The UK has a huge DNA database that includes the profiles of thousands of innocent people. At what point do the crime-solving benefits begin to be eroded by civil liberty concerns? Grania Langdon-Down reports

England and Wales now has the largest police DNA database in the world, containing around three million profiles, of which nearly 750,000 are from juveniles and 140,000 from people never charged with any offence.


The sheer scale of the database and the developments in DNA profiling techniques raise important concerns among both civil liberties groups and criminal lawyers. Is the government trying to create a national database ‘by stealth’? Does retaining DNA profiles of people who have not been convicted breach human rights or data-protection principles? Can decisions on deleting such profiles be left to chief constables’ discretion or, as Dr Chris Pounder, editor of Data Protection and Privacy Practice recommends, should there be clear, published rules for deleting profiles?


While DNA profiling is regarded as very reliable, are there dangers in relying on it too heavily? Professor Allan Jamieson, director of the Forensic Institute in Glasgow, fears that the police may be using inappropriately a new technique known as low copy number DNA, which is so sensitive it can find DNA at a crime scene from someone who has never been there.


Professor Jamieson is consulted by defence lawyers in his role as head of the institute, which provides specialist scientific, medical and managerial consultancy services. He says: ‘There has undoubtedly been a major improvement in how police handle crime scenes, and mishandling and contamination of samples are much less of an issue.


‘However, we are getting a number of cases involving low copy number DNA, which can find amounts of DNA as tiny as one molecule. The problem is we shed our DNA all the time. You can shake my hand before I get in my car, which is then involved in serious crime. The police swab it and find your DNA. It finds a match on the database and you become a suspect, even though you have never actually been in that car. We have to avoid this type of error by ensuring there is corroborating evidence – fingerprints, fibres, hairs, footprints – because the police now frequently rely too heavily on the DNA results alone. The issue may not be whether it’s your DNA, but more importantly, how it got there.’


It is slightly more than 20 years since DNA profiling was used for the first time in crime detection in the Leicestershire rape and murder investigation known as the ‘Pitchfork case’. The National DNA Database of England and Wales was established in April 1995, under the aegis of the Forensic Science Service, with the £300 million DNA Expansion Programme launched five years later.


The law has had to be amended to keep pace. Under the Criminal Justice and Public Order Act 1994, DNA samples and profiles could not be retained if the individual was acquitted or not prosecuted. However, an Inspectorate of Constabulary report in 2000 found 50,000 profiles had been improperly retained, raising problems of admissibility.


The Criminal Justice and Police Act 2001 allowed profiles to be retained, with retrospective effect, while subsequent criminal justice legislation has extended police powers over taking samples. Since the 2001 change, 200,000 profiles that would have been destroyed have been kept. Of those, 7,500 have been matched with crime scene samples involving 10,700 offences, including 88 murders and 116 rapes.


The Home Office now estimates the database will rise to 4.2 million profiles – 7% of the population – by 2008. The next largest database is in Austria, where less than 1% of the population is included. The coverage in Germany and the US is half that. Most jurisdictions remove profiles if the person is acquitted or not charged.


However, the Home Office argues the increased use of DNA technology has led to a quadrupling in the number of crimes detected using that method over the past five years.


The importance of forensic techniques in criminal investigations has prompted the Crown Prosecution Service to undertake an extensive training exercise to ensure all of its prosecutors are up to date with the latest developments when they make pre-charge decisions and authorise prosecutions.


Senior prosecutor Penny Palmer, who represents the service on the Law Society’s council, says it grew up with DNA. She describes one case, in which the police officer first on the scene allowed it to be contaminated by the person who was ultimately prosecuted for the crime. ‘But that was a human mistake. Generally, the police are very good at handling and preserving the integrity of samples.’


While all practitioners agree that DNA has proved a vital tool in both eliminating the innocent and helping convict the guilty, they are divided on the other issues it has thrown up.


Peter Mahy, head of civil liberties at Sheffield law firm Howells, has applied to the European Court of Human Rights on behalf of Michael Marper. Mr Marper claims that retaining his DNA profile when he was never prosecuted is a breach of articles 8 (right to respect for private and family life) and 14 (prohibition on discrimination) of the European Convention on Human Rights.


The House of Lords rejected his argument that article 8 (1) was engaged (Baroness Hale dissenting) and found that any breach of article 8 was proportionate and justified to detect crime (Regina (Marper) v Chief Constable of the South Yorkshire Police [2004] UKHL 39; [2004] 1 WLR 2196).


However, Mr Mahy argues that having a blanket policy of retaining profiles and samples is not proportionate to the legitimate aims of preventing crime, and it discriminates against those who are acquitted or never prosecuted compared with the rest of the ‘unconvicted’ population.


He has been contacted by more than 200 potential clients with similar concerns who are now waiting on the decision of the European Court of Human Rights. ‘If it was my sample on the database, I would be worried. There is a sense of grievance that yours is being kept, even though you are not convicted, and the rest of society’s isn’t. If the government was open and said “let’s keep a national database”, that would be a different matter.’


Human rights group Liberty is waiting to see if it can join two similar cases to Mr Mahy’s. Solicitor Anna Fairclough, a legal officer with Liberty, says: ‘We are concerned that the government is creating a national database by stealth. We would be against a national database because of its privacy implications but, if there is to be one, let’s have a debate about it.


‘I can see the argument that if you are innocent, why would you be worried about being on the database. But there are ways of keeping one which would be less intrusive on people’s privacy – by only keeping the DNA profiles of those convicted and only keeping the profiles and not the samples, which could be used for other purposes.’


Ian Kelcey, senior partner of Bristol-based Kelcey & Hall and chairman of the Criminal Law Solicitors Association, says that, provided there are proper safeguards against abuse, ‘if it leads to the right people being acquitted and the right people being convicted, I don’t have so much of a problem with it’.


Ms Palmer says that, as long as the profiles are only kept for solving crime, she does not believe there should be any ‘weeding out’ policy. ‘Where I and my colleagues would be concerned is if the samples were used for any other purpose.’


The House of Commons’ science and technology committee’s report, Forensic Science on Trial, last year looked at concerns that research projects were being authorised to use the database. It called on the government to establish an independent body, with full ethical and lay input, to oversee the workings of the database and to subject any future extensions of the uses of the database to public scrutiny.


Dr Pounder, who is a consultant to national law firm Pinsent Masons, says the House of Lords considered the potential for widespread use of DNA samples and profiles in the Marper case, and concluded that the retention of DNA samples on those who have committed no crime did not breach the Human Rights Act 1998, if the samples were only used for policing purposes. If there was any wider use, then the legal situation could change.


Dr Pounder considers that the problem lies with data retention. ‘In my view, the House of Lords was right to say article 8 was not engaged. If your DNA doesn’t match a sample found at a scene of a crime, then it won’t be used, so there is no interference with your privacy. If the DNA sample does match, then your privacy would be interfered with, but such interference would be justified in terms of article 8.’


However, this is not the case with the fifth data protection principle of the Data Protection Act 1998, which requires that personal data is deleted if there is no purpose for its retention. So, if DNA personal data is retained by the police on people who have committed no crime and are not likely to do so in future, then there are few convincing reasons to keep DNA data, as the fifth principle is likely to be breached.


Dr Pounder says: ‘Government policy increasingly depends on personal data retention, where data on everybody is to be retained, irrespective of whether or not they are under suspicion. Yet in such cases, the law in relation to the retention of data under human rights and data protection legislation is difficult to reconcile.’


The use of DNA will inevitably remain a sensitive issue. As Mr Mahy says in his European court application: ‘There can be little, if anything, more private to the individual than the knowledge of his genetic make-up.’


Grania Langdon-Down is a freelance journalist