Towards the Blanket Coverage DNA Profiling and Sampling of Citizens

Towards the Blanket Coverage DNA Profiling and Sampling of Citizens in England, Wales, and Northern Ireland

Katina Michael, University of Wollongong, Australia

Abstract

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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.

Introduction

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.

Figure 1. Changes to U.K. Legislation 1984-2008 that have Given the Police Greater Powers and have had an Impact on Fingerprint and DNA Retention (The content in was taken from Genewatch UK (2009a) but adapted and turned into a timeline for the sake of readability)

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).

Table 1. Characteristics of some National DNA Databases

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).

Table 2. A NDNAD snapshot using year-end 2007 data

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.

Figure 2. DNA profiles on the NDNAD by age as of end March 2007

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.

Figure 3. DNA profiles on the NDNAD by ethnic appearance as of end March 2007

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.

Table 3. Most recently released NDNAD profile statistics by gender and ethnic appearance (compare 2008 and 2009). Source: 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.

Table 4. A prioritisation grid to deal with DNA intelligence LED screen actions. Source (Burton 1999).

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?

Table 5. Societal concerns arising from the new genetics (adapted from the Human Genome Project, 2009)

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.

Conclusion

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.

Citation: Michael, K. (2014). Towards the Blanket Coverage DNA Profiling and Sampling of Citizens in England, Wales, and Northern Ireland. In M. Michael, & K. Michael (Eds.), Uberveillance and the Social Implications of Microchip Implants: Emerging Technologies (pp. 187-207). Hershey, PA: IGI Global. doi:10.4018/978-1-4666-4582-0.ch008

The legal, social and ethical controversy of DNA samples in forensic science

The legal, social and ethical controversy of the collection and storage of fingerprint profiles and DNA samples in forensic science

Abstract

The collection and storage of fingerprint profiles and DNA samples in the field of forensic science for nonviolent crimes is highly controversial. While biometric techniques such as fingerprinting have been used in law enforcement since the early 1900s, DNA presents a more invasive and contentious technique as most sampling is of an intimate nature (e.g. buccal swab). A fingerprint is a pattern residing on the surface of the skin while a DNA sample needs to be extracted in the vast majority of cases (e.g. at times extraction even implying the breaking of the skin). This paper aims to balance the need to collect DNA samples where direct evidence is lacking in violent crimes, versus the systematic collection of DNA from citizens who have committed acts such as petty crimes. The legal, ethical and social issues surrounding the proliferation of DNA collection and storage are explored, with a view to outlining the threats that such a regime may pose to citizens in the not-to-distant future, especially persons belonging to ethnic minority groups.

SECTION 1. Introduction

The aim of this paper is to apply the science, technology and society (STS) studies approach which combines history, social study and philosophy of science to the legal history of DNA sampling and profiling in the United Kingdom since the first forensic use of DNA in a criminal court case in 1988. The paper begins by defining the application of biometrics to the field of criminal law, in particular the use of fingerprint and DNA identification techniques. It then presents the differences between fingerprints and DNA evidence and focuses on distinguishing between DNA profiles and samples, and DNA databanks and databases. Finally the paper presents the legal, ethical and social concerns of the proliferation of DNA collection and storage in particular jurisdictions prior to 2010 (e.g. United Kingdom). The paper points to the pressing need for the review of the Police and Criminal Evidence Act 1984, and to the procedures for DNA collection and storage in the U.K.'s National DNA Database (NDNAD) which was established in 1995. Some examples are provided of the state of play in the United States as well.

SECTION 2. Conceptual Framework

It is of no surprise that in recent years there has been a convergence between science and technology studies (STS) and law and society (L&S) studies. Some commentators, like this author believe that there is a need to define a new theoretical framework that amalgamates these increasingly converging areas. Lynch et al. [6], [p.14] write: “[w]hen law turns to science or science turns to law, we have the opportunity to examine how these two powerful systems work out their differences.” This convergence has its roots planted in legal disputes in the fields of health, safety and environmental regulation. For instance, advances in technology have challenged ones right to live or die. New innovations have the capacity to draw out traditional distinctions of regulations or they can challenge and even evade them.

In this paper we study the “DNA controversy” using the conceptual framework that can be found in Figure 1 which depicts the role of major stakeholders in the debate. In the early 1990s the “DNA Wars” [6] focused on two major problems with respect to the techno-legal accountability of DNA evidence in a court of law. The first had to do with the potential for error in the forensic laboratory, and the second had to do with the combination of genetic and statistical datasets. And it did not just have to do with legal and administrative matters, but issues that were both technical and scientific in nature. The key players included expert lawyers, scientists who actively participated in legal challenges and public policy debates, and the media who investigated and reported the controversy [6]. To put an end to the controversy would require the coming together of law, science and the public in a head-on confrontation. And that is indeed what occurred. By the late 1990s DNA had become an acceptable method of suspect identification and a great number of onlookers prematurely rushed to declare a closure to the controversy although as commentators have stated there was no moment of truth or definitive judgment that put an end to the controversy. What many did not recognize at the time however, is that the DNA controversy would return, in places like the United Kingdom, bigger and with more intensity than ever before.

Figure 1. The core set diagram: studying the DNA controversy

It is with great interest to read that closure in the DNA controversy was really visible when the NDNAD and some of the legislation and policy surrounding it facilitated talks between nations in Europe with respect to harmonization. According to Lynch et al. [6], [p.229]:

“[e]fforts were made to “harmonize” DNA profile and database standards in Europe, and other international efforts were made to coordinate forensic methods in order to track suspected “mobile” criminals and terrorists across national borders. These international efforts to implement and standardize DNA profiling contributed to closure in particular localities by demonstrating that the technique was widely used and had become a fixture of many criminal justice systems.”

While closure it may have signified to those working within an STS and L&S approach, harmonization was certainly not reached. Far from it, the U.K. who had been responsible for initial harmonization efforts, later, lost its way. What made onlookers believe that closure had fully occurred were the technical, legal and administrative fixes that had taken place. But closure in this instance did not mean the complete end to the controversy-no-what was coming was much greater disquiet in the U. K, and this period was named ‘post-closure’ by the STS and L&S commentators. Postclosure signals a period of time after closure is established, when the possibilities for issues that were once closed are reopened. In the case of the NDNAD in the U.K. it was not old issues that were reopened during postclosure, but new issues that were introduced due to so-called legal fixes. These legal fixes had social implications, so it was not until the public and the media and non-government organizations alongside self-interest groups were satisfied that change would be imminent, that postclosure seemed a real possibility. The threat to the post-closure of the DNA controversy however, is the burgeoning demand for DNA samples in fields such as epidemiology research and the recent commercialization of DNA sample collection and storage for every day citizens (e.g. DNA home kits selling for less than $100US dollars). DNA is no longer seen as just useful for forensic science or health, and this is placing incredible pressure on the advanced identification technique which is increasingly becoming commoditized.

SECTION 3. Background: What is Biometrics?

As defined by the Association for Biometrics (AFB) a biometric is “ … a measurable, unique physical characteristic or personal trait to recognize the identity, or verify the claimed identity, of an enrollee.” The physical characteristics that can be used for identification include: facial features, full face and profile, fingerprints, palmprints, footprints, hand geometry, ear (pinna) shape, retinal blood vessels, striation of the iris, surface blood vessels (e.g., in the wrist), and electrocardiac waveforms [1]. Other examples of biometric types include DNA (deoxyribonucleic acid), odor, skin reflectance, thermogram, gait, keystroke, and lip motion. Biometrics have seven characteristics: they are universal in that every person should possess that given characteristic; they are unique in that no two persons should have the same pattern; they are permanent in that they do not change over time; they are collectable and quantifiable; there is performance in that the measure is accurate, it is acceptable to users; and circumventing, meaning that the system of identification theoretically cannot be duped [2]. The two most popular methods of identification today in criminal law, when direct evidence is lacking such as a first hand eyewitness account, are fingerprinting and DNA.

SECTION 4. What is Fingerprinting?

Fingerprints are classified upon a number of fingerprint characteristics or unique pattern types, which include arches, loops and whorls [3], [p.228]. If one inspects the epidermis layer of the fingertips closely, one can see that it is made up of ridge and valley structures forming a unique geometric pattern. The ridge endings are given a special name called minutiae. Identifying an individual using the relative position of minutiae and the number of ridges between minutiae is the traditional algorithm used to compare pattern matches. As fingerprints do not change from birth until death unless they are accidentally or deliberately deformed, it is argued that they can provide an absolute proof of identity. The science of fingerprint identification is called dactyloscopy [4], [p.4].

4.1. Fingerprinting as Applied to Criminal Law

Fingerprints left behind at the scene of a crime (SOC) can be used to collect physical evidence for the purposes of human identification. They have the capacity to link a person (e.g. a suspect) to a particular location at a given time. This can happen in one of two ways: (i) the suspect's fingerprints are taken and cross-matched with those fingerprints found at the scene of a crime; or (ii) a successful match is found using computer technology to compare the fingerprints found at the scene of a crime with a database of previous offenders. It should be noted that fingerprinting in criminal law is not new. Manual standards, for instance, existed since the 1920s when the Federal Bureau of Investigation (FBI) in the U.S. started processing fingerprint cards. These standards ensured completeness, quality and permanency.

By the early 1970s due to progress in computer processing power and storage, and the rise of new more sophisticated software applications, law enforcement began to use automatic machines to classify, store, and retrieve fingerprint data. The FBI led the way by introducing the Integrated Automated Fingerprint Identification Systems (IAFIS) that could scan a fingerprint image and convert the minutiae to digital information and compare it to thousands of other fingerprints [5], [p.4ll]. Today, very large computer databases containing millions of fingerprints of persons who have been arrested are used to make comparisons with prints obtained from new crime scenes. These comparisons can literally take seconds or minutes depending on the depth of the search required. Sometimes successful matches can be made, other times the fingerprints cannot be matched. When fingerprints cannot be matched it is inferred that a new offender has committed a crime. These ‘new’ prints are still stored on the database as a means to trace back crimes committed by a person committing a second offence and who is apprehended by direct evidence, thus creating a trail of criminal events linked back to the same individual with the potential to solve multiple crimes. Commonly a list of prints that come closest to matching that print found at the scene of a crime are returned for further examination by an expert who then deems which single print is the closest match. In recent years background checks are even conducted on individuals using fingerprints, as a means to gain employment such as in early childhood [4], [p.5], or during the process of adoption or other security clearance requirements.

SECTION 5. What is DNA?

DNA fingerprinting, DNA (geno)typing, DNA profiling, identity testing and identification analysis, all denote the ability to characterize one or more rare features of an individual's genome, that is, their hereditary makeup. DNA contains the blueprints that are responsible for our cells, tissues, organs, and body [4], [p.8]. In short it can be likened to “God's signature” [6], [p.259]. Every single human has a unique composition, save for identical twins who share the same genotype but have subtly different phenotypes. When DNA samples are taken from blood cells, saliva or hair bulb specimens of the same person, the structure of the DNA remains the same. Thus only one sample is required as the basis for DNA profiling, and it can come from any tissue of the body [7], [P.L]. DNA fingerprinting was discovered in 1985 by English geneticist Dr Alec Jeffreys. He found that certain regions of DNA contained sequences that repeated themselves over and over again, one after the other and that different individuals had a different number of repeated sections. He developed a technique to examine the length variation of these DNA repeat sequences, thus creating the ability to perform identification tests [8], pp.2FJ.

The smallest building block of DNA is known as the nucleotide. Each nucleotide contains a deoxyribose, a phosphate group and a base. When we are analyzing DNA structures it is the sequence of bases that is important for the purposes of identification [9], [p.ll]. There are four bases through which a genetic code is described. These are: Adenine (A), Thymine (T), Guanine (G) and Cytosine (C). When trying to understand DNA sequences as they might appear in written form, consider that ‘A’ only binds with ‘T’, and ‘G’ only binds with ‘C’ (see figure 2 comparing row one and two). These base pairs are repeated millions of times in every cell and it is their order of sequence that determines the characteristics of each person. It is repetitive DNA sequences that are utilized in DNA profiling [10], [p.2].

Figure 2.  A typical DNA sequence

Figure 2. A typical DNA sequence

For example, in Figure 2 the base sequences of the two strands, known as the double helix, is written for a fictitious DNA sample. While the labels “5” and “3” have been included for illustrative purposes a sequence is written plainly as CTTAGCCATAGCCTA. From this sequence we can deduce the second strand given the rules for binding described above. Furthermore, in specific applications of DNA testing various polymorphisms may be considered which denote the type of repeat for a given stretch of DNA. For instance the tetranucleotide repeat is merely a stretch of DNA where a specific four nucleotide motif is repeated [9], [P.L 0].

DNA profiling can be applied to a broad range of applications including diagnostic medicine, famil y relationship analysis (proof of paternity and inheritance cases), and animal and plant sciences [7], [p.31]. The most high profile use of DNA however is in the area of forensic science, popularized by modern day television series such as CSI Miami and Cold Case. Episodes from the series, such as “Death Pool” [11] and “Dead Air,” [12] allow members of the public to visualize how DNA might be used to gather evidence towards prosecution in a court of law. Although Hollywood is well known for its farcical and inaccurate representations, these episodes still do demonstrate the potential for DNA. DNA profiling illustrates the power to eliminate a suspect with a discrimination power so high that it can be considered a major identification mechanism [13], [P.L]. It is with no doubt that forensic DNA analysis has made a huge impact on criminal justice and the law since its inception in U.K. Courts with the 1988 investigation into the deaths of schoolgirls Lynda Mann in 1983 and Dawn Ashworth in 1986 [14]. Since that time, DNA has been used successfully in criminal law to help prove guilt or innocence [15], in family law to prove parentage, and in immigration law to prove blood relations for cases related to citizenship [4], [p.xiii].

5.1. DNA as Applied to Criminal Law

In forensic DNA analysis today, mitochondrial DNA is used for identification, as nuclear DNA does not possess the right properties toward individual identification [9], [p.5]. According to Koblinsky et al. it is the moderately repetitious DNA that is of interest to forensic analysts [4], [pp.17f]:

“It has been shown that 99.9% of human DNA is the same in every individual. In fact, every individual's DNA has a relatively small number of variations from others. It is that variation of 1 in every 1000 bases that allows us to distinguish one individual from another through forensic genetic testing.”

Similarly in the case of dactyloscopy, an individual's DNA can be left behind at a scene of a crime or on a victim. When natural fibers are transferred through human contact, for example, from a perpetrator to a victim, or natural fibers sometimes microscopic in nature are left behind at a scene of a crime, they can be used for evidentiary purposes. The DNA found in hair for example, can be compared to hair specimens taken from a crime suspect or the DNA profile stored in an existing DNA databank. Synthetic fibers not containing DNA, such as threads from a piece of clothing worn by a perpetrator, can also be used to link a suspect to a crime. When fibers are transferred from one person to another upon physical contact it is known as the Locard exchange principle [4], [p.3].

It is important to note that all physical evidence like DNA should only ever be considered circumstantial evidence. It is evidence that provides only a basis for inference about the claim being made, and can be used in logical reasoning to prove or disprove an assertion. In a criminal case, DNA alone cannot be used to prove someone's guilt or innocence. Rather DNA may be able to point investigators to ‘what happened’, ‘the order of events that took place’, ‘who was involved’, ‘where an event took place’ and ‘how it might have taken place,’ and in that manner the forensic scientist is conducting a reconstruction by means of association (table 1) [16], [P.L]. Thus the job of an investigator is to put all the pieces of the puzzle together and to gather as much information as possible and from as many available sources of evidence including eyewitness accounts, physical evidence and archival records [4], [P.L].

Table 1. A theoretical framework for the discipline of criminalistics [16], [p.2]

As more sophisticated techniques have emerged to analyze DNA samples taken at the scene of a crime, the lesser the mass of DNA that is needed for a correct reading. How much DNA do you need? Well, it all depends on the richness of the sample. For instance, a 2002 US State Police handbook noted that a clump of pulled hair contained enough material for successful RFLP (Restriction Fragment Length Polymorphism) typing. A single hair root provided enough nuclear DNA for PCR STR (polymerase chain reaction short tandem repeat) typing, but not enough for RFLP. And a hair shaft contained sufficient mitochondria for successful mtDNA (mitochondrial DNA) typing, but was inadequate for PCR STR or RFLP typing [16], [p.61]. A blood, saliva, urine, bone, teeth, skin or semen sample could be considered a richer sample than a hair root for extraction purposes, but DNA analysis is all very much dependent on the level of degradation the sample has been exposed to.

Environmental factors can be harmful to DNA that has been collected from a scene of a crime and can lead to issues relating to deterioration, destruction, or contamination of evidence which are all contestable issues a lawyer may have to deal with in a court of law [4], [p.xiii]. For instance, heat, moisture, bacteria, ultraviolet (UV) rays and common chemicals can contribute to the degradation process [9], [p.61]. When a sample undergoes some level of degradation, it is said to have had infringed upon the chain of custody. To get around such problems, experts have proposed bringing the laboratory closer to policing practice. The concept of “lab in a van” or “lab on a chip” (LOC) proposes the use of a mobile laboratory where analysis and interpretation of evidence is even possible at the scene of a crime [6], [p.153]. The advancements in mobile technologies continue to allow for even very tiny biological substances to undergo DNA testing resulting in accurate identification. Even a cigarette butt which has saliva on it containing epithelial cells can be screened for DNA evidence [4], [p.6].

SECTION 6. Comparing DNA and Fingerprinting

To begin with, traditional fingerprinting classification techniques have been around a lot longer than DNA identification, although both fingerprinting and DNA have been part of the human body since the start of time. In its manual form, the Galton-Henry system of fingerprint classification first made its impact on the practices of Scotland Yard in 1901. So whereas fingerprint recognition can happen using manual methods, DNA testing can only happen using laboratory systems, even if analysis now takes the form of a mobile lab on a chip. DNA is also a pervasive and invasive biometric technique. That is DNA is owned by everyone, and DNA actually belongs to the internals of what makes up the body. For a DNA reading, a hair shaft has been detached from the scalp, teeth and skin and bones have to be ‘dismembered’ from the body, blood and urine and saliva is extracted from the body [17], [p.374].

In most states, the police can take non-intimate samples if a person has been arrested for a serious recordable offence, and in other states DNA can be taken for offences such as begging, being drunk and disorderly, and taking part in an illegal demonstration. In the U.K. for instance, DNA does not have to be directly relevant to investigating the offence for which a person is being arrested and they do not have to be charged before the sample is taken. The police are not allowed to take more than one successful sample from the same body part during the course of an investigation. The police can take an intimate sample only with a person's written consent even if they have been arrested. However, there is a burgeoning debate at present about what actually constitutes consent during such a process-is it true consent, or merely compliance or acknowledgment of required police procedures by the individual under arrest.

Fingerprints are different in that while belonging to the body, they are a feature on the surface of the body, and they do not constitute mass. Fingerprints are patterns that appear on the skin, but they are not the fiber we know as skin. Fingerprints also exclude a small portion of the population-those who do not have particular fingers, or hands, or arms, or may have fingers that have been severely deformed due to accidental or deliberate damage. Despite these differences, the claim is made by scientists that forensic DNA testing has emerged as an accurate measure of someone's identification with reliability equal to that of fingerprint recognition [4], [p.5].

6.1. Intimate and Non-Intimate Measures: Other Biometrics Versus DNA Sampling

6.1.1. The United States and Other Biometrics

The notion of “intimacy” is very much linked to literature on DNA, and not of biometrics in general. Although historically there has been some contention that a fingerprint sample is both “intimate” and “private”, the proliferation of fingerprint, handprint, and facial recognition systems now used for government and commercial applications, has rendered this debate somewhat redundant. This is not to say that the storage of personal attributes is not without its own commensurate risks but large-scale applications enforced by such acts as the United States Enhanced Border Security and Visa Entry Reform Act of 2002 mean that fingerprint, hand and facial recognition systems have now become commonplace. In fact, this trend promises to continue through multimodal biometrics, the adoption of several biometrics toward individual authentication. Few travelers, at the time of transit, directly challenge the right of authorities to be taking such personal details, and to be storing them on large databases in the name of national security. However sentiment, at least in North America, was different prior to the September 11 terrorist attacks on the Twin Towers [18].

In 1997 biometrics were touted a type of personal data which was wholly owned by the individual bearer with statutory implications depending on the governing jurisdiction [19]. It followed that a mandatory requirement by a government agency to collect and store fingerprint data may have been in breach of an individual's legitimate right to privacy. In the U.S., court cases on this issue have found consistently that certain biometrics do not violate federal laws like the Fourth Amendment. It seems that the [20]:

“ … real test for constitutionality of biometrics … appears to be based on the degree of physical intrusiveness of the biometric procedure. Those that do not break the skin are probably not searches, while those that do are”.

In the context of DNA we can almost certainly claim that there is “physical intrusiveness” of a different nature to the collection of surface-level fingerprints (figure 2). In the collection of blood samples we must “break” or “pierce” the skin, in the collection of saliva samples we enter the mouth and touch the inner lining of the mouth with buccal swabs, in the removal of a hair or clump of hair we are “pulling” the hair out of a shaft etc. And it is here, in these examples, where consent and policing powers and authority become of greatest relevance and significance.

Figure 2. Left: finger “prints” on the surface of the skin. right: DNA blood “sample” taken by pricking the skin

6.1.2. Britain and DNA

In the world of DNA, there is a simple classification, followed by most law enforcement agencies that denote samples as either being of an “intimate” nature or “non-intimate” nature. In the British provisions of the original Police and Criminal Evidence Act of 1984 (PACE), section 65 defines intimate samples as: “a sample of blood, semen or any other tissue fluid, urine, saliva or pubic hair, or a swab taken from a person's body orifice” and non-intimate samples as “hair other than pubic hair; a sample taken from a nail or from under a nail; a swab taken from any part of a person's body other than a body orifice” [21], [p.80]. Generally, it must be noted that at times police can take a sample by force but on other occasions they require consent. In Britain, prior to 2001, intimate samples from a person in custody were once only obtainable through the express authority of a police officer at the rank of superintendent and only with the written permission of the person who had been detained (section 62) [21]. Non-intimate samples could be taken from an individual without consent but with permission from a police officer of superintendent rank (section 63). In both instances, there had to be reasonable grounds for suspecting that the person from whom the sample would be taken had been involved in a serious offence [21]. And above reasonable grounds, there had to be, theoreticall y at least, the potential to confirm or disprove the suspect's involvement through obtaining a DNA sample [22], [p.29]. Over time Acts such as the PACE have been watered down leading to controversial strategic choices in law enforcement practices, such as the trend towards growing national DNA databases at a rapid rate.

6.2. Continuity of Evidence

Table 2. Ways to mitigate the effect of DNA evidence

Policing and forensic investigative work, are no different to any other “system” of practice; they require to maintain sophisticated audit trails, even beyond those of corporate organizations, to ensure that a miscarriage of justice does not take place. However, fingerprints are much easier attributes to prove a continuity of evidence than DNA which is much more complex. A fingerprint found at a crime scene, does not undergo the same type of degradation as a DNA sample. Thus it is much easier to claim a fingerprint match in a court of law, than a DNA closeness match. Providing physical evidence in the form of a DNA sample or profile requires the litigator to prove that the sample was handled with the utmost of care throughout the whole chain of custody and followed a particular set of standard procedures for the collection, transportation, and handling of the material. The proof that these procedures were followed can be found in a series of paper trails which track the movements of samples [6], [p.114].

Beyond the actual location of the evidence, a continuity of evidence has to do with how a DNA sample is stored and handled, information related to temperature of the place where the sample was found and the temperature at the place of storage, whether surrounding samples to that being analyzed were contaminated, how samples are identified and qualified using techniques such as barcode labels or tags, how samples were tested and under what conditions, and how frequently samples were accessed and by whom and for what purposes [4], [p.43]. When DNA forensic testing was in its infancy, knowledgeable lawyers would contest the DNA evidence in court by pointing to micro-level practices of particular laboratories that had been tasked with the analytical process. The first time that attention had been focused on the need to standardize procedures and to develop accreditation processes for laboratories and for personnel was in the 1989 case People v Castro 545 N.Y.S.2d 985 (Sup. Ct. 1989). When DNA testing began it was a very unregulated field, with one commentator famously noting that: “clinical laboratories [were required to] meet higher standards to be allowed to diagnose strep throat than forensic labs [were required to] meet to put a defendant on death row” [9], [p.55]. But it must be said, given the advancement in quality procedures, attacks on DNA evidence, rarely focus on the actual standards, and more so focus on whether or not standards were followed appropriately [9], [p.61].

In the event that a defense lawyer attempts to lodge an attack on the DNA evidence being presented in a court of law, they will almost always claim human error with respect to the procedures not being followed in accordance to industry standards. Human error cannot be eradicated from any system, and no matter how small a chance, there is always the possibility that a sample has been wrongly labeled or contaminated with other external agents [9]. Worse still is the potential for a forensic expert to provide erroneous or misleading results, whether by a lack of experience, a miscalculation on statistical probabilities or deliberate perjury. The latter is complex to prove in court. Some have explained away these human errors toward wrongful conviction as a result of undue political pressure placed on lab directors and subsequently analysts for a timely response to a violent crime [16], [p.157]. As Michaelis et al. note [9], [p.69]:

“[i]n far too many cases, the directors of government agencies such as forensic testing laboratories are subjected to pressure from politicians and government officials to produce results that are politically expedient, sometimes at the expense of quality assurance … Laboratory directors are too often pressured to produce results quickly, or to produce results that will lead to a conviction, rather than allowed to take the time required to ensure quality results.”

Thus attacks on DNA evidence can be made by attacking the chain of custody among other strategies shown in Table 2.

SECTION 7. The Difference Between Databases and Databanks

7.1. Of Profiles and Samples

In almost any biometric system, there are four steps that are required towards matching one biometric with another. First, data is acquired from the subject, usually in the form of an image (e.g. fingerprint or iris). Second, the transmission channel which acts as the link between the primary components will transfer the data to the signal processor. Third, the processor takes the raw biometric image and begins the process of coding the biometric by segmentation which results in a feature extraction and a quality score. The matching algorithm attempts to find a record that is identical resulting in a match score. Finally, a decision is made based on the resultant scores, and an acceptance or rejection is determined [23]. At the computer level, a biometric image is translated into a string of bits, that is, a series of one's and zero's. Thus a fingerprint is coded into a numeric value, and these values are compared in the matching algorithm against other existing values. So simply put, the input value is the actual fingerprint image, and the output value is a coded value. This coded value is unique in that it can determine an individual profile.

With respect to the extraction of a DNA sample the process is much more complex, as is its evaluation and interpretation. A DNA sample differs from a fingerprint image. A sample is a piece of the body or something coming forth or out from the body, while in the case of fingerprints, an image is an outward bodily aspect. When a DNA sample undergoes processing, it is also coded into a unique value of As, Ts, Gs and Cs. This value is referred to as a DNA profile. Storing DNA profiles in a computer software program is considered a different practice to storing the actual feature rich DNA sample in a DNA store. Some members of the community have volunteered DNA samples using commercial DNA test kits such as “DNA Exam” by the BioSynthesis Corporation [24]. For example, the DNA Diagnostics Center [25] states that one may:

“ … elect to take advantage of [the] DNA banking service without any additional charge if [one] orders a DNA profile [and that the company] will store a sample of the tested individual's DNA in a safe, secure facility for 15 years-in case the DNA sample is ever needed for additional testing”.

The controversy over storing “samples” by force in the crime arena has to do with the potential for DNA to generate information such as a person's predisposition to disease or other characteristics that a person might consider confidential. It is the application of new algorithms or extraction/evaluation/ interpretation techniques to an existing sample that is of greatest concern to civil liberties advocates. Profiles are usually unique combinations of 16 markers [26], they can only be used to match, and cannot be used toward further fact finding discoveries although some believe that you might be able to draw conclusions from profiles in the future. In a given population, there are several different alleles for any single marker and some of these may appear more frequently than others. The best markers are those with the greatest number of different alleles and an even distribution of allele frequencies [9], [p.19].

7.2. Of Databases and Databanks

Although textbooks would have us believe that there is a clear-cut distinction about what constitutes a database as opposed to a databank, in actual fact the terms are used interchangeably in most generalist computing literature. Most dictionaries for example will define the term database without an entry for databank. A database is a file of information assembled in an orderly manner by a program designed to record and manipulate data and that can be queried using specific criteria. Commercial enterprise grade database products include Oracle and Microsoft Access. The International Standards Organization however, does define a databank as being “a set of data related to a given subject and organized in such a way that it can be consulted by users” [27]. This distinction is still quite subtle but we can extrapolate from these definitions that databases are generic information stores, while databanks are specific to a subject [28].

In the study of DNA with respect to criminal law, the distinction between databases and databanks is a lot more crystallized, although readers are still bound to be confused by some contradictory statements made by some authors. Still, in most cases, a databank is used to investigate crimes and to identify suspects, and a database is used to estimate the rarity of a particular DNA profile in the larger population [9], [p.99]. Databanks contain richer personal information related to samples, even if the identity of the person is unknown. For example, the databank can contain unique profiles of suspects and convicted criminals and content about physical crime stains and records of DNA profiles generated by specific probes at specific loci [10], [p.40]. Databases are much more generic than databanks containing information that is representative of the whole populace or a segment of the populace. For example, a database can contain statistical information relating to the population frequencies of various DNA markers generated from random samples for particular ethnic groups or for the whole population at large. Databanks may contain rich personal data about offenders and cases [16], [pp.157f] but databases only contain minimal information such as the DNA profile, ethnic background and gender of the corresponding individuals.

Table 3. The NDNAD database attributes [30]

The premise of the DNA databank is that DNA profile data of known offenders can be searched in an attempt to solve crimes, known as ‘cold cases’. They are valuable in that they can help investigators string a series of crimes together that would otherwise go unrelated, allowing for the investigator to go across space and time after all other avenues have been exhausted [9, p.99]. With respect to violent crimes, we know that offenders are highly prone to re-offending and we also know that violent crimes often provide rich DNA sample sources such as bones, blood, or semen. Thus DNA left at the scene of a crime can be used to search against a DNA databank in the hope of a “close” match [16], [p.157]. The probative value of the DNA evidence is greater the rarer the DNA profile in the larger population set [9], [p.19].

Different jurisdictions have different standards on the criteria for inclusion into DNA databanks and what attribute information is stored in individual records and who has access. In the United States for instance, different states have different rules, some allowing for DNA databanks to be accessed by law enforcement agencies alone, and others allowing for public officials to have access for purposes outside law enforcement [9], [p.100]. In the U.S. the CODIS (Combined DNA Index System) system was launched in 1998–99 by the FBI. It contains two searchable databases, one with previous offenders and another with DNA profiles gathered from evidence at crime scenes [9], [p.16]. In the case of the U.K., the National DNA Database (NDNAD) of Britain, Wales and Northern Ireland, contains very detailed information for each criminal justice (CJ) record (see table 3) and profiles are searched against each other on a daily basis with close hit results forwarded on to the appropriate police personnel. It is quite ironic that the 1995 NDNAD is a databank but is so large that it is considered a database by most, as is also evident by the fact that the word “database” also appears in the NDNAD acronym [29], [p.2].

SECTION 8. Legal, Ethical and Social Concerns

The collection, storage, and use of DNA samples, profiles and fingerprints raise a number of legal, ethical and social concerns. While some of the concerns for the collection and storage of an individual's fingerprints by the State have dissipated over the last decade, the debate over the storage of DNA samples and profiles rages more than ever before. It was around the turn of the century when a number of social, ethical and legal issues were raised with respect to DNA sampling but councils and institutes through lack of knowledge or expertise could hardly offer anything in terms of a possible solution or way forward to the DNA controversy [31], [p.34]. At the heart of the techno-legal “controversy” is a clash of ideals coming from a collision of disciplines. For many medical practitioners working on topics related to consent or confidentiality, the legal position on DNA is one which acts as a barrier to important medical research. While few would dispute the importance of data protection laws and the ethical reasons behind balancing the right to privacy against other rights and interests, some in the medical field believe that the law has not been able to deal with exceptions where the use of DNA data could be considered proportionate, for instance, in the area of epidemiology. There are those like Iverson who argue that consent requirements could be relaxed for the sake of the common good.

“We are not arguing that epidemiological research should always proceed without consent. But it should be allowed to do so when the privacy interference is proportionate. Regulators and researchers need to improve their ability to recognize these situations. Our data indicate a propensity to over-predict participants' distress and under-predict the problems of using proxies in place of researchers. Rectifying these points would be a big step in the right direction” [32], [p.169].

Thinking in this utilitarian way, the use of DNA evidence for criminal cases, especially violent crimes, is something that most people would agree is a legitimate use of technology and within the confines of the law. The application of DNA to assist in civil cases, again, would seem appropriate where family and state-to-citizen disputes can only be settled by the provision of genetic evidence. Volunteering DNA samples to appropriate organizations and institutions is also something that an individual has the freedom to do, despite the fact that a large portion of the population would not participate in a systematic collection of such personal details. Voluntary donation of a DNA sample usually happens for one of three reasons: (i) to assist practitioners in the field of medical research; (ii) to assist in DNA cross-matching exercises with respect to criminal cases; and (iii) to aid an individual in the potential need they may have of requiring to use their own DNA in future uses with any number of potential possibilities. For as Carole McCartney reminds us:

“[f]orensic DNA technology has multiple uses in the fight against crime, and ongoing research looks to expand its usefulness further in the future. While the typical application of DNA technology in criminal investigations is most often unproblematic, there needs to be continued vigilance over the direction and implications of research and future uses” [33], [p.189].

Table 4. Legal, ethical and social issues related to use of DNA in criminal law

It is in this parallel development that we can see an evolution of sorts occurring with the collection of highly intimate personal information. On the one hand we have the law, on the other hand we have medical discovery, both on parallel trajectories that will have overflow impact effects on one other. For many, the appropriate use of DNA in the medical research field and criminal law field can only have positive benefits for the community at large. There is no denying this to be the case. However, the real risks cannot be overlooked. Supplementary industries can see the application of DNA in a plethora of programs, including the medical insurance of ‘at risk’ claimants to an unforeseen level of precision, measuring an individual's predisposition to a particular behavioral characteristic for employment purposes [34], [p.897], and the ability to tinker with the genes of unborn children to ensure the “right” type of citizens are born into the world. All of these might sound like the stuff of science fiction but they are all areas under current exploration.

For now, we have the ability to identify issues that have quickly escalated in importance in the DNA debate. For this we have several high profile cases in Europe to thank but especially the latest case which was heard in the European Court of Human Rights (ECtHR) on the 4 December 2008, that being S and Marper v. the United Kingdom [35]. This landmark case, against all odds, acted to make the U.K. (and to some extent the rest of the world) stop and think about the course it had taken. For the U.K. this meant a re-evaluation of its path forward via a community consultation process regarding the decade old initiatives of the NDNAD. The main issues that the case brought to the fore, and those of its predecessor cases, can be found in summary in Table 4. The table should be read from left to right, one row at a time. The left column indicates what most authors studying the socio-ethical issues regard as an acceptable use of DNA, and the right column indicates what most authors regard as either debatable or unacceptable use of DNA.

Of greatest concern to most civil libertarians is the issue of proportionality and the potential for a disproportionate number of profiles to be gathered relative to other state practices towards a blanket coverage databank. Blanket coverage databanks can be achieved by sampling a populace, a census approach is not required. Maintaining DNA profiles for some 15–20% of the total population, means you could conduct familial searching on the rest to make associations between persons with a high degree of accuracy [4], [p.274], something that would be possible in the U.K. by 2018 if it maintained the same level of sampling due process. This is not without its dangers, as it promotes adventitious searching and close matches that might not categorically infer someone's guilt or Innocence.

Table 5. Social, ethical and legal issues pertaining to DNA databanks identified by national institute of justice in the united states in 2000 [31, pp. 35f].

In addition, the large databanks are not without their bias. Already police records are filled with the presence of minority groups of particular ethnic origin for instance, which can have an impact on the probability of a close match despite someone's innocence. Being on the database means that there is a chance a result might list you as a suspect based on having a similar DNA profile to someone else. And ultimately, the fact that innocent people would have their profiles stored on the NDNAD would do little in the way of preventing crime, and would lead before too long, to a de facto sampling of all state citizens.

The driving force behind such a campaign could only be achieved by obtaining DNA samples from persons (including innocent people or ‘innocents’), either via some event triggering contact between an individual and the police or via an avenue at birth [10], [p.40]. Police powers have increased since world wide terrorist attacks post 2000 especially, and this has led to a tradeoff with an individual's right to privacy [36], [p.14]. Notions of consenting to provide a DNA sample to law enforcement personnel have been challenged whereby the use of force has been applied. And not consenting to a sample being taken, even if you are innocent has its own implications and can be equally incriminating. So legislative changes have encroached on individual rights; whereby a warrant was once required to take a DNA sample from a suspect's body based on reasonable grounds, today it is questionable if this caveat actually exists.

Beyond the obvious downsides of retaining the DNA profile or sample of innocent people who are in actual fact law abiding citizens, there is the potential for persons to feel aggravated because they have not been let alone to go about their private business. Innocent persons who are treated like criminals may end up losing their trust in law enforcement agencies. This problem is not too small of a social issue, given that there are about 1 million innocent people on the NDNAD in the U.K. And in this context, it is not difficult to see how some individuals or groups of individuals might grow to possess an anti-police or antigovernment sentiment, feeling in some way that they have been wronged or singled out. In some of these ‘mistaken identity’ situations, surely it would have been better to prove someone’ s innocence by using other available evidence such as closed circuit television (CCTV), without the need to take an intimate DNA sample first. Despite these problems, it seems anyone coming under police suspicion in the U.K. will have their DNA taken anyway [33], [p.175].Of a most sensitive nature is the collection of DNA samples for an indefinite period of time [4], [p. 7]. In most countries, samples are taken and DNA profiles are determined and stored in computer databases, and subsequently samples are destroyed. The long-term storage of DNA samples for those who have committed petty crimes and not violent crimes raises the question of motivation for such storage by government authorities [4]. There are critics who believe that the retention of samples is “an unjustifiable infringement on an individual's privacy” [33], [p.189].

There is much that has changed with respect to social, ethical and legal issues since 2000, both in the United States and the United Kingdom since its publication. But the table still provides a historical insight into the growing list of issues that were identified at the turn of the century.

Equally alarming is the storage of samples of innocents and also of those who are minors. Even more disturbing is the storage of samples with which no personal details have been associated. DNA databanks are not different to other databanks kept by the state-they can be lost, they can be accessed by unauthorized persons, and results can be misrepresented either accidentally or deliberately [33], [p.188]. The stakes however are much higher in the case of DNA than in fingerprinting or other application areas because the information contained in a DNA sample or profile is much richer in potential use. All of this raises issues pertaining to how changes in the law affect society, and how ethics might be understood within a human rights context.

SECTION 9. Conclusion

The legal, social and ethical issues surrounding the collection, use and storage of DNA profiles and samples is probably more evident today than at any other time in history. On the one hand we have the necessity to advance technology and to use it in situations in which it is advantageous to the whole community, on the other hand this same technology can impinge on the rights of individuals (if we let it), through sweeping changes to legislation. Whether we are discussing the need for DNA evidence in criminal law, civil law, epidemiological research or other general use, consent should be the core focus of any and every collection instance. Unlimited retention of DNA samples collected from those arrested but not charged is another issue where legislative reforms need to be taken in a number of European jurisdictions, although this trend seems to be gathering momentum now more so outside Europe. Another issue is the redefinition of what constitutes an intimate or non-intimate sample, and here, especially most clearly we have a problem in a plethora of jurisdictions with regards to the watering down of what DNA procedures are considered invasive as opposed to non-invasive with respect to the human body. The bottom line is that we can still convict criminals who have committed serious recordable offences, without needing to take the DNA sample of persons committing petty crimes, despite that statistics allege links between those persons committing serious and petty offences. So long as a profile is in a database, it can be searched, and the problem with this is that so-called ‘matches’ (adventitious in nature) can be as much ‘incorrect’ as they are ‘correct’. And this possibility alone has serious implications for human rights. The time to debate and discuss these matters is now, before the potential for widespread usage of DNA becomes commonplace for general societal applications.

SECTION 10. Afterword

Although members of society should not expect to learn of a black market for DNA profiles just yet, it is merely a matter of time before the proliferation and use of such profiles means they become more attracti ve to members of illicit networks. There is now overwhelming evidence to show that identity theft worldwide is on the rise (although estimates vary depending on the study and state). The systematic manipulation of identification numbers, such as social security numbers, credit card numbers, and even driver's license numbers for misuse is now well documented. Victims of identity theft know too well the pains of having to prove who they are to government agencies and financial institutions, and providing adequate evidence that they should not be held liable for information and monetary transactions they did not commit. Today's type of identity theft has its limitations however-stealing a number is unlike stealing somebody's godly signature. While credit card numbers can be replaced, one's DNA or fingerprints cannot. This resonates with the well-known response of Sir Thomas More to Norfolk in A Man for All Seasons: “you might as well advise a man to change the color of his eyes [another type of biometric]”, knowing all too well that this was impossible. While some have proclaimed the end of the DNA controversy, at least from a quality assurance and scientific standpoint, the real controversy is perhaps just beginning.

ACKNOWLEDGEMENTS

The author would like to acknowledge Associate Professor Clive Harfield of the Centre for Transnational Crime Prevention in the Faculty of Law at the University of Wollongong for his mentorship in the areas of U.K. law and policing in 2009. The author also wishes to extend her sincere thanks to Mr Peter Mahy, Partner at Howells LLC and the lawyer who represented S & Marper in front of the Grand Chamber at the European Court of Human Rights, for his willingness to share his knowledge on the NDNAD controversy via a primary interview.

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Keywords

Law, Legal factors, Fingerprint recognition, DNA, Forensics, Biometrics, Sampling methods, Skin, Sociotechnical systems, History, Controlled Indexing
social sciences, criminal law, ethical aspects, fingerprint identification, forensic science, social issue, fingerprint profile collection, fingerprint profile storage, DNA sample, forensic science, nonviolent crime, biometric technique, buccal swab, legal issue, ethical issue

Citation: Katina Michael, "The legal, social and ethical controversy of the collection and storage of fingerprint profiles and DNA samples in forensic science", 2010 IEEE International Symposium on Technology and Society (ISTAS), 7-9 June 2010, Wollongong, Australia

The Auto-ID Trajectory - Chapter Seven: Ten Cases in the Selection and Application of Auto-ID

The overall purpose of this chapter is to present the auto-ID selection environment by exploring ten embedded case studies. The cases will act to illustrate the pervasiveness of each auto-ID technology within vertical sectors which are synonymous with the technology’s take up. The focus will now shift from the technology provider as the central actor to innovation (as was highlighted in ch. 6) to the service provider stakeholder who adopts a particular technology on behalf of its members and end users. It will be shown that new commercial applications do act to drive incremental innovations which shape a technology’s long-term trajectory. The four levels of analysis that will be conducted can be seen in exhibit 7.1 below, with three examples to help the reader understand the format of the forthcoming micro-inquiry. This chapter dedicates equal space to each case and for the first time will show that coexistence between auto-ID technologies is not only possible but happening presently, and very likely to continue into the future.

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