The outcome of an appeal to the
European Court of Human Rights (ECHR) that challenges the UK's DNA
retention policy will not limit the ultimate reach of the DNA
database, only the speed of its compilation, says Dr Chris Pounder
of Pinsent Masons.
Under last year's Police and Justice Act, the police are allowed
to retain DNA data on those arrested even if those arrested are not
convicted of or even charged with any crime. Data derived from
these samples are then added to the National DNA Database.
Michael Marper's case before the ECHR could change this law.
Marper was accused of harassment by his partner. He was arrested
and DNA samples were taken. The charges were dropped when he
reconciled with his partner, but police refused to destroy his DNA
samples and related data.
Marper exhausted his appeals through the English courts and then
complained to the ECHR that the retention of his DNA is a breach of
his rights to privacy under the European Convention on Human
Rights. Earlier this year the ECHR decided that there was enough of
importance in the case that it will hear it.
"The Court finds that serious questions of fact and law arise,
the determination of which should depend on an examination of the
merits," said the ECHR in January. "The application cannot be
regarded as manifestly ill-founded within the meaning of the
Convention. No other grounds for declaring it inadmissible have
been established."
The ECHR has previously ruled in favour of the police's right to
retain DNA, but that case involved a man who had been convicted of
a crime. A Dutch bank robber, Mr Van der Velden, argued that police
had failed to respect his private life by storing his DNA profile.
The ECHR said that this interference with his privacy was
proportionate.
The Marper case tests the legality of storing the DNA of people
who have not been convicted of a crime. But its outcome is largely
redundant because of the emergence of statistical techniques which
match DNA on the database to relatives, according to Dr Pounder, a
privacy law specialist at Pinsent Masons, the law firm behind
OUT-LAW.COM.. These techniques use the genetic fact that an
individual's DNA sample is related to the DNA of close family
members.
"A national DNA database of the future is likely to span 80% to
100% of the population. The only question is when this will occur,"
said Pounder.
Home Office statistics state that 33% of men and 10% of women
under the age of 35 have a criminal record not related to motoring
offences. However, DNA data of those convicted of a crime are never
deleted, even when the individual who has provided the sample has
died.
"This means that the maximum DNA database coverage of the UK
population would inevitably reach 20–25% if current criminal trends
remain constant," said Pounder. "Hence the value to the police of
statistical methods which aim to identify suspects whose DNA
details are not on the database from those whose details are stored
on the database."
Pounder anticipates that statistical techniques will develop and
become more sophisticated. "In future, a DNA profile of someone
arrested could be statistically linked to more and more relatives
like parents, siblings, uncles, aunts, cousins, many of whom will
not have been arrested," he said.
"In that way, the DNA database, even though it contains data
relating to criminals, will span most of the UK population,"
Pounder said. "If you are ever related to someone with a criminal
record, your DNA will have the potential to be linked to that
individual's police records."
Footnote: Dr Chris Pounder was a consultant with Pinsent Masons until September 2008. He now runs a new training business, Amberhawk.
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