The National DNA Database (NDNAD) in the UK is the largest criminal DNA database, per capita, in the world with DNA from over 5.5 million individuals currently held in the database. There is no question that the database has been useful in identifying perpetrators of both serious and volume crimes since its inception in 1995, and therefore it is often argued that the NDNAD is an effective and efficient crime fighting tool. This argument was used to support the rapid expansion of the NDNAD, and the subsequent changes in legislation which enabled police to take DNA samples, without consent, from all arrested individuals in England and Wales.
Calculating the effectiveness of the NDNAD is a very difficult task, and depending on the source of the figures there is great disagreement over whether the database is good value for money. Hundreds of millions of pounds have been invested in the NDNAD and its expansion, and with less than 1% of all crimes yielding useful DNA evidence this does not seem to suggest a cost effective method of solving crime. Indeed, investment of this money in other areas such as hiring more police officers, buying more state-of-the-art police equipment, or investing in our communities may have a greater impact on reducing crime in the UK.
Financial arguments aside, another issue on which people are divided relates to the ethics of the NDNAD, and in particular whether the current retention policies are in violation of our human rights. This has been a topic of debate since the beginning of the NDNAD, however a landmark case in 2008 brought this issue to a head and made clear what the European Court of Human Rights view is on this matter. The case involved two people who had their DNA taken by police when they were arrested for crimes that they were never convicted of. One of the arrestees was a juvenile, referred to only as ‘S’ (they cannot be named for legal reasons) and the other was Michael Marper, and they both went to court to have their DNA profiles removed from the NDNAD on the grounds that they were not convicted of any offence and were therefore legally innocent of the charges (although, it should be noted that Marper didn’t actually have a trial, as his charges of harassment were dropped). After being unsuccessful in the UK courts, S. and Marper v. the United Kingdom was heard by the European Court of Human Rights in Feb 2008. The unanimous ruling was that the retaining DNA from innocent individuals was a violation of their human rights, in particular it was considered to be incompatible with Article 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms which ensures that people have a fundamental right to a private life.
So, the S. and Marper ruling clearly indicated that the European Court views the privacy of individual and private information to outweigh the possible law enforcement benefits of holding innocent people’s DNA in the NDNAD. This sends a clear message to those who wish to expand the database to include every member of the public’s DNA, as this would be seen as a much more serious violation of Article 8. In response to the S. and Marper case, the UK government had a consultation and the resulting Protection of Freedoms Act was adopted by Parliament in May 2012. This act aims to restore civil liberties in line with the S. and Marper ruling by requiring the removal of over one million innocent people’s profiles from the NDNAD, and moving towards retention rules similar to those used in Scotland. This would include automatically deleting profiles of individuals who are not convicted of the crime/s they are charged with after a specific period of time (depending on the seriousness of the offence), although adults convicted of a recordable offence and juveniles convicted of a serious offence (or a second conviction for a minor offence) would still have their DNA retained indefinitely.
So it seems that after 17 years of indiscriminate expansion, the NDNAD is now under pressure to more carefully balance civil liberties with public safety thanks to the Protection of Freedoms Act. However some argue that this is still not enough to ensure that our right to a private life is protected, while others feel that these new retention policies will make the NDNAD less effective as a crime solving tool and that the cost of implementing these new rules outweighs the benefits of having them. Given the lack of evidence to support the view that retaining innocent people’s DNA on the NDNAD has improved the crime solving role of the database, it seems that the privacy and ethical issues need to continue to be an important part of the debate, in order to ensure that individual human rights are protected.
Dr Lisa Smith, Lecturer in Criminology, Department of Criminology, University of Leicester.