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DNA Bill must balance competing imperatives

Issued : Thursday 4 March, 2010

Balancing the competing imperatives of preventing or solving crime and ensuring the protection of human rights is a perennial challenge for legislators in the criminal justice area. At times of high emotion generated by a particular atrocity or controversy it is difficult to find a sympathetic audience for the articulation of the necessity to balance these competing imperatives. It is all the more difficult when standards in our society have plumbed the depths where violence is commonplace, the vulnerable are exposed and unlawful killings a regular feature.

Add to this explosive cocktail the impulse of Justice Ministers to be seen to do something; to be seen to introduce tough legislative measures; to be presented as standing up to the criminal fraternity. Often there is little substance in these measures other than the license to rhyme off actions taken by the Minister even if they are futile, unenforceable or simply ignored. In the matter of creating a DNA Database, which will contain DNA profiles generated from biological examples this question of balancing the competing imperatives is especially relevant.

Essentially, forensic science can use DNA in blood, semen, skin, saliva or hair found at a crime scene to identify a matching DNA of an individual, such as a perpetrator. The process is called genetic fingerprinting, or more accurately, DNA Profiling. In DNA profiling, the lengths of variable sections of repetitive DNA are compared between people. This method is usually an extremely reliable technique for identifying a matching DNA.

DNA can be collected from any of the cells mentioned above and from that DNA sample a DNA profile can be established. DNA profiling is a biological identification system. It is based on showing a particular sequence of DNA being repeated a number of times. For example, ‘9’ means that the sequence is repeated 9 times. And ‘7’ means it is repeated 7 times etc. The expansion of this system allows the build up of a full sequence which is then placed on a database. Samples can then be compared on that database and identical DNA samples can be detected. This would allow the relationship to be determined between a sample from a crime scene and that of a person suspected of being involved in the crime. Many cases are recorded where DNA has been a very useful tool in connecting a crime scene to the perpetrator of the crime. The chance of two unrelated individuals having matching DNA is OF THE ORDER OF 1 IN A BILLION.

The Labour Party agrees that, in line with the primary objective of preventing and detecting crime, the Gardaí should have at their disposal the benefits of modern science and technology. DNA profiling was developed as relatively recently as 1984 and the potential benefits of a DNA database are awesome. In this context of DNA science, the potential of this crime control technique is constrained by the absence of a permanent collection of reference profiles to which samples obtained at a crime scene can be compared.

The purpose of this Bill is to replace the existing statutory and common law arrangements governing the taking of bodily samples for forensic testing from suspects for use as evidence n criminal investigations and to provide for the establishment of a DNA database system for use by the Garda Síochana as an intelligence source for criminal investigations. A DNA database enables a person, not previously suspected of committing a crime, to be identified as the possible perpetrator of an offence or to exclude a person from further investigation.

It is also true that identification can be complicated if the crime scene is contaminated with DNA from several people. DNA samples are therefore capable of being compromised. Although the probability of two persons having the same DNA profile are very small, it is an important point of principle and for that reason conviction based solely on DNA should not be considered sufficient. Additional corroborating evidence should be required. Internationally, the practice now is that people convicted of certain types of crimes may be required to provide a sample of DNA for a database. On the one hand, this has helped investigators to solve old cases where only a DNA sample was obtained from the scene. On the other hand, some convicted people in the United States have been released from prison on the basis of DNA techniques which were not available when a crime had originally been committed. In summary, sometimes the guilty have been convicted; sometimes the innocent have been acquitted.

Human rights advocates have argued that storing the DNA of innocent persons is a disproportionate invasion of privacy when weighed against the actual convictions using DNA.

The European Court of Human Rights in the case of S and Marper (in the UK) found that the law as it existed in England and Wales, under which DNA samples of people who are arrested but not charged or convicted can be retained indefinitely constituted a disproportionate interference with the right to respect for private life and therefore violated article 8 of the European Convention on Human Rights.

In relation to the above point, the issue of “function creep” is an important one. This means that gradually the DNA database might be used for additional reasons other than those originally intended. This needs to be carefully monitored e.g. if DNA could be used to determine health risks or genetically determined diseases , this might have implications for getting life insurance cover or for obtaining a mortgage (although the banks are able to determine this already without any DNA !!).

It is beyond question that the technology will continue to develop and evolve and more sophisticated systems will emerge for analysis of the DNA, providing more and more detailed information which has the potential to discriminate or exclude certain categories of people in a most unfair manner.

There is no question about the intrinsic value of DNA in the solving of crime, clearing a person’s name, aiding identification, tracing a missing person etc. It is a question of finding the balance between the values outlined above and ensuring the right to privacy of the individual.

The right to privacy was first recognised by the Supreme Court in ‘Kennedy V. Ireland’ where the unlawful tapping of the telephones of two journalists was held to be a violation of the individuals’ right to privacy. The privacy commissioner of Canada has observed that

“No surveillance technology is more threatening to privacy than that designed to unlock the information contained in human genes.”

The right to privacy is implicated in a number of ways by the establishment of a national DNA Database. Firstly, by the taking of samples and secondly, by the retention of samples and the profiles derived from them, which in some circumstances may be for an indefinite period of time. Also the exchange of DNA samples or information based upon them between the original custodians of the DNA sample or profile and law enforcement agencies in other jurisdictions.

There are a number of important judgements handed down by the European Court in the area of privacy the most important of which is ‘S & Marper V. UK.’

As a result the importance of having clear detailed rules that govern the scope and application of measures that allow for the taking of bodily samples and the creation of DNA profiles as well as minimum safeguards concerning duration, storage, usage, access to third parties and procedures for preserving the integrity and confidentiality of data and procedures for its destruction.

Sections of the Bill that will require focus during Committee Stage include the provisions for the taking of samples from various categories of persons e.g. those in Garda custody, a person in prison, the taking of intimate samples for evidential purposes; taking a sample from a child and the need for the presence of a parent or guardian; taking samples from a protected person; the use of reasonable force; the retaking of a sample; taking samples from volunteers; mass screening of persons – e.g. by time, age, sex, geographic basis and so on.

I welcome the provision for the appointment of a committee to oversee the management of the database system. However I can’t see any definition of what category of person might be appointed to such a committee in terms, for example, of what qualifications they might have. Given the technical nature of the process there should be some indication of the competences required. The establishment of a DNA database is expensive and requires careful management. Oversight of the collection, storage management and so forth is critical and should be rigorous.