Human rights and the DNA database
DNA has been in the headlines a lot in the past year. Recently in England we saw the cases of Steve Wright, convicted of the murder of five prostitutes in Ipswich and Mark Dixie, convicted of the unspeakable murder of Sally Anne Bowman. DNA was the key to their convictions. After Dixie’s conviction the officer in charge of the investigation called for a compulsory national DNA database. The Home Office resisted the call and acknowledged some of the complications. Some of the difficult issues have surfaced quite recently.
In Scotland we had the World's End murder trial where Angus Sinclair was acquitted when the Judge ruled that there was no case for him to answer despite DNA evidence. We then had the Templeton Woods murder trial where we saw further problems when trying to prosecute a “cold case” based almost entirely on DNA evidence. Since 1987 and the first conviction based on DNA fingerprinting there have been significant developments in the science but we need to be careful not to elevate DNA evidence to a special status which it does not deserve. We need to be aware of the limits of what can properly be drawn from DNA evidence. It cannot provide proof of a person’s presence and should only be used either as an investigative tool or in conjunction with other evidence. Of course, while it cannot on its own prove guilt, DNA evidence can be conclusive in showing that a person could not have committed a particular crime. In America it has been used to clear many prisoners on death row although, sadly, it has also demonstrated the innocence of men already executed, sometimes on the basis of other “scientific” evidence.
Since the December 2007 acquittal of Sean Hoey in the Omagh prosecution, the use of Low Copy Number (LCN) DNA has been suspended by police forces in England. LCN allows genetic profiles of offenders to be created from very small tissue samples that have only been detectable with new techniques available since 1999. These can be as tiny as a millionth the size of a grain of salt which can amount to as little as a few cells of skin or sweat left in a fingerprint. In that case, among many problems with the prosecution evidence, a DNA match was thrown up with a 14 year old schoolboy from Nottingham. In acquitting Hoey the Judge said “…having carefully reviewed all the evidence on this issue, I am not in the least satisfied in relation to any one of the items upon which reliance is sought to be placed for the results of their LCN DNA examinations that the integrity of any of those items prior to its examination for that purpose has been established by the evidence. Accordingly I find that that DNA evidence, the third and final strand remaining in the prosecution case, cannot satisfy me either beyond a reasonable doubt or to any other acceptable standard.”
The case is another reminder of the dangers of over-reliance or improper reliance on scientific evidence in our courts. While aspects of the science may be relatively uncontroversial, the interpretation of results is less clear. With DNA evidence care must be taken when presenting the jury with probabilities as they can easily mislead. Even lawyers can fall into error in trying to stretch the science to fit their case when the scientists are trying to explain the proper limits of the use to which their results should be put.
There are serious problems in principle as well as in practice. Privacy is an ethereal notion although we may be aware of encroachments when they happen to us. A DNA database means trusting the State with our most sensitive genetic information, including access to information about susceptibility to disease and the like. The past year has shown how entirely incompetent the authorities are at keeping our private information private. Genetic testing has already strayed into sensitive and controversial areas, such as trying to determine ethnic or geographical origin. The idea of a “criminal gene” lingers and even this month the police suggested that children with behavioural problems should go on the database as they may well become the criminals of tomorrow.
Notwithstanding concerns, information just revealed suggests that Scottish Police forces are investing massive sums in DNA testing. In Strathclyde in 2002/03 £65,038 was spent whereas in 2006/07 that figure was £1,680,676.
There are more people proportionately on the UK DNA database than anywhere else in the world. It now has over 4.5 million people on it. Included are victims of crime, witnesses and those actually acquitted of any crime. It includes thousands of children, including some too young even to be prosecuted. It also includes around 40 per cent of the black adult male population. Numbers on the database have risen at an incredible rate. The police and Home Office have trumpeted the number of “matches” achieved to crime scenes but that is only a very partial truth. Many of these matches will be with victims and householders. Of far greater interest but not made available is the number of cases where a DNA match has helped to find a suspect where otherwise he or she would have remained unidentified.
In Scotland, after a parliamentary debate, the law was changed to allow the retention for 3 years (up to 5 with judicial approval) of DNA samples taken from those charged with serious violent or sexual offences. This power does not depend on conviction which had previously been the trigger. We have a more balanced approach but the whole area of retention of samples of the innocent and acquitted has been considered by the European Court of Human Rights whose decision should be available later this year.
The subject is too important to be mired in misinformation and ignorance. Expansion of the database should be controlled. The process requires more thought than momentum. The lazy justification of “nothing to hide, nothing to fear” will simply not do. One step for public confidence is for all our politicians to submit their DNA to the database. In the meantime we should think about the risks rather than simply considering the benefits.
John Scott is a Solicitor-Advocate in Edinburgh and is the former chair of the Scottish Human Rights Centre
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