1. We will be discussing this (and the forthcoming document from the
Nuffield Council of Bio-ethics - "The Forensic Use of Bioinformation:
Ethical Issues" - Sept. 18th) at our update sessions in London,
Manchester, B'ham and Glasgow). Details from
http://www.pinsentmasons.com/media/530983003.pdf
2. The European Court of Human Rights is due to make its announcement in
the case of Marper in the next few months. If the Court find for Marper,
then Lord Justice Sedley's idea is a non-runner. If they find against
Marper, then it could be on the cards. Remember the House of Lords said
that Article 8 was not engaged - and as far as I can see - if Article 8
is not engaged, neither is the DPA - which is a surprising result.
3. My views on the subject
A. There needs to be supervision of the DNA database by a regulator that
reports to Parliament. In that way, the regulator, who has to possesses
all the powers needed to sort out problems, is truly independent. At the
moment, there is a conflict of interest in that the Home Office is
responsible for all aspects of the database management including data
collection, the users of the database (e.g. the police), and who else
has access to the database (e.g. other national police forces) AS WELL
AS THE ETHICAL ISSUES.
B. There needs to be public debate as to how long DNA samples should be
retained. For example, if Home Office statistics relating to those born
between 1953 and 1978 reveal that "the majority of offenders had been
convicted on only one occasion" and that "the peak age of known criminal
activity for males was nineteen", then it follows the deletion of DNA
personal data should be possible if (a) the offence was minor; (b) the
offender had not repeated a crime and (c) the offender was of a certain
maturity (e.g. over 30).
C. The debate needs to include familial testing. This is where a DNA
profile of one family member is genetically mapped onto the other family
members. The problem is that the principle of universality can arise
even if Lord Justice Sedley's idea is rejected because every
legitimately held DNA profile has the potential to map onto close family
members (e.g. parents, siblings) extending outwards (aunts, cousins,
uncles) as the technique develops. This also means the police will
increasingly know if someone is not genetically the parent of a
particular child. It is the use of this kind of information that needs
to be subject to strong independent regulation that can balance the
police's requirements and the wider ethical considerations.
Dr. C.N.M. Pounder
Consultant & Editor of Data Protection Quarterly
Pinsent Masons
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Outsourcing & Technology Group
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From: This list is for those interested in Data Protection issues
[mailto:[log in to unmask]] On Behalf Of Lawrence Serewicz
Sent: 05 September 2007 14:28
To: [log in to unmask]
Subject: Re: [data-protection] DNA Database
Dear All,
One thing to keep in mind is that if DNA is going to be collected then
people, especially criminals, will be interested in ways to spoil DNA at
a crime scene. For example, visit a barber shop and sweep up the hairs
and then spread these around the crime scene. It would be enough to
contaminate a site and then we have DNA doubts. (Yes, there are
difficulties with cut hair having the same DNA as hair follicles but the
point is that there are ways to spoil DNA at crime scenes, borrowed
blood on the day from a co conspirator is another possibility.)
Another issue is the whether the DNA database is secure. Criminals have
been known to corrupt police officers so I wonder how easy it will be to
corrupt a lowly technician or data entry clerk who is under less
scrutiny and a lower pay.
If Central American drug cartels can develop counter intelligence that
is strong enough to defeat and deter the best efforts of legitimate
governments, I am not sure that the DNA database will be immune to
criminal activity.
Sadly someone on the Radio 4 programme said they could not understand
why anyone would oppose this system. It would appear that such a person
has never been introduced to the criminal justice system and the
bureaucratic nightmare that a false positive DNA sample creates for an
innocent person. The time and money needed to clear one's name is not
to be underestimated especially if the false belief that DNA is
foolproof persists.
To put it differently, but directly, fingerprints are more often used to
convict rather than clear defendants.
The DNA database discussion appears to assumes that the state's
overwhelming coercive power cannot be used illegitimately or unwisely.
How many people will have the resources to fight a claim based upon DNA
evidence presented by the government? OJ Simpson had enough money to
cast doubt over the State's DNA evidence chain, but does the average
citizen have similar resources?
Finally, if DNA is personal data will the DPA principle be enforced or
will the government have a waiver as it did for the CCTV footage in
Londaon?
Best,
Lawrence
Lawrence W. Serewicz
Policy and Partnership Manager
Corporate Development Unit
Wear Valley District Council
01388-761-985
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