UK Liberty

DNA, and who is Kevin Reynolds?

Posted in DNA database, law and order by ukliberty on March 11, 2008

Kevin Reynolds was arrested early in the investigation of the murder of Sally Anne Bowman because the police trawled the National DNA Database and his profile matched DNA at the scene. [There appears to be some confusion over this order of events, which I have discovered since writing this article – see David Mery’s comments below.]

He had been arrested some time before for something trivial (I forget what) and cleared being drunk and disorderly, later acquitted, but of course his DNA profile wasn’t deleted.

They put him on two identity parades, both of which he ‘passed’ one where the witness identified someone else, the other where the witness refused to identify anyone, so police were slowed down. But of course they had kept him in a cell for 36 hours, interrogated him, and searched his father’s house for two days to the extent of ripping up floorboards.

Months later the police found Mark Dixie, again as a result of his DNA being on the database, and he was subsequently convicted of murder.

Now, the only news media that mentions Kevin Reynolds, as far as I can tell, is this week’s issue of Private Eye, 1205, and I mention him here because I think it’s bizarre that in a ‘national debate’ about enrolling everyone on a National DNA Database there is no discussion of false positives, like Mr Reynolds.

Perhaps even more bizarre is someone like Detective Superintendent Stuart Cundy saying, “If there was a DNA register we would have known who killed Sally Anne that day”, because there was a DNA register and his team arrested the wrong man as a result!

Update

FishNChipPapers has kindly pointed me to an article by David Pannick QC in the Times, regarding the cases of S and Marper being heard together at the European Court of Human Rights:

S was 11 years old when arrested in 2001 and charged with attempted robbery. After a trial he was found not guilty. Also in 2001 Michael Marpur was arrested and charged with harassment of his partner. Thereafter his partner decided not to press charges. In each case DNA samples and fingerprints were taken. In each case the police refused to destroy the material, relying on a power conferred by Parliament to retain it for use in the detection of crime. …

The applicants complain that the retention of their fingerprints and DNA samples breaches their rights under Article 8 of the European Convention on Human Rights which protects private life, read with Article 14 that prohibits arbitrary discrimination. In 2004 the Appellate Committee of the House of Lords dismissed their case. All five judges took the view that any interference with private life was plainly justified by the ability of DNA evidence to identify the guilty and exonerate the innocent. Lord Brown of Eaton-under-Heywood said that the benefits of a larger database were “manifest” and the objections to it “threadbare”. Indeed, Lord Steyn, for the majority, took the view that Article 8 was not even engaged. Only Baroness Hale of Richmond took the more realistic view that the retention of DNA samples needed to be justified.

You can find the Lords’ judgement on Privacy International’s website and Parliament’s website (note that S is referred to as LS).

But the case for the Government nevertheless deserves to succeed. The applicants do not dispute that there was justification for the taking of their samples when they were suspected of crime. To retain the samples is a very limited interference with their private life, involving no practical detriment, especially when there are strong safeguards against any use of the material other than to check for a match to a crime scene.

But again, what happens when there is a false positive, as with Mr Reynolds? Suppose, as he wondered, someone did pick him out at an identity parade? Presumably he could very well be in jail now instead of Mark Dixie.

Do not misunderstand – I’m not sure where I sit here, I appreciate that some ‘balance’ must be struck between the duty of the state to prevent crime, and the rights of the individual, I appreciate that the DNA database has helped police put people behind bars (Dr Bramley’s statistics, provided in the Lords’ judgement, may be of interest).

But I find it frankly horrifying that there is not even an acknowledgement that there might be a false match, and therefore no discussion of the consequences of that (the same applies to the biometric mechanisms used by the National Identity Register).

I also find it odd that this wasn’t raised by the applicants.

Lord Brown:

Given the carefully defined and limited use to which the DNA database is permitted to be put—essentially the detection and prosecution of crime—I find it difficult to understand why anyone should object to the retention of their profile (and sample) on the database once it has lawfully been placed there.

Because it could lead to the lives of innocent people, like Kevin Reynolds, being interfered with!

Henry Porter:

The DNA database is not a perfect weapon. Last year 1,500 administrative mistakes were discovered and at least 100 inaccuracies pertaining to individuals. That means there is a real possibility of people being convicted of crimes they did not commit. Given the chaotic state of government databases, it must be obvious even to [Martin] Salter and [Philip] Davies that administrative errors would be vastly increased if the database were to be expanded by a factor of about 13, from 4.5m to 60m.

Why do we pretend these systems are perfect?

And, as Henry Porter asks, why is there no statutory basis for the DNA database? Why have its principles never been put to the vote?

Sarah Teather, Liberal Democrat MP, in a recent ‘debate’ she managed to secure in the Commons:

The Government are fond of repeating that the innocent should have nothing to fear from the retention of these data. I cannot accept that argument, because it places no intrinsic value on privacy or liberty. Moreover, it fundamentally fails to appreciate the distress and discomfort that can arise from a police investigation in which one may later be exonerated. If someone’s details, along with those of several others, match those of a partial profile gained from a rape, and they are investigated, the stigma and damage may last long after the police have excluded them from their inquiries.

Needless to say, this point wasn’t satisfactorily addressed by Meg Hillier. She also mentioned Mark Dixie:

Let us take this down to real-life crimes. I shall not go into too much detail, but let us take the recent example of Mark Dixie, who has been convicted of murder and was arrested following a punch-up in the pub where he worked. The incident was, in itself, fairly minor and no further action was taken, but because his DNA was on the database, a match to the murderer was produced. Within five hours, he was under arrest.

But not five hours of the crime being committed! Some nine months, in fact.

And again no mention of Kevin Reynolds.

How odd.

Update

Another false match:

In April 1999, Raymond Easton was visited by Swindon police and asked to give a blood sample to help with the investigation of a burglary over 200 km away. Mr Easton was unconcerned because he knew that several family members would confirm that on the night in question he had been at home caring for his sick daughter. He was also suffering from advanced Parkinson’s disease and could not drive, dress himself or walk more than 10 metres unaided. However, he was unaware that his DNA profile, obtained from a sample he had given four years earlier during a domestic dispute, had matched a DNA profile found at the scene of the crime. Mr Easton was subsequently arrested for the burglary, purely on the basis of the DNA evidence. He was taken to a police cell where he was kept for several hours before beinggranted bail. It finally came to light that Mr Easton had been a victim of ‘an adventitious cold hit’ a false match that occurred by chance – but it still took three months for the charges against him to be dropped. Changes to the DNA profiling process since this incident have reduced the chances of similar false matches but this does not mean the chances have been reduced to zero. – National DNA Database, Genewatch (438 Kb PDF)

Update 2

I forgot to add that there are a few cases where the DNA analyst has deliberately misrepresented his findings in order to obtain a conviction. I will try to find a reference.

So we not only have problems with the technology, in terms of inherent error rates, we also have human error (mixing up samples etc), and lying about the results.

That is not to say that these things happen most of the time – I would guess that they happen relatively rarely. But my point is that these systems aren’t perfect.

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14 Responses

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  1. FishNChipPapers said, on March 12, 2008 at 10:04 am

    Thanks for highlighting this (haven’t got to read this Private Eye yet). I came across a feature in the Times from a QC discussing this very issue, which I posted about here: http://fishnchippapers.typepad.com/tomorrow_fish_n_chip_pape/2008/03/dna-retention-a.html

  2. Marc Ashdown said, on March 14, 2008 at 1:36 pm

    Very interesting points. I’m trying to track down Kevin Reynolds for a piece for BBC London TV News about DNA. If you’d be interested in sharing your views for the piece too, give me a call. Many thanks.

  3. Watching you at school « UK Liberty said, on March 16, 2008 at 2:40 pm

    […] Comments Marc Ashdown on DNA, and who is Kevin Reynolds?Kick-starting a national debate on a Bill of Rights and Responsibilities « UK Liberty on […]

  4. David Mery said, on March 16, 2008 at 11:07 pm

    You can find a bit more information on Kevin Reynold’s story at http://gizmonaut.net/blog/uk/dna_retention_of_unconvicted_people.html

    br -d

  5. ukliberty said, on March 17, 2008 at 11:10 am

    Thanks David, very interesting indeed.

    I wonder how many people have been arrested for a crime because of a DNA profile match, where subsequently someone else is convicted of the crime?

  6. […] about CCTV? « UK Liberty on On Government proposals and solving problemsukliberty on DNA, and who is Kevin Reynolds?David Mery on DNA, and who is Kevin Reynolds?IanP on Watching you […]

  7. gronjo said, on March 18, 2008 at 2:19 pm

    As weapons become more powerful, more people will be killed or injured by “friendly” fire. It seems unbelievable that any system involving human judgment can be fault free so we must strive to minimise damage to innocent persons, not divest ourselves of the means of frightening or detecting criminals.
    Serial criminals cause a great deal of collateral damage. If they are deterred from doing so and the cost is a much lower rate of innocent suffering, then perhaps for the greater good . . . . ?

  8. ukliberty said, on March 18, 2008 at 4:32 pm

    Just as we are obliged to limit ‘collateral damage’ during times of war, so must any infringement on our liberty be ‘proportionate’ during times of peace.

    That is what is being tested in S and Marper – our Law Lords ruled that the retention of DNA and fingerprint samples was a proportionate measure, and this is being appealed before the European Court.

    Disregarding more philosophical questions for the moment, I agree that no system can be fault free, but my point is that the Government, some judges, and many supporters of such systems as the DNA database, do not acknowledge that faults exist, let alone engage in debating the extent to which those faults should influence our decisions about a given deployment. How then can we weigh up the costs of deployment with the costs of non-deployment? How can we judge proportionality?

    Now, I do not know the frequency of false matches, but it’s certainly above zero. The number of false matches will increase as more profiles are stored on the DNA database (improvements in technology and how many loci are examined will mitigate this problem). That much seems certain. But why isn’t this being discussed in government?

    As I write in many articles on this blog, this like so many other decisions is a question of trade-offs – but unfortunately we are not informed about what we are trading!

    It has been pointed out elsewhere that the logical consequence of non-deployment, or a partially ‘disabled’ (if that’s an appropriate word) deployment of a given crime-fighting measure is that some murderers, rapists and so on won’t be caught – that civil liberties supporters must accept that is a consequence of their decisions. Well of course I do! What reasonable person wouldn’t?

    Again this speaks to the question of proportionality – where one draws the line. If we said everyone should be fitted with a GPS bracelet, the position of which is logged every few minutes, so that we know where they are at all times, and therefore be able to place them at crime scenes – the logical consequence of not doing that is that many rapists and murderers won’t be caught, isn’t it? But no-one reasonable is suggesting that. Why not?

    Lastly, it may be worth recalling a long standing tradition in English law, that of n guilty men going free so that one innocent does not suffer.

  9. David Mery said, on March 19, 2008 at 1:18 am

    > I wonder how many people have been arrested for a crime because of a DNA profile match, where subsequently someone else is convicted of the crime?

    I don’t think this data is available. There’s mention of the problem in http://www.theyworkforyou.com/lords/?gid=2003-12-09a.681.0 with some hints in http://www.theyworkforyou.com/wrans/?id=2007-12-03e.162366.h as well

    False positive is a factor in the Nuffield study, for instance. Paul Nutteing gives some examples of false positives in his http://www.nutteing2.50megs.com/dnapr.htm

    (Just to avoid confusion, this is not the case for Kevin Reynolds as there was no DNA match)

    br -d

  10. gronjo said, on March 19, 2008 at 4:05 am

    Well! There are many points to address. In reverse order:

    1. Tradition, in many ways, is admirable but sociological patterns have changed and what was suitable many years ago may not be suitable now.
    How many innocent people have been convicted in the past, more than zero? If so then tradition differs from ideal in that traditionally, innocent people have been convicted.

    2. It is not possible to establish a crime-free society so some people will continue to cause unwarranted damage to others. I think it is best that solutions minimise trauma to the maximum number of innocent people. These solutions must be affordable, and convenient for everybody.

    3. Some proponents of a DNA register argue from beliefs and that can diminish their reasoning but nevertheless their desire to reduce crime is admirable.
    However, may I suggest a hypothetical survey. It is to find the percentage of people who support a DNA register. For my survey there are three groups:
    The general public: A%
    Victims of crime: B%
    Perpetrators of crime: C% A% = B% = C%?

    It is possible to determine A% and B% and therefore calculate C%. If B% > A% then C% < A%. i.e. the proportion of criminals which support the register would be smaller than the average.
    Should the relevant policy be the one that most criminals support?

    Desired policies are those that deter crime, apprehend criminals while minimising incorrect detections. People are concerned, rightfully, of miscarriages of justice but let us not forget that errors have been made and people have been wrongfully convicted in the past. It will be argued that a register will help to reduce these injustices because DNA can indicate innocence as well as guilt. It will also be argued that it would cause a significant deterrent to crime if criminals did not support a register. That would be desirable.

  11. ukliberty said, on March 19, 2008 at 1:17 pm

    David, if what you’re saying is true it appears I have misunderstood the Kevin Reynolds story (including your very interesting article). Why was he suspected of murdering Sally Anne Bowman? Are you saying that the police knew his DNA did not match the evidence found at the crime scene yet arrested him for the murder regardless (an article you linked to says the police didn’t wait for the results)? For what (ostensible) reason? There seems to be more to this than met my eye. I would greatly appreciate your thoughts.

    Gronjo, with respect I think your proposition about the policies criminals may or may not support is a red herring. We law-abiding citizens must do what is right for us. I am sure that the majority of criminals would be opposed to GPS ankle tags – should that mean we as a society shouldn’t object to tags also? What about CCTV in every home? To what extent should the opinion of criminals influence such decisions? I would suggest, very little, in that respect.

    I do think that “what is right for us” should include thinking about “n guilty men” and other fundamental principles of our society. Now, it may be that – as you suggest – “sociological patterns” have changed and such things are no longer seen as appropriate. Fair enough – while I believe those principles deserve some protection from ‘democracy’, it would be difficult to prevent movement on such a front.

    But my problem here is that (as I wrote) there has been no opportunity for argument, there has been no debate in Parliament – in other words, we have not been given the opportunity to decide “what is suitable now” (of course I wonder how many Members would be competent to discuss it). I do not believe the Executive has or should have the right to introduce any such system without a statutory basis.

    I find it interesting that the Scottish have a different system (I regret that I rarely discuss Scottish law on this blog) – Lord West: “DNA samples and profiles can be retained permanently from anyone convicted; if a prosecution is started for a sexual or violent offence, the DNA can be retained for three years with a possible extension, regardless of whether the person is brought to trial or convicted; otherwise the DNA samples and profiles have to be destroyed after the investigation. Therefore, since 2004 most of the profiles deleted from the NDNAD have been Scottish ones.”

    Now, I wonder what “significant practical issues” the Home Office has in mind when the question about universal databases is raised (eg BBC – Mandatory DNA database rejected).

    Could one of them be what seems to me one of the most practical objections to the universal database: the proposition that criminals would gather DNA evidence from other people (if they don’t already) and leave it at crime scenes, tying up the police with lots of false leads?

    We know from Lord West that “Inviting members of the public to give DNA where there is no reason to do so in connection with a particular investigation is not likely to be a cost-effective use of police and NDNAD resources.”

  12. ukliberty said, on March 19, 2008 at 6:46 pm

    More on Scotland from the Home Office:

    The Scottish equivalent of PACE is the Criminal Procedures (Scotland) Act 1995 and the position in Scotland in relation to DNA is largely similar to that in the rest of the United Kingdom.

    The main difference relates to the retention of samples and profiles. The CJPA 2001 amendment to PACE concerning retention of DNA samples and information obtained therefrom was not replicated in Scotland, where such samples and data still have to be destroyed following a decision not to institute criminal proceedings or on the conclusion of such proceedings otherwise than in a conviction (or absolute discharge made under section 246(3) of the 1995 Act).

    Also, although as under the CJPA 2001, volunteers in Scotland are able to consent separately for their samples to be retained and their profiles added to the DNA database, under the Criminal Justice (Scotland) Act 2003 the consent can subsequently be withdrawn, and the profile then has to be removed from the database, so long as the destruction of the sample or profile at the time of the request does not conflict with their use for evidential purposes.

    The issue of DNA retention was discussed fully during the recent passage of the Police, Public Order and Criminal Justice (Scotland) Act 2006. Amendments to bring the law in Scotland more in line with that in England and Wales were withdrawn at Stage 2. However, section 83 of the 2006 Act, inserts a new section 18A into the 1995 Act and allows for DNA samples to be kept for at least 3 years in the event that criminal proceedings in respect of relevant sexual or violent offences were instituted against the person, but those proceedings concluded otherwise than with a conviction (or absolute discharge). The relevant offences are those listed in section 19A(6) of the 1995 Act. Section 83 of the 2006 Act has not yet been commenced. No change in the legislation relating to volunteers has been proposed.

    Also in that document is the information that the DNA database wasn’t designed with the reporting in mind that we ask for today (page 28). What a surprise!

    Page 39 discusses the types of errors in the processes.

    We should also look at the Police Elimination Database. If a general search of the national DNA database failed to turn up any leads, would the police elimination database be searched (contrary to current policy)?

  13. David Mery said, on March 19, 2008 at 11:20 pm

    > Why was he suspected of murdering Sally Anne Bowman?

    Due to complaints/allegations by a jilted girlfriend.

    > Are you saying that the police knew his DNA did not match the evidence found at the crime scene yet arrested him for the murder regardless

    Close but not exactly. The Police had all it needed to know his DNA did not match the evidence found at the crime scene yet arrested him for the murder regardless.

    His DNA profile was available from a previous arrest (click on the image and you can see the full scan of his DNA profile – with some zones I blacked out at his request). His identity was even confirmed by Livescan. Comparing this DNA profile with the crime scene DNA profile would have shown there was no match.

    Even so, they took another sample and waited for analysis of this new sample to compare with DNA profile from the crime scene. In the meantime they didn’t wait to add further charges, search his father’s house, impound his car and start to interview him.

    > There seems to be more to this than met my eye. I would greatly appreciate your thoughts.

    The Police can’t have it both ways. If they argue for retention of DNA of innocents then they should use the retained DNA profiles to clear innocents as well as to arrest guilty criminals. So little respect for innocents.

    br -d

  14. S and Marper v UK « UK Liberty said, on December 3, 2008 at 1:42 pm

    […] S and Marper v UK Posted on December 3, 2008 by ukliberty A few people have been wondering about this case, which was heard by the Grand Chamber of the European Court of Human Rights earlier this year, and a judgement was expected around now (I recalled late November) – some background here. […]


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