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A database of the innocent?
By Roger Bingham of Liberty, published in Splice www.geneticsforum.org.uk
There is nothing to fear if you have nothing to hide - at least that is what we are told. But Liberty's Roger Bingham thinks we should be more cautious before placing our faith in a Home Office DNA database.
If it's true that as a nation we're suspicious of 'ingenious science', then there's one glaring exception. For in DNA analysis, we have seen the 'silver bullet' to kill crime, and even such bastions of conservatism as the Home Office are falling over themselves in their haste to adopt and expand its use.
First things first. Used correctly, DNA is clearly a valuable weapon, in helping to solve crime. Just as clearly, it's not a silver bullet - it still needs combining with good quality 'traditional' police investigation and case-building. But its value to politicians, as a touchstone for 'quick fix' crime-solving cannot be overstated; and, in an election year, that may partly explain the attention it's attracted in recent months.
Since the 1994 Criminal Justice & Public Order Act, the police have been allowed to take a DNA sample from anyone who is charged with a crime and where it may prove relevant. They can take that sample from you by force if necessary; and increasingly, police take samples from anyone charged with an offence as a matter of routine, not simply in cases where DNA tests are likely to be used.
The protection against all this is that, if you're found not guilty (or not found guilty, e.g. if charges are dropped) your sample will be deleted from what is, after all, the police's database of criminals' DNA. If you're not convicted, your sample gets removed.
That, at least, was the balancing protection put in by the 1994 Act - under a Home Secretary for whom some might say the word 'draconian' was invented, Michael Howard.
But last summer, the Audit Commission found that 50,000 samples were being held illegally on the database. Not out of malice - more a case of inadequate systems failing to ensure that samples were always destroyed when people were acquitted.
But the finding seems to have helped precipitate a flood of change. In December, the House of Lords ruled that compelling DNA evidence could be admitted in future cases even where it has been unlawfully held. The ruling, as The Times newspaper summarised, "could give a green light to more illegal storage of DNA material on the national database."
While the specific case that prompted this ruling was horrific, and there's no question the perpetrator deserves to be behind bars for a long time, it's an unfortunate fact that specific cases do not always prompt good general law. The decision here effectively said 'don't rush to destroy innocent people's samples, just in case…'
By January, all this was changing again anyway: the Home Secretary's Criminal Justice & Police Bill proposed to legalize retaining this DNA (samples and profiles). If passed (and at the time of writing the Bill is approaching its third reading), it will make holding both fingerprints and DNA samples from people found innocent of offences legal and, indeed, desirable. It will even - thanks to a Government amendment to its own bill
- backdate the change to 'legalise' all those illegally-held samples.
The aim is to expand the police's DNA database from its current total of just over one million profiles (of either convicted criminals or people still facing a criminal charge) to around three million (the majority of them likely not to have conviction) within three years.
The Home Secretary was asked whether he planned a national database: he didn't rule it out (and some insiders, including some in the Forensic Science Service (FSS) itself, are said still to believe that's his end goal), but he suggested that a national database of the whole population might be an excessive measure at present.
Keeping the samples of just a couple of million innocent people, on what will still effectively be the criminal database (rather than a national 'census'-type database) is, apparently, proportionate.
Rubbish. It's an entirely disproportionate and ill-conceived measure that flies in the face of one of the key principles of British criminal justice. Storing the fingerprints and DNA samples of innocent 'ex-suspects' on the police's database of criminals goes against the basic idea of innocent until proven guilty and is a disproportionate infringement on an individual's right to privacy.
You may be comfortable with the claims of DNA analysis pioneers that the science is almost foolproof (although measures of the 'almost' appear still to vary); but that doesn't create a foolproof system.
The samples that (eventually) generate the computerised profiles are manually taken (usually by a mouth swab) from the suspect, bagged and tagged by police in a custody centre, or in 'Bridewell'. The process presumably works fine almost all the time; but at the same time, evidence is only as good as its human handlers (as any number of drug-tested athletes will tell you).
We're not trying to talk up some 'Big Brother' conspiracy here. We're not saying it's all a plot to extract everyone's DNA for scientific secret testing, or whatever.
(Although, incidentally, the FSS itself has been working for some months on predicting physical characteristics and ethnicity from DNA samples.) It's more the way that DNA analysis is being sold to us as the silver bullet to crack crime: something that cannot be questioned, something about which we can have no reservations.
We have to question it. There are two valid options: you can either have a criminal DNA database (as we have had up to now, but which the Home Office now wants to change); or you can have complete, national database of everyone's DNA - not linked to criminality - and tackle openly the whole debate about how much data the State should store up about its citizens.
The current proposal falls between these two stools in a manner that is wholly discriminatory. It foresees a database of non-criminals picked on a please 'mud sticks' basis.
It logs a level of data on those people that in some ways we are only beginning to understand. And it takes beyond your control what is arguably the most private information possible about you - this isn't your bank record, it is (apparently) a guide to your very essence, your susceptibility to physical and mental illnesses.
You don't have to be a wild conspiracy theorist to feel a little uneasy: it's not what they are planning to do with it, it's what some bright spark might see as a good use for it in future, when the science has developed still further.
That, at least, is one of the concerns reflected in the latest survey by the Government-established Human Genetics Commission. Perhaps surprisingly, people with a little more knowledge or understanding of genetics are less likely to be happy for the police to take DNA samples from individuals charged with a crime.
It's easier to say "if you have nothing to fear, you have nothing to hide"; harder to answer that proposition, or to explain the more complex idea that in a free society, you should not have to surrender unlimited information about yourself to the state for no clear reason.
But here's a final thought: if you are uneasy, then you are in good company. Currently, the only voluntary DNA database we know of in the country is that for serving police officers.
Why has it attracted such an abject take-up rate, and such clear and continuing reluctance among officers to be profiled for it? Launched in February 2000 with a target of logging profiles from 75,000 volunteers, it achieved just one-third of that by last summer and is understood to be not far past the half-way mark now.
There remains considerable resistance from police officers and from their main representatives, the Police Federation.
As a rule of thumb, when the people who know most look worried, it is usually a good time for the rest of us to start worrying too.
Roger Bingham Liberty
Published in the latest issue of Splice - www.geneticsforum.org.uk or call: 0207 837 9229
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