MPS response to the Civil Liberties Panel review ‘Protecting the innocent’ – The London Experience of DNA and the national DNA database

Report: 8
Date: 24 November 2011
By: Director of Forensic Services on behalf of the Commissioner

Summary

This report sets out the MPS response to the MPA Civil Liberties Panel review: “Protecting the Innocent”. The MPS accepts all the recommendations made within the review and seeks to address the key findings of the Panel and the concerns of London citizens as expressed within the report. The key focus of the Panels’ report is communication and engagement with the communities and therefore trust and confidence in policing London and the use, by the MPS, of DNA profiling to solve crime, strike the right balance between the liberty of individuals and protecting society.

A. Recommendations

That Members note the MPS response to their recommendations as set out in the report “Protecting the innocent”: The London experience of DNA and the National DNA Database”.

B. Supporting information

1. The MPS actively contributed to the MPS Civil Liberties Panel review into the London experience of DNA profiling and the National DNA Database and agrees with its key findings that:

• DNA profiling is critical to the successful investigation of crime particularly in serious violence and sexually motivated crime where the perpetrator is a stranger to the victim.
• The Protection of Freedoms Bill addresses the judgement in the European Court of Human Rights in the case of S and Marper where the court found against the UK for the blanket and indiscriminate retention of DNA profiles but the Bill will allow for a speculative search of all those arrested for a recordable criminal offence.
• The MPS need to have robust procedures for the taking, examination, storage and deletion of DNA profiles and provide reassurance that these procedures are being adhered to.
• There needs to be much more communication and engagement with the citizens of London to ensure that use and impact of DNA profiling is understood and that there are the necessary safeguards in place to protecting privacy and civil liberties.

2. The title of the report “Protecting the innocent” could be taken to refer to those who are arrested and not convicted but have their DNA profile retained indefinitely under current legislation. It could equally refer to all of the individuals who are suspected of a crime but found to be eliminated as a suspect because their DNA profile does not match the DNA found at the crime scene or on the victim. It is the power of DNA profiling to exclude that provides one of the strongest safeguards against false accusation or wrongful conviction in the criminal justices system. The recommendations made in the report provide a basis for the MPS to further strengthen its processes and inform the citizens of London, so that the balance between an individuals civil rights and the need for society to identify criminals and bring them before the courts. In the following section we have addressed each recommendation providing a response on the action to be taken by the MPS to implement the recommendation. All of the recommendations of the Civil Liberties Panel are accepted by the MPS.

3. On the timing and timescales for implementation where there are simple process changes, such as not making a confirmatory DNA sample the MPS will implement as soon as practicable. For some of the wider changes and in particular community engagement, we see merit in timing communication and change to coincide with the implementation of the Protection of Freedoms Bill. This will mean that positive messages about the management and use of DNA profiling by the MPS can be reinforced alongside the wider changes to destroy DNA samples, limit DNA retention of unconvicted individuals and acknowledge the introduction of the role of the Biometrics Commission.

Recommendation 1: [section 3.3 of the report] - People who have their DNA taken should be provided with the following information in writing, at the point when their DNA is taken (full recommendation not recorded).

Recommendation 5: [section 3.6 of the report] - In relation to the management of DNA within MPS custody suites, the MPS should: a) Agree a clear process outlining how and when DNA samples are to be taken, processed and retained within custody. b) Train all officers and staff responsible for taking a DNA sample to ensure the procedure is undertaken correctly. c) Develop an agreed chart detailing each step of the process which should be prominently displayed in every MPS custody suite (accessible to both MPS personnel and arrestees). This chart should be dated and subject to regular review.

4. We have taken the two recommendations together as they address the information to be provided in MPS Custody Suites and the process of DNA sampling for individuals under Criminal Law. We have produced draft pamphlet and posters that address the specific points made in the recommendations for the different groups of individuals who will be asked by the police to provide a DNA sample i.e.

1. Individuals sampled under PACE - arrested for a recordable offence
2. Individuals examined under Schedule 7 Terrorism Act 2012
3. Individuals sampled as volunteers for the purpose of elimination

The draft pamphlet and posters are shown at Appendices A, B and C.

5. We have produced a revised process for DNA sampling in custody that incorporates the detailed points made in recommendations 1 and 5 and recommendation 6 that is dealt with later in the report. These processes will be promulgated through the MPS Aware system and will be published on the MPS internet site. All police officers and police staff who undertake DNA sampling will undergo training using these processes. We anticipate that, subject to the further consultation on the content and delivery of the training in the MPS, that the process will be implemented and the training completed by March 2012.

6. With regard to audit the central MPS DNA Services Unit monitors overall compliance with the procedures by providing a quality assurance function and generating management information for use by Borough Commanders and Territorial Policing HQ to ensure compliance with procedures and legal requirements. The management information that is provided on a monthly basis includes; the current performance of MPS Boroughs in DNA sampling from January - August July 2011 is given at Appendix D. In addition to providing this information the process on Boroughs, including the storage of DNA samples, are audited by the Borough Forensic Manager (BFM) and Crime Scene Manager (CSM) at quarterly intervals. The MPS also respond to HMIC Inspections.

7. As well as providing a pamphlet and written procedures two draft posters have been produced in response to the request by the Civil Liberties Panel; “Your DNA and What It Means to You” and “The DNA Sampling Process in Custody”. These will be the subject of further consultation within the MPS and with MPA members.

Recommendation 2: [section 3.4 of the report] - The MPS should demonstrate through their community engagement work, how they will raise understanding of, and public confidence in, the use of DNA in policing.

8. The MPS Diversity and Citizen Focus Group and DNA Services Unit will work collaboratively to engage with communities in London to raise awareness on DNA sampling processes and the use of DNA in policing. It is important that such engagement dispels perceived myths the public may have as to what actually the police can do with a persons DNA, who has access to the DNA profile and what it actually means to an individual to have their profile on the National DNA Database. Particular concerns to the public are the disproportionate representation of some groups and communities on the National DNA Database but greater communication and engagement with citizens of London will aim to address these concerns and develop greater understanding of when and why DNA is taken and that the ethnic make up of the DNA Database is a product of the Criminal Justice System and therefore not disproportional in its own right.

9. It is anticipated this community engagement will be delivered via a number of focus groups, held in various locations throughout London, where true representation of the local community is encouraged. In addition to this Jeanette Arnold has also proposed facilitating a question and answer session with prominent community leaders representing minority groups and communities in London. The community engagement program will be undertaken in 2012.

10. Engagement and communication with the citizens of London is critical to ensuring trust and confidence in the MPS. DNA profiling has advanced faster than any other forensic science discipline and will continue to advance rapidly, for example, the introduction of rapid DNA profiling in the Custody Suites and more sensitive and discriminating techniques will potentially raise public concerns. It is crucial that this engagement and communication continues and the public are kept informed of advancement in DNA technology and the significance of DNA and the DNA database in helping to solve crime.

Recommendation 3: [section 3.6.3 of the report] - Where the police take an individual in need of immediate care or control to a police custody suite as a place of safety as set out under section 136 of the Mental Health Act 1983 (as opposed to the individual being arrested for a recordable offence), the MPS should ensure that their DNA will not be taken.

11. It is MPS policy and a requirement of the Mental Health Act 1983 Code of Practice that a police station should only be used as a Place of Safety on an exceptional basis. A police station may be used where the detainee’s behaviour poses an unmanageably high risk to other patients, staff or users of a healthcare setting. On the very rare occasions where a police station is used, the MHA code places clear responsibilities upon health and social care agencies. MPS policy and procedures including the revised procedures referred to in MPS ‘Operational guidance for police officers and staff responding to incidents involving someone with a mental illness 2010’ make it clear that under no circumstances should a DNA sample be taken from individuals who are detained solely at a police station as a result of the power under Section 136 unless where a person exhibiting signs of mental illness sufficient to justify use of the Section 136 power is also liable to arrest for another matter, they should be arrested under both provisions. In such a circumstance a DNA sample can be taken if the arrest for the criminal matter is for a recordable offence.

12. As an additional safeguard the DNA Services Unit provides quality assurance such that if a sample was taken purely for the detention at a police station under Section 136 Mental Health Act then it would not be forwarded for processing. In 2010-11 and 2011-12 to date, there have been no instances where a DNA sample has been received from an individual who was detained purely under Section 136 of the Mental Health Act 1983.

Recommendation 4: [section 3.6.5 of the report] - The MPS should undertake a full Equality Impact Assessment (EIA) on the use of DNA within the MPS to address the impact of the use of DNA and the DNA Database on communities within London. This should seek to identify any disproportionality and include details of specific actions the MPS will take to address issues identified. It should be reviewed on a regular basis.

13. As part of the review of MPS DNA procedures the DNA Services Unit is required to undertake an EIA. This will involve the engagement with various communities within London, identifying any disproportionality on DNA sampling, addressing any issues identified in an effective manner. The Equality and Human Rights Council (EHRC) dictates regular review of this assessment. It is anticipated this EIA will be completed by January 2012. The MPS recognises that there is a clear overlap in responding to recommendations 2 and 4.

Recommendation 6: [section 3.6 of the report] - For all suspects arrested following a match on the DNA database between their DNA profile and an unsolved crime stain, it is MPS practice to take a confirmatory DNA sample from the suspect on their arrest. This is resource intensive and not standard practice across all forces. Therefore the MPS should provide a rationale for this including the costs for undertaking this practice.

14. The rationale for taking a confirmatory DNA sample has its origins in managing the risk of relying on a previous sampling process where there was no quality assurance as currently provided by the DNA Services Unit. The MPS introduced central management and quality control of the DNA sampling process much later than other police forces. In discussions with the CPS and to facilitate the provisions of evidence the taking of a confirmatory DNA sample was introduced. There are, however, recent changes in the criminal justice system and in particular the introduction by the MPS of Streamline Forensic Reporting (SFR). Under this process the provision of DNA matches and evidence is tightly managed by forensic case managers and the process allows for challenges to the forensic evidence to be identified and dealt with early in the criminal justice process, reducing the risk of discontinuance at court. The SFR will be rolled out across the MPS to deal with the majority of DNA matches in such a way that risk of challenge will be minimised. The MPS will, therefore, in consultation with the CPS change its policy to not require a confirmatory analysis for DNA matches produced by the National DNA Database. It is anticipated that this change will take effect on 1st April 2012.

Recommendation 7: [section 4.4 of the report] - The MPS should put in place procedures to ensure the removal of personal and demographic details prior to sending DNA samples to the forensic service providers.

15. This recommendation is a national requirement, the work overseen by the NDNAD Strategy Board in consultation with Police Forces including the MPS and as part of the Privacy Impact Assessment of the National DNA Database, the Strategy Board will be taking the following measures to enhance the security and privacy of DNA information used on the NDNAD.

• Changing the DNA sampling kit in order to limit the critical information held by Forensic Service Providers (FSP’s). Names will no longer be passed to the FSPs for newly sampled individuals from December 2011.
• FSPs are adding additional steps to decouple the DNA raw data file with the sample. This will be by implementing a processing identifier within their processes so that there is no link between the original sample identifier barcode to the DNA raw data. All FSPs are aiming to have completed this by the end of the March 2012.

There will be an independent audit to provide the Strategy Board and MPS with reassurance that the processes in operation within the FSPs are compliant with the Data Protection Act.

Recommendation 8: [section 4.5 of the report] - In relation to volunteer samples taken for elimination purposes, the MPS should ensure forensic service providers are informed when the criminal justice process has been concluded to ensure the DNA sample and corresponding DNA profile are no longer required and can be destroyed.

16. The MPS require volunteer samples to be taken as part of a criminal investigation to eliminate individuals from that investigation, for example the householder and victim of a domestic burglary, and are therefore important to effective progressing of an investigation. The MPS agree that the timely destruction of these samples and associated profiles are a requirement, and appreciates the possible human rights issues involved in retaining the samples and profiles longer than required. Historically and due to the way in which these samples were submitted for profiling i.e. no central collection or recording of the samples prior to submission, together with a difficulty in ascertaining when a case is concluded, most of these samples have been retained within the forensic laboratories after profiling. The MPS have devised a mechanism whereby the MPS DNA Services Unit will routinely be sent a list of volunteer elimination profiles from all contracted forensic service providers. All samples and extracts that have yielded a DNA profile will be destroyed immediately and any un-profiled DNA kits will be destroyed 3 months after the case has concluded.

Recommendation 9: [section 6.4 of the report] - The MPS should specify how MPS budgets will be impacted by the provisions within the Protection of Freedoms Bill. This should detail immediate and ongoing cost obligations.

17. The Protection of Freedoms Bill is yet to complete its passage through Parliament so the full financial implications are not yet clear. The MPS has made representations to the Home Office and Ministers to adopt a retention regime for DNA profiles that can be managed through the national police systems and databases (PNC PND), (IDENT1 and NDNAD) so that costs to police forces of administering a retention regime are kept to a minimum. The current governments’ proposals are, however, complex and will require major changes to accommodate all of the possible outcomes from an arrest for a recordable offence. They also include a determination by the Biometrics Commissioner for those individuals arrested for a recordable offence that is a qualifying offence but is not proceeded with to charge i.e. No Further Action (NFA). Appendix E gives a schematic representation of the retention regime under the Protection of Freedoms Bill and Appendix F gives an approximation of some financial costs to the MPS to implement some of the provisions of the Protections of Freedoms Bill as it currently stands.
Based on the provisions as they currently stand after the second reading in the Commons the main areas of concern are:-

1. Annonymisation of raw data files as opposed to the deletion of the same;
2. CPIA provisions in respect of deletion and destruction of elimination and evidential samples and profiles within casework for use in court proceedings;
3. Automation of PNC files to enable deletion of DNA profiles;
4. The position of the police service at the commencement of the proposed legislation.

C. Other organisational and community implications

Equality and Diversity Impact

1. The report published by the Civil Liberties Panel for the MPA focuses on equality and diversity issues for citizens of London. The MPS response has looked to address the issues highlighted within “Protecting the innocent” as detailed in a number of the recommendations particularly Recommendations 2 and 4.

Consideration of Met Forward

2. In consideration of the three strategic outcomes of Met Forward, tackling the issues that matter most to Londoners: fighting crime and reducing criminality; increasing confidence in policing; and giving us better value for money. This report seeks to address each of them individually within our response to each of the recommendations.

Financial Implications

3. There are direct financial implications as a result of this paper, such as the costs to the MPS for the provision of posters in Custody Suites and a pamphlet to be given to individuals taken into Custody and who will have a DNA sample taken Recommendations 1, 5 and 6. A further cost will be the outcome of training given to police officers both for the implementation of the revised DNA sampling processes and retention and deletion of DNA profiles under the Protection of Freedoms Bill.

4. Details of budget savings (Recommendation 6) and the impact upon the MPS as a result of implementing the provisions within the Protection of Freedoms Bill (Recommendation 9) are referred to in the body of this report.

5. For consideration in respect of this report both in terms of the immediate and ongoing costs is whether they can be met out of existing police budgets. The Protection of Freedoms Bill will have a considerable financial impact on the MPS which accounts for a fifth of all profiles on the National DNA database. The exact cost implications are unknown at this time until the Bill passes through Parliament and receives Royal Assent, believed to be around summer 2012.

Legal Implications

6. There are no direct legal implications arising from this report which is presented for information only.

7. The Protection of Freedoms Bill will in future contain a revised framework for the retention and destruction of fingerprints and DNA samples and profile, with the aim to strike a balance between public protection and safeguarding civil liberties.

Environmental Implications

8. There are no known direct environmental implications contained within this report.

9. Following implementation of the Protection of Freedoms Bill DNA samples will no longer be retained for longer than 6 months. Currently DNA samples are held indefinitely. The impact of this upon the environment is considerable since they are held in freezers, following commencement of legislation there will be a lesser environmental impact as there will be no requirement for long-term freezer storage.

Risk (including Health and Safety) Implications

10. There are no Health and Safety implications as a result of this report.

D. Background papers

None

E. Contact details

Report authors: Gary Pugh, Director of Forensic Services, MPS

For more information contact:

MPA general: 020 7202 0202
Media enquiries: 020 7202 0217/18

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