The Human Tissue Bill, which is due to get its Third reading in the Commons next week, is a typical "Dangerous Dogs Bill" i.e. a political "we must be seen to be doing something" response to the Alder Hey and Bristol "dead babies body parts used for research without the parents knowledge or consent" scandal and subsequent media frenzy.
In what seems to be a now a standard Parliamentary trick, the Government has smuggled in at the end of the text, a controversial section of the Human Tissue Bill, which has nothing to do with the primary purpose of the Bill, presumably so that they can guillotine any debate or amendments and get the section passed through on the nod.
This seems to be very likely given that there are a lot of Government amendments to the main text of the Bill dealing with consent for use of human tissue for medical research and organ transplants etc. which the Government has had to bring in due to massive pressure from medical research academia and industry.
This controversial section deals with DNA analysis without consent and has clauses which have nothing to do with medical research or organ transplants etc. It does not comply with the European Union Constitution Charter of Fundamental Rights:
"Article II-3:
Right to the integrity of the person
1. Everyone has the right to respect for his or her physical and mental integrity.
Within medicine:
2. In the fields of medicine and biology, the following must be respected in particular:
(a) the free and informed consent of the person concerned, according to the procedures laid down by law,"
That means the legal procedures for handling free and informed consent which are, by defintion absent from DNA analysis without consent
The wording of the Human Tissue Bill Schedule 5 ? Section 46: Supplementary Part 2 ? Use for an excepted purpose does not even make a distintiction between statutory public bodies e.g. the Police or the Forensic Science Service and private companies or individuals. Anybody either in the UK or the rest of the universe will be able to conduct DNA analysis for the purpose of "the prevention or detection of crime" or for "national security"
Use of wording like "ANY crime or suspected crime" is simply too broad and is not proportionate, which is meant to be a test under the Human Rights Act.
"establishing by whom, for what purpose, by what means and generally in what circumstances any crime was committed,"
Could someone please explain how DNA analysis can be used to establish the purpose of any crime ? Does this assume some sort of naive "guilt through racial profiling" ?
The Human Tissue Bill is the wrong instrument to deal with the complicated issues of the balance between security, privacy and copyright regarding non-consensual DNA analysis and the issues surrounding the retention and use of DNA profile data, not just the actual DNA tissue samples themselves.
Do you value the privacy of your personal DNA more or less than that of an email, a written letter or a phone conversation ?
For the Police or Security Services to intercept your mail, your email or your phone or computer data traffic, or to use intrusive surveillance techniques, there are well established procedures and some checks and balances under the Regulation of Investigatory Powers Act 2000
If Human Tissue Bill Schedule 5 ? Section 46: Supplementary Part 2 ? Use for an excepted purpose passes into law, then there will be no checks or balances at all to regulate non-consensual DNA analysis.
Non-consensual DNA analysis for law enforcement purposes should be subject to exactly the same procedures i.e. there should be reasonable grounds for suspicion of a serious crime, and a very police senior officer or the Home Secretary should give written permission, and extreme care must be taken to protect the confidentiality of the data obtained. There should be no speculative "trawling" of DNA data, because the risks of "racial profiling" are so abhorrent.
None of the powers of the Human Tissue Agency to inspect premises, to licence laboratories etc. seem to apply to DNA analysis laboratories, because non-consenual DNA analysis is to become an "excepted purpose"
DNA analysis laboratories should have minimum standards and external inspections, simply because if the sample handling and labelling procedures get lax, the extreme sensitivity of the analysis techniques mean that cross contamination with the wrong DNA sample is a real danger.
The issues surrounding DNA and the data which constitutes a DNA analysis profile like privacy, copyright, paternity, racial profiling etc. are important enough and complicated enough to warrant a separate DNA Bill of Rights, and not just a Schedule tacked on to the end of another controversial Bill in the hope that there will be insufficient Parliamentary time for it to be debated or amended.
Contact your Member of Parliament and get this Schedule 5 amended to enforce privacy safeguards regarding DNA analysis without consent.
Human Tissue Bill Schedule 5 ? Section 46: Supplementary Part 2 ? Use for an excepted purpose
"Part 2
Use for an excepted purpose
Introductory
This Part of this Schedule makes provision for the interpretation of ?use for
an excepted purpose? in section 46(1)(a)(ii).
Purposes of general application
5 (1)
Use of the results of an analysis of DNA for any of the following purposes is
use for an excepted purpose?
- (a) the medical diagnosis or treatment of the person whose body
manufactured the DNA;
(b) purposes of functions of a coroner;
(c) purposes of functions of a procurator fiscal in connection with the
investigation of deaths;
(d) the prevention or detection of crime;
(e) the conduct of a prosecution;
(f) purposes of national security;
(g) implementing an order or direction of a court or tribunal, including
one outside the United Kingdom.
(2) For the purposes of sub-paragraph (1)(d), detecting crime shall be taken to
include?
- (a) establishing by whom, for what purpose, by what means and generally in what circumstances any crime was committed, and
(b) the apprehension of the person by whom any crime was committed; and the reference in sub-paragraph (1)(d) to the detection of crime includes any detection outside the United Kingdom of any crime or suspected crime.
(3) In sub-paragraph (1)(e), the reference to a prosecution includes a
prosecution brought in respect of a crime in a country or territory outside the
United Kingdom.
(4) In this paragraph, a reference to a crime includes a reference to any conduct
which?
- (a) constitutes one or more criminal offences (whether under the law of
a part of the United Kingdom or a country or territory outside the
United Kingdom),
(b) is, or corresponds to, conduct which, if it all took place in any one
part of the United Kingdom, would constitute one or more criminal
offences, or
(c) constitutes one or more offences of a kind triable by court-martial
under the Army Act 1955 (3 & 4 Eliz. 2 c. 18), the Air Force Act 1955
(3 & 4 Eliz. 2 c. 19) or the Naval Discipline Act 1957 (c. 53).
Any chance of a layman's interpretation of this lot? What precisely is an "excepted purpose"? Is that 'accepted', 'not accepted' or what, I wonder? It would seem that you could prevent the State from analysing your DNA (for so-called 'law enforcement' purposes) by not giving permission in the first place for any type of analysis. Or have I missed something - would it be possible for samples to be taken without consent and then for the fuzz to have access to them?
"Excepted purpose" means a legal exception to what would otherwise be a criminal offence under
"Section 46 Offences relating to non-consensual analysis of DNA"
http://www.publications.parliament.uk/pa/cm200304/cmbills/049/04049.25-31.html#J377
The Police can already take a non-intrusive DNA sample (usually a swab of the cells from inside your mouth) from you if they arrest you for any offence. This can then be analysed and stored on the central DNA Database which is being built up by the Forensic Science Service.
Astonishingly, if you are found innocent or if you were foolish enough to give a voluntary sample of DNA to help, say in tracking down a serial rapist, then your DNA samples and the DNA analysis data profile is *now retained forever*, instead of, as used to be the case, being destroyed once someone else was convicted of the crime.
Who knows why the Department of Health is meddling in DNA criminal justice and data privacy issues, but there it is, tacked onto the end of this Human Tissue Bill.
Sorry, but I'm still not clear. According to these proposals could you state that you are NOT prepared to give a sample for DNA analysis of any kind - full stop? This would be from yourself, as part of a medical sample, or from a deceased relative.
If so, then people would be well-advised never to submit to voluntary DNA sampling for any purpose whatsoever.
And here's another thing: Extract from the Bichard Report:
"The Association of Chief Police Officers told Bichard it would like to keep all criminal records until the suspect's 100th birthday, if necessary.
In the light of the Huntley case, this is perfectly understandable.
Would it be an infringement of someone's right to privacy, though?
A test case brought under the Human Rights Act (and subsequently incorporated in the Criminal Justice Act 2001) has already decided that it would not.
A man called Marper, who was arrested but not charged after a domestic dispute, argued that the police had acted unlawfully in retaining indefinitely a DNA sample.
The judgment went against him on the grounds that if he did not go on to commit a crime, the data associated with the sample would not be processed."
----------------
So there you are! If you don't commit a crime your data won't be processed. So how are they going to know it was you who committed the crime if they don't process the data!
Under the Criminal Justice Act 2003 amendment to the Police and Criminal Evidence Act 1984 (PACE)
the police can take your fingerprints without consent
http://www.legislation.hmso.gov.uk/acts/acts2003/30044--b.htm#9
and a non-intimate sample (i.e. not blood or urine) without consent
http://www.legislation.hmso.gov.uk/acts/acts2003/30044--b.htm#10
if they arrest you for any recordable offence (which includes most motoring offences).
The National DNA Database has over 2 million records and rising
http://www.forensic.gov.uk/forensic_t/inside/news/list_press_release.php?case=16&y=2003
N.B. the population of criminals in prison is only about 75,000
http://www.hmprisonservice.gov.uk/resourcecentre/publicationsdocuments/index.asp?cat=85
The problem with Huntley/Nixon was that he was not convicted of anything so there was no record on the Police National Computer.
Keeping unproven allegations, rumours and libels on a "soft intelligence" database and then sharing this with thousands of people nationally without strong privacy safeguards and audit trails under independent review is going to be a recipe for massive abuse.
Retaining fingerprint and DNA samples and the data derived from them under section "82 Restriction on use and destruction of fingerprints and samples" of the Criminal Justice and Police Act 2001
http://www.legislation.hmso.gov.uk/acts/acts2001/10016--f.htm#82
seems to have a "permission to share and retain may not be revoked once given" clause, which presumably everyone who gives a "voluntary" sample has to sign.
*2 of the
I've not been able to decode the legalese but I conjecture
that this Human Tissue bill must not annul s82 of the 2001 CJPAct
and the related section of the recent CJ bill/act.
Also consider it is payback time for all the billions spent
on decoding the human genome. Multinationals are lining
up to link genealogy and DNA disease prediction / treatment etc
see
http://www.exploratorium.edu/theworld/iceland/dna.html
http://www.boston.com/news/globe/health_science/articles/2003/08/19/good_science_good_pr/
What they aren't telling you about DNA profiles
and what Special Branch don't want you to know.
http://www.nutteing2.freeservers.com/dnapr.htm
or nutteingd in a search engine