyed before any exchange is permitted.

The Resolution also needs to be rethought in the context of preserving and exchanging DNA data in cases where there has been an alleged wrongful conviction and where DNA testing could result in the reopening of a case.

Limitation of scope

The UK's legislation on retaining DNA samples affords UK citizens far less privacy over their DNA profiles than citizens of other EU member states. DNA profiles can be retained where convictions are for relatively minor offences, a situation some commentators consider disproportionate. These concerns have recently been iterated by (among others) Liberty, the Human Genetics Commission and Paul Millen, an independent consultant and former vice-president of the Forensic Science Society. In addition, a recent scheme in which all police officers where asked to provide a DNA sample to be included in an "elimination database" attracted only a small proportion of the UK police force with the Police Federation expressing concerns over how the profiles might be used in the future.

Both the 1997 Resolution and the proposed new Resolution only refer to the use of DNA evidence as regards ‘the investigation of crime'. Other EU Member States are therefore likely to be able to access DNA profiles taken from UK citizens in connection with far less serious offences than could have been lawfully taken from their own nationals. Under the current proposal this data could then be used in the absence the of the legal safeguards outlined above.

The proposed Resolution should limit the offences for which DNA profiles may be exchanged. The scope of the Resolution should be limited to serious and specifically defined offences.

Comments prepared by Steve Peers, Reader in Law, University of Essex and Ben Hayes, Information and Research Officer, Statewatch.