Who should be on the National DNA Database… and who is?

The Coalition Government has recently announced under its Protection of Freedoms bill that the DNA profiles of individuals who have not been convicted of any crime will be deleted from the National DNA Database (NDNAD) in order to comply with the December 2008 ruling of the European Court of Human Rights. It is thought that there are over a million people on the database without a linked conviction. Currently, therefore, we are in a situation where significant numbers of profiles and samples are held in contravention of the European judgment and undoubtedly there will be cases coming to court in which the intelligence on which the case has been brought will have been derived from an “illegally” held sample or profile.

The National DNA Database was set up by the Forensic Science Service in 1995 and was the first DNA intelligence database in the world.  It still is one of the largest, holding in excess of 5 million profiles, and is now in the custodianship of the National Policing Improvement Agency (NPIA). As new profiles are loaded onto the database, they are automatically compared with the profiles held to establish if there is a match with any already stored. Such a process can link individuals to crimes and crimes to crimes and as such has revolutionised intelligence-led policing in the last fifteen years.

Since its inception, legislation governing whose profile is held on the database has slowly evolved. This has been controversial, with England and Wales becoming one of the few jurisdictions worldwide to allow for the permanent retention of a person’s profile, regardless of whether they were acquitted or, for example, the allegation against them was found to be malicious; it was seemingly impossible to get a profile removed. Two individuals, “S” and Marper, took issue with the retention of their profiles and pursued a legal action against the British Government in the European Court of Human Rights.

In December 2008 the European Court handed down its ruling: it stated that the blanket retention of DNA profiles and fingerprints in cases where proceedings were dropped or an acquittal resulted was in breach of Article 8 of the European Convention on Human Rights.

In May 2009 the Home Office issued a consultation document: ‘Keeping the right people on the database: Science and public protection' and in November 2009 outlined proposals in an attempt to comply with the ruling whilst maintaining a balance between public protection and the rights of an individual to privacy. The proposal for retention and disposal of samples is summarised in the following table:

DNA Profile Retention Proposals

DNA Sample Retention Proposals

As can be seen, the proposals were complex and have the potential to result in an inundation of requests from individuals for their DNA profiles to be removed from the Database and for samples to be removed from storage and destroyed. The more recent proposal from the Coalition Government goes further, most notably requiring that a person’s profile cannot be retained if they have been acquitted of the minor offence for which it was collected. It is uncertain what steps the NDNAD custodian has yet taken to ensure compliance with these proposals, if any.

In this current period, therefore, there will undoubtedly be cases coming to court in which the DNA intelligence will have been derived from a sample or profile held in contravention of the European ruling.  Whether courts in the UK will be willing to consider such arguments as a basis to reject DNA evidence remains to be seen.