- BIOETHICS FORUM ESSAY
DNA Profiling: Invaluable Police Tool or Infringement of Civil Liberties?
Almost every week this question appears in the British media in some form or another. In early September, Lord Justice Sedley, a senior judge, suggested that there should be a compulsory nationwide forensic database, including samples from all visitors to the United Kingdom. Earlier this year, the government’s Home Office floated the idea that samples should be taken – and forever kept – from anyone arrested for offenses as minor as littering or traffic violations.
Even without these further extensions, the UK database already holds DNA profiles (and biological samples) from four million citizens – some six per cent of the population. The US CODIS database has become slightly larger in terms of the number of samples but still only represents one per cent of the population. Slowly UK citizens are waking up to the fact that they have the largest DNA database in the world, and the widest police powers to take and store DNA. Yet no has really asked them whether this is what they want.
No one doubts the usefulness of DNA profiling. Many criminals have been, and will continue to be, caught and convicted through the use of forensic bioinformation. In 2005, DNA samples from suspects or volunteers were matched with around 50,000 samples found at crime scenes. The crime detection rate increases from 26 percent to 40 percent when DNA evidence is available.
Despite these obvious benefits, the Nuffield Council on Bioethics, an independent body whose terms of reference require it to “anticipate public concern,” became aware of a growing feeling of unease about the continued expansion of police powers to take and store DNA. Members of Parliament, journalists, organizations concerned with the protection of human rights and civil liberties, and many others with a public voice were expressing their concerns ever louder and more frequently. The government and the police, meanwhile, were determinedly extolling the benefits of a “National DNA Database” – the bigger, the better, Tony Blair said.
Given the absence of any meaningful public or parliamentary debate on this matter, the Nuffield Council has contributed the report The Forensic Use of Bioinformation: Ethical Issues, published on September 18. The report provides a critical examination of the issues and makes a number of policy recommendations. And the Council’s answer to the question whether the database is a useful police tool or an infringement of civil liberties is: “a bit of both.” This may seem like a lingering in the middle ground, but after a year of deliberation, a public consultation, and meetings with stakeholders, the Council concluded that the United Kingdom has taken the forensic use of DNA beyond what is proportionate to the need to fight crime.
Ethical values and human rights
Protecting the public from criminal activities is a primary obligation of the state. It is also necessary to protect certain fundamental ethical values, such as liberty, autonomy, privacy, informed consent, and equality. The report broadly endorses a rights-based approach, which recognizes both the importance of respecting 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 report’s recommendations. Any interference with legally enforceable human rights, such as the right to a fair trial, the right to respect for private and family life, and the right to equal treatment, must be proportionate to the need to fight crime.
The use of DNA in criminal investigation
The powers of the police in England and Wales to take DNA are wider than those in any other country. Already, DNA can be taken, without consent, from any person arrested for a “recordable” offense (mostly offenses that can lead to a prison sentence). It is Nuffield’s view that the government’s recently announced plans to expand these powers further would be disproportionate. Suspicion of involvement in a minor offense does not justify the taking of bioinformation without consent.
With regard to the retention of samples and DNA profiles, the police can permanently store DNA on the National DNA Database even if the individual is later found to be innocent. As many as 25 percent of samples currently held are from people who have never been convicted of any offense. Clearly there are personal implications for these individuals. They have lost privacy and have the anxiety of being associated with a “criminal” database. We recommend that the police be allowed to keep the DNA only of people who are convicted of a crime, with the exception of people charged with serious violent or sexual offenses.
The loss of privacy entailed by retaining the DNA of innocent people is not warranted by the marginal benefit to the criminal justice system, and the cost of taking and retaining samples is significant. We would prefer to see the police put more resources into the collection of DNA from crime scenes. At present, fewer than 20 percent of crime scenes are forensically examined. Since most of the criminal population is already in the database, better examination of crime scenes would be more effective than broader collection of citizens’ DNA.
There are around 750,000 people below the age of 18 on the National DNA Database. The United Nations Convention on the Right of the Child requires that the legal system give special attention to children, including opportunities for rehabilitation. We recommend that there be a presumption in favor of removing DNA taken from children from the database, if requested, unless there is a good reason not to (as when the offense is very serious).
Other uses of the database
The technical capabilities of the science of DNA profiling are being extended, and there are risks that where forensic scientists are working with small, degraded, or mixed samples, there are more likely to be errors and incorrect matches. But the database is also being stretched and applied to other uses that are open to question.
For example, when DNA collected at a crime scene does not match exactly any profile on the database, the police may search for relatives whose DNA would provide a partial match. They may find many possible relatives, however, and may reveal previously unknown family relationships, with potentially damaging consequences. We recommend that familial searching not be used unless it is specifically justified in each case.
Another example is “ethnic inferencing,” whereby it is claimed that the likely ethnic group of a crime scene sample can be identified. When DNA is collected from individuals, the arresting officers allocate them to one of seven broad ethnic groups. Forensic analysts can now tell the police the likely ethnic group of any sample. The police may use this to narrow down their pool of suspects. However, the practice of assigning a “racial type” to individuals is subjective and inconsistent, and genetic research does not support the idea that humans can be classified by appearance into a limited number of “races.” We recommend that “ethnic inferences” not be routinely sought, and that they be used with great caution.
The National DNA Database is also being used for research that is not directly related to any particular police investigations. By the end of 2006, 33 requests had been made to conduct such research. However, the publicly available information about this research is inadequate. We recommend the regular publication of further details about, for example, the purpose of the research and whether the research has been scientifically and ethically reviewed.
A population-wide DNA database?
Lord Justice Sedley is not alone in believing that taking the DNA of everyone at birth to build a population-wide forensic database would assist the police while also removing problems of discrimination. Others, including some civil libertarians who see it as a means of avoiding discrimination, support this idea. However, it would be hugely expensive and would have only a small impact on public safety. We have seen no evidence that is would significantly improve crime detection and conviction rates, and the intrusion of privacy incurred would therefore be disproportionate to any possible benefits to society. For these reasons, we are against the establishment of a population-wide forensic DNA database at the current time.
An ongoing debate
The report has enjoyed an extremely positive reaction. It has received wide media coverage in the UK. At the Labour Party Conference last week, Meg Hillier MP, Home Office Minister with responsibility for this area, welcomed the report and the debate it has stimulated. The report will be considered as part of the current review of legislation governing the police use of DNA. The Human Genetics Commission, a government advisory panel, will be taking many of the issues raised in the report to its “citizens’ inquiry” on the forensic use of DNA later this year. And perhaps the report will have some impact outside the United Kingdom. With many developed nations expanding their use of DNA in the police context, it seems likely that the concerns of British citizens will be shared in other countries. Perhaps Nuffield’s contribution will help them to have this debate much earlier in proceedings than the UK has managed.
Hugh Whittall is director of the Nuffield Council on Bioethics.