Inclusiveness,Effectiveness and Intrusiveness: Issues in the Developing Uses of DNA Profiling in Support of Criminal Investigations

Lazer D. and Meyer M. , “DNA and the Criminal Justice System: Consensus and Debate,” in Lazer D. , ed., DNA and the Criminal Justice System: The Technology of Justice (Cambridge, MA: MIT Press, 2004): 357–390, at 357; Lynch M. , “God's Signature: DNA Profiling, The New Gold Standard in Forensic Science,” Endeavour 27, no. 2 (2003): 93–97.

Townley L. and Ede R. , Forensic Practice in Criminal Cases (London: The Law Society, 2004): at 8; Her Majesty's Inspectorate of Constabulary, Under the Microscope: Thematic Inspection Report on Scientific and Technical Support (London: Home Office, 2000): at 12.

There are many accounts of these matters available, but for a recent short review, see Jobling M. A. and Gill P. , “Encoded Evidence: DNA in Forensic Analysis,” Nature Reviews 5 (2004): 739–751; Lazer , supra note 1, provides an authoritative account of this trajectory – especially in the US. See also Lynch M. D. and Jasanoff S. , eds., “Contested Identities: Science, Law and Forensic Practice,” Social Studies of Science 28, Special Issue (1998).

The literature on these matters is extensive. Essential sources include Billings P. R. ed., DNA on Trial: Genetic Identification and Criminal Justice (New York: Cold Spring Harbour Laboratory Press, 1992); Lazer , supra note 1; Human Genetics Commission, Inside Information: Balancing Interests in the Use of Personal Genetic Data (London: Department of Health, 2002); Laurie G. , Genetic Privacy: A Challenge to Medico-Legal Norms (Cambridge: Cambridge University Press, 2002); O'Neill O. , Autonomy and Trust in Bioethics (Cambridge: Cambridge University Press, 2001); and Murray T. H. , “Genetic Exceptionalism and Future Diaries: Is genetic Information Different from Other Medical Information,” in Rothstein M. A. , Genetic Secrets: Protecting Privacy and Confidentiality in the Genetic Era (New Haven: Yale University Press, 1997): 60–73.

The first considerations given to a number of these issues in the UK can be found in the Scottish Law Commission, Report on Evidence: Blood Group Tests, DNA Tests and Related Matters (Edinburgh: HMSO, 1989); and the Royal Commission on Criminal Justice, Cm 2263 (London: HMSO, 1993). There has been a continuous return to these issues over the ten years since the establishment of the National DNA Database of England and Wales (NDNAD) in 1995.

In Scotland the legislative provision for the police collection and use of DNA differs significantly from that in England and Wales. For a discussion of these differences, see Johnson P. and Williams R. , “DNA and Crime Investigation: Scotland and the ‘UK National DNA Database,’” Scottish Journal of Criminal Justice Studies 10 (2004): 71–84.

The “DNA Expansion Programme” delivered about £200 Million between 2000 and 2004. £60 Million has been granted for the extension of this programme for the year 2004–2005. These monies are spent on the collection and analysis of biological materials from crime scenes and offenders and for the support of police units to integrate resulting DNA matches into force criminal intelligence and investigation systems.

A “recordable offense” is any offenses which carries a sentence of imprisonment on conviction (irrespective of the period, or the age of the offender or actual sentence passed) as well as the non-imprisonable offenses under the Street Offenses Act 1959, section 1 (loitering or soliciting for purposes of prostitution), the Telecommunications Act 1984, section 43 (improper use of public telecommunications systems), the Road Traffic Act 1988, section 25 (tampering with motor vehicles), the Malicious Communications Act 1988, section 1 (sending letters, etc. with intent to cause distress or anxiety) and others listed in the National Police Records (Recordable Offenses) Regulations 2000. PACE, “Code of Practice for the Identification of Persons by Police Officers,” Home Office, 2004.

Statistics taken from Forensic Science Service, National DNA Database Annual Report 2003–2004 (London: HMSO, 2004), available at <http://www.forensic.gov.uk/forensic_t/inside/about/docs/NDNAD_AR_3_4.pdf> (last visited June 28, 2005).

Criminal Justice and Public Order Act 1994, Section 58.

Original in Police and Criminal Evidence Act 1984, Section 63 (3B) (b).

Criminal Justice and Public Order Act, 1994, Section 55.

In 1999/2000, 228,088 profiles obtained from individuals were loaded onto the database. By 2001/2002 this figure had more than doubled to 586,026.

R v. Brown [1996] 1 All E.R. 545 at 556).

Hoffman Lord , UKHL 56 (2004): 50.

Taylor N. , “Policing, Privacy and Proportionality,” European Human Rights Law Review Special Issue (2003): 86–100 at 95.

R v Marper & S 2002 a [2002] EWHC 478 (Admin). High Court of Justice Queen's Bench Division Administrative Court; R v. Marper & S 2002b [2002] EWCA Civ 1275. Court of Appeal (Civil Division); R v. Marper & S 2004. [2004] UKHL 39. House of Lords (Appellant Committee).

Whilst “proportionality” is not a term found in the text of the ECHR, it has become a major resource for the formulation of arguments and judgements concerning the police uses of DNA in the light of the ECHR. Proportionality, as the Lord Chief Justice stated in his judgement of R v. Marper & ‘S’ supra note 17, 2002 b, is usually absorbed by the consideration of “balance” which the court is asked to make; that is, to judge an appropriate balance between an individual right and a collective or social good. Often in British jurisprudence a distinction is made between a “balancing test” and a “necessity test.” To judge necessity a court deliberates the possibility that the objective under consideration (in this case, the future prevention and detection of crime made possible by the NDNAD) could be met using different and less intrusive means. In R v. Marper & ‘S’ supra note 17, the necessity test has been contended by arguing that the current ‘blanket policy’ of the police in retaining all samples and profiles of those once charged with, but not subsequently convicted of, a recordable offense is incompatible with the actual wording of the legislative provision in PACE which states that the police may retain samples and profiles. The appellants have argued that the intrusiveness created by the retention of samples and profiles, should there be a proven necessity for such a practice in particular instances, would be reduced by a case-by-case consideration of retention. This has been consistently ruled against on the grounds that such a situation would be potentially more intrusive because it would rely on the police making decisions about the ‘character’ of individual suspects. As Lord Wolf argued: “It would be highly undesirable for members of the public to be treated differently on the basis of some scale of innocence derived by the police” (R v. Marper & ‘S’ 2002 b, supra note 17, at 12).

Feldman D. , Civil Liberties and Human Rights in England and Wales (Oxford: Oxford University Press, 2002).

Article 14 of the ECHR, which prohibits discrimination, states: “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.”

There are certain problems in assessing proportionality in relation to the individual/society balance. As Lord Sedley notes “proportionality [is] an issue which, with respect, I do not think can ever be absorbed in a simple balancing exercise as between the individual and the public (an exercise which in a majoritarian democracy the individual will always lose, and which the [European Convention on Human Rights] is there precisely to redress)” (R v. Marper & S, supra note 17, 2002 b: paragraph 77).

R v. Marper & ‘S’ 2002 b, supra note 17.

R v. Marper & ‘S’ 2002 b, supra note 17, at 20.

Hansard , The Lord Bishop of Worcester, House of Lords, October 29, 2003.

R v Marper & ‘S’ 2004, supra note 17, at paragraph 78.

Williams R. and Johnson P. , “‘Wonderment and Dread’: Representations of DNA in Ethical Disputes about Forensic DNA Databases,” New Genetics & Society 23 (2004): 205–222.

Pugliese J. , “Identity in Question: A Grammatology of DNA and Forensic Genetics,” International Journal for the Semiotics of Law 12 (2000): 419–444.

Rabinow P. , “Galton's Regret: Of Types and Individuals,” in Billings P. R. ed., DNA on Trial: Genetic Identification and Criminal Justice (New York: Cold Spring Harbour Laboratory Press, 1992): 5–17; But note that Cole reminds us that the idea that fingerprints convey more than identity lasted well beyond Galton, in Cole S. A. , Suspect Identities: A History of Fingerprinting and Criminal Identification (Cambridge MA: Harvard University Press, 2001); and Cole S. A. , “Fingerprint Identification and the Criminal Justice System: Historical Lessons for the DNA Debate,” in Lazer D. ed., DNA and the Criminal Justice System: The Technology of Justice (Cambridge, MA: MIT Press, 2004): 63–90.

Murray , supra note 4.

See Gill P. and Werrett D. J. , “An Assessment of Whether SNPs will replace STRs in National DNA Databases,” Science and Justice 44, no.1 (2004): 51–53.

R v. Marper & ‘S’ 2002 b, supra note 17, at 18.

R v. Marper & ‘S’ 2002 b, supra note 17, at paragraph 78.

Criminal Justice and Police Act, 2001, Section 82.

R v. Marper & ‘S’ 2004, supra note 17, at paragraph 86.

The Human Genetics Commission, supra note 4.

A review of the Forensic Science Service was undertaken by Robert McFarland on behalf of the Home Office between 2002 and 2003. The Home Office have not made the final report of the review publicly available. The executive summary is available at <http://www.homeoffice.gov.uk/docs2/reviewfssjuly2003.pdf> (last visited June 29, 2005).

The establishment of a National DNA Database was first made in the final report of the Royal Commission on Criminal Justice in 1993.

Home Office Press Release, September 1, 2003.

NDNAD, Annual Report 2002–2003, supra note 9 at 4.

See Human Genetics Commission 2002, supra note 4.

Forensic Science Service, supra note 9.

Assertions of the spectacular potential of forensic DNA analysis can quickly lead to levels of investigatorial enthusiasm for recent innovations that cannot always readily be met even by those directly responsible for their introduction. The case of Low Copy Number (LCN) DNA is an example of such a problem in the UK.

Bieber F. , “Science and Technology of Forensic DNA Profiling: Current Use and Future Directions,” in Lazer D. , ed., DNA and the Criminal Justice System: The Technology of Justice (Cambridge, MA: MIT Press, 2004): 23–61.

Jeffreys A. J. and Wilson V. , “Hypervariable ‘Minisatellite’ Regions in Human DNA,” Nature 314 (1985): 67–72.

Some of this work arose from previous efforts to deal with “close-relative defences” in prosecutions involving DNA identification (see for example Evett I. W. , “Evaluating DNA Profiles in a Case Where the Defence is ‘It Was My Brother,’” Journal of the Forensic Science Society 32 (1992): 5–12). Subsequent published studies of the same topic by others include Belin T. R. and Gjertson D. W. , “Summarizing DNA Evidence When Relatives are Possible Suspects,” American Statistical Association 92, no 438 (1997): 706–716; and Sjerps M. and Kloosterman A. D. , “On the Consequences of DNA Profile Mismatches for Close Relatives of an Excluded Suspect,” International Journal of Legal Medicine 112 (1999): 176–180.

Forensic Science Service, National DNA Database Annual Report 2002–2003 (London: HMSO, 2003): at 25.

The CJPA 2001 also authorized the indefinite retention and continuous speculative searching of DNA samples taken during mass screens – subject to the “irrevocable consent” of the individual from whom such a sample was requested. It seems unlikely that familial searching would have been envisaged by anyone who consented to give their DNA under these circumstances.

Forensic Science Service, supra note 9.

Gans J. “Something to Hide: DNA Databases, Surveillance and Self-Incrimination,” Current Issues in Criminal Justice 13 (2001): 168–84.

Here we borrow concepts which have been developed by Sheila Jasanoff and her colleagues. See for example Jasanoff S. , ed., States of Knowledge: The Co-production of Science and Social Order (London: Routledge and Kegan Paul, 2004).

Budd T. Sharp C. and Mayhew P. , Offending in England and Wales: First results from the 2003 Crime and Justice Survey (London: Home Office, 2005).