By 2006 more than one-third of black males in the United Kingdom were profiled in the NDNAD, compared with 6 percent of adult white males37 and about 13 percent of Asian men.38 Three out of four black males between the ages of 15 and 34 had profiles in the DNA database.39 These figures, once brought to the attention of the Black Police Association, prompted the association to call for an investigation of the racial disparities of the NDNAD. A report of the Select Committee on Home Affairs of the Parliament focused on the reasons behind young black people’s overrepresentation in the criminal justice system. The committee found that
Black people constitute 2.7 percent of the population aged 10–17, but represent 8.5 percent of those of that age group arrested in England and Wales. As a group, they [blacks] are more likely to be stopped and searched by police, less likely to be given unconditional bail and more likely to be remanded in custody than white young offenders.40
Baroness Scotland is quoted in the report in expressing her concerns about the racial disparities of the database as follows:
It means that young black people who have committed no crime are far more likely to be on the database than young white people. It also means that young white criminals who have never been arrested are more likely to get away with crimes because they are not on the database. It is hard to see how either outcome can be justified on grounds of equity or of public confidence in the criminal justice system.41
The results of the parliamentary investigation prompted further prodding of the NDNAD, and while the report was being aired in the media, it also became apparent that DNA from 108 children under the age of 10 had found its way into the NDNAD system, even though the warehousing of DNA profiles from children younger than 10 is outside the scope of the law. The stories further reported that the NDNAD contained DNA profiles from 46 people over the age of 90 and 883,888 children between the ages of 10 and 17, and that at least 50,000 of these juveniles had not been charged with or convicted of any crime.42 Nick Clegg, a Liberal Democrat Home Affairs Committee spokesman who requested the information from the NDNAD, stated in response:
The Government’s onward march towards a surveillance state has now become a headlong rush. As an increasing number of young children well under the age of criminal responsibility appear on the database, it is clear the Government sees no limits to its invasion of our privacy. Worse still, by harvesting the data of many people who are not even charged with an offence, let alone convicted, the fundamental principle that we are innocent until proven guilty is further undermined. Why should anyone be on this database if they are innocent of any wrongdoing? 43
Another subject of debate in the United Kingdom has been the actual efficacy of the database. According to U.K. authorities, in 2006 the chance of a new crime-scene profile loaded into the NDNAD immediately matching the profile of an individual already in the database was 45 percent. However, during that same period crime-scene DNA profiles were loaded into the database for less than 1 percent of all the recorded crimes committed annually.44 Helen Wallace of GeneWatch UK has pointed out that the efficacy of the database is limited not by the total number of profiles in the system, but instead by the number of crime-scene profiles.45 Wallace has further elucidated the differences among reported “matches,” “crime detections,” and “convictions.” It turns out that only about half of DNA matches made against the database lead to a DNA detection (where the crime is considered “cleared up” either through an arrest or other resolution). In addition, not all DNA detections lead to convictions; sometimes DNA is found at the scene of a crime but turns out to be irrelevant to the crime in question, and at other times sufficient evidence cannot be brought against the individual in question. The Home Office has estimated that in the United Kingdom approximately 50 percent of detections lead to convictions, and some 25 percent lead to a custodial sentence. Thus fewer than one-quarter of DNA matches lead to convictions of any type, and fewer than one-eighth of matches lead to convictions of offenses serious enough to merit incarceration. Therefore, the high number of DNA matches reported by the Home Office is potentially misleading with respect to the benefit of the expanded NDNAD (see chapter 17).46
In September 2007 the Nuffield Council on Bioethics, an independent think tank based in London, released a report, The Forensic Use of Bioinformation: Ethical Issues, that provides a comprehensive analysis of the United Kingdom’s policies and procedures regarding forensic DNA. The report embraced a rights-based approach in balancing the need to protect the public from criminal activities while also protecting individual liberty, autonomy, and privacy. The council also framed its recommendations on the principle of “proportionality,” which is based on the idea that any interference with legally enforceable human rights must be justified by the state with evidence to support that such interferences are proportionate to the need to fight crime. The report states that the United Kingdom has the lowest threshold for holding DNA profiles of any EU country and that its percentage of the population with a banked DNA profile is higher than that of any other EU country.47
The council recommended that
the law in England, Wales and Northern Ireland should be brought into line with that in Scotland. Fingerprints, DNA profiles and subject biological samples should be retained indefinitely only for those convicted of a recordable offence. At present, the retention of profiles and samples can be justified as proportionate only for those who have been convicted. In all other cases, samples should be destroyed and the resulting profiles deleted from the National DNA Database.48
The council further recommended that volunteers who provide their DNA to the database for exclusion purposes be able to have their DNA withdrawn from the system at any time and without having to provide a reason. The council questioned the necessity of retaining biological samples and called for the government to convene an independent commission to examine the full impacts of retention.49 The report pointed out that other than England and Wales, no European jurisdiction systematically retains the profiles or samples of individuals who have not been convicted of a crime. DNA samples are destroyed immediately in some EU countries, including Germany and Belgium. In Switzerland they must be destroyed within three months of successful profiling.50 The report further recommended that familial searching be used only in cases where it is specifically justified, and that there be a presumption in favor of removing DNA taken from children from the database.
The DNA-collection system in the United Kingdom has been brought to the attention of the courts. In one case the British courts ruled that a sample had to be removed from the U.K. NDNAD. This case involved a teacher who was accused of assault but then, for lack of sufficient evidence, had her charges dropped. In this case the woman’s DNA sample was taken after the decision was made not to prosecute. The British court ruled that the woman had the right to have her fingerprints and DNA destroyed because they were taken after the decision not to prosecute. Had her DNA been taken before the decision was made not to prosecute, the court held that the samples would have been considered lawful, and they would have been retained even though her charges were dropped.51
The practice of retaining DNA samples from arrestees who were acquitted was challenged in August 2004 before the European Court of Human Rights by petitioners on the grounds that the United Kingdom did not have a right to retain fingerprints and DNA samples once a person was cleared of criminal charges, under articles 8 and 14 of the European Convention for the Protection of Human Rights and Fundamental Freedoms (the “convention”). Those articles state:
Article 8—Right to respect for private and family life: Everyone has the right to respect for his private and family life, his home and his correspondence.
There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for
the protection of health or morals, or for the protection of the rights and freedoms of others.
Article 14—Prohibition of discrimination
The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.
The plaintiffs in this case were two individuals who requested that their DNA be destroyed and their records removed from the database. One was a juvenile (Mr. S.) who was charged with attempted robbery at the age of 11 but was then acquitted. The other was an adult, Michael Marper, who was arrested and charged with harassment of his partner, but the charges were subsequently dropped. The challenge, S. and Marper v. The United Kingdom (Marper), was initially heard in the Divisional Court and rejected. Then it was brought to the Court of Appeal, which dismissed the plaintiffs’ claim, ruling that although the retention of fingerprints and DNA samples was in breach of provisions of Article 8(1), it was proportionate and justified under Article 8(2) and thus did not violate Article 14. It was then brought to the House of Lords in 2004 and dismissed. Lord Steyn of the House of Lords argued that interference in privacy by taking one’s DNA was minimal compared with the benefits the database had to society. That benefit was in crime detection and reduction, in which the public had a clear interest. Lord Steyn opined that there would be no adverse impacts on the individuals from whom the samples were taken unless they were implicated in a future crime.
Marper was appealed to the European Court of Human Rights and was heard in the Grand Chamber in Strasbourg on February 27, 2008. On December 4, 2008, the European Court of Human Rights ruled that the blanket and indefinite retention of DNA profiles and samples pursuant to U.K. law from individuals accused but not convicted of certain crimes violated Article 8 of the convention. The court found that it was not necessary to reach the question whether the law was also in violation of Article 14. Specifically, the court found that the retention of S. and Marper’s DNA breached human rights law, stating:
In conclusion, the Court finds that the blanket and indiscriminate nature of the powers of retention of the fingerprints, cellular samples, and DNA profiles of persons suspected but not convicted of offences as applied in the case of the present applicants, fails to strike a fair balance between the competing public and private interests and that the respondent State has overstepped any acceptable margin of appreciation in this regard. Accordingly, the retention at issue constitutes a disproportionate interference with the applicants’ right to respect for private life and cannot be regarded as necessary in a democratic society.52
The Marper court grounded its conclusion in the notion that DNA contains highly private information about an individual. In comparing DNA with fingerprints, the Marper court provided that “the Court has distinguished in the past between the retention of fingerprints and the retention of cellular samples and DNA profiles in view of the stronger potential for future use of the personal information contained in the latter” and that “because of the information they contain, the retention of cellular samples and DNA profiles has a more important impact on private life than the retention of fingerprints.”53 The Marper court also affirmed that “an individual’s concern about the possible future use of private information retained by the authorities is legitimate and relevant to a determination of the issue of whether there has been an interference”54 with the individual’s right to privacy under the convention, and, furthermore, that “the mere retention and storing of personal data by public authorities, however obtained, are to be regarded as having direct impact on the private-life interest of an individual concerned, irrespective of whether subsequent use is made of the data.”55
The court recognized the distinction between biological samples and DNA profiles and stated that although the personal information contained in the profiles is more limited, “DNA profiles could be, and indeed had in some cases been, used for familial searching with a view to identifying a possible genetic relationship between individuals”; furthermore, “the DNA profiles’ capacity to provide a means of identifying genetic relationships between individuals . . . is in itself sufficient to conclude that their retention interferes with the right to the private life of the individuals concerned.”56 The court also found that “the retention of the unconvicted persons’ data may be especially harmful in the case of minors such as the first applicant, given their special situation and the importance of their development and integration in society.”57 Finally, the court based its conclusion within the context of other member-state laws and practices, stating that “the United Kingdom is the only member State expressly to permit the systematic and indefinite retention of DNA profiles and cellular samples of persons who have been acquitted or in respect of whom criminal proceedings have been discontinued.”58
The U.K. government’s dramatic loss in Marper is perhaps a clear sign that it has overstepped its authority in taking and storing DNA from innocent persons. In response to the Marper decision, the Labour government adopted a new retention framework as part of the Crime and Security Act of 2010. Under the new law, DNA profiles collected from adults arrested but not convicted must be destroyed after 6 years. DNA profiles of juveniles arrested but not convicted may be retained for 3–6 years, depending on the severity of the offense. Most notably, under the new framework all biological samples must be destroyed once the DNA profiles are obtained, and these samples may not be retained for more than 6 months. At the time of this writing, the new framework still had not been brought into force as a result of continued debate over the retention of arrestee DNA profiles.
The U.K. government adopted its highly aggressive policies on DNA collection incrementally and—except in Scotland—without vigorous public debate. The development and expansion of the U.K. NDNAD received fairly broad public support until concerns about the racial composition of the database and the collection of DNA from young children began to surface. The dramatic shift in policy to include anyone arrested for a recordable offense, whether ultimately convicted or not, also spurred significant attention and, ultimately, significant opposition. Familial searching and the premature use of LCN DNA and its inability to resolve the Omagh bombing case raised additional alarm bells concerning the United Kingdom’s policies and practices on the collection and use of DNA. Organizations such as GeneWatch UK and the Nuffield Council on Bioethics helped bring the social and ethical concerns associated with DNA data banking into the public sphere.
British criminal justice authorities overseeing the U.K. NDNAD were, from a relative standpoint, transparent in providing information about the ethnic and racial composition of the individuals whose DNA was acquired and profiled. In contrast, no public information about the composition of the U.S. national database is available. Public awareness in the United Kingdom has just started to contribute to a shift in DNA policy, although the extent to which this might result in a long-term suspension of database expansion is unclear. Despite the outcome in Marper and changes instituted by the home secretary, considerable controversy remains over the length of time samples and profiles are retained, the protocols for the collection and use of DNA, and the retention of volunteer elimination samples.
Chapter 10
Japan’s Forensic DNA Data Bank: A Call for Reform
The DNA Profile Information Database System, currently being operated by the National Police Agency, must be established and operated in accordance with laws, not by regulations, so that the right to privacy and the right to control personal information are not infringed. Hence, National Public Safety Commission Regulation No. 15 should be abolished.
—Japan Federation of Bar Associations1
DNA testing was first used as a tool in criminal investigations in Japan in a 1992 rape trial. For the first decade crime laboratories in Japan relied on DNA analysis using two different loci: MCT 118 and HLADQ-a. In August
2003 the National Police Agency (NPA) introduced the “STR-9 locus multiplex kit.” Currently the NPA uses an analysis of 15 loci in generating a profile.2
The taking of DNA is considered a “search” under Article 35 of Japan’s Constitution, which guarantees:
The right of all persons to be secure in their homes, papers and effects against entries, searches and seizures shall not be impaired except upon warrant issued for adequate cause and particularly describing the place to be searched and things to be seized. . . . Each search or seizure shall be made upon separate warrant issued by a competent judicial officer.
As in the United States, the Japanese courts have adopted a balancing test for weighing privacy interests against the needs of law enforcement in cases where these interests collide.3
Japan’s Criminal Procedures Act requires that the police obtain a warrant before taking DNA samples, at least in principle.4 However, as in the debate in the United States, there is some question whether the privacy invasion associated with DNA is limited to the physical intrusion associated with the taking of DNA, or whether it also relates to an invasion of informational privacy. Some commentators have argued that the taking of DNA does not constitute a “search” in cases where it is taken without physical intrusion.5
Japan’s DNA Database
In December 2004 the NPA began operating a national database of DNA profiles generated from crime-scene samples. The following summer Japan’s National Public Safety Commission issued an administrative rule, Regulation no. 15, announcing the creation of a national DNA database of suspects for use in criminal investigations. The stated purpose of the rule was “to enact necessary regulations in order to systematically create, administer and operate Suspect DNA Type profiles and to contribute to criminal investigations.”6
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