DNA Discrimination
Date: 11 April 2008
Authors: Azeem Suterwalla, Sarah Hemingway
Issue: Vol 158, Issue 7316
Categories: Features, Human rights, Constitutional law, Public
When Steve Wright, the
INVALUABLE TOOL
DNA is an invaluable investigative tool but where should the line be drawn? What is a proportionate measure to ensure that the database is effective for the purpose of tackling crime without encroaching upon our fundamental right to privacy as afforded by Art 8 of the European Convention on Human Rights (the Convention)? In the same month that Steve Wright was convicted, the Grand Chamber of the European Court of Human Rights heard the case of S and Michael Marper v UK (Application Nos: 30562/04 and 30566/04). The central issue in the case was whether the retention of fingerprints and DNA information of persons arrested but not subsequently convicted, should be retained indefinitely on the NDNAD.
RETENTION ON NDNAD
The case was brought by Michael Marper, a man accused of domestic harassment by his partner who later withdrew the allegation, and an 11-year-old boy (S) accused of attempted robbery who was acquitted following a trial. Both applicants’ DNA samples were taken by the police in accordance with the Police and Criminal Evidence Act 1984. Upon the discontinuance of proceedings in Mr Marper’s case and S’s acquittal, they both requested that their DNA samples and profiles be deleted from the NDNAD. The decision to refuse those requests was the subject of judicial review and subsequent appeals culminating in a judgment from the House of Lords. Their lordships held that the retention of fingerprints and DNA information of persons who had not been convicted did not constitute a breach of Arts 8 and 14 of the Convention. Although Lady Hale, alone, reasoned that retention amounted to an interference with a person’s private life under Art 8(1), it was held that, in any event, retention was objectively justified under Art 8(2), as being necessary for the prevention of crime and the protection of the rights of others. The House of Lords also decided that the difference in treatment between Mr Marper and S, and other innocent people who had not been arrested and required to give DNA samples, was not discriminatory under Art 14.
ESSENTIAL TECHNOLOGY
There is no doubt that DNA technology is now essential for the effective investigation of serious crime. Police are able to take a DNA sample from persons arrested, create a DNA profile, which is rather like a bar code, upload it onto the NDNAD and then use that database to match DNA samples from potential suspects taken from crime scenes. Cases demonstrating the benefits of DNA matching are numerous. But what those cases do not establish is whether there is actually a need to retain the samples of all persons arrested. Before the domestic courts and the European Court of Human Rights (ECtHR), Mr Marper and S complained that retention of their DNA breached their right to privacy under Art 8 of the Convention and, further, that such a breach was discriminatory pursuant to Art 14. They argued that the stigma attaching to having one’s DNA on the “criminal database” interfered with their day to day living: knowing that their most intimate information was held by the government in order that it could be run against crime scene samples or used for other unspecified research purposes. It is significant that from the “bar code” profile it is possible to identify gender, ethnicity and medical conditions, such as whether the relevant person has type-one diabetes. A link between the NDNAD and the Police National Computer is also maintained, meaning that the person arrested will always have an entry beside their name indicating that their DNA material is on the database.
DISCRIMINATION
All of this is in contrast to other innocent persons who have not been arrested. Mr Marper and S argued that by retaining their DNA the government was treating them like convicted offenders as opposed to other innocent persons whose DNA information is not on the database. The issue of discrimination can also be seen in a wider context. According to figures published by the Nuffield Council on Bioethics,
The Forensic use of Bioinformation: Ethical Issues:
As of November 2006, seven per cent of profiles on the NDNAD were from Afro- Caribbean individuals, compared with the three per cent proportion of Afro-Caribbeans in the general population.
Figures from June 2007 suggest that one third of young black males are on the NDNAD, as compared with one eighth of young white males.
In
NECESSITY V EXTENT
The real issue as to whether retention breaches Arts 8 and 14 is not whether DNA retention is necessary but rather to what extent it is so. The government argues that the
But in a country such as Scotland, which benefits from the pioneering technology that England and Wales enjoy, it has not been deemed necessary to indefinitely retain the DNA of all those arrested. A current review of Scottish legislation has explicitly ruled out such an option. In
LACK OF PROOF
No one is suggesting that DNA information should not be retained for the purposes of crime detection, nor has it been suggested that a universal NDNAD is required (although it is noted that Lord Justice Sedley recently suggested that this would be one way to eliminate the discriminatory element if indeed there is one). When the case was before the House of Lords their lordships decided that it would be unrealistic and impractical to require the police to examine each case individually. Therefore, a blanket policy of retaining fingerprints and samples of all those who had been required to provide them was lawful. Yet, to date, the government has not been able to provide any significant proof that the retention of all DNA profiles created from lawfully taken samples is necessary to enhance effective policing. In fact in response to a Parliamentary question on 9 October 2006, the then Home Office minister with responsibility for the NDNAD, Joan Ryan, stated:
“As far as we are aware, there is no definitive data available on whether persons arrested but not proceeded against are more likely to offend than the population at large.” (Hansard, Column 492W)
Furthermore, in its report on bioethics, the Nuffield Council rejects the age old adage that “you have nothing to fear if you are innocent”: it is simply not sufficient justification of the state’s interference with the lives of its citizens. The decision of the Grand Chamber of the ECtHR is expected later in the summer. The authors hope that there will be a searching and detailed analysis by the court as to whether Arts 8(2) and 14(2) can really provide sufficient justification for the indefinite retention of the DNA of unconvicted persons.
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