Towards the Blanket Coverage DNA Profiling and Sampling of Citizens in England, Wales, and Northern Ireland
Katina Michael, University of Wollongong, Australia
The European Court of Human Rights (ECtHR) ruling of S and Marper v United Kingdom will have major implications on the retention of Deoxyribonucleic Acid (DNA) samples, profiles, and fingerprints of innocents stored in England, Wales, and Northern Ireland. In its attempt to develop a comprehensive National DNA Database (NDNAD) for the fight against crime, the UK Government has come under fire for its blanket-style coverage of the DNA sampling of its populace. Figures indicate that the UK Government retains a highly disproportionate number of samples when compared to other nation states in the Council of Europe (CoE), and indeed anywhere else in the world. In addition, the UK Government also retains a disproportionate number of DNA profiles and samples of specific ethnic minority groups such as the Black Ethnic Minority group (BEM). Finally, the S and Marper case demonstrates that innocent children, and in general innocent citizens, are still on the national DNA database, sometimes even without their knowledge. Despite the fact that the S and Marper case concluded with the removal of the biometric data of Mr S and Mr Marper, all other innocent subjects must still apply to their local Metropolitan Police Service to have their fingerprints or DNA removed from the register. This is not only a time-consuming process, but not feasible.
The Police and Criminal Evidence Act of 1984 (UK) (PACE) has undergone major changes since its inception. The PACE and the PACE Codes of Practice provide the core framework of police powers and safeguards around stop and search, arrest, detention, investigation, identification and interviewing detainees (Police Home Office 2009). In the month of December 2008, post the S and Marper European Court of Human Rights ECtHR judgment, PACE underwent a review and changes were effective on the 31 December 2008, however, more changes especially on the issue of the retention of fingerprints and DNA are forthcoming. According to the Home Office the changes expected in the PACE will be to ensure that the “right balance between the powers of the police and the rights and freedoms of the public” are maintained (Police Home Office 2009). On reviewing the legal changes that have taken place since 1984 via a multitude of Acts, it can be said the United Kingdom (with the exception of Scotland) has, contrary to the claims of the Home Office, experienced a significant imbalance between the powers of the police and the rights and freedoms of the public. In the last 15 years, the rights and freedoms of the public have been severely encroached upon, and police powers significantly increased. A brief review of the major legislative impacts between 1984 and 2008 will be reviewed below. They are summarized in a timeline in Figure 1.
Legislative Changes between 1984 and 2009
PACE was introduced in 1984, one year prior to Dr Jeffrey’s discovery of DNA. Interestingly, PACE allowed for the police to ask a doctor to take a blood sample from a suspect during the investigation of a serious crime but only with their express consent. Thus a suspect had to volunteer or “agree” to a blood sample being taken, it could not be taken by force. Even after Jeffrey’s discovery, there was limited use of blood samples for forensic analysis as tools and techniques were still in their infancy. The Single Locus Probe (SLP) technique which was in use in early DNA examinations had numerous limitations. While new SLP technology overcame some of these limitations, “the statistical evaluation of SLP DNA evidence brought a new set of problems, perhaps even more difficult to overcome than the preceding technical limitations” (Sullivan 1998). In sections 61-65 the original PACE classified blood samples and scrapings of cells from the inner cheek as intimate in nature. Hair samples (save for pubic hair) was the only type of non-intimate DNA sample that could be retained for forensic analysis without the permission of the suspect, and this on account of an investigation into a serious arrestable offence. Although this kind of DNA cut with scissors rarely provided enough of a good sample to conduct single locus probe (SLP) profiling, it was in the late 1980s that PCR (polymerase chain reaction) profiling could amplify and type a single strand of hair (Home Office, 2004). This is when mass screenings of DNA samples were possible. To begin with there was great contention over the admissibility of DNA evidence in a court of law but this changed as commonplace errors and procedural issues were rectified, new more modern profiling techniques were introduced, and larger databases for statistical purposes became available.
A significant moment in the fight against crime in the United Kingdom came in 1993 after a Royal Commission on Criminal Justice (Hansard 2003). The Commission was set up because there was a feeling among the community that the criminal justice system was just not working well enough to convict the guilty and exonerate the innocent. Leading up to 1993, there were a number of high profile miscarriages of justice which weakened the public’s confidence in the criminal justice system, for example, the Birmingham Six, who had been jailed in 1974 for allegedly planting an IRA (Irish Republican Army) bomb that killed 21 people (BBC, 1991). One of the key recommendations coming from the Commission was the setting up of a national forensic DNA database. In the following year in 1994, the Criminal Justice and Public Order Act (CJPOA) introduced amendments to PACE and in 1995 the National DNA Database (NDNAD) was launched. At first, the Association of Chief Police Officers in England, Wales and Northern Ireland, believed that the system should have processed around 135, 000 samples in the first year, but by the end of that year only one quarter of the original target had been loaded into the system due to significant procedural and technical teething problems related to the database. The expected annual rate was not reached until 1998 as police did not know how to fully exploit the new legislation (Lynch, 2008).
One of the fundamental changes heralded by the CJPOA was the reclassification of particular types of DNA samples from intimate to non-intimate. Authorities knew too well from their limited experience with DNA since the mid-1980s, that “richer” cellular samples were needed if a useable database of the size being projected was going to be possible. Saliva samples and mouth swabs became non-intimate samples, and it followed that non-intimate samples could be taken without the consent of the suspect. Furthermore, police could now conduct the procedure without the assistance of a trained doctor, and if needed by force. The sweeping changes did not stop there; the CJPOA also altered the rules regarding when a DNA sample could be taken. It was the first time that DNA samples could be taken from people who had not conducted serious arrestable offences but from those who had conducted recordable offences beyond the most trivial. If a suspect was found guilty then for the first time since the introduction of PACE, the DNA sample could be stored indefinitely. Only if a person was acquitted of a crime, or charges were dropped, would the sample data be destroyed. Minor legislative changes were introduced allowing for the cross-matching of DNA profiles across the whole of the U.K. in 1996 through the Criminal Procedure and Investigations Act, and in 1997 the Criminal Evidence (Amendment) Act enabled non-intimate samples to be taken from prison inmates who had been convicted of serious offences prior to the establishment of the NDNAD.
In 1997, there was a change of government, the Labour Party came to power and by 1999 Prime Minister Tony Blair announced the aggressive expansion of the NDNAD to contain some 3 million profiles by 2004. It was in 2001, post the Sept 11 attacks via the Prevention of Terrorism Act that DNA profiles which entered the database remained there indefinitely, even if the suspect was acquitted or charges were dropped. The PACE was impacted by these changes and even volunteers who had partaken in mass screenings or dragnets who had willingly provided their DNA samples remained on the database indefinitely (Beattie, 2009). In 2003, under the Criminal Justice Act of s. 10 (amending s. 63 of PACE), those who were simply arrested or detained at a police station on suspicion of a recordable offence had their DNA sample taken. According to McCartney (2006):
This enables police to take DNA samples from almost all arrestees and preempts technological advances which are expected to see mobile DNA testing kits in the coming years (by omitting the words “in police detention”). It means that a sample (usually a cheek swab) can be taken upon “reasonable suspicion” for an offence, regardless of whether it will indicate guilt or have any possibility of use during the investigation. The law, then, is explicit: anyone who comes under police suspicion is liable to have a DNA sample taken, searched against the samples on the NDNAD, and retained. The course that an investigation takes or whether a prosecution proceeds is of little, if any, significance.
The Criminal Justice Act was yet another extension of police powers and no other nation state had the same freedom to gather and store such personal citizen information. By 2005, the Serious Organised Crime and Police Act extended the uses of the NDNAD to include the identification of deceased persons. By 2008, the Counter-Terrorism Act extended police powers to allow DNA and fingerprints to be taken from persons subject to control orders or those under secret surveillance in the interests of national security.
Numerous legal analysts have been critical of the changes that PACE has undergone since 1984 - ironically the increase in police powers and the establishment of the NDNAD was originally introduced to increase public confidence in the criminal justice system and has instead eroded citizen trust in the state and impinged on the rights of every day Britons by going too far. Beattie (2009) is rather candid in her assessment of the changes, stating:
[there is] no statutory guidance for decisions about the retention of samples, no readily accessible mechanism whereby individuals can challenge the decision to retain their records (other than judicial review) and no independent oversight by a designated regulatory body.
This assessment seems to strike at the very heart of the problem. With only a judicial route at one’s disposal to question current practices, an innocent citizen is left almost entirely powerless to battle against its own government. We can see no greater example of this than in the DNA sample storage of juveniles between the ages of ten and eighteen, “230,000 of whom were alleged to have been added following legislative changes in 2004, and of whom 24,000 were taken from ‘innocent children’ against whom no charges had been brought …” (Lynch, 2008). An utterly disturbing statistic, and one which rightly led to the accusation of the Labour government compiling a database by stealth.
It now seems that PACE “1984” really did lay the seeds to an Orwellian state. According to the most recent Government statistics, 7.39 per cent of the UK population has their DNA profiles retained on the NDNAD (Beattie, 2009). This is an alarming figure when one considers that most other European states have less than 1 per cent of their population on their respective DNA database, and do not keep cellular samples but rather DNA profiles alone and for a defined period of time (Table 1). The U.K. Government would possibly have us believe by these figures that they are dealing with an unusually high crime rate, but the reality is that the figures do not reveal the percentage of persons who have committed violent crimes as opposed to those who have committed petty crimes. Another problem with the NDNAD is that it is highly disproportionate in terms of its recording of citizens by ethnic background. The Guardian newspaper calculated that 37 per cent of black men and 13 per cent of Asian men in the nation are contained in the NDNAD, as compared to only 9 per cent of white men (Lynch, 2008). Liberty has stated that 77 per cent of young black men had records on the NDNAD in 2006 and that black people in general were almost 4 times as likely to appear on the database as white people (Rodgers, 2009).
The National DNA Database
The U.K. National DNA Database (NDNAD) of England and Wales was launched in April of 1995 at the Forensic Science Service (FSS) laboratory. It took several years for Northern Ireland to be included in the NDNAD. Before launching the official database the FSS trialed a small-scale forensic database to ensure the validity of such a system. The FSS began developing DNA testing in 1987 and in 1995 achieved a scientific breakthrough, inventing a chemical that enabled DNA profiling which led to the establishment of the NDNAD (FSS, 2009a). The NDNAD is the oldest and largest DNA database in the world with national legislation to foster and support its growth. The U.K. has also adopted a privatized model for forensic science services as related to the criminal justice system (Lynch, 2008). This was not always the case however, as the FSS was once an agency of the Home Office. When it became FSS Ltd. it became a profit maximizing, government-owned company under almost exclusive contract to the Home Office in forensic services to the police.
Although the legislation that enabled the police to collect DNA samples, request the FSS to process them and to store DNA profiles on the NDNAD, the annual expected growth rate was not reached until the late 1990s. As one of the main strategic objectives of the NDNAD was to demonstrate a return on investment, the Home Office set out to detect more crimes and thus reduce overall crime rates in the hope of closing the justice gap (McCartney, 2006, p. 175). In April 2000, five years after the establishment of the NDNAD, the UK government announced the DNA Expansion Programme, aimed at getting all known active offending persons onto the database which at the time was estimated to be about 3 million people. The total government investment in the program to March 2005 stood at £240.8 million which enabled police forces to increase the sampling of suspects and to recruit additional crime scene investigators, purchase the appropriate equipment, train more police etc. (Home Office, 2005). Old samples from 1995 to 1999 were also able to be reanalyzed (McCartney, 2006, p. 176). A portion of the profiles were updated to match upgrades in the system software of the NDNAD from the standard profiling software known as SGM (Second Generation Multiplex) which had an average discrimination power of 1 in 50 million, to SGM Plus profiles which was said to reduce the chance of an adventitious match as the size of the NDNAD inevitably increased fuelled by the funding from the Expansion Programme.
An adventitious match is the possibility that two different people would have a profile that was almost identical owing to a “false positive” also know in statistics as an α (alpha) error. Thus an adventitious match shows a positive result for the matching of two persons (e.g. that of a crime scene sample, and that of a record on the NDNAD) when in actual fact there is no match at all. In the original NDNAD the risk of an adventitious match using the original SGM profiles was calculated to be 26 per cent but it has been claimed that since the introduction of the SGM Plus software, no adventitious matches have occurred (Nuffield Council, 2007). Sir Alec Jeffreys, however, has warned publicly that the genetic profiles held by police for criminal investigations are not sophisticated enough to prevent false identifications. “Dissatisfied with the discriminatory power of SGM Plus, Jeffreys recommends that following the identification of a suspect, the authority of the match should be tested by reanalyzing the sample at six additional loci” (Lynch 2008, pp. 144-145). Reanalysis of samples (whether volunteers, suspects, or those convicted) without consent, raises additional ethical questions however, even if it might indeed be able to exonerate a small number of individuals, if anyone at all.
The FSS are aware of the small possibility for an error but believe that the 10 markers currently stored on the database are sufficient (Jha 2004). In their defense FSS claim that the NDNAD is simply a type of intelligence database, and ultimately one is not convicted on mere “intelligence” but on multiple sources of evidence (Koblinsky, Liotti & Oeser-Sweat 2005, p. 273). Peter Gill of the FSS responded to Jeffreys concerns to the need to increase the number of markers for each profile by emphasizing that adventitious matches occur quite often when degraded samples are used and that the jury had to make up their mind based on numerous sources of evidence not just DNA evidence in isolation (Jha, 2004). For Jeffreys, storing “unnecessary” personal information on the NDNAD, for instance of persons who have previously been wrongly suspected of a crime, will only act to over-represent certain ethnic minorities which could lead to resentment by some citizen sub groups. The other issue that Jeffreys raises is the potential to use DNA sample information at some time in the future, and the risks associated with the potential to reveal health information from those samples; he is strongly opposed to the police gaining access to that kind of information (FSS, 2009).
Looking at some cross-sectional data of the NDNAD can provide us with a better feel for the size of this databank, which per capita, stores the largest number of DNA profiles for any given nation. By the end of March 2005, the Nuffield Bioethics Council reported that there were 3 million profiles stored on the NDNAD, an estimated 5.2 per cent of the U.K. population with 40,000 to 50,000 profiles being added monthly. Specifically, the police had retained 3,072,041 criminal justice (CJ) profiles, 12,095 volunteer profiles, and 230,538 scene-of-crime (SOC) profiles (Lynch, 2008, p. 149). The increase in loading samples of crimes was not just due to the Expansion Programme but also the legislative changes noted above via the Criminal Justice Act of 2003 and also the Serious Organised Crime and Police Act of 2005, and because of innovations in processing capabilities by the FSS. These legislative changes broadened the net of people who would now be added to the databank, in effect lowering the threshold for making it onto the NDNAD. From the perspective of the Association of Chief Police Officers, this was a positive because it meant getting offenders onto the database earlier in their criminal careers. By the end of December 2005, the NDNAD held around 3.45 million CJ and elimination profiles and 263,923 crime scene sample profiles. At that rate it was predicted that an estimated 25 per cent of the adult male population and 7 per cent of the adult female population would eventually enter the database (Williams and Johnson 2005). More sober estimates indicate that the overall number of persons to be admitted to the NDNAD would be a little over 10 per cent of the UK population (Table 2) (Jobling & Gill, 2004, p. 745).
Current NDNAD Statistics
The most recent NDNAD statistics were made public during a parliamentary debate in October of 2009 (Hansard 2009). Here new figures from between 2007 and 2009 were tabled. Figure 2 is based on the data that was presented and shows that at the end of March in 2007, there were about 151,882 DNA profiles of persons between the ages of 10 and 15 on the NDNA which constituted about 3 per cent of all DNA profiles. There were 206,449 DNA profiles of persons between the age of 16 and 17 equating to about 5 per cent of all DNA profiles. Not counting children under the age of 10 whose DNA profiles are stored on the NDNAD, we can estimate that about 9 per cent of the profiles on the NDNAD are of persons under the age of 18. These are numbers that have the wider community, especially civil liberties groups, other self-interest groups and key non-government organizations (NGOs) expressing deep concern over the widening retention of persons for inclusion on the NDNAD. The matter has now gone through judicial review and while the UK courts refused to acknowledge the rights of innocents or those of young children or those who have been acquitted of a crime from entering the NDNAD, the European Court of Human Rights (ECtHR) ruled otherwise. The S and Marper v. United Kingdom will be the focus of the next section of this paper.
Beyond the problem of children on the NDNAD is the disproportionate number of persons of other ethnic appearance outside white Europeans who have had their DNA sample taken and analyzed and stored indefinitely. The NDNAD does not record detailed data about one’s ethnicity but it does categorise an individual into one of six ethnic origins based on appearance. These categories include: White-South European, White-North European, Asian, Black, Chinese Japanese or South East Asian, Middle Eastern and one more category referred to as Unknown. At first glance the numbers in Figure 3 show that about 77 per cent of the DNA profiles on the NDNAD have come from “White-Europeans” (summing both the South and North White European categories) and only 7 per cent from “Blacks” and about 5 per cent from “Asians”. But one should not look at these percentages on face value. Relatively speaking, when one analyses these numbers along-side census data, the truer picture emerges. Blacks and Asians do not make up the largest ethnic portion of the UK and thus a figure of 7 per cent of Blacks on the NDNAD means that more than 37 per cent of the Black male population in the UK have their DNA profile recorded on the NDNAD, and 5 per cent of “Asians” means that about 13 per cent of the Asian population have their DNA profile recorded on the NDNAD. This is compared with only 9 per cent of the total White population that is on the NDNAD.
Some groups refer to this kind of disproportionate ethnic presence on the NDNAD as institutionalized racism. Institutionalized racism can be defined as “that which, covertly or overtly, resides in the policies, procedures, operations and culture of public or private institutions - reinforcing individual prejudices and being reinforced by them in turn” (Lawrence, 1999). It is a structured and systematic form of racism built into institutions. While this researcher would not label the disproportionate ethnic representation in the NDNAD as racism, she does acknowledge that minority ethnic populations, particularly black men, do not stand to benefit from the current UK legislation, but rather the legislation has been to the detriment of minority groups. According to National Black Police Association of the UK black men are four times more likely to be stopped and searched than white men. They are also more likely to be arrested and released without charge, let alone convicted, and without being compensated for their ordeal. The NDNAD statistics seem to suggest that black males are more likely to offend than white males, which is a fallacy. And this kind of feeling among the community of the Black Ethnic Minority (BEM) may not only provoke great mistrust in the UK police and the Government but also strong resentment toward future life opportunities and freedoms, a feeling echoed by Sir Jeffreys. It also means that less competent officers may be inclined, whether mindfully or not, to draw in ethnic minorities in general because they are the “usual” suspects in crimes (Jarrett, 2006). The most up-to-date figures on the profiles that constitute the NDNAD by gender, age and ethnicity can be found in Table 3, which is an adapted version of the data that was tabled in Hansard 27 October 2009 Col292W.
Of the greatest injustice of the UK legislation related to the collection and storage of DNA samples and profiles however, is the fact that at least 857,000 innocent people remain on the NDNAD who have not been convicted of crime and who may never be convicted of a crime. Living in this state of apprehension of any one of those people is quite incomprehensible. For some, such an ordeal would almost certainly lead to a feeling of bitterness or dislike or hatred for the State and especially the UK Police, for that individual who was wrongly apprehended. Among the one million innocent people whose DNA sample has been taken are an estimated 100,000 innocent children (Action on Rights for Children 2007). What are these persons to think and feel? What does it mean about their future, or employment opportunities requiring security checks? And how might their experience with Police impact them later in life? Psychologists will always point out that someone treated like a criminal may retaliate as if they were one: “[b]ecause it feels like someone is punishing us by making us feel guilty, we often have an urge to retaliate against those who do” (Stosny 2008).
But beyond the psychological repercussions on the individual stemming from what some refer to as “emotional pollution” is the effort that a person must go through to get their details removed from the NDNAD (Geoghegan, 2009), a process that was almost impossible until the S and Marper ECtHR judgment. Since 2004, in England, Wales and Northern Ireland records are removed and DNA destroyed only under “exceptional circumstances” (Genewatch UK, 2009). And given the profiles on the NDNAD belong to individual police forces, innocents whose profiles remain on the NDNAD and who wish to have them removed need to appeal to their Constabulary, although most recently ACPO have asked officers to ignore the ECtHR ruling (Travis, 2009).
At the end of March 2009, Lord West of Spithead noted that the NDNAD contained DNA profiles and linked NDA samples from approximately 4,859,934 individuals included by all police forces, of which an estimated 4,561,201 were from English and Welsh forces (more than 7 per cent of the UK population) (Hansard, 2009). This figure should be compared with those cited on 27 October 2009 in Parliament which indicated that at the end of March in 2008 there was a total of 5,056 313, profiles on the NDNAD and as of 2009 for the same period there were 5,617,112 (See Table 3). According to the latest population statistics obtained from the Office for National Statistics (2009), there are about 61.4 million people residing in the UK, which means that the NDNAD contains profiles of more than 8.36 per cent of the total population in the United Kingdom. This figure is rather conservative an estimate when one considers that Scotland has a different legislative requirement regarding the retention of DNA profiles.
Why these specifics are important is because they indicate a number of things. First, the size of the UK databank is growing at over 560,000 profiles per annum which is in keeping with the rate of 40,000 to 50,000 samples per month. Secondly one in nine persons in England, Wales and Northern Ireland is registered on the databank. Thirdly, and more to the point, there are 507,636 DNA profiles which are of unknown persons. This either means that these samples have been collected at crime scenes and have not been individually identified alongside “known” persons or that potentially errors exist in the NDNAD itself. Here an important complementary factor must be underscored in support of the latter claim. If we are to allege that 507,636 profiles came from scenes of crime (SOC) where the individual has not been identified since April 1995 then we also need to understand that (McCartney, 2006, p. 182):
only 5 per cent of examined crime scenes result in a successful DNA sample being loaded onto the NDNAD, and only 17 per cent of crime scenes are examined, meaning that just 0.85 per cent of all recorded crime produces a DNA sample that can be tested (NDNAD, 2003/04: 23)…
Thus it is very rare for a perpetrator of a serious crime to leave body samples behind unless it is saliva on a cigarette butt or a can of drink or in more violent crimes such as sexual assaults, semen or some other bodily stain sample. In the case of some violent crimes like sexual assault, most victims do not, and are unlikely to begin, reporting to police. Many of these who do report do so too late for DNA profiling to be an option. Of those who do report in time, the occurrence of sexual intercourse is often not an issue in dispute. The existence or non-existence of consent will be the critical matter. DNA profiling can offer nothing to resolve this problem. However, in the case of serial rapes or where there is no real doubt about identity of the assailant, DNA profiling potentially has a great deal to offer (Freckelton, 1989, p. 29).
Of Dragnets and Mass Screenings
In cases where heinous violent crimes have occurred, often of a serial nature, local police have conducted mass DNA screenings of the population in and of surrounding neighborhoods of the scene of the crime (Butler, 2005, p. 449). It becomes apparent to local police that a mass DNA screening is required when it seems that the crimes have been conducted by a single person nearby, given the trail of evidence left behind and other intelligence information. A DNA mass screening was used in the very first case where DNA was used to convict an individual. Mass screenings are now termed intelligence-led screens and the subtle change in nuance as of 1999 was of great importance to how the UK perceived its use of DNA evidence in criminal cases. In a talk on DNA technology, Lynn Fereday of the FSS said in 1999 that:
[t]he screens now are a routine method of policing. This is a major way of saving police resources. What happens is that once a crime is being investigated, and DNA evidence has been found, police immediately do a scoping of who or what area they have to screen. They decide on a select area, and they then look for volunteers in that area. One of the first cases involved a murder of the young girl using STRs …The interesting thing about the mass screens is that although there seem to be some unease about continuing with them here, people are volunteering constantly. They volunteer for a reason, because they know they are innocent. They have nothing to fear, and we will end up with crime detection.
Of course, such comments come from an employee of the FSS. Examples of very early mass screenings in the UK can be found in DNA user conferences (Burton, 1999).
There is no denying that mass screenings have led to convictions of perpetrators who would have otherwise gone unnoticed but the statement that people volunteer because they are “innocent” or they “have nothing to fear” is not entirely true.
In her landmark paper in 2006, Carole McCartney described Operation Minstead where the police profiled 1,000 black men in South London in the hunt for a serial rapist, and then requested each of them to volunteer a DNA sample. McCartney (2006, p. 180) writes:
Of those, 125 initially refused, leading to “intimidatory” letters from the police, urging re-consideration, and five were arrested, their DNA taken post-arrest and added to the NDNAD. Such actions have raised questions of legality, with arrests only lawful with 'reasonable suspicion' of an individual having committed a criminal act. If the police are to arrest on non-compliance with a DNA request, then that casts non-compliance as a crime--a step that worries civil libertarians and may lose the spirit of cooperation essential in these circumstances.
Table 4 shows an example of a prioritisation grid to deal with DNA intelligence led screen actions. While it is an early example of a grid, and today’s practices are much more sophisticated in manner, it does indicate why an individual approached to volunteer a DNA sample by the police might refuse to do so. Being targeted to donate a sample by the police in a mass screen such as Operation Minstead means you are under some suspicion and fall into one of the priority areas of concern. If you are indeed innocent of a crime, you may refuse to donate a DNA sample for any number of reasons, among which could be a basic right not to be insulted particularly by the State. An individual resident who lives in a mass screen prioritization area and meets the criteria of any number of priorities might feel like they are being presumed guilty, and may not trust technology to prove them innocent, or may even fear being accidentally matched to a crime they did not commit.
Now while the police can ask any person in the UK to volunteer a DNA sample, there is some controversy related to what happens with a sample once it is analyzed and an individual is proven to be innocent. If an individual has been eliminated from enquiries then the question remains whether or not their DNA profile should be retained on the NDNAD. According to Genewatch (2009c):
[i]n these cases, people can consent to having their DNA used only for the inquiry, or give an additional signature if they agree to having their DNA profile added to the database. In Scotland volunteers can change their minds and ask to be removed from the Database, but this is not possible in England and Wales. However, the NDNAD Ethics Group recommended in April 2008 that volunteers should not have their DNA added to the Database at all, and their DNA should be destroyed when the case has ended. This recommendation is likely to be implemented because there is no evidence that adding volunteers' DNA to the database is helping to solve crimes.’
Still this practice has yet to be implemented categorically and the claim remains that innocent people should be kept off the NDNAD.
Statistics presented by the Home Office will always tout suspect to scene matches and scene to scene matches and provide the numbers of murders, rapes and car crimes where suspects are identified but it is very important to note that not all successful matches result in a conviction or even in an arrest (McCartney, 2006). So while statistics might seem to indicate that the NDNAD is returning value for money, overall crimes rates in the UK have not been reduced (Ministry of Justice, 2009), and the number of persons convicted using DNA evidence remains relatively moderate based on previous years reports. The FSS and the Government will always seek to show that the NDNAD has been an excellent evidential tool that has supported many successful prosecutions and provided important leads in unsolved “cold” cases but no matter how one looks at it, the storage of innocent persons’ DNA profiles should not be permitted.
Where was the NDNAD Headed?
The Possibility of Blanket Coverage DNA Sampling of All Citizens
Putting the brakes on the NDNAD was not going to be easy. Several cases had been heard through various local courts but were unsuccessful in their attempts to have their clients’ fingerprints and DNA samples and profiles destroyed. Of course, some scientists working in the area of forensic analysis continued to dream of databases and databanks that ideally would contain the profiles of every person in the country. This was a view maintained by scientists not only within the UK but as far as the United States and even New Zealand. Although the overwhelming feeling among this community of experts was that such a database would “obviously never be compiled” (Michaelis et al., 2008, p. 106). Still this goodwill does not halt the potential for DNA databases to become commonplace into the future. In 2005, Koblinsky et al. (p. 290) rightly predicted that more people would find themselves onto national DNA databases. They believed that it was likely:
… that legislation will be passed that will require juveniles who commit serious crimes to be included in the database. It is possible that eventually every citizen will be required to have his or her profile in a national database despite concerns about privacy issues and constitutional protections.
Such attitudes must be understood within their context. It makes sense to forensic analysts and scientific-literate commentators that a larger database would help to capture repeat offenders and thus reduce overall crime rates. Many would not debate the importance of DNA profiling for serious crimes, but there are issues with relating DNA profiling techniques in a mandatory fashion to the whole populace. Even the Nuffield Bioethics Council was allegedly supportive of the benefits of a universal database. According to Lynch et al. (2008, p. 154) the Council:
…[found] that while the balance of argument and evidence presented in the consultation was against the establishment of a population-wide database, it recommend[ed] that the possibility should be subject to review, given its potential contribution to public safety and the detection of crime, and its potential for reducing discriminatory practices.
In 2005, Koblinsky et al. (p. 163) wrote: “[a]s DNA analysis becomes more and more common in criminal investigations, there will come a day when millions upon millions of people will have been profiled.” Well, we no longer have to look into the future for the fulfillment of such prophecies - they are here now. There are millions upon millions of DNA samples and profiles stored in the UK alone and the US too is now driving new initiatives on the road of mass DNA profiling (Moore, 2009). The FBI’s CODIS database has 6.7 million profiles and it is expected that it will accelerate its DNA database from 80,000 new entries a year to 1.2 million by 2012 (Michaelis et al., p. 105). But it may not be criminal legislation that impacts on such outlandish figures. One day it is indeed possible that the medical research field will have such an impact on society that “… every citizen’s genetic profile may be stored in a national database. There are many who are concerned about the ramifications of a government agency maintaining such records. It is essential that all DNA data can be encrypted and protected from abuse or unauthorized access” (Koblinsky et al., 2005).
Expanding databanks will clearly have an impact on civil liberties and individual privacy. And while there are those who believe such statements do a “disservice to a society suffering from a constant rise in violent crime,” (Melson, 1990) the recent ECtHR ruling is proof enough that we need to reconsider the road ahead. But it is not scientists alone who are providing the impetus for even larger databanks, politicians or political commentators also are entering the debate. Former mayor of New York, Mr Rudy Giuliani had advocated taking DNA samples of all babies born in American hospitals. This idea would not take much to institute in practice, given cellular samples (blood) are already taken from babies with the permission of the parent to test for common disorders. The same practice also exists in Australia and is known as the Guthrie Test or more commonly the Heel Prick Test (Guthrie Test, 2009). Michaelis et al. (2008, pp. 100-101) comment on such a potential status of mass DNA sampling at birth but are mindful of the implications on civil liberties and privacy:
Having a databank of all American-born persons would obviously be of great benefit, not only in violent crime investigations but also in cases of missing persons, inheritance disputes, immigration cases and mass casualties such as airline crashes and terrorist acts. The obvious concerns over privacy and civil liberties, however, have caused commentators to urge caution when deciding which samples to include in the databanks.
DNA Developments and Innovations Challenging Ethical Practice
The 13 year Human Genome Project (HGP) conducted by the US Department of Energy and the National Institutes of Health has gone a long way into identifying all the approximately 20,000-25,000 genes in human DNA, and determining the sequences of the 3 billion chemical base pairs that make up human DNA. The project was and still is surrounded by a number of very challenging ethical, legal and social issues (Table 5). Points 3 and 7 in the table are of particular interest when we consider what it means for someone’s DNA sample to be taken, analyzed, and stored indefinitely in a criminal databank. What kind of psychological impact will it have on the individual and forthcoming stigmatization by the individual themselves, and then by the community around them. This is particularly the case of minority groups. And what of the potential to “read” someone’s DNA and be able to make judgments on their mode of behavior based on their genetic makeup? Are persons for instance, more prone to violence because they carry particular genes? Or would some generalities based on genetics affect someone’s free will and determine their future because of some preconceived statistical result?
Already under research are “DNA identikits” which can describe a suspect’s physical appearance from their DNA sample in the absence of an eyewitness account. At present the FSS provide an ethnic inference service (McCartney, 2006, p. 178). The FSS used this technology in 2008 to investigate the stabbing of Sally Anne Bowman in 2005, although it was not this forensic result that ultimately led the police to her perpetrator (FSS, 2009). Used to supplement ethnic inference is the red hair test which can detect 84 per cent of red heads (McCartney, 2006, p. 181). The continued research into the HGP will inevitably determine very detailed information about a person in the future. The other problem closely related to innovations in identikits are those of advances in familial searching techniques. Given that families share a similar DNA profile, obtaining the DNA of one individual in a family, let us say “the son”, can help to determine close matches with other persons in the immediate family such as the sister, mother, father or first cousin. While only identical twins share exactly the same DNA, a sibling or parent share a very close match. The technique of familial searching was also used in the Sally Anne Bowman case without success. A suspect’s DNA was taken and matched against the UK NDNA but no exact matches were returned. The FSS then attempted the familial searching technique and that too did not aid their investigation. Familial searching was first used in 2002 in a rape and murder case when a list of 100 close matches was returned from the NDNAD to identify a perpetrator who had since died. DNA samples were first taken from the living relatives and then from the dead body of the offender Joe Kappen.
The Risks Associated with Familial Searching and Medical Research
Familial searching has very broad ethical implications. It is conducted on the premise that a rotten apple comes from a rotten tree. Put another way, the old adage goes, “tell me who your friends are and I’ll tell you who you are.” Instead today, we may be making the false connection of - “tell me who your friends are and I’ll tell what gene you are”! Interestingly this latter idea has formed the titled of a biology paper written by P. Morandini (2009). The point is that we return to models of reputation by association and these cannot be relied upon to make judgments in a court of law. We learnt all too well in Australia through the Dr Haneef case, that guilt by association, even guilt by blood-line, is dangerous to civil liberties. Considered another way, some have termed this kind of association based on DNA profiles, “genetic redlining.” Genetic redlining can be defined as “the differentiated treatment of individuals based upon apparent or perceived human variation” (Melson, 1990, p. 189). David L. Gollaher discusses the risks of what essentially is genetic discrimination in a 1998 paper.
Perhaps the most disturbing practice that may enter this field and make things impossible to police both in the “criminal law” arena and the “medical research” field is the deregulation and privatization of the DNA industry internationally. Future technological innovations will surely spawn the growth of this emerging industry. We have already noted the home-based DNA sampling kits available for less than 100 US dollars which come with free DNA sample databanking. It will not be long before some citizens volunteer somebody else’s DNA, instead of their own, forging consent documentations and the like. The bungle with the first ever UK DNA case shows that even the police could not imagine that Pitchfork (the offender), would have conceived of asking a friend to donate a sample on his behalf. Such cases will inevitably occur in volunteer home sampling methods, as fraudsters attempt to access the DNA samples of friends, strangers or even enemies via commonplace saliva-based sampling techniques. All you need is a pre-packed buccal swab from the DNA company providing the kits and away you go. If this seems an extreme possibility to the reader, consider the “spit kits” that have been issued to public transport drivers who have been harassed by passengers by being spat at or otherwise, who can now collect the DNA samples of an alleged offender and turn them into the appropriate authorities. No consent of the donor is required here (Lynch, 2008, p. 153).
When we consider how we as a society have traversed to this point of “accepting” the construction and development of such unusually large national databanks as the NDNAD in the UK, we can identify a number of driving forces. Some nations are at this point of almost indiscriminate storage of DNA profiles primarily due to changes in policing practices and the law, government policy, innovation in forensic science (the idea that because we can, we should), co-existing with venture capitalists who are backing commercial opportunities and the parallel developments in the genetic medical research field. In the case of the UK the PACE changed so much, and there was such a redefinition of what constituted a “recordable offence” that non-intimate samples could be obtained from individuals for investigation into the following offences without their consent (Roberts & Taylor, 2005, pp. 389-390):
unlawfully going onto the playing area at a designated football match; failing to leave licensed premises when asked to do so; taking or destroying rabbits by night; riding a pedal cycle without the owner's consent; allowing alcohol to be carried in vehicles on journeys to or from a designated sporting event.
Consider the Home Office’s August 2008 proposal to expand police powers which included plans to set up new “short term holding facilities” (STHFs) in shopping centers to take people's DNA and fingerprints but was later quashed with the S and Marper ECtHR judgment (Genewatch UK, 2009b).
This is short of being farcical. It makes little sense to take such personal data from an individual when the profile itself cannot be used for investigative purposes. There must be some other motivation toward the sampling of persons who on occasion might find themselves charged with a petty crime and are punished by fine, penalty, forfeiture or imprisonment other than in a penitentiary. Why store such petty crime offenders’ DNA profiles indefinitely on the NDNAD? Surely the action of someone who might find themselves, for instance, under the influence of alcohol and refuse to leave a licensed premise when asked to do so, is not indicative of their capacity to commit a serious felony in the future. There is a grave issue of proportionality here commensurate to the crime committed by the individual, and on the side of the crime itself, a major issue with what constitutes a recordable offence. The original PACE wording stated a “serious arrestable offence” (Ireland, 1989, p. 80) not just any old offence. As a result policing powers were increased significantly, and the individual’s right not to incriminate himself or herself was withdrawn in conflict with the underpinnings of Common Law (Freckelton, 1989, p. 31).
Our legal system has traditionally eschewed forcing people to incriminate themselves by becoming the instruments of their own downfall. That principle has suffered a number of encroachments in recent years.
It is here that we need to take a step back, reassess the balance needed in a robust criminal justice system and make the necessary changes to legislation, save we get too far ahead that we find recourse a near impossibility.
When one analyses the case of Mr S and Mr Marper, one realises how short of the mark the UK Government has fallen. Instead of upholding the rights of innocent people, the retention of their fingerprint and DNA data is kept for safe keeping. Some have claimed that this initial boost in the number of samples was purposefully conducted to make the NDNAD meaningful statistically, while others believe it was in line with more sinister overtones of a surveillance state. One thing is certain, that where the courts in England did not provide any recourse for either Mr S or Mr Marper, the European Court of Human Rights ruling indicated a landslide majority in the case for both Mr S and Mr Marper to have their DNA samples destroyed, and profiles permanently deleted. One of the major issues that has triggered this change in the collection of such personal and sensitive data have been the alleged 3,000 individual changes to the PACE Act. The watering down of laws that are meant to uphold justice, but instead are being alternatively used to abuse citizen rights, is an extremely worrying trend, and adequate solutions, despite the ECtHR ruling, are still lacking.
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Key Terms and Definitions
BEM: Black Ethnic Minority group. BEM has specific national or cultural traditions from the majority of the population.
DNA: Deoxyribonucleic acid (DNA) is a molecule that encodes the genetic instructions used in the development and functioning of all known living organisms and many viruses.
DRAGNETS: In policing a dragnet is any system of coordinated measures for apprehending criminals or suspects, such as widespread DNA testing, pressuring potential criminals who have committed a given act to come forward.
ECtHR: European Court of Human Rights is a supra-national or international court established by the European Convention on Human Rights.
Familial Searching: Familial searching is a second phase step conducted by law enforcement after a search on a DNA database has returned no profile matches. Familial searching attempts to find a match of first-order relatives (e.g. sibling, parent/child) based on a partial match, granting some leads to law enforcement, as opposed to no leads.
HGP: The Human Genome Project is an international scientific research project with a primary goal of determining the sequence of chemical base pairs which make up human DNA, and of identifying and mapping the total genes of the human genome from both a physical and functional standpoint.
Mass Screenings: Occur when the police encourage people residing in a given area, or encourage people who are members of a certain group to volunteer their DNA sample. Mass screenings are supposed to save police resources in apprehending the offender(s) of a criminal activity.
NDNAD: Is a National DNA Database that was set up in 1995. As of the end of 2005, it carried the profiles of around 3.1 million people. In March 2012 the database contained an estimated 5,950,612 individuals. The database, which grows by 30,000 samples each month, is populated by samples recovered from crime scenes and taken from police suspects and, in England and Wales, anyone arrested and detained at a police station.
PACE: The Police and Criminal Evidence Act 1984 (PACE) (1984 c. 60) is an Act of Parliament which instituted a legislative framework for the powers of police officers in England and Wales to combat crime, as well as providing codes of practice for the exercise of those powers.
Profiling: With respect to DNA is the banding patterns of genetic profiles produced by electrophoresis of treated samples of DNA.
Scene of a Crime: Is a location where a crime took place or another location where evidence of the crime may be found. This is the area which comprises most of the physical evidence retrieved by law enforcement personnel, crime scene investigators (CSIs) or in some circumstances forensic scientists.
SLP: The Single Locus Probe (SLP) is a technique which was in use in early DNA examinations and has numerous limitations with respect to newer more advanced techniques.
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