THE UK DNA DATABASE: THE FOUNDER’S EFFECT
By Helen Wallace
Britain’s DNA database is the oldest in the world, established in 1995. Originally intended to retain the DNA profiles of persons convicted of serious crimes, in 2001 the New Labour government led by Tony Blair began to transform it from a criminal database to a database of suspects. Two changes in the law led to DNA being collected routinely on arrest for any recordable offence and held until the suspect reached 100 years of age, regardless of whether or not they were convicted of, or even charged with, any offence.
Britain’s low age of criminal responsibility (ten years old in England and Wales) and the wide range of offences classified as recordable led to people being added to the database for such alleged minor crimes as pulling each others’ hair or hitting a police car with a snowball. Although young black men were disproportionately affected, people added to the database came from all sectors of society, including a white grandmother arrested for theft when she allegedly failed to return a football kicked into her garden.
What was originally a populist policy became increasingly contentious as ordinary families found themselves or their children with permanent records on police, DNA and fingerprint databases, even when the police openly acknowledged they had done nothing wrong. The new legislation was implemented in England and Wales, and later in Northern Ireland, but the Scottish parliament blocked similar changes in 2006, arguing that indefinite retention of innocent people’s DNA was unacceptable.
During the debate in Scotland, a senior police officer claimed that 88 murders had been solved as a result of allowing the retention of innocent people’s DNA in England and Wales. Similar figures were later repeated by Prime Minister Gordon Brown, but these claims were exposed as spurious. The false claims were based on a police estimate of the number of matches that had been obtained between DNA swabbed from murder scenes and unconvicted individuals on the database. The number of matches was not verifiable but, more importantly, matches are not solved crimes and many such matches are with the victims or with passers-by. To date, a decade after expansion of the database began, the police have yet to identify a single example of a murder that would not have been solved if innocent people were taken off the database.
The UK statistics show that as the database has ballooned in size, there has been no increase in the number of crimes detected using DNA. This is presumably because many of the people added to the database over the past decade are at very low risk of committing the type of crimes for which DNA evidence may be relevant. The common misconception that a bigger database is better therefore needs to be rethought. A focus on analysing DNA from crime scenes, and on thorough traditional policing, has proved much more effective than testing and storing DNA profiles randomly from arrested persons who are not suspects for a crime involving DNA.
The law in England and Wales allowing retention of DNA and fingerprints following acquittal or when charges were dropped was challenged in the courts. However, the English courts ruled repeatedly that there was no interference with people’s right to privacy. The legal breakthrough came in December 2008, when the European Court of Human Rights made a unanimous ruling in the case of S. and Marper v. the UK that the UK law on DNA was clearly in breach of the European Convention on Human Rights. The UK government was forced to hold a consultation and adopted a new law allowing the retention of DNA and fingerprint records from unconvicted persons for six years after arrest, a position regarded by many as still in breach of the Convention.
Following the UK elections in May 2010, the new Coalition Government committed to rolling back this legislation: a new bill is currently being debated by parliament that would make the law in England and Wales similar to Scotland’s. Although aspects of the bill require improvement, about a million innocent people’s records are expected to be taken off the database. In addition, all biological samples will be destroyed once the DNA profiles stored on the database as a string of numbers have been obtained from them, providing an important additional safeguard to prevent access to sensitive genetic information.
One of the most disturbing aspects of the UK DNA database expansion is the way in which it was intended to set a precedent for DNA databases around the world. Lobbying for the changes in the law came not from the police but from commercial interests, which wished to profit from analysing the DNA of every citizen in every country. In 2003, the UK watered down UNESCO ethical guidelines for genetic databases, which originally stated that DNA from innocent people should be destroyed at the end of an investigation. In 2005, the US adopted the Violence Against Women Act, mirroring the UK law at a Federal level. The Act allows the uploading of DNA profiles to the federal database on arrest, rather than on charge or indictment, and removes the burden from the State to remove the DNA profile of someone who is later acquitted or whose charges are dismissed. In 2006, the UK Forensic Science Service (FSS) signed the first of series of contracts with the United Arab Emirates, with the aim of putting the entire population on a DNA database. Other countries, such as South Africa, became the targets of lobbying to expand their databases along the same lines as the UK law. A draft Bill in South Africa was dropped following the decision by the European Court of Human Rights, and more careful consideration is now being given to the need for better safeguards.
DNA is undoubtedly a useful tool for solving crimes; during an investigation it can exonerate the innocent as well as helping to convict the guilty. But databases of individuals’ DNA profiles, linked to sufficient personal information to allow the police to track them down, raise important issues +about human rights. The same technology that can track a criminal through their DNA can also be used by abusive regimes to track political opponents or identify their relatives. If a DNA database is not secure, unauthorized access could reveal the identities of individuals who may be hiding for good reason on witness protection schemes, fleeing from an abusive relative, or working as an undercover officer. In countries where sex outside marriage is a criminal offence, women may be put at risk by familial searches of the database for a suspect’s relatives, because such searches can reveal non-paternity.
These risks are not offset by increased benefits as DNA databases grow in size. Larger databases increase the risk of errors and false matches-which can occur by chance or through poor laboratory practice-and hence risk miscarriages of justice. And, as the UK data shows, expanding DNA databases can deliver very little benefit, as a large proportion of most populations is very unlikely to commit serious crimes for which DNA evidence might be relevant.
The question remains what kind of precedent the UK’s experience will set for other countries: one in which unfettered expansion of such databases is the norm, or one in which some important lessons are learned from some serious mistakes. There is a choice between allowing narrow vested interests to set the agenda for DNA database expansion or having a balanced debate of the pros and cons, taking full account of the impacts on civil liberties and human rights.
Helen Wallace is the Director of GeneWatch UK.