We have gone too far, argues Hugh Whittall

DNA profiling is a valuable tool for detecting and prosecuting offenders, but more safeguards are needed to protect the liberty and privacy of the innocent, according to the Nuffield Council on Bioethics.

The UK now has by far the largest forensic DNA database in the world, per head of population, with its 4 million samples representing six per cent of the population. Many criminals have been, and will continue to be, caught and convicted through the forensic use of DNA. The crime detection rate increases from 26 to 40 percent when DNA evidence is available.

However, the establishment of the National DNA Database and subsequent extensions to police powers were effected without any meaningful public debate. It was for this reason that the Nuffield Council on Bioethics, an independent body, decided that a critical examination of the subject was needed. It published a report, The forensic use of bioinformation: ethical issues,(1) in September 2007.

As part of its inquiry, the Council held a public consultation, which elicited over 135 responses, and meetings with a range of interested stakeholders. These revealed a wide range of views, from those who wholeheartedly welcomed the expansion of forensic databases, to those who viewed the increase in police powers with deep suspicion.

Ethical values and human rights
The Council broadly endorses a rights-based approach, which both recognises the importance to human beings of respect for their individual liberty, autonomy and privacy, and the need, in appropriate circumstances, to restrict these rights either in the general interest or to protect the rights of others.

The principle of ‘proportionality’ is at the heart of the recommendations in the report. This means that any interference with legally enforceable human rights, such as the right to respect for private and family life, must be proportionate to the need to fight crime.

The use of DNA in criminal investigation
DNA can currently be taken, without consent, from any person arrested for a ‘recordable’ offence (mostly offences that can lead to a prison sentence). Since 2003, the police in England and Wales have been able to permanently store this DNA on the National DNA Database even if the individual is never charged, or is later found to be innocent. Indeed, up to 25 per cent of the profiles on the database are from people who have never been convicted of any offence.

Many people are concerned about their DNA being on the Database. They are worried that they may be more likely to be implicated in a crime with which they had no involvement. They are worried about the stigma attached to being on a ‘criminal database’. They are worried about how their DNA might be used in future without their knowledge or consent, for example for research which may reveal other personal information about them.

Marginal benefit to crime detection
Despite police claims about the utility of the expanded database, we found little evidence that keeping the DNA of people not charged or convicted increased crime detection rates.

Home Office figures state that the DNA of 6000 ‘innocent’ people, retained on the Database since 2003, have been matched to crime scene samples. However, we do not know how many of these matches led to convictions and, while the Database has almost doubled in size since 2003, detection rates involving DNA have not increased overall.

It seems that the people now going onto the database are too often not the ones committing crimes. The marginal benefit to crime detection does not justify the loss of privacy of many thousands of innocent people.
Given this, the Council recommends that the police should only be allowed to keep the DNA of people who are convicted of a crime, with the exception of people charged with serious violent or sexual offences. This would bring the law in England, Wales and Northern Ireland into line with that in Scotland.

We would like to see the police instead put more resources into the collection of DNA from crime scenes. At present, fewer than 20 per cent of crime scenes are forensically examined.

The Council has made a number of other recommendations relating to storing the DNA of witnesses, victims, volunteers and children, and the expanding uses of the DNA Database, for example, for research and inferring the ethnicity of potential suspects.

Reference
1. The report is available at http://www.nuffieldbioethics.org/

Hugh Whittall is Director of the Nuffield Council on Bioethics