Genetic Justice: DNA Data Banks, Criminal Investigations, and Civil Liberties

It is not necessary to destroy the DNA profile if an individual is arrested and subsequently cleared of the offence, or a decision is made not to prosecute.

—Association of Chief Police Officers, United Kingdom¹

It is arguable that the general retention of profiles from the un-convicted has not been shown to significantly enhance criminal intelligence or detection.

—Police liaison officer, Scottish DNA Database²

The United Kingdom has paved the way in forensic DNA technology. Its massive National DNA Database (NDNAD) is the oldest, largest per capita, and most inclusive national forensic DNA database in the world.³ Founded in 1995, it currently contains DNA samples and profiles from nearly 4.5 million individuals, or approximately 7 percent of the U.K. population of 61 million. On file are DNA profiles drawn from people convicted of a wide range of crimes, including serious violent crimes and minor offenses, children as young as 10, and arrestees, many of whom have not been convicted of any crime.

It is curious that violent crime rates have been significantly lower in the United Kingdom than in the United States—including during the last decade when key policy decisions about data bank expansion were made—but England and Wales have, per capita, a far larger DNA data bank, indeed, the largest in the world. The United States has 20 times as many murders as the United Kingdom and 3.8 times the murder rate. The U.S. population is about 300 million. The number of murders committed annually in the United States from 2000 to 2005 averaged around 16,200, or 5.7 homicides per 100,000 people. In contrast, the United Kingdom, which has about 61 million people, experiences somewhere around 800 murders annually; from 2000 to 2006 the average murder rate was 1.5 per 100,000. If we list countries by their per capita murder rate, with the highest ranked being number 1, the United States ranks 24th and the United Kingdom ranks 46th.⁴ If the United States had the same murder rate as the United Kingdom, it would be seeing about 4,590 murders annually rather than four times that many (a rate of 1.5 per 100,000 applied to 306 million people).

What can explain why England and Wales have, by percentage of population, the largest forensic DNA data bank in the world? There are a few possible explanations for why the United Kingdom was a leader in setting up DNA data banks. First, the persons who discovered DNA profiling were the British scientist Sir Alec Jeffreys and his colleagues at the University of Leicester. Therefore, it was a matter of national pride that the United Kingdom exploit this technology to its fullest capacity. Second, there has been a rising xenophobia within the British Isles responding to threats from Muslim and North African extremists. National identity cards and ubiquitous cameras in central London are part of a national response to a fear of criminal activities, especially terrorism. Third, the first DNA dragnet took place in the United Kingdom, which brought international attention to the role DNA can play in criminal investigation. Fourth, there is a tradition in Britain of professionalized police work that has encouraged the ready adoption of new technologies to solve crimes. This tradition is reflected in Britain’s rich literary tradition of crime novels: for example, Sir Arthur Conan Doyle’s famous novels of Sherlock Holmes, a fictional consulting detective who brought skills of forensic science and deductive reasoning to criminal investigation, and Agatha Christie’s mystery novels, which created a mythic role for Scotland Yard in criminal investigations. Fifth, Britain does not have a bill of rights that protects personal privacy in the way in which it is designed to function in the United States and that could have provided some resistance against the United Kingdom’s collection of personal data for criminal investigation.

Thus the initiation of and drive for DNA collection in Britain occurred within a climate of public receptivity (or at least a lack of strong opposition) and a general expansion of police powers in response to national security threats. When DNA profiling became available and was proved to work, there was a strong receptivity within the British government to integrate it into the criminal justice system. In 1993 a royal commission report held that “it is important that the police make the most effective use possible of the technical means at their disposal including forensic pathology, forensic science, fingerprinting, DNA profiling and electronic surveillance.”⁵ Within this context and without constitutional or other initial legal barriers, the United Kingdom emerged as the world’s most aggressive nation in collecting and storing forensic DNA from its citizenry.

In 1995 the United Kingdom established its National DNA Database (NDNAD) as the world’s first forensic DNA database. According to Robin Williams and Paul Johnson, “There is no singular and distinctive legislative instrument authorizing the collection and storage of DNA samples by the police in England and Wales or the retention and comparison of DNA profiles on the NDNAD.”⁶ Instead, a series of legislative proposals enacted by Parliament between 1994 and 2008 created and incrementally expanded police powers to obtain, store, and access biological samples and DNA profiles (see table 9.1).

In 1993 the United Kingdom’s Royal Commission on Criminal Justice formally recommended the creation of a national forensic database. The legal foundations for the database were provided the following year through the passage by Parliament of the Criminal Justice and Public Order Act of 1994. This act, described by Paul Johnson and colleagues as “a direct legislative measure enabling both the establishment of the database and the facilitation of its immediate growth,”⁷ gave police the power to take DNA samples without consent from anyone charged with any recordable offense. The law reclassified DNA swabs and hair samples from “intimate” to “nonintimate.” This allowed rapid expansion of the number of DNA samples collected by the police because, under British law, nonintimate samples can be taken without a person’s consent from anyone charged with a recordable offense. The law does not make a distinction whether the sample is relevant or irrelevant to the crime being investigated. The NDNAD went into operation the following year, with government funding by the Association of Chief Police Officers in partnership with the Forensic Science Service (FSS). Initially, only DNA profiles collected in England and Wales were uploaded to the system. Subsequently, Northern Ireland and Scotland developed forensic DNA databases with their own criteria for inclusion. However, they too submit their profiles to the NDNAD.

Two databases make up the NDNAD. One consists of individuals whose DNA was collected for recordable offenses or who gave their DNA voluntarily subject to the authority of the Police and Criminal Evidence Act of 1984. The second database consists of profiles obtained from materials from unsolved crimes. There is also a Police Elimination Database that contains DNA profiles from many police investigators so that inadvertent contamination of crime-scene samples during collection and handling of the evidence may be detected. This database is maintained separately from the other databases in the NDNAD and is not subjected to routine searches. Unlike the Combined DNA Index System (CODIS, the U.S. federal database), the U.K. national database contains the names of individuals, their date of birth, gender and ethnic appearance (as defined by the police), and geographical locators along with the DNA profiles. As in the U.S. system, the biological samples collected as part of the United Kingdom’s forensic DNA program are retained indefinitely by the laboratories.

DNA collection and retention were initially limited to individuals convicted of a recordable offense. The definition of a “recordable offense” itself has expanded over the years and currently includes many minor offenses, such as being drunk in a public place, begging, taking part in a prohibited public procession, and minor acts of criminal damage caused by children kicking footballs or throwing snowballs. Funding considerations further limited collection in practice to those convicted of violent and sexual offenses and domestic burglary. From 1996 to 2003 U.K. police powers to take and retain DNA were continually expanded. Amendments to the Criminal Evidence Act passed in 1997 allowed DNA to be collected from individuals in prison who had been convicted of crimes before the NDNAD went into effect. In 2000 Prime Minister Tony Blair launched the DNA Expansion Programme, which called for the DNA collection and profiling of “virtually the entire active criminal population”—an estimated 3 million people—by 2004. That goal was nearly achieved: by the end of 2004 the database contained 2.5 million profiles.

The national database has also been affected by changes in the laws that dictate the retention of samples. Before 2001 samples and profiles taken from individuals who were not charged or prosecuted or who were acquitted of charges had to be removed from the database and destroyed, but that changed through passage of the Criminal Justice and Police Act of 2001. This act gave police authority to retain profiles and biological samples indefinitely from persons not prosecuted or who were acquitted of a crime. In addition, the 2001 act allowed DNA samples provided voluntarily to police for the purpose of exclusion to be uploaded to the U.K. NDNAD on the condition that the individuals provided consent. Once consent is given, the decision becomes irrevocable. Consent also gives the police the right to use the sample for any purpose permitted under the law,⁸ even if those uses were not in practice at the time consent was provided.

In 2003 the NDNAD was expanded once again, this time by allowing law enforcement to take DNA profiles and fingerprints without consent from anyone arrested on suspicion of any recordable offense. The law came into force on April 5, 2004.⁹ Samples and profiles obtained from arrestees are retained indefinitely, regardless of whether the person is charged or convicted. This change in the law made England and Wales the first and only countries in the world to keep indefinitely DNA from persons who were not convicted of any crimes. Since then the United States has moved toward a similar policy of collecting DNA routinely from those arrested, although federal and many state laws enacted thus far either require expungement in cases where an individual is not charged with or convicted of a crime or allow individuals to request expungement of their information in such cases (see chapter 2).

Northern Ireland has a law on DNA collection that is more or less identical to the law governing England and Wales. It allows the police to obtain DNA samples without consent from anyone aged 10 or over who is arrested or detained in connection with a recordable offense. A leading nonprofit policy research and genetics watchdog group in the United Kingdom, Gene-Watch UK, notes that “this law was introduced by the Secretary of State for Northern Ireland whilst the Assembly was suspended, in order to bring Northern Island’s legislation into line with England and Wales.”¹⁰ Starting in October 2005, Northern Ireland began exporting DNA profiles to the NDNAD.

The situation is somewhat different in Scotland, which has proceeded far more cautiously than England and Wales. The information commissioner for Scotland believes that the indefinite retention of DNA profiles of individuals who are arrested but are not convicted of any offense is an intrusion into their private lives. In May 2006 the Scottish Parliament rejected the permanent retention of DNA taken from individuals who are not convicted of a crime. Under these circumstances the DNA profiles are deleted from the Scottish database and the U.K. NDNAD, and the biological samples from which the profiles are generated are destroyed.

Between 1995 and 2001 the NDNAD grew to over 1 million profiles. By 2006 it contained DNA profiles of more than 3 million individuals (about 5.2 percent of the population), including more than 18,000 volunteer samples and some 285,000 crime-scene samples of unsolved crimes.¹¹ As of September 2008 more than 4.6 million people—or 7.6 percent of the population, including 32,000 volunteers—had their DNA profiles retained in the database.¹² Approximately 1 million of these individuals had never been convicted of or charged with any crime.¹³ In comparison, other European Union (EU) country databases contain samples representing less than 1 percent of their population. For example, in 2004 Austria, Belgium, Germany, and the Netherlands had forensic DNA databases that contained 0.7, 0.03, 0.3, and 0.02 percent of their populations, respectively.¹⁴ The United States’ database numbered approximately 4.8 million at this time, or 1.6 percent of its population, less than one-quarter of the per capita size of the United Kingdom’s database.¹⁵ The gender of subject samples in the U.K. NDNAD as of January 2009 was 79 percent males, 20 percent females, and 1 percent unknown. All data held in the national DNA database are overseen by a tripartite board consisting of the Home Office (the lead government department for police, immigration, passports, drug policy, and counterterrorism in the United Kingdom), the Association of Chief Police Officers, and the Association of Chief Police Authorities. Recently the board has expanded to include two representatives of the Human Genetics Commission (a government advisory body) and the chair of the new DNA ethics group, an advisory nondepartmental public body (NDPB), established to provide independent advice on ethical issues to Home Office ministers and the strategy board. The data held in the NDNAD are owned by the police force that submitted the DNA to the database.

Other applications of the U.K. NDNAD, which were introduced through the Serious Organized Crime and Police Act of 2005, include the use of the database to check profiles of casualties from catastrophic events for identification purposes and to investigate illegal immigrants who claim to have family in the United Kingdom. Lord Triesman, the prime minister’s special envoy for returns, was quoted as saying, “Scientific and technical identification of nationality [will be] an important tool” in determining the status of illegal immigrants and their possible return to their countries of origin.¹⁶

The NDNAD and its accompanying stored biological samples have been accessed on many occasions for research. A freedom-of-information (FOI) request filed by GeneWatch UK in 2006 revealed that the NDNAD had been used in a series of research projects. These included “operations requests” by police to search for named individuals or individuals having a specified ethnicity or last name that corresponded with a particular ethnicity (e.g., those “having typical Muslim names”). The biological samples have also been used in research on the Y chromosome that seeks to predict ancestry or ethnicity from DNA. The FOI request also revealed that a commercial company, LGC, kept a “minidatabase” of information sent to it by the police, including individuals’ demographic details, alongside their DNA profiles and samples.¹⁷

For any serious crimes, police can obtain DNA by asking, by employing a ruse, or, if that does not work, by recovering something that a suspect discards. A distinction is made between acquiring a DNA sample and loading it into the national database. The official position has been that covertly obtained DNA samples may be compared with crime-scene evidence but cannot be searched against the database because they have not been obtained under the Police and Criminal Evidence Act (PACE). Uploading DNA to the U.K. database is limited to profiles overtly acquired from suspects investigated under PACE or samples from volunteers who wish to be eliminated as a suspect in an investigation.

There are some restrictions on the use of information contained in the NDNAD. U.K. law limits the use of the NDNAD to investigating crimes or identifying remains—as in war, fire, or natural disasters—where there are unidentified victims. As written into the Police and Criminal Evidence Act 1984 (as amended), “Samples and profiles may only be used for purposes related to preventing and detecting crimes, investigating an offence, conducting a prosecution, or identifying a deceased person or a body part.”¹⁸ Analysis of samples to provide information on genetic disorders is generally unlawful, although exceptions can be made in cases where such information might aid a criminal investigation. It is also expressly prohibited to access profiles held in the NDNAD to assist in determining the paternity of a child in civil cases.¹⁹

In addition to paving the way in DNA databank expansion, the United Kingdom has also spearheaded the way in the development of highly controversial DNA techniques, including familial searching and low-copy-number (LCN) DNA analysis. The United Kingdom was the first country to use its database to generate crime suspects from incomplete matches of crime-scene evidence profiles with profiles in the data bank. These so-called familial searches bring criminal investigators to the “suspicionless” family members of an individual whose DNA is a close match to the profile found in the crime-scene evidence.²⁰ The United Kingdom was also the first country in the world to convict someone following identification through a familial search result and is currently the only country in the world that uses this technique routinely in high-profile investigations. By the beginning of 2008, the United Kingdom analyzed 148 cases using familial searching techniques; only 15 of them had been resolved with 9 convictions.²¹

Familial searching is highly controversial. Although proponents of the technique claim that it can save time and money in high-priority investigations, critics point out that trawling the database for possible relatives radically alters the nature and intent of the database system and effectively places an entire class of innocent people—those who happen to be relatives of convicted offenders—under lifelong genetic surveillance by way of their relation to individuals in the database. (For a detailed discussion and analysis of familial searching, see chapter 4.)

The United Kingdom has also championed LCN DNA testing, a technique that seeks to generate a DNA profile from a minuscule amount of DNA, such as trace DNA left behind when a person touches an object. Standard DNA analysis is employed for DNA samples that contain as little as 1 ng of DNA, or as few as 160 human cells, or the size of a tiny blood spot down to 250 picograms ([pg], where 1 pg is one trillionth of a gram) of DNA or about 40 human cells. LCN, by contrast, is used on samples of less than one-tenth this size (100 pg) or 16 cells, or about 1,000 times smaller than a grain of salt.²² This technique has been highly controversial among forensic scientists, and many have questioned its accuracy and reliability. Because the technique relies on such small amounts of DNA—such as DNA transferred to a murder weapon or left behind from a fingerprint—the analysis is highly vulnerable to contamination and other sources of error. Mixtures are even more difficult, if not impossible, to ascertain and separate out than in standard DNA testing. Interpretation of LCN analysis is highly subject to “allelic dropout” (where some alleles do not appear in the analysis because the signal is so low) and increased “stutter” (“stutters” are usually small peaks in the output of the DNA analyzer that are artifacts from DNA amplification and form as a result of halted polymerase activity from the polymerase chain reaction [PCR]).²³

The scientific controversy around LCN rose to public attention through the trial of Sean Hoey, a 38-year-old electrician who was arrested and charged with Real IRA’s bombing in the city of Omagh in Northern Ireland. The 1998 bombing in a crowded market area killed 29 people and injured more than 200. Hoey’s trial, which lasted 56 days, hinged on LCN DNA evidence. Judge Reg Weir strongly rejected the evidence, raising significant concerns about the validity of the technique, as well as the careless handling of the DNA:

It is not my function to criticize the seemingly thoughtless and slapdash approach of police and officers to the collection, storage and transmission of what must obviously have been potential exhibits in a possible future criminal trial, but it is difficult to avoid some expression of surprise that . . . such items were so widely and routinely handled with cavalier disregard for their integrity. . . . I find that the DNA evidence . . . cannot satisfy me either beyond a reasonable doubt or to any other acceptable standard.²⁴

The discrediting of LCN in the Omagh bombing case prompted the U.K. police to impose a brief moratorium on the use of LCN DNA testing that was lifted following a three-week review of pending prosecutions involving the technique.²⁵ The U.K. government also commissioned an expert review of LCN analysis that was spearheaded by Professor Brian Caddy of Strathclyde University. Caddy’s review concluded that LCN typing was “robust” and “fit for purpose” while offering a number of recommendations for improving and standardizing the methodology.²⁶

This review has not quelled the discomfort and significant doubts that many forensic scientists continue to have about the reliability and use of LCN DNA. Allan Jamieson at the Forensic Institute in Glasgow, who testified in the Omagh trial, has pointed out most fundamentally that since one is starting with DNA from which there was no visible stain, it is impossible to know how it got there, and whether it was relevant to the crime in question.²⁷ Bruce Budowle, former senior scientist of the FBI’s Forensic Science Laboratory, has questioned how the British commission could have come to its conclusion, given that the technique by its nature is not reproducible, and has pointed out the myriad problems that can arise through LCN analysis, including the high potential for error in process and in interpretation, the lack of standard protocols for collecting and handling such low-level DNA samples, and the inability to know the source type of the DNA (e.g., hair, blood, semen).²⁸ Budowle recommends that the technique’s use be limited to developing investigative leads and to the identification of human remains, but that it not be presented as evidence in court. Furthermore, he advocates that the limitations of the technique be fully disclosed and stated up front.²⁹ Citing the lack of consensus in interpretation and the availability of viable alternative approaches, Jason Gilder and colleagues agree with Budowle in response to Caddy’s conclusions on LCN: “Superficial characterizations such as ‘robust’ and ‘fit for purpose’ are a denial of the serious scientific questions that remain about the reliability and validity of LCN testing.”³⁰

Despite the ongoing controversy about LCN, the United Kingdom has used the technique in more than 20,000 cases and remains the only country to use it routinely.³¹ Sweden and Australia have also allowed LCN to be presented as evidence in a few high-profile cases. In the United States the New York Medical Examiner’s Office is the only lab to date that admits to using the technique in some cases. The FBI does not allow the technique to be used in criminal investigations and uses it only in missing-persons investigations where trace DNA samples are known to have come from a single source.

One of the United Kingdom’s most astute scholars on the use of DNA in criminal justice wrote about the seemingly inexorable acceptance of DNA profiling: “The blinding by science of criminal justice professionals and the public (ultimately juries) has met little resistance and widespread acceptance, and indeed judicial encouragement for the NDNAD, which may ultimately see the creation of a national, comprehensive and compulsory DNA database.”³² Indeed, the development and expansion of the NDNAD benefited from broad public support, up to a point. The move to collect DNA upon arrest, and Scotland’s refusal to go along with the policy, invited significant scrutiny within the United Kingdom and around the world. Public confidence in the system was also rattled by the government’s aggressive approach to familial searching, LCN DNA analysis, and the retention of DNA from young children and volunteers.

The permanent retention of biological samples is one issue that was controversial within the United Kingdom before the start-up of the arrestee testing program in 2004. The U.K. Human Genetics Commission, a government advisory body that is made up of experts in genetics, ethics, law, and consumer affairs, concluded in a 2002 report that the reasons given for retaining samples were “not compelling.”³³ Since then, the Home Office has recognized that retaining samples is “one of the most sensitive issues to the wider public.”³⁴

The DNA profiles of those who gave DNA samples voluntarily to police for the purpose of excluding themselves as a suspect may also be loaded into the NDNAD with their consent. However, once consent is given, the decision becomes irrevocable. Thus the consent form gives the police the right to use the sample for any purpose they deem important without updating the consent form. The home secretary published a report in May 2009 that sought a change in this policy:

In giving their consent to the sample, the volunteer is also asked whether they wish to give their consent for their profile to remain on the NDNAD. If such consent is given, the volunteer is not then able to subsequently require that the sample and profile are destroyed. We are proposing that a volunteer who gives their samples for elimination purposes are not placed on the NDNAD. Whilst consent will continue to be required for the taking of the sample, consent will not be sought for the sample or fingerprints to be retained on a national database and subject to future speculative searches.³⁵

The expansion of the NDNAD to anyone arrested for any recordable offense in 2003 sparked considerable public debate within the United Kingdom and around the world. GeneWatch UK questioned whether more aggressive policies on inclusion of DNA samples have been equitably distributed across ethnic and racial groups.³⁶ If police are more likely to stop, detain, and arrest people of color, then their rate of inclusion in the data bank will be disproportionately higher than their population or their contributions to the crime rate.

By 2006 more than one-third of black males in the United Kingdom were profiled in the NDNAD, compared with 6 percent of adult white males³⁷ and about 13 percent of Asian men.³⁸ Three out of four black males between the ages of 15 and 34 had profiles in the DNA database.³⁹ These figures, once brought to the attention of the Black Police Association, prompted the association to call for an investigation of the racial disparities of the NDNAD. A report of the Select Committee on Home Affairs of the Parliament focused on the reasons behind young black people’s overrepresentation in the criminal justice system. The committee found that

It means that young black people who have committed no crime are far more likely to be on the database than young white people. It also means that young white criminals who have never been arrested are more likely to get away with crimes because they are not on the database. It is hard to see how either outcome can be justified on grounds of equity or of public confidence in the criminal justice system.⁴¹

The results of the parliamentary investigation prompted further prodding of the NDNAD, and while the report was being aired in the media, it also became apparent that DNA from 108 children under the age of 10 had found its way into the NDNAD system, even though the warehousing of DNA profiles from children younger than 10 is outside the scope of the law. The stories further reported that the NDNAD contained DNA profiles from 46 people over the age of 90 and 883,888 children between the ages of 10 and 17, and that at least 50,000 of these juveniles had not been charged with or convicted of any crime.⁴² Nick Clegg, a Liberal Democrat Home Affairs Committee spokesman who requested the information from the NDNAD, stated in response:

The Government’s onward march towards a surveillance state has now become a headlong rush. As an increasing number of young children well under the age of criminal responsibility appear on the database, it is clear the Government sees no limits to its invasion of our privacy. Worse still, by harvesting the data of many people who are not even charged with an offence, let alone convicted, the fundamental principle that we are innocent until proven guilty is further undermined. Why should anyone be on this database if they are innocent of any wrongdoing? ⁴³

Another subject of debate in the United Kingdom has been the actual efficacy of the database. According to U.K. authorities, in 2006 the chance of a new crime-scene profile loaded into the NDNAD immediately matching the profile of an individual already in the database was 45 percent. However, during that same period crime-scene DNA profiles were loaded into the database for less than 1 percent of all the recorded crimes committed annually.⁴⁴ Helen Wallace of GeneWatch UK has pointed out that the efficacy of the database is limited not by the total number of profiles in the system, but instead by the number of crime-scene profiles.⁴⁵ Wallace has further elucidated the differences among reported “matches,” “crime detections,” and “convictions.” It turns out that only about half of DNA matches made against the database lead to a DNA detection (where the crime is considered “cleared up” either through an arrest or other resolution). In addition, not all DNA detections lead to convictions; sometimes DNA is found at the scene of a crime but turns out to be irrelevant to the crime in question, and at other times sufficient evidence cannot be brought against the individual in question. The Home Office has estimated that in the United Kingdom approximately 50 percent of detections lead to convictions, and some 25 percent lead to a custodial sentence. Thus fewer than one-quarter of DNA matches lead to convictions of any type, and fewer than one-eighth of matches lead to convictions of offenses serious enough to merit incarceration. Therefore, the high number of DNA matches reported by the Home Office is potentially misleading with respect to the benefit of the expanded NDNAD (see chapter 17).⁴⁶

In September 2007 the Nuffield Council on Bioethics, an independent think tank based in London, released a report, The Forensic Use of Bioinformation: Ethical Issues, that provides a comprehensive analysis of the United Kingdom’s policies and procedures regarding forensic DNA. The report embraced a rights-based approach in balancing the need to protect the public from criminal activities while also protecting individual liberty, autonomy, and privacy. The council also framed its recommendations on the principle of “proportionality,” which is based on the idea that any interference with legally enforceable human rights must be justified by the state with evidence to support that such interferences are proportionate to the need to fight crime. The report states that the United Kingdom has the lowest threshold for holding DNA profiles of any EU country and that its percentage of the population with a banked DNA profile is higher than that of any other EU country.⁴⁷

The council recommended that

the law in England, Wales and Northern Ireland should be brought into line with that in Scotland. Fingerprints, DNA profiles and subject biological samples should be retained indefinitely only for those convicted of a recordable offence. At present, the retention of profiles and samples can be justified as proportionate only for those who have been convicted. In all other cases, samples should be destroyed and the resulting profiles deleted from the National DNA Database.⁴⁸

The council further recommended that volunteers who provide their DNA to the database for exclusion purposes be able to have their DNA withdrawn from the system at any time and without having to provide a reason. The council questioned the necessity of retaining biological samples and called for the government to convene an independent commission to examine the full impacts of retention.⁴⁹ The report pointed out that other than England and Wales, no European jurisdiction systematically retains the profiles or samples of individuals who have not been convicted of a crime. DNA samples are destroyed immediately in some EU countries, including Germany and Belgium. In Switzerland they must be destroyed within three months of successful profiling.⁵⁰ The report further recommended that familial searching be used only in cases where it is specifically justified, and that there be a presumption in favor of removing DNA taken from children from the database.

The DNA-collection system in the United Kingdom has been brought to the attention of the courts. In one case the British courts ruled that a sample had to be removed from the U.K. NDNAD. This case involved a teacher who was accused of assault but then, for lack of sufficient evidence, had her charges dropped. In this case the woman’s DNA sample was taken after the decision was made not to prosecute. The British court ruled that the woman had the right to have her fingerprints and DNA destroyed because they were taken after the decision not to prosecute. Had her DNA been taken before the decision was made not to prosecute, the court held that the samples would have been considered lawful, and they would have been retained even though her charges were dropped.⁵¹

The practice of retaining DNA samples from arrestees who were acquitted was challenged in August 2004 before the European Court of Human Rights by petitioners on the grounds that the United Kingdom did not have a right to retain fingerprints and DNA samples once a person was cleared of criminal charges, under articles 8 and 14 of the European Convention for the Protection of Human Rights and Fundamental Freedoms (the “convention”). Those articles state:

Article 8—Right to respect for private and family life: Everyone has the right to respect for his private and family life, his home and his correspondence.

There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.

Article 14—Prohibition of discrimination

The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.

The plaintiffs in this case were two individuals who requested that their DNA be destroyed and their records removed from the database. One was a juvenile (Mr. S.) who was charged with attempted robbery at the age of 11 but was then acquitted. The other was an adult, Michael Marper, who was arrested and charged with harassment of his partner, but the charges were subsequently dropped. The challenge, S. and Marper v. The United Kingdom (Marper), was initially heard in the Divisional Court and rejected. Then it was brought to the Court of Appeal, which dismissed the plaintiffs’ claim, ruling that although the retention of fingerprints and DNA samples was in breach of provisions of Article 8(1), it was proportionate and justified under Article 8(2) and thus did not violate Article 14. It was then brought to the House of Lords in 2004 and dismissed. Lord Steyn of the House of Lords argued that interference in privacy by taking one’s DNA was minimal compared with the benefits the database had to society. That benefit was in crime detection and reduction, in which the public had a clear interest. Lord Steyn opined that there would be no adverse impacts on the individuals from whom the samples were taken unless they were implicated in a future crime.

Marper was appealed to the European Court of Human Rights and was heard in the Grand Chamber in Strasbourg on February 27, 2008. On December 4, 2008, the European Court of Human Rights ruled that the blanket and indefinite retention of DNA profiles and samples pursuant to U.K. law from individuals accused but not convicted of certain crimes violated Article 8 of the convention. The court found that it was not necessary to reach the question whether the law was also in violation of Article 14. Specifically, the court found that the retention of S. and Marper’s DNA breached human rights law, stating:

In conclusion, the Court finds that the blanket and indiscriminate nature of the powers of retention of the fingerprints, cellular samples, and DNA profiles of persons suspected but not convicted of offences as applied in the case of the present applicants, fails to strike a fair balance between the competing public and private interests and that the respondent State has overstepped any acceptable margin of appreciation in this regard. Accordingly, the retention at issue constitutes a disproportionate interference with the applicants’ right to respect for private life and cannot be regarded as necessary in a democratic society.⁵²

The Marper court grounded its conclusion in the notion that DNA contains highly private information about an individual. In comparing DNA with fingerprints, the Marper court provided that “the Court has distinguished in the past between the retention of fingerprints and the retention of cellular samples and DNA profiles in view of the stronger potential for future use of the personal information contained in the latter” and that “because of the information they contain, the retention of cellular samples and DNA profiles has a more important impact on private life than the retention of fingerprints.”⁵³ The Marper court also affirmed that “an individual’s concern about the possible future use of private information retained by the authorities is legitimate and relevant to a determination of the issue of whether there has been an interference”⁵⁴ with the individual’s right to privacy under the convention, and, furthermore, that “the mere retention and storing of personal data by public authorities, however obtained, are to be regarded as having direct impact on the private-life interest of an individual concerned, irrespective of whether subsequent use is made of the data.”⁵⁵

The court recognized the distinction between biological samples and DNA profiles and stated that although the personal information contained in the profiles is more limited, “DNA profiles could be, and indeed had in some cases been, used for familial searching with a view to identifying a possible genetic relationship between individuals”; furthermore, “the DNA profiles’ capacity to provide a means of identifying genetic relationships between individuals . . . is in itself sufficient to conclude that their retention interferes with the right to the private life of the individuals concerned.”⁵⁶ The court also found that “the retention of the unconvicted persons’ data may be especially harmful in the case of minors such as the first applicant, given their special situation and the importance of their development and integration in society.”⁵⁷ Finally, the court based its conclusion within the context of other member-state laws and practices, stating that “the United Kingdom is the only member State expressly to permit the systematic and indefinite retention of DNA profiles and cellular samples of persons who have been acquitted or in respect of whom criminal proceedings have been discontinued.”⁵⁸

The U.K. government’s dramatic loss in Marper is perhaps a clear sign that it has overstepped its authority in taking and storing DNA from innocent persons. In response to the Marper decision, the Labour government adopted a new retention framework as part of the Crime and Security Act of 2010. Under the new law, DNA profiles collected from adults arrested but not convicted must be destroyed after 6 years. DNA profiles of juveniles arrested but not convicted may be retained for 3–6 years, depending on the severity of the offense. Most notably, under the new framework all biological samples must be destroyed once the DNA profiles are obtained, and these samples may not be retained for more than 6 months. At the time of this writing, the new framework still had not been brought into force as a result of continued debate over the retention of arrestee DNA profiles.

The U.K. government adopted its highly aggressive policies on DNA collection incrementally and—except in Scotland—without vigorous public debate. The development and expansion of the U.K. NDNAD received fairly broad public support until concerns about the racial composition of the database and the collection of DNA from young children began to surface. The dramatic shift in policy to include anyone arrested for a recordable offense, whether ultimately convicted or not, also spurred significant attention and, ultimately, significant opposition. Familial searching and the premature use of LCN DNA and its inability to resolve the Omagh bombing case raised additional alarm bells concerning the United Kingdom’s policies and practices on the collection and use of DNA. Organizations such as GeneWatch UK and the Nuffield Council on Bioethics helped bring the social and ethical concerns associated with DNA data banking into the public sphere.

British criminal justice authorities overseeing the U.K. NDNAD were, from a relative standpoint, transparent in providing information about the ethnic and racial composition of the individuals whose DNA was acquired and profiled. In contrast, no public information about the composition of the U.S. national database is available. Public awareness in the United Kingdom has just started to contribute to a shift in DNA policy, although the extent to which this might result in a long-term suspension of database expansion is unclear. Despite the outcome in Marper and changes instituted by the home secretary, considerable controversy remains over the length of time samples and profiles are retained, the protocols for the collection and use of DNA, and the retention of volunteer elimination samples.