Feature | DNA Database: another key human rights election issue

19 April 2010 by

DNA database impact on human rightsThe National DNA database has become another key human rights issue in the 2010 Election. It is by far the largest such database in the world, with over 1 in 10 people now on the database. The issue of whether innocent people will have their DNA retained has now become highly politicised.

The Tories have now dropped their opposition to the Crime and Security Bill 2010, which has since become law. They had initially opposed provisions which allowed the police to retain the DNA samples of innocent people for up to 6 years. However, they have pledged if elected to bring in early legislation to ensure the DNA profiles of innocent people accused by minor crimes would not be retained.

The Prime Minister and the Home Secretary recently accused the Tories of not being tough enough on crime, whilst appearing at a press conference with Linda Bowman, whose daughter was raped and murdered at age 18. Her killer was convicted in 2008 with the help of DNA evidence. Liberty, the civil liberties organisation, commented that Labour had deliberately confused the issue.

The Conservatives pledge in their manifesto to “Reform Labour’s DNA system with the slimmer and more efficient Scottish system as our model” and “Change the rules on the DNA database to allow a large number of innocent people to reclaim their DNA immediately”.

The Liberal Democrats agree they will “Remove innocent people from the police DNA database and stop storing DNA from innocent people and children in the future, too.”

For their part, Labour say they will “ensure that the most serious offenders are added to the database no matter where or when they were convicted – and retain for six years the DNA profiles of those arrested but not convicted.”

It is probably no coincidence that the criticism of the Tory policy coincides with the Government’s recent concession to strong criticism from the European Court of Human Rights (ECtHR).

The 6-year limit for retention of an innocent person’s DNA in the Crime and Security Act 2010 was in fact a response to the ECtHR ruling in December 2008 in the case of S. AND MARPER v. THE UNITED KINGDOM (Applications nos. 30562/04 and 30566/04). The Court found that the UK had violated the Article 8 rights of innocent people whose DNA it retained despite the fact that they were not convicted of any offence. The Government have also confirmed to the Committee of Ministers (the European body to which UK is answerable in respect of execution of the ECtHR’s judgments) that steps have been taken to remove the records of children under the age of 10 years from the database, and such material will not be retained in the future

The European Court disagreed with the 2004 majority decision of the House of Lords (now the Supreme Court) that Article 8 of the Convention was not engaged in cases of DNA retention (read our case comment). The European Court was “struck by the blanket and indiscriminate nature of the power of retention in England and Wales” and that the

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. (para 125)

The European Court’s judgment, like the Conservative Party manifesto, praised the Scottish system, which allows retention of the DNA of unconvicted persons only in the case of adults charged with violent or sexual offences and even then, for three years only, with the possibility of an extension to keep the DNA sample and data for a further two years with the consent of a sheriff (see para 109 of Marper).

The National DNA Database, in proportional terms, is the largest of its kind anywhere in the world. The UK takes DNA from all individuals who have been arrested for a recordable offence. Over 1 in 10 people are on the database. By comparison, Austria’s forensic DNA database is the next largest in proportionate terms (See the 2009 House of Lords Select Committee report, para 180), and contains about one per cent of the population, while the USA’s FBI “CODIS” database contains about 0.5 per cent, albeit President Obama is now arguing for this to be increased along UK lines. According to the Home Office, the Database has cost over £300m over the past five years.

It has, however, been presented as a success due to its role in helping solve a number of high profile criminal cases. The National Police Improvement Agency claim that between April 09 and 28th January 2010 the database produced 174 matches to murder, 468 to rapes and 27,168 to other crime scenes.

All three of the main political parties support retention of the DNA database. Where they differ is in the exact balance between protecting the public from crime and ensuring that their Article 8 (right to private and family life) rights are not breached through the unjustified retention of DNA. This is a classic example of the difficulties in protecting so-called “qualified” rights”, i.e. those which are permitted to be breached in certain cases where the public interest trumps individual rights.

The pace of technological change, as well as Britain’s stated aim to lead the world in DNA-assisted crime fighting, means that this debate will continue far beyond the May 2010 election.

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