Issues
Police DNA retention – why we should be concerned
Picture the scene. You are driving along a road when you are asked to stop by police officers. Even though you have committed no offence, the officers tell you that they believe you may be in possession of drugs or weapons. You are arrested and taken to a police station where you are fingerprinted and a mouth swab is taken of your saliva - the process by which the police seize a sample your DNA. After a strip search at the police station and a number of hours in a police cell, you are told that you are free to leave, as you were not found to be in possession of anything illegal. The police tell you that even though you are not guilty they are keeping your DNA and fingerprints and they will not be destroyed. Would you object?
Under the Police and Criminal Evidence Act 1984 (PACE) the police have the power to take DNA samples from an individual under arrest at the police station if there are reasonable grounds to suspect that person has committed a recordable offence. That is, an offence which may be recorded on a criminal record.
The police can also ask a person to provide a DNA sample as a volunteer. If the person provides the sample as a volunteer and is subsequently ruled out of police enquiries, that person has a right to the samples being destroyed.
If, however, the person was under arrest when the samples were taken the situation is different. If that person is released from custody, without having been prosecuted or even charged, then under s.64(1A) of PACE such fingerprints and DNA may be retained “for purposes related to the prevention or detection of crime, the investigation of an offence or the conduct of a prosecution”. This means that if you are arrested but are found to be totally innocent of the offence in question, your DNA can still be, and most probably will be, retained by the police and stored on the National DNA Database.
The power for the police to retain the DNA of innocent members of the public was subsequently approved in the House of Lords case of R v Chief Constable of Yorkshire Constabulary ex parte Marper. In that case the House of Lords said, in essence, that the benefits to be derived from the retention of such DNA samples in detecting and fighting crime, outweighed any concerns about individuals’ privacy.
So, why should we remain concerned? Firstly, there is the privacy issue. In their submissions to the House of Lords, the campaign group Liberty said, amongst other things, DNA samples contain more information than is necessary for the police to hold in investigating crime – e.g – hereditary conditions, family relationships, behavioural tendencies- information the person may not even know himself.
There are further concerns, from a race-relations perspective. A recent report in the Guardian, in an article on 5 January 2006, noted that the DNA profiles of 37% of black men in the UK, 13% of Asian men and 9% of white men are on the police's national database. The database now holds 3 million samples and at a recent conference held by the Metropolitan police and attended by ARA members, a police forensic scientist admitted that the system could have the capacity to hold the DNA of the entire population of the UK, approximately 60 million people.
There is a history of the objectivity of policing in the UK being tainted by racial bias, a sad fact which can be evidenced with reference to the proportion of black and Asian men in particular being stop searched by the police, compared to white counterparts. In recent times the terrible events of September 11 and July 7 have also led to officers choosing to stop and search increasing numbers of black and Asian men, sometimes under anti-terrorist legislation which does not require them to have any reasonable suspicion that the person has committed an offence.
Stop and search statistics indicate that you are more likely to come into contact with the police if you are black or Asian. It follows that you may therefore be more likely to be arrested if you are black or Asian, especially if the same bias used to justify your search is used to justify spurious grounds for your arrest. Although the police should have reasonable grounds to suspect an individual of an offence prior to their arrest, there are cases where the decision to stop, search and arrest is based more on a person’s race than on any objective evidence or intelligence.
The power to retain DNA could lead to police officers with racist tendencies deciding to arrest individuals from ethnic minority backgrounds simply in order to seize and retain their DNA. There is a real danger that officers may either base their decision to arrest on ever more slender evidence, or no evidence at all, in order to get a person at the police station, under arrest, and be able to take their DNA and run a check against a list of unsolved crimes. Being told that the data will be retained even after the search is done seems to suggest to many people that the police expect them to become involved in a crime later in their life – why else would the retention be required?
Of course it is in our interest that crimes are solved but, storage of highly personal data compromises individuals’ privacy, can lead to people feeling that they are being criminalised even if they are innocent and leads to those in positions of authority, who as an institution have previously exhibited a history of racial bias, having access to data which could be manipulated for improper purposes. Even the most stringent safeguards on the use of DNA data cannot prevent corrupt individuals manipulating DNA evidence. Those with access to the information may come under pressure to disclose the information to, for example, insurance companies who could use the information to assess the risk of genetic disorders. Furthermore, no computer system is entirely safe from hackers. Also, with regards the usefulness of DNA evidence in solving crimes, in many circumstances, DNA evidence simply places a suspect at the scene of a crime at some point in time. It does not establish that they are guilty of the offence.
The seizure and retention of personal DNA from innocent people does little to improve relations with those minority communities who have already suffered the indignity of having been targeted disproportionately on the basis of their race. It also adds to the suspicion that certain police officers suspect individuals of either being a criminal, or even worse expect them to become a criminal in the future, on the basis of the colour of their skin. If you were wrongfully arrested, spent hours in a police cell and were then told you were free to go, would you think you were still under suspicion if the police retained your DNA?
The ARA would like to hear from anyone who has been told their DNA will be retained after they have been detained at a police station and then released without charge. We can discuss the possibility of challenging decisions to retain DNA.
The Struggles Ahead
(Speech delivered at the Anti-Racist Alliance's Celebration February 2006)
In 1963, the United Nations promulgated a Declaration on the Elimination of all forms of Racial Discrimination. Article 1 of the Declaration stated:
“Discrimination between human beings on the grounds of race, colour or ethnic origin is an offence to human dignity and shall be condemned … as a violation of … human rights and fundamental freedoms … as an obstacle to friendly and peaceful relations among nations and as a fact capable of disturbing peace and security among peoples.”
While these words were being written, a storm was raging across America. Buses had stopped rolling in Montgomery; sit-inners were jailed and beaten; freedom riders were brutalised and mobbed; freedom marchers from Birmingham to Brooklyn daily suffered hatred from their fellow citizens and the violence of the State.
If ever there was a discord between noble words uttered by statesmen and the deeds of the State they ruled, it was there for all to see in 1963. In that year, Dr Martin Luther King wrote :
“The pale history books in Harlem … told how the nation had fought a war over slavery. Abraham Lincoln had signed … the Emancipation Proclamation. The war had been won but not a just peace. Equality had never arrived. Equality was a hundred years late”
In a month that has seen the acquittal of the leader of the British National Party, leaving him free to continue his crusade of racial hatred; in a month that has seen the death of Coretta Scott King; in a month that has seen the racist riots in Australia and racism on football pitches; there have been riots in France; in a month that has seen violent protests by Muslims across the globe against an insult to their faith; in a year of bombings in London and the rise of Islamaphobia, it is useful to pan across the globe to see what is happening elsewhere over the last few months.
When it comes to equality, we should be constantly vigilant in comparing the words of the State with its deeds, and be alert to the widening of the gap between the two.
The cause of equality across the world has not been assisted by the U.S. government’s use and defence of torture and inhumane treatment. Where there is an attack on human rights, there is an attack on equality. The UK Government’s claim to be a strong advocate of freedom and equality is tarnished by its support of the US position on torture and in relation to rendition flights. Human Rights Watch, the independent and renowned human rights organisation commented:
“In the course of 2005, it became indisputable that U.S. mistreatment of detainees reflected not a failure of training, discipline, or oversight, but a deliberate policy choice. The problem could not be reduced to a few bad apples at the bottom of the barrel. As evidenced by President George W. Bush’s threat to veto a bill opposing “cruel, inhuman, and degrading treatment,” Vice President Dick Cheney’s lobbying to exempt the Central Intelligence Agency (“CIA”) from the bill, Attorney General Alberto Gonzales’s extraordinary claim that the United States is entitled to subject detainees to such treatment so long as the victim is a non-American held overseas, and CIA Director Porter Goss’s defense of a notorious form of torture known as water-boarding as a “professional interrogation technique…”
Elsewhere in the world, a similar, worrying, picture emerges. In China, there is an increase in the subjugation of religious and ethnic minorities – the recent disappearance of a human rights lawyer adds to concerns over the future treatment of minorities including the treatment of Tibet, and the followers of Falun Gong.
Russia’s position on the rights of minorities in satellite states has hardened. It is a part of the Russian programme to slow down the rise of opposition groups seeking greater democracy. Russia knows that it is safe from US criticism.
In Burma, hundreds of thousands of people, most of them from ethnic minority groups, continue to live precariously as internally displaced people. More than two million have fled to neighbouring countries.
In India, Pakistan and Bangladesh, the State tolerates violent assaults by extremists on religious minority communities. Recourse by the persecuted minorities to effective justice is rare.
Vietnam’s repressive policies against indigenous minority Montagnards continue to generate a flow of refugees into Cambodia.
In Sri Lanka, since early 2005, minority Tamil and Muslim communities have accused the government of discrimination in the distribution of post-tsunami aid.
In much of Africa, the picture remains bleak, from Nigeria to Angola to Sudan to Zimbabwe – while the grossest tales of genocide have abated, millions of minority peoples live life in (often state sponsored) fear and poverty.
In Syria the government strictly limits freedom of expression, association, and assembly. Thousands of political prisoners, many of them members of the banned Muslim Brotherhood and the Communist Party, remain in detention. Syrian Kurds, the country’s largest ethnic minority, continued to protest their treatment as second-class citizens. Women face legal as well as societal discrimination, and have little means for redress when they are victims of sexual abuse or domestic violence.
By the time I reach the Middle East, I hold my head in despair and give up the task of global analysis of human rights and equality!
This is just a random (and depressing) snapshot of the global position. The fact is that one could point to any country on the globe and reveal a bleak picture of its human rights record. A similarly bleak picture of equality and discrimination follows.
The story in the UK is not much better. The media has regular bouts of anti-immigrant stories that whip up hysteria. After the 7 July bombings, all black and minority ethnic communities felt threatened by the prospect of reprisals. Anti-terrorism legislation has allowed the police wider powers of stop and search. Thousands of such searches take place each year but yield little or no result. They have the effect of isolating communities and making them suspicious of the police. They alienate the youth. Their effect is counter-productive. New race hate offences are used as much against black and minority ethnic communities as against the BNP (British National Party).
The challenge for the Anti-Racist Alliance is to ensure that in this country, we continue to make progress, even if it is in small strides, even if there is a step back for every two steps forward, even if the repeated banging of our collective heads against the doors of power yields only a headache. It is a cause worth fighting for.
Two of the areas that the ARA has focused on are education and employment. I believe these are likely to yield the most benefits for the community.
Can I give you a personal example in relation to these areas? A few years ago, I and other like-minded idealists in the legal profession, had the temerity to complain to the big City law firms that they did not appear to be recruiting black and minority ethnic candidates. The only evidence we had was anecdotal evidence – but it came from a wide section of the profession and from our own experience. We sought statistics from the law firms, so that we could prove our claim with hard facts. The big firms refused to give us their recruitment figures on grounds of “commercial confidentiality”. We knew the real reason was because they did not want us to know the truth. Eventually, we managed to get hold of the statistics through other means. The figures proved what we had been saying all along – there was gross under-representation of black and minority ethnic lawyers in the big firms. After much agitation in the media, we forced the recruitment partners of the top 50 legal firms in London to meet us. They were not in the least abashed or apologetic about the poor statistics. Their response was that while they regretted the poor figures, they could do nothing about it as “we only recruit the best”. The implication was that because they only recruited the best, the poor showing of minority lawyers in their ranks was because they did not make the grade. They were not good enough to be recruited to such firms. We knew that this was untrue – that well qualified candidates were being excluded because of reasons other than their ability. A few years later, the Law Society commissioned a study to compare like with like – so a black law student with 3 “A” levels and a 2(i) degree from a red-brick university was compared to his equally qualified white counterpart. The statistics made horrendous reading. If you were black, you had one-eighth the prospects of securing a job as your equally qualified white competitor. We summoned the recruitment partners back for another meeting. This time, not one of them used the phrase “we only select the best”. They accepted that their recruitment policies must be suspect and embarked on changing them.
Many parts of the black and minority ethnic community are underachieving in education. There are signs, especially in terms of truancy and exclusion, that the level of underachievement is increasing. It is only through education that deeply ingrained imbalances between communities can begin to be rectified. Education opens doors not only for the individual but also for his community, and allows aspirations of both to be realised.
In 2004, Black boys were three times as likely to be excluded from school as White boys and the percentage of Black Caribbean pupils getting five or more grades A* to C at GCSE and equivalent was 36 per cent compared to 52.3 per cent of White children. The figures for 2005 are likely to be at least as grim, especially under Labour’s educational reforms.
For those that do succeed in overcoming educational hurdles, they find barriers to entry in employment. There is still a wide gulf in employment figures for many black and minority communities. It is the most significant cause of the widening gulf in the incomes of different communities. The gap in the incomes of the white middle class and many minority communities continues to increase. If there is the predicted downturn in the economy, the first to be effected will be the black and minority ethnic communities.
The ARA must continue to fight racism in the school environment and in the labour market. The ARA must continue to support those who a vulnerable and in need of legal assistance. It must continue (with its European partners) to campaign for changes in the law and culture to allow greater harmony between communities. A measure of the civilisation of any state must be the extent to which it treats all its citizens equally under the rule of law.
The changes that the ARA seeks in our society will take time. They will take place through struggle, through force of argument, through organisation. The struggle is founded in the knowledge that our cause is morally right and justified. We do not seek special favours or gratuities handed down from a paternal state. We ask for no more than fairness and equality. No more and no less than what is the right of every citizen. We seek the same justice, education, employment and shelter as our brothers and sisters.
Although we know from experience that while much progress has been made in our lifetimes, the natural position of the State is the status quo ante, and the sort of change we seek will be met with resistance.
In other parts of the world, our simple quest for equality would be met with swift retribution. We must therefore remind ourselves that although what we do here is watched with fear and loathing by those in power around the world, our actions give hope to their oppressed peoples. Our struggles and our victories, however small or big, will give cause for optimism to others far away.
In 1849, the famous abolitionist, Frederick Douglas wrote on the subject:
“Let me give you a word of the philosophy of reforms. The whole history of the progress of human liberty shows that all concessions yet made to her august claims have been born of struggle … If there is no struggle, there is no progress. … Power concedes nothing without a demand. It never did and it never will …”
Those words still hold true, in a world in which the power of the State today is far greater than the power of the State when Frederick Douglas wrote them. Long may the ARA continue in its struggle against inequality.
For me it is an enormous privilege to be associated with the Anti-Racist Alliance. I have seen it grow from inception. I have been fortunate enough to participate, in a small way, in some of its wide-ranging activity. It is a community-based organisation, which reaches out nationally and internationally. I have seen how it has changed the lives of individuals. It is to me the embodiment of the ideal community. Long may the work of the ARA continue to flourish.
May I end with the words of the Proclamation:
“all human beings are born free and equal in dignity and rights, … without distinction of any kind, in particular as to race, colour or national origin”
I invite all readers to pledge their support for the self-evident truth of those words and pledge their support for the ARA in the struggles ahead.
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