DNA profiling has had a dramatic impact on the detection and prosecution of crime. But this rapidly developing technology has also given rise to many concerns, for example the indefinite retention of DNA samples from those who are not charged or are acquitted; the irrevocability of consent given in fraught circumstances by victims and witnesses; the presence of biases towards particular groups such as young males and black ethnic minorities; and the possibility of revealing sensitive personal, medical or familial information.

Where does the proper balance lie between the right to privacy and the need to fight crime? Are we being turned from a nation of citizens, presumed to be innocent, into a nation of suspects? Subtle, but important, changes are taking place in the relationship between citizens and the state. Yet there has been little public debate on these issues either inside or outside parliament.

The lack of data on public attitudes to issues such as these was recently highlighted by the House of Commons Select Committee on Science and Technology. There have been calls for a full public debate on the collection and use of bioinformation by the police, particularly on the uses of the National DNA Database (NDNAD). In response to these concerns, the Nuffield Council on Bioethics has established a Working Group to consider the issues raised by the use of bioinformation for forensic purposes, in particular DNA. The Council launched a consultation in October to obtain views from both individuals and organisations. The issues on which the Council would particularly welcome comments are summarised below.

Are the current criteria for the collection of DNA proportionate to the aims of tackling crime?
The UK has the largest forensic DNA database in the world. At the end of December 2005, the National DNA Database (NDNAD) held DNA profiles from over 3 million individuals, about 5.2 percent of the UK population. On average, the profiles of 40,000 citizens are added each month to the Database. Predictions suggest that under present laws, the Database could soon encompass up to 25 per cent of the male population and 7 per cent of the female population.

The police in England and Wales have powers, unrivalled internationally, to take a DNA sample from any individual arrested for a recordable offence, without their consent. Victims and witnesses can also have their DNA samples taken for elimination purposes, and have no right to withdraw their consent. The DNA profile is then stored on the Database indefinitely, whether the person is charged or not.

There can be no doubt that the Database has become a significant crime-solving tool. The detection rates for crimes where DNA evidence is available are significantly higher, at 40 per cent, than for those crime scenes where no DNA evidence is recovered, at 26 per cent. In domestic burglary the detection rate rises from 16 per cent to 41 per cent when DNA is recovered from the scene.

Recent public campaigns have highlighted the inclusion on the NDNAD of individuals who have been arrested but have not been charged with any offence. These campaigns have drawn particular attention to the increasing numbers of children who have their personal data retained on forensic databases. By December 2005, there were 24,168 persons under 18 years of age on the NDNAD who had not been charged or cautioned for any offence.

The legality of the retention of DNA samples and profiles from individuals who are not subsequently charged or convicted of any criminal offence after their arrest has been reviewed by the House of Lords in R v Chief Constable of South Yorkshire (ex parte S and Marper) It was decided that although the retention of DNA may breach Article 8 of the European Convention on Human Rights, the breach was proportionate and justified in the detection and investigation of crime. The House of Lords also ruled that there was no breach of Article 14. The case is soon to be considered by the European Court of Human Rights.

Should volunteers be able to withdraw their consent at a later stage?

Once volunteers (who may be victims, witnesses or others helping the police) consent to their profiles being put onto the NDNAD, their decision is irrevocable. This approach is contrary to standard practice in medical research, and differs from practice in Scotland and many European countries, where consent can be withdrawn. There is also a lack of clarity as to whether the consent obtained by the police from volunteers can always be regarded as genuine consent, as it is often given when individuals are distressed or lack advice.

Who should have access to the NDNAD?
The law is clear that bioinformation stored on forensic databases may only be used for purposes related to preventing, detecting, and prosecuting crime. The NDNAD is used, however, for forensic research purposes and within wider police intelligence systems. For example, forensic scientists have been conducting research in an effort to be able to develop an ethnic inference database for predicting the likelihood of an undetected offender having one ethnic appearance as opposed to another. However, research on ethnic inferencing is controversial because the links between genetic differences and what is known as ‘race’ is complex. There are no biologically distinct races, and the relationship between skin colour and ancestry is complicated and partially determined by social factors.

Is familial searching a warranted invasion of family privacy?
Scientists are finding new methods of using DNA profiles for investigative purposes, including ‘familial searching’. Familial searching of the NDNAD is used to identify possible relatives of a person who left a crime scene sample, when that person is not on the Database. There were 78 familial searches in 2005. There are concerns about the potential for invading family privacy, and in particular, the risk of revealing possible familial relationships that were previously unknown.

Who should be involved in the oversight of the NDNAD?
The expanding use of the NDNAD for both investigative and research purposes means that having oversight of the facility is increasingly important. The NDNAD is governed by a Strategic Board comprising representatives of the Home Office, the Association of Chief Police Officers (ACPO), and the Association of Police Authorities (APA). Two members of the Human Genetics Commission (HGC) have a role in providing ethical review. There have been recent calls for an additional external lay member on the Board. The Home Office is currently establishing an Ethics Committee to advise the NDNAD Strategy Board on new proposed uses of the Database and research proposals, and to review the decisions that it makes.

Is the potential for bias within the Database acceptable?
There have been concerns raised that the sampling powers of the police have led to biases in the populations held on the Database. Some groups such as young males and black ethnic minorities are disproportionately represented ( a third of black males in England and Wales are on the NDNAD). Such over-representation means that the impact of the retention of bioinformation on databases is not equally shared amongst all citizens. There have been suggestions that when a person’s bioinformation is present on a forensic database, it inevitably increases the risk of suspicion being raised against him or her,undermining the presumption of innocence.

How should bioinformation be transferred between different agencies and countries?
The importance of co-operation over DNA technologies and techniques is increasingly recognised by domestic and international law enforcement agencies. The European Network of Forensic Science Institutes has agreed processes to facilitate exchange of sensitive forensic data according to internationally-agreed quality standards. Exchanges of data are currently made on a case-by-case basis. However, not all countries have the same safeguards in place for the protection of the information.

Would the collection of DNA from everyone at birth be more equitable?
It has been suggested that it would be more equitable to collect DNA from everyone at birth rather than collecting samples only from those who come into contact with the criminal justice system. The Prime Minister recently has said he wants to see the maximum number of people on the Database to help fight crime. This approach would ensure that the use of bioinformation was equally applied to all citizens, regardless of race, ethnicity, age or gender. However, it could be argued that such an extension of forensic databases would not only be costly but would also be disproportionate to the need to prevent and prosecute crime.

How should DNA evidence be used in court?
Recent successful criminal appeals have highlighted the continuing risks attending the use of complex statistical evidence in criminal courts. Scientific evidence, and the accompanying statistical data, may not be properly understood by non-experts involved in criminal proceedings, such as members of a jury, or even lawyers and judges. There is also concern that, while a DNA match cannot be used in isolation from other evidence in a prosecution, it may be given undue weight in the courts.

The Nuffield Council Working Group recognises that the Database has proved to be an excellent tool in the crime-solving process. However, the need for a debate of the ethical issues raised by police powers to take, store and analyse the DNA of suspects, witnesses and victims remains. The Group, which includes members with expertise in law, genetics, philosophy and social science, is looking forward to hearing a wide range of views on the questions briefly summarised in this article. We would welcome comments from both individuals and organisations to help us develop advice for policy makers. The closing date for responses is 30 January 2007.A Discussion Paper setting out the Group’s findings will be published in autumn 2007.

DNA OF INNOCENT PEOPLE SHOULD NOT BE KEPT BY POLICE-click here to read