Inclusiveness, Effectiveness and Intrusiveness: Developing Uses … · 2018-11-25 · DNA Fingerprinting and Civil Liberties: Fourth in a Series of Articles In the article,"Inclusiveness,

DNA Fingerprinting and Civil Liberties:Fourth in a Series of Articles

In the article,"Inclusiveness, Effectiveness andIntrusiveness: Issues in the Developing Uses ofDNA Profiling in Support of Criminal Investigations,"Professor Robin Williams and Research Fellow PaulJohnson, of the University of Durham, U.K., providea rich perspective on the development of DNAdatabank legislation governing England and Whalesand the police practices and policies implementingit.Their article offers a case study based on theinnovative, controversial investigative practice of"familial searching" of the U.K. forensic DNA data-bank.Through this case study, the authors demon-strate how increased inclusiveness can challengesettled expectations of the appropriate use of DNAin the forensic context.Vexing tensions betweeneffectiveness and intrusion into personal privacycontinue to evade resolution.Williams and Johnsonare noted observers and commentators whosework casts an important light on the developmentand operation of what is considered to be thelargest DNA databank in the world. Beyond theU.K., they are currently engaged in a study of policeuses of DNA in the 25 states of the EuropeanUnion.

Inclusiveness,Effectiveness andIntrusiveness:Issues in theDeveloping Uses ofDNA Profiling inSupport of CriminalInvestigationsRobin Williams andPaulJohnson

Current methods of forensic DNA profiling(known also as DNA fingerprinting and DNAtyping), based on Polymerase Chain Reaction

(PCR) amplifications of a varying number of Short Tan-dem Repeat (STR) loci found at different locations onthe human genome, are regularly described as consti-tuting the "gold standard for identification"' in con-temporary society. At a time when criminal justice sys-tems in Europe and North America increasingly seek toutilise the epistemic authority of a variety of sciences insupport of the apprehension and prosecution of sus-pects and offenders, genetic science and recombinantDNA technology are often singled out for particularapprobation. Indeed, the development and applicationof DNA profiling has been widely described as the"greatest breakthrough in forensic science since fin-gerprinting."^

Robin Williams, B.Sc.Soc, is Senior Lecturer in Sociology atthe University of Durham. Previously at the University ofSouthampton and Manchester, he has recently published a se-ries of papers on police uses of forensic science in general andof DNA profiling and databasing in particular. Having re-cently completed a study of the UK National DNA Database heis currently researching police uses of DNA in the 25 states of theEuropean Union and is funded for this by the Wellcome Trust.Paul Johnson, Ph.D., is Research Fellow in Sociology at the Uni-versity of Durham. He has published in the area of police usesof DNA profiling and undertaken research on the formation,implementation and expansion of the UK National DNA Data-base. He is currently working on a comparative study of foren-sic DNA databasing and data^haring in the European Union.

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Prior to the implementation of PCR based extrac-tion and amplification methods in the 199O's, the ini-tial uses of DNA fingerprinting (based on Multiple andSingle Locus Probes) were largely confined to reactiveforensic casework. In this modality of use, laboratoriesdirectly compared DNA profiles obtained from biolog-ical material left at crime scenes with those taken fromindividuals already charged with involvement in thespecific serious criminal offence under investigation.However, the subsequent ability to construct digitalrepresentations of profiles and store them in continu-ously searchable computerised databases has madepossible a vastly expanded role for DNA profiling inmany criminal investigations. In particular, this tech-nology is increasingly applied inceptively rather thanreactively. In other words, it shapes an inquiry by iden-tifying potential suspects from the start rather thanmerely supporting their incrimination or exonerationafter they have been nominated for attention by othermore traditional - and often very protracted - forms ofinvestigative practice. In addition, a scries of laboratoryimprovements to enable the reliable extraction of ge-netic material from a wider range of samples in varyingconditions has meant that forensic laboratories canmore easily generate DNA profiles to facilitate the in-vestigation and prosecution of a larger number of crimetypes. Sometimes (as in cold case reviews) such meth-ods may succeed when other forms of forensic or wdt-ness evidence has proved insufficient or unreliable inhelping bring offenders to justice for crimes committedsome years earlier.^

Accordingly, policy makers, criminal investigators,and legal professionals have been able to depict a seriesof benefits already derived or potentially derivable fromthe increasingly routine and inexpensive use of this tech-nology and its expanding applications. These benefitsinclude: the potential to make speedy and robust sus-pected offender identifications through automated pro-file comparisons in centralised criminal justice data-bases; the ability to confidently eliminate innocentsuspects from investigations; the increased likelihoodof generating reliable and persuasive evidence for usein court; a reduction in the cost of many investigations;the likely deterrent effect of DNA databasing on poten-tial criminal offenders; and a possible increase in pub-lic confidence in policing and in the wider judicial process.

However, the spread of forensic DNA profiling anddatabasing has also prompted a wide range of concernsabout problems that may arise from the storage of tis-sue samples (especially those taken from individualswithout consent) and the proliferating uses of geneticinformation by the police. As a result, in jurisdictionswhere forensic DNA databases have been introduced,a range of critical commentaries have emerged which

have sought to counter claims for the effectiveness ofDNA-aided investigations with assertions of potentiallyproblematic ethical and social consequences of theiruses. Such commentaries have focused on: the threat tothe bodily integrity of citizens who are subject to theforced and non-consensual sampling of their geneticmaterial; the intrusion and denigration of privacy rightscaused by the storage and use of tissue samples; the po-tential for the future misuse of such samples held instate and privately ovraed laboratories; the prospect oflong term bio-surveillance occasioned by the storage ofgenetic information in police databases and biologicalsamples in forensic laboratories; and the possibility forthe deceptive use of DNA forensic evidence in police in-vestigations and criminal prosecutions.*

Since the early 199O's legislators across the globe havestruggled to balance these two opposing standpointswhen deliberating the establishment and permissibleuses of DNA databases in their own jurisdiction. Indoing so, they have been required to address a range ofnormative questions. These include: under what cir-cumstances should the pohce be able to obtain, vwthoutconsent and with force if necessary, DNA samples from"suspects"; what range of circumstances and offencesshould licence this sampling; what agencies should bepermitted to carry out the analysis of the samples; whatshould be the criteria for the inclusion of DNA profileson databases; what are the legitimate uses of samplesand profiles held by the police; from which individualsshould samples and profiles be retained following thecompletion of investigations and for how long shouldthey be held; who should own, manage, and govern theuse of databases accessed by the police; should accessto samples and profiles be permitted to any other or-ganisations; and what systems should be in place for thequality assurance and oversight of the varying scientificand bureaucratic practices that make up sample analy-sis, profile construction, storage and comparison?^

This paper suggests that whenever policymakers seekto strike a balance between the potential intrusivenessand effectiveness of forensic DNA profiling and data-basing, three important matters are the focus of atten-tion. The first concerns the legal (and moral) catego-rization of those individuals deemed a legitimate andappropriate "population" for compulsory DNA sam-pling, profiling and databasing. The second concernsrepresentations of the nature of the information de-rived and derivable from DNA samples and forensicDNA profiles. The third is the question of how the per-missible uses of such samples and profiles in the courseof specific criminal investigations and prosecutionshave been established and contested.

In the following sections of this paper we explorehow considerations of these matters have arisen and

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been resolved in the course of legislative, judicial andother expert deliberations in the UK (England andWales). We also describe the ways in which the intro-duction of one particular recent operational innova-tion in this jurisdiction - "familial searching" - chal-lenged prior understandings of the permissible uses ofDNA profiling and consider what this may tell us aboutthe normative and scientific nexus through which DNAprofiling and databasing technologies are continuouslybeing developed and applied to the investigation of crime.

The UK National DNA DatabaseWhenever international comparisons are made in theuse of DNA profiling and databasing in support of crim-inal investigations, the UK National DNA Database(NDNAD) is almost always assigned particular signif-icance. The NDNAD, established in April 1995, wasthe first national forensic DNA collection and presentlyremains the biggest such archive both in terms of its ac-tual size and the proportion of the national populationheld on it. England and Wales, which contributes thevast majority of profiles to an archive which also con-tains profiles from the neighbouring UKjurisdiction ofScotland, has the most inclusive and far reaching leg-islative framework authorising the collection, storageand use of forensic DNA samples in the world.'' Thislegislative provision (along with substantial dedicatedGovernment support to Police Eorces') has resulted ina database that on 31 March 2004 held 2,527,728 mil-lion profiles from those suspected, charged or convictedof a "recordable offence,"^ along with 228,463 un-matched profiles obtained from scenes of crime. Thedatabase records match rates of 45% between newly en-tered profiles obtained from scenes or crimes and thosealready databased from individuals. Since May 2001(when there was a change in the way that match figureswere counted by the NDNAD Custodian), suspects havebeen nominated through DNA matches made from133,933 crime scenes. 41,618 such nominations weremade in 2003/2004.9

Regimes of Inclusion: Identity Categoriesand the NDNADThere is no singular and distinctive legislative instru-ment authorising the collection, analysis and storage ofDNA samples by the police in England and Wales or theretention and speculative comparison of DNA profileson the NDNAD. Rather, the statutory framework reg-ulating the collection, retention and use of bodily sam-ples taken from individuals in the course of criminal in-vestigations and prosecutions rests on a series ofpiecemeal changes made to the Police and CriminalEvidence Act (PACE) 1984. These changes have re-sulted in legislative provisions which have substantially

expanded the categories of persons from whom the po-lice may legitimately take, retain, and speculativelycompare samples and profiles.

The first salient amendments to PACE - in the Crim-inal Justice and Public Order Act 1994 (CJPOA) - sig-nificantly changed the legal basis for the circumstancesunder which police could obtain DNA samples withoutconsent from those charged with a recordable offenceand made new provisions in law for the "speculativesearching" of such samples against information held inrelevant databases. The Act altered the definition of"non-intimate samples" (those samples which PACEpermits the police to take without consent or externalmedical oversight) to include swabs taken from themouth.i° It further removed from PACE the restrictionthat samples must only be taken without consent incases where an officer of at least the rank of superin-tendent has grounds "for believing that the sample vnlltend to confirm or disprove his involvement" in thecrime under investigation."

It is also important to note that the CJPOA 1994 au-thorised the taking of samples without consent from allindividuals charged with involvement in a "recordableoffence" as opposed to the previous PACE regulationwhich allowed such samples to be taken from thosecharged with a "serious arrestable offence."' Thischange meant that the UK differentiated itself fromthe majority of other jurisdictions where compulsoryDNA sampling regimes have been applied only in caseswhere an individual is suspected of involvement in var-iously defined "serious offences." In choosing to treatthese particular kinds of biological samples in tandemwith the previously well-established taking and archiv-ing of fingerprints as a trace biometric identifier, theCJPOA 1994 permitted the indefinite retention of DNAsamples and profiles for all those convicted of record-able criminal offences. However, it also required the de-struction of profiles and samples taken from any indi-vidual who, subsequent to the completion of therelevant investigation, was not subsequently convictedor cautioned for committing the offence in question.

There were no legal challenges to the inclusionregime estabhshed by the CJPOA 1994. This reflects, inpart, the long established process of retaining 'personal'and identifying information from those convicted ofcriminal offences. However, the enactment of the Crim-inal Justice and Police Act (CJPA) 2001, which removedthe previous PACE requirement for the police to destroysamples and profiles taken from those who were notsubsequently convicted or cautioned for a recordableoffence, has provoked both controversy and legal chal-lenges in the UK. This is because the legislative provi-sion has reconfigured the categories of persons held inand epitomised by the collection. At a single stroke, the


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It seems generally accepted in UK jurisprudence that police should have theright to obtain DNA samples for comparison on the NDNAD at the point of

charging an individual v^hether or not there exists DNA evidence relevant to theinvestigation of the offence for which the individual is being charged.

CJPOA 2001 changed the database from a collection ofgenetic material and information taken from a popu-lation of convieted offenders to a collection comprisinganyone once charged with involvement in any record-able offence. This reconfiguration of the NDNAD hasbeen highly consequential in criminal justice termssince it means that individuals who have not been sub-ject to further due process, beyond the point of a chargebeing laid, are now subject to indefinite genetic sur-veillance through the continuous speculative searchingof their DNA profiles against all new crime scene andsubject profiles loaded onto the database.^^

Contesting Inclusiveness: The EuropeanConvention on Human RightsThe expanded retention regime enabled by the CJPA2001, with its potential intrusiveness into, and negativeimpact upon, individual privacy has been subsequentlychallenged in the UK courts. This challenge itself hasonly been made possible by the passage into English lawof the Human Rights Act 1998. The Act grants courtsin England and Wales the power to rule on whether theactions of public authorities (including the police) arein compliance wdth the articles and principles of the Eu-ropean Convention on Human Rights (ECHR) and ef-fectively made redundant Lord Hoffinan's earher judge-ment that "English common law does not know ageneral right of privacy."" The ECHR has been relevantto European jurisprudence since its inception in Romein 1950 and, with its subsequent five "protocol" amend-ments made between 1952 and 1966, has had vddereaching impacts in a number of relevant jurisdictions.However, whilst the Convention was not directly rele-vant to British law until its de facto incorporationthrough The Human Rights Act, it would be mislead-ing to think that many of the substantive issues ad-dressed by the ECHR were not present in British ju-risprudence prior to its incorporation. As Lord Hoffrnanhimself more recently argued in an important consid-eration of a case brought under the ECHR: "I would notlike anyone to think that we are concerned with somespecial doctrine of European law...The United King-dom subscribed to the Convention because it set out therights which British subjects enjoyed under the com-mon law.'i Nevertheless the incorporation of the ECHRsubstantially altered the basis on which individuals canassert a "right to privacy" in England and Wales.

Article 8(1) of the ECHR states that: "everyone hasthe right to respect for his private and family life, hishome and his correspondence." Necessarily this is char-acterised as a "qualified right" - a right whose exercisehas to be balanced against the rights of others or the in-terests of society in general (other qualified rights arethe "right to freedom of expression"; the "right to free-dom of assembly"; and the "right to the peaceful enjoy-ment of possessions"). The nature of the qualification isdescribed in Article 8(2) which states that: "There shallbe no interference by a public authority with the exer-cise of this right except such as is in accordance vwth thelaw and is necessary in a democratic society in the in-terests of national security, public safety or the economicwell-being of the country, for the prevention of disor-der or crime, for the protection of health or morals, orfor the protection of the rights and freedoms of others."

It is generally recognised that "a range of policing ac-tions impinge upon Article 8 including the interceptionof communications, surveillance, the storage and re-tention of DNA, fingerprints and communications data,and search and seizure."'" Assertions that the inclusionregime of the NDNAD, established by the CJPA 2001,is contrary to Article 8 of the ECHR have now beenheard on three occasions by the Courts of England andWales. The case of i? v. Marper & S">7 concerns the re-tention of DNA samples and profiles of two individuals,one a twelve year old boy, who were once charged withrecordable offences but not subsequently convicted.The Chief Constable of South Yorkshire Police, exer-cising powers afforded by the CJPA 2001, refused a re-quest by the appellants to have their samples and fin-gerprints destroyed following their discharge. Theresulting civil case was brought first to the High Courtin 2002, then subsequently to the Court of Appeal in2002, and last heard in June 2004 in the House ofLords (the UK Court of final appeal). In all three in-stances the appellants contended that the retention oftheir DNA profiles and samples contravened theirrights under Articles 8 and 14 of the ECHR and in allthree hearings their case has been dismissed.

The case is specifically concerned with the privacy is-sues raised by the retention of DNA samples and pro-files by the police and not with the conditions underwhich they were taken. This is an important distinctionsince it precludes any interrogation of the legitimacy ofthe legislation which allows the police to breach bodily


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integrity to ohtain non-intimate samples without con-sent. It seems generally accepted in UK jurisprudencethat police should have the right to ohtain DNA sam-ples for comparison on the NDNAD at the point ofcharging an individual whether or not there exists DNAevidence relevant to the investigation of the offence forwhich the individual is heing charged. However, thecase shows that the Convention is clearly suhject to ju-risprudential interpretation in relation to the retentionand suhsequent use of such samples and derived pro-files. For instance. Article 8(2) states that any hreach ofthe right to respect for private and family life must he"in accordance with the law" and that it any interferenceshould be "necessary in a democratic country." The ap-pellants in R V. Marper & S" contend that there is nosuch necessity for the retention of the samples and pro-files of the unconvicted and that, on those grounds, thelaw is incompatible with Article 8(1). In the absence ofsuch necessity, the powers accorded to the police by theCJPA 2001 to retain samples and profiles subsequent tocriminal acquittal are not proportionate to the legiti-mate aim of detecting and preventing crime. **

When considering the proportionality of any partic-ular policing action there are a number of general fac-tors which the courts take into account: any actionmust not restrict the right in question so much that it"impairs its essence"; the action has to be determinedin the context of the individual case as a whole; insofaras the interference is discretionary, decision makingmust be considered and not arbitrary; the nature andseverity of any potential harm to the individual whoserights have been interfered with must be considered;and finally the existence of less restrictive or less intru-sive alternatives will have to have been considered. ForFeldman^s these considerations mean having to bal-ance the extent of the interference against the reasonsfor interfering - not balancing the right against the in-terference. These general factors provide abroad canvasfor any assessment of policing in relation to the ECHR.

However, inevitably and necessarily, the actual sub-stantive issues raised in any consideration of a police ac-tion draw upon the context, circumstances and - espe-cially relevant to the current focus on this paper - thesignificance attributed to the categorical identities ofthe appellants who are making the case. Since the po-lice do not possess the power to collect and retain theDNA samples of the entire population the question injudicial hearings has been framed as this: is the indef-inite retention of DNA samples and the indefinite spec-ulative searching of profiles taken from individuals whowere once subject to criminal charges a proportionatebreach of their right to privacy under Article 8 of theECHR? In asking this question a specific category ofperson is invoked - the "charged suspect" - and factual

and normative disputes about this category of personshas been fundamental to the challenges and decisionsmade in R v. Marper & 'S'.

The appellants argued that the retention of theirDNA samples and profiles unfairly discriminatesagainst their entitlement to privacy and therefore con-travenes their right to fair and equal treatment out-lined by Article 14 of the ECHR. o In other words, thatin allowing the police the power to retain their DNA,the legislation creates a discriminatory distinction be-tween the appellants (as once charged but unconvicted)and the larger unconvicted population. It is the legiti-macy of this distinction which has been the foundationon which all three judicial rulings in this case has beenbased. Whilst each ruling has recognized that the CJPA2001 instantiates a particular category of persons, towhich a particular forensic regime subsequently hasbeen applied, none of the judges have accepted thatArticle 14 of the ECHR has been breached.

Any consideration of the balance between the publicgood and individual rights is usually formulated as thebalance between the good of the innoeent collectiveversus the rights of a legitimately suspected individual.In this sense, deliberations of proportionality are con-cerned wdth whether the consequences of a policingmeasure are adverse to the suspected individual to theextent that they outweigh the benefits derivable for thecollective.^' Insofar as DNA profile comparison mayserve to exonerate as well as incriminate, the act of tak-ing a DNA sample from a legitimate suspect and gen-erating a profile from it during the course of a specificinvestigation may be generally accepted as a propor-tionate response to the necessity to investigate crime.Furthermore, in considering the arrangements for re-taining fingerprints and samples from the eonvietedpopulation of England and Wales the answer to thequestion of proportionality has also been a positive onebecause of the generally accepted distinction betweenthe categories of "proven guilty" and "innocent" individ-uals. However, since the 2001 legislation now allows forthe retention of samples and profiles from those who,hitherto, would have been (like the rest of the uncon-victed population) exempt from such retention, the ques-tion of balance is somewhat altered. This is because thequestion of balance does not concern guilt versus in-nocence but, rather, persons where police suspicion ofinvolvement in a recordable offence was once deemedsufficient to authorise charges being laid against themversus those never suspected of (or at least nevercharged with) involvement in a recordable offence.

Inclusion Extension: Arrestee RetentionDuring the time that hearings have been held in R v.Marper & 'S' there have been further changes to the leg-

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islative provision in England and Wales - in the Crim-inal Justice Act (CJA) 2003 - which further extends thereach of the database to include individuals arrested for(but not subsequently charged wdth) a recordable of-fence. This Act, which has been in force since April2004, has meant that the database now contains an-other category of persons: along with the "convicted,"the "unconvicted charged suspect," is added the "un-convicted arrested suspect." The NDNAD Board hasestimated that this will add another 170,000 profiles tothe database in the first full year of its operation. How-ever, this recent extension of databasing in Englandand Wales, which initiates a new category of individ-uals and ascribes to it a reduction of privacy rightsequivalent to convicted offenders, has been undertakenwithout providing any clear justification for the funda-mental change in balance which it creates. Whereasthe Lord Chief Justice, in his consideration of R v.Marper & 'S,'^^ ruled that it is legitimate to distinguishthose who have been subject to sampling (because theyhave been legitimately charged with a recordable of-fence) and those who have not, he provided no assess-ment of the delivery of possible benefits to both polic-ing and the social good. Although police may derive afurther "convenience" from the establishment of aneven wider retention regime, it is questionable whethersuch financial or administrative benefits are sufficientlygreat to justify the further extension of powers withoutextended judicial deliberation of its effects on individ-uals who have been subjected to different agencies andstages of the criminal justice process.

Critics of the legislation claim that the profiles andsamples of these unconvicted individuals are retainedon the basis that such persons are deemed to be "less in-nocent" than the general population who have neverbeen subject to arrest or charge. As Lord Justice Sed-ley argued: "Not all unconvicted people, in other words,are equal from a policing point of view, even thoughthey are from a legal one; and among those who havebeen charged but not convicted it is especially so." ^However, the criticism of this view, as one member ofthe House of Lords prosaically put it, is that it reliesupon an illegitimate distinction between "the guiltywho have been convicted of offences, the not guilty, andthe probably dodgy." *

In the recent House of Lords consideration of R v.Marper & IS" (which did not concern itself wdth thenewer inclusion provisions of the 2003 legislation) theAppellate Committee did not reach a consensus onwhether the retention of DNA samples and profilesconstituted an intrusion of privacy under Article 8(1) ofthe Convention. Whereas, as stated above, the LordChief Justice of England and Wales deemed it an in-trusion, albeit a "small" one, the House of Lords de-

murred from this ruling. However, Baroness Halestrongly argued that both the taking of samples andprofiles and their subsequent retention most certainlydo contravene Article 8(1). Her argumentto justify thisintrusion of privacy was: "The whole community, aswell as the individuals whose samples are collected,benefits from there being as large a database as it is pos-sible to have. The present system is designed to allowthe collection of as many samples as possible and to re-tain as much as possible of what it has. The benefit tothe aims of accurate and efficient law enforcement isthereby enhanced."^^

This justification of recognized intrusiveness distin-guishes between the "whole community" and the groupof individuals who have been subject to sampling. Yetthe distinction is blurred when arrested suspects are"returned" to the community without having beencharged with, let alone convicted of, an offence. If theretention of their DNA is beneficial to law enforcementbecause it expands the database, is the logical conclu-sion to such a view that the most effective databasewould be a universal one? Baroness Hale's judgment as-serts that there are benefits for society and increased ef-fectiveness in policing created by an "expanded" data-base but it does not explain why the intrusion into theprivacy of specific types of persons delivers these. Asnoted above, such an intrusion infiicted upon the con-victed population has never been challenged in En-gland and Wales and is never likely to be. At the sametime there seems no enthusiasm for the establishmentof a population-wide forensic DNA database in En-gland and Wales, even amongst those who currentlysupport the establishment of an "Identity Register"which will underpin the planned introduction of Iden-tity Cards some time in the next decade.

Samples and Profiles: CharacterisingMaterial and Informational FormsAn important resource for the judicial considerationsdescribed above has been the availability of competingassertions about the nature and range of informationderivable from forensic DNA samples and profiles. Ofcentral importance to the courts, in reaching conclu-sions about the intrusiveness of the NDNAD, has beena willingness to endorse particular versions of severaldiffering and distinct representations of the characterof genetic "samples" and "profiles." In all three hearingsof i? V. Marper & 'S'the courts have been informed bya particular view of DNA profiles as forensically rele-vant but informationally sparse. We have described thiselsewhere as a form of "genomic minimalism"26 inwhich such profiles are understood as powerful bio-metric artefacts but ones which carry little or no geneticdata which would permit "diagnostic" inferences to be


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made about the medical, phenotypical or other per-sonal attributes of the individuals from whom they werederived. Expressions of this genomic minimalism - ofDNA profiles as "empty signifiers"^^ - are regularly de-ployed by those stakeholders seeking to defend or fur-ther develop the use of forensic DNA profiling and data-basing in England and Wales. Such a minimalistrepresentation affords the UK Home Office's assertionthat a DNA profile is much like a "car number plate" (i.e.it carries no inherent information but exists simply asa representation of material individuality). Indeed, thecontinued use of the early term "genetic fingerprint" en-courages DNA profiles to be imagined as equivalent toan earlier biometric, treated (following the abandon-ment of Galton's early ideas) as consisting of intrinsi-cally meaningless furrows on the skin of the hands.^^

Of course such a view of DNA profiles is in markedcontrast to an alternative "exceptionalist" discoursewhich is present in well established scientific claimsabout the significance of genes as "information" as wellas in debates about bioethics where it is used, by Mur-ray s and others, to stress the "special character" of in-formation derivable from genetic material. Assertionsof this special character of DNA are often the basis forarguments concerning the necessity to regulate care-fully the production, use, and dissemination of geneticdata in a range of contexts (of which forensic applica-tions are only one instance). However, in stressing theexceptional information richness of genetic material itcan also be argued that using DNA in forensic contextswhere samples are taken without consent raises newkinds of questions about privacy and the protection ofthe interests of individuals from whom such sampleshave been taken, interrogated and stored. Exceptional-ist arguments have certainly been offered on behalf ofthe appellants in R v. Marper & 'S' when they havesought to expose the privacy implications raised by theretention of their DNA samples along with the profilesderived from their analysis.

It is important to recognize that, unlike in many otherjurisdictions around the world, the police in Englandand Wales are given equal powers to retain both theoriginal reference tissue samples, taken in the form ofmouth swabs from individual suspects, as well as thederived profiles that are included on the database. Theimplication of this is that the police are never requiredto destroy samples that they have legitimately collected.The justification by Government for this retention isbased on assertions of the necessity to retain subjectsamples for quality assurance purposes, to resolve anysubsequent disputes about the processing of samples inparticular cases, and to facilitate any re-profiling thatmay become necessary if the current profiling method-ologies change to include more loci, or even shift more

radically to new kinds of platforms, such as SNP. " Re-gardless of the merits of these justifications, the claimof the police to "OV TI" these potentially data-rich sam-ples, in addition to the profiles derived from them, re-mains a central point of contention in England andWales. For instance, in making a submission to the sec-ond hearing of R v. Marper ^ 'S', the London-basedhuman rights group Liberty contended:

In contrast, to fingerprints and DNA profiles, thephysical samples which are retained and usedunder PACE (swabs etc.) and from which DNA istaken, potentially contain very much greater, morepersonal and detailed information about an indi-vidual. This may include highly private matterssuch as information about a latent genetic illness,or the birth gender of a transsexual person. It mayeven reveal behavioural tendencies, or importantinformation about the individual that he does noteven know himself such as the true nature of his fa-milial relationships. The 'knowledge' in relation toan individual's life that can be gleaned from DNAsamples has no parallel in the history of science andraises profound questions about the protection ofprivacy in the 21st Century.

Leaving aside for the moment the implications of "fa-milial relationships" which we wall deal with in detail inthe next section of this paper. Liberty's submission con-cerns the capacity of DNA samples to reveal sensitiveand personal information about individuals and, there-fore, argues that its storage and use requires specialconsideration. Regardless of the validity of the scientificclaims made by Liberty, the courts in England andWales have generally accepted assertions of the poten-tial data-richness of the reference samples held by thepolice. What they have not accepted is that such po-tential should be the basis for the destruction of thesamples. The courts have concluded, as Lord JusticeSedley argues, that "DNA samples in themselves haveno forensic or diagnostic value" for policing at presentbut the possibility that analysis of such material mayyield distinct types of information in the future justifiestheir retention.^i The case for both the retention and de-struction of samples taken from individual suspects isbased on claims about the legitimacy of allowing foren-sic scientists and the police access to this information.The argument for sample destruction is j ustified by thepotential for such information to be used for a range ofsocially unacceptable and unknowable future uses.

In upholding the right of profiling laboratories to re-tain tissue samples on behalf of the police, the Courtshave consistently argued that PACE significantly limitsthe uses of any information available from DNA sam-


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pies and that this prevents the "Pandora's box," as LordJustice Sedley terms it, of illegitimate uses. ^ The CJPA2001 states that the police may use samples for "pur-poses related to the prevention or detection of crime,"in "use for the investigation of an offence," and during"the conduct of a prosecution."^^ This rather vaguewording of "purposes related to the prevention and de-tection of crime" is, for some, an insufficient basis forthe regulation and governance of human tissue sam-ples. Yet the House of Lords recently rejected the con-tention that the legislation allows for potential futureintrusions into individual privacy. Considering "the fearof an Orwellian future in which retained samples willbe re-analyzed by a mischievous State in light of scien-tific advances and the results improperly used againstthe person's interest," Lord Brown of Eaton-Under-Heywood argued, that "no such abuse is presentlythreatened and if and when it comes to be then will bethe time to address it. Sufficient unto the day is the evilthereof." ''

Nothwithstanding this judicial conclusion, there areother voices in the UK that are urging a Government re-consideration of current sample retention practices.Amongst these are an important Government advisorybody, ^ a relevant regulatory body, a respected inde-pendent not-for-profit group that monitors genetic de-velopments, and a recent review of the Forensic ScienceService.3^ Arguments for the retention of samples mayprevail over such suggestions, but it also seems in-creasingly likely that further controls will be introducedto ensure more ethical scrutiny of the operational andresearch purposes to which samples are put.

Assessing UsefulnessCentral to the justifications offered by Government forthe wide reaching powers of the police to retain and usesamples obtained from both convicted and unconvictedindividuals have been a number of claims about the ef-fectiveness of the NDNAD. Indeed, the judicial delib-erations referred to earlier themselves incorporatedconsiderations of the wide-ranging social benefits as-serted by Government accounts of the uses of this tech-nology. Political enthusiasm for the potential contribu-tion of DNA profiling and databasing to crime detectionin England and Wales has been a feature of both Con-servative and Labour Governments since early recom-mendations were made for the establishment of a data-base in the 199O's. 7 Many public pronouncements bysuccessive Government Ministers have celebrated thecontribution of DNA profiling and the NDNAD to thesuccessful investigation of specific crimes or of certaintypes of offences. For instance, the Lord Chancellor re-cently stated that: "Each DNA sample, once loadedonto the National DNA database, could potentially help

crack serious unsolved crimes, such as rape or mur-der...The database is a vital weapon in law enforce-ment which has already helped to detect thousands ofrepeat criminals." '' And Chief Constable David Cole-man, a senior UK police officer who is also chairman ofthe NDNAD Board which governs the database, re-cently asserted that "the Database is capable of makinga huge contribution to the detection and prevention ofcrime in the United Kingdom, and has become a stra-tegic national asset."39

There is evidence of widespread public support forthe collection and retention of DNA taken from con-victed offenders so that their profiles may be comparedto genetic material obtained from any subsequent sceneof crime. o There have certainly been many well-publi-cised serious crime investigations in which individualsuspects have first been identified through NDNADmatches or in which a large number of potential sus-pects - the investigation of which would have requiredconsiderable police resources - has been radically re-duced by genetic exclusions made possible by NDNADsearches. And instances continually emerge whichdemonstrate new uses of NDNAD intelligence whichhave enabled the identification, capture and convictionof offenders who would otherwise have remained un-detected.

However, a sober assessment of the overall signifi-cance of DNA profiling and the NDNAD to the detec-tion of crime requires a recognition both of the rela-tively small number of crime scenes from whichbiological material suitable for DNA profiling and data-base searching is currently recovered and of the vary-ing significance of DNA matches and mismatches to thecourse of particular investigations. In 2002-2003 (thelatest year for which full data are available) 5,988,450offences were recorded by the police in England andWales. Crime Scene Examiners attended 998,000(17%) of these crime scenes and collected biologicalmaterial intended for DNA profiling from 100,000 ofthem. Only just over half of these samples (57,000) re-sulted in crime scene profiles added to the NDNAD. Tosummarise this attrition process: searchable DNA pro-files were obtained from the examination of the scenesof less than 1% of recorded crimes.*'

Because of the small number of recorded crimes fromwhich DNA is recovered, the contribution of DNA pro-filing and databasing to the detection of crime overallmay appear small. Whilst 1,388,894 of the crimesrecorded in 2002/2003 were detected by the police,only 21,082 of these are described in official statistics ashaving been detected through the use of DNA. Thus,Home Office figures show that "DNA detections" com-prised only 1.6% of all detections, although the contri-bution of DNA to detections varied according to crime


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types (0.3% of all detections for violent and sexual of-fences, 7.9% of all detections for vehicle thefts, and8.3% of all detections in cases of domestic burglarywere attributed to NDNAD matches).

Enthusiasm for DNA profiling and databasing re-mains strong within UK Government, and no politicalparty is likely to seek to propose a reduction in invest-ment in this technology as an element in their criminaljustice strategies. A recent statement to parliament byCaroline Flint, a Home Office Minister, represents thecurrent government's position: "The NDNAD can makea significant contribution to crime detection by linkingDNA evidence found at crime scenes to offenders andsignificantly increasing the probability of crime detec-tion." However, it is also clear that Government Minis-ters, Her Majesty's Inspectorate of Constabulary, thePolice Standards Unit and others are all expecting to seefurther improvements in the willingness of PoliceForces to collect and use DNA profiles as a contributionto meeting local and national targets for crime detec-tion and reduction. While some such improvementsmay result from a more rigorous application of existingforms of DNA related investigative practice, investiga-tors and their senior managers constantly seek noveltechnological and organisational solutions to the prob-lem of investigative shortcomings. In the following sec-tion of this paper we consider the recent history of theintroduction of one such novelty into UK policing.

Operational Innovations and the Challengeto Social Accord: The Case of "FamilialSearching"The Criminal Procedures and Investigations Act 1996establishes clear obligations on criminal investigatorsto fully develop all lines of inquiry that are relevant tothe identification and apprehension of suspect offend-ers. Satisfying these obligations - especially in efforts todetect serious crimes against the person - necessitatesconsiderable ingenuity, and sometimes innovation, inthe conduct of investigations. Accordingly, novel ap-plications of existing forensic science and technology, aswell as the provision of such technologies, are con-stantly sought by detectives or offered by forensic prac-titioners to enlarge the scope of what it is possible toseek, know or prove in particular criminal cases. Thisis as true in the case of DNA forensics as it is true for fin-gerprint, footwear and fibre comparison, toxicology ordocument examinations.'*^

Whatever the character of such innovations, the in-vestigative uses have to be introduced and regulated inways that will satisfy any subsequent judicial scrutinyif successful prosecutions are to eventuate. However,the history of such developments in policing also sug-gests that decisions about their introduction are likely

to be made within a small and fairly closed network offorensic science providers, legal advisors and spe-cialised criminal investigators long before any resultingdetections come to public attention through court hear-ings. Where successful prosecutions ensue, joint pressreleases by the relevant forensic science and policing or-ganisations are used to shape very positive representa-tions of the innovative technology or novel supplementsto its prior uses - often as "breakthroughs" in the "fightagainst" or "war on" crime. A mixture of commercial, op-erational and political considerations lie behind thesewidespread practices. However, in a small number ofinstances, the failure of operational scientists and in-vestigators to offer such innovations for wider socialand ethical consideration by relevant public bodies canlead to restyled, stalled or even abandoned developments.

In this section of the paper we examine a recent ex-ample of such a process - "familial searching" of theNDNAD - and the ways in which its sudden public ap-pearance, following some years of closed considerationby the UK forensic science community, momentarilydestabilised agreed understandings between a rangeof public bodies with interests in the uses of forensicDNA. We also describe the subsequent re-establish-ment of an agreed understanding of how the uses of thisoperational innovation should be regulated and con-sider whether the meanings and ramifications of its in-troduction have been fully appreciated.

The term familial searching, as used by forensic sci-entists and police officers in the UK, refers to a form ofdatabase searching based on knowledge about theprobability of matches between the STR markers oftwo members of the same family as opposed to theprobability of matches between these markers whenthe individuals compared are unrelated. This practicemakes use of understandings of inheritance that pre-figured the discovery of the structure of DNA and whichhad been largely applied to understanding variation inhuman, animal and plant phenotypical characteristics(see Bieber*3 for a summary account of these assump-tions as applied to the forensic context). The work ofAlec Jeffreys and his colleagues in the 198O's repre-sented an effort to operationalise and test these under-standings at the genetic level rather than at the pheno-typic level.** Conceptually, Jeffreys sought both toreliably differentiate individuals from one another andalso to establish patterns of variations between thosewho were genetically related. Jeffreys' research pro-gramme had been focused on the development of ro-bust methods for establishing and representing geneticheredity, and the first human application of his tech-nique of "DNA fingerprinting" using multi-locus probeswas in a test of the truthfulness of a claim to family con-nectedness in a UK immigration case.


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The UK FSS have considered the utility of databasesearches based on this knowledge since 1996* and theFSS Forensic Intelligence Bureau now offers to PoliceForces in England and Wales a search of the NDNADto identify possible relatives of criminal suspects. Theprocedure has been applied when a full DNA profile ob-tained from a crime scene has not matched an existingprofile on the database. Familial searching to identifydatabased relatives of an unknown offender utilizes theincreased likelihood of similarity between the DNAprofiles of those who have a direct genetic relationshipin order to identify a parent, child or sibling of an indi-vidual whose profile is available for searching. Familialsearching therefore refers not to the social arrange-ment of families but the genetic relationships betweenindividuals - a distinction which is important for in-vestigative as well as ethical reasons.

The first use of these practices by the FSS in 2002compared a full DNA profile, obtained using Low CopyNumber analysis, from crime scene stains taken fromthree women murdered in South Wales in 1973. The re-sulting profile was used to make a "familial" match onthe NDNAD to Paul Kappen, which in turn led to thedetection of his father, Joseph Kappen, as the rapist andmurderer of each of the women. The case shows that fa-milial searching can be suitable when deployed along-side a number of other investigative techniques. Forinstance, in the Kappen case familial searching wasused only after a prior intelligence-led screen, com-bined with psychological profiling, targeted 500 po-tential suspects (a process formulated and undertaken27 years after the original murders). During the intel-ligence-led screening of these 500 suspects the policehad attempted to visit and take DNA from Joseph Kap-pen, a suspect on the list, but learned from his wife thathe had died some years before their new enquiries hadbegun. When the subsequent familial search of theNDNAD produced Paul Kappen's name, as a possibleclose relative of the person who had left their DNA atthe earlier crime scenes, the police re-visited the Kap-pen family to take samples from Paul Kappen's motherand his siblings. Inferences made from the analysis ofthese additional DNA profiles were sufficiently crediblefor the police to be given permission to exhume JosephKappen's body and subsequently confirm a full matchbetween him and all three crime scenes. It was on thebasis of this match that the case was closed. The caseshows the highly significant use of familial searchingbut also the potential problems - investigative as wellas ethical - in producing a large pool of potential rela-tives of a suspect whose guilt may not always be cor-roborated (as it was in the Kappen case) by other intel-ligence information.

The other significant "cold case" in which familial

searching has been successfully deployed, in the inves-tigation and subsequent detection of Jeffrey Gafoor forthe 1988 murder of Lynette White, shows that the com-position of the crime scene DNA profile produces vari-ances in the effectiveness of this process. A full profileobtained from the crime scene where White was mur-dered contained an allele variant found in only 1-2% ofthose on the NDNAD. By increasing the amount of locisearched (to discriminate further within that 1-2%),and geographically screening the results, the NDNADproduced a smaller pool of 70 potential relatives of theperson who left the crime scene stain. During the in-vestigation of that pool the identification of one poten-tial relative, a 14 year old boy, prompted the furtherscreening of a family which led to the identification ofJeffrey Gafoor as the murderer.

A recent use of familial searching, during an investi-gation following the death of Michael Little (who suf-fered fatal injuries after a brick was thrown through thewindscreen of his moving vehicle), has delivered thefirst detection leading to a successful criminal prose-cution in a current police case. Craig Harman admittedto the manslaughter of Little after being linked to thecrime scene via the identification (and subsequent in-vestigation) of a close relative on the NDNAD. Crimescene DNA, obtained from the brick thrown throughLittle's windscreen (the DNA was present in bloodfound on the brick, deposited there as the result of awound sustained during an earlier attempt to steal acar), yielded a full DNA profile that did not match anyprofile on the NDNAD. An intelligence-led screen wasundertaken which produced no match. The use of fa-milial searching identified a close relative of Harman onthe database which directed the investigation led bySurrey police. Harman received a six year prison sen-tence. This case, along with the others detailed above,is likely to be central in future advocacy of the potentialfor familial searching in police investigations.

Despite these spectacular instances, applications offamilial searching in the UK remain numerically lim-ited. In 2004, the FSS reported that approximately 20familial searches had been undertaken and that a quar-ter of these had yielded "useful intelligence informa-tion." The reasons for this limited application include arecognition of the novelty of the process and also thevolume of partial matches it may provide. Because fa-milial searching relies on identifying a pool of possiblegenetic relatives of a suspect, who are then subject tomore direct investigation (typically by being inter-viewed by the police), ACPO has also acknowledgedthat a number of ethical issues need to be addressedwhen this strategy is being considered. The NationalDNA Database Annual Report 2002-03 stated that the"Database Board has recently sought advice from the


Robin Williams

Information Commissioner on the ethics and data pro-tection issues of using this new approach more widelyand will be issuing guidelines in the near future."*'' Dis-cussions between ACPO, the Home Office, the Infor-mation Commissioner, and representatives from theHuman Genetics Commission, have resulted in anagreement about the circumstances under which suchsearches will be carried out and their results integratedinto existing investigative procedures. However theagreement is operationally sensitive and has not beenpublicly disseminated.

cause of genetic or social reasons). It is likely that theseissues will be widely discussed in the near future whenfamilial searching is more widely exploited by the po-lice and more members of the public become involvedin sample requests.

We have already described the way in which the CJA2003 has now authorised the retention and samplesfrom anyone arrested by the police in connection witha recordable offence. Individuals in this new categorymay seek to challenge the propriety of familial search-ing of their profiles on the NDNAD which subsequently

The recent history of familial searching in England and Wales providesan example of how previously agreed understandings can become disrupted

and thus subjected to farther deliberations.

There are several fundamental problems that sur-round the use of this search procedure to direct inves-tigations. Issues arise in both the searching of profileson the NDNAD and in the subsequent investigativetrajectories that follow the provision of a list of indi-viduals derived from such a search. A genetic link be-tween individuals might be previously unknown by oneor both parties and police investigations may makesuch information known to them for the first time.Equally an investigation may reveal (to investigators -if not to informants) the absence of genetic links whichparticipants assumed to have existed. There is also thequestion of whether this kind of use of an individual'sdatabased DNA violates promises of privacy and con-fidentiality made when their genetic material was orig-inally collected as part of an earlier intelligence-ledmass screen.*'' Furthermore, assertions about crimi-nality, geography and familial relatedness that are cen-tral to the use of this forensic methodology are espe-cially problematic (even if they do accord with therhetorical endoxa of many detectives). For instance,the Custodian of the database said in a public meetingof the Human Genetics Commission held in February2004 that "[Familial searching] is based on some veryimportant assumptions that criminality can run in fam-ilies, that a relative could be on the database, the fam-ilies tend to live in the same area, and that offenderstend to offend close to their homes or in areas that theyfrequently visit." The same assertions are made in themost recent National DNA Database Annual Report."^**Yet they reveal pervasive problems associated with theconfusion between "genetic" and "social" relatedness("families" are not only constituted through geneticlines but through clusters of non-genetically related in-dividuals) as well as the implicit assumption that crim-inality is fostered because of such relatedness (either be-

leads to their identification and investigation as a po-tential relative of a person who has left biological ma-terial at a crime scene. Such individuals wall have to beapproached by the police to name relatives whose ownprofiles are not on the NDNAD. It may well be claimedthat this constitutes a disproportionate interferencewith their privacy rights under the European Conven-tion. Even if the approach itself is licensed by their less-ened right to privacy, which has resulted from theirprevious criminal arrest, a question is raised regardingtheir obligation to help the police with their inquiriesin a case where their ovm DNA profile has already ex-onerated them from direct involvement. In addition ithas to be recognised that those individuals who arethemselves being sought to be interviewed (and in-criminated or eliminated) will be individuals who havenot, since 1994, been charged or convicted of any of-fence. If they had been in any of these categories thentheir profile should already have been on the database(although this assumption may have to be qualifiedsince individual police forces are known to have differedin their sampling strategies in the 199O's).

At the very least it seems likely that the use of this par-ticular procedure will bring the police into contact witha number of individuals who have not been prosecutedfor a recordable offence, who will have no criminalrecord, and who are subject to interview only becausethey are genetically related to someone whose profile ison the NDNAD. It could be argued that both the orig-inal informant and the suspect from whom a sample issought are vulnerable to what Gans*9 has called "requestsurveillance" - that is, that in asking for such informa-tion the police are provided with the opportunity toobserve the response, and potential fearfulness, of anyindividual. Such an observation may induce the policeto consider the use of more coercive sanctions - in par-


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ticular arrest - to obtain a sample from the newly iden-tified relative.

Eamilial searching also raises a number of further is-sues relating to confidentiality and disclosure. Individ-uals who are invited to volunteer elimination samples,following their identification by relatives on theNDNAD, will have varying degrees of knowledge abouttheir biological relatedness to those who they"matched." Other members of their household, theirwider kin groups and the communities in which theylive, may or may not be party to that knowledge. More-over the fact that their relatives have DNA profiles heldon the database may also be unknown to them in ad-vance of this approach.

Because of the limited discussions that occurredwhen familial searching was first operationalised inEngland and Wales, there remain conspicuous uncer-tainties about many of these matters. The introductionof familial searching as a set of database procedures,and the investigative strategies associated with them,occurred without prior consultation or discussion vvdthany experts or stakeholders outside of the narrow op-erational context of policing. The police and the FSSwere eager to publicise their first successful applica-tions, and the British mass media reported them asfurther breakthroughs in the fight against crime. How-ever, key operational stakeholders were unprepared forthe less enthusiastic reception given to this develop-ment by the external advisory and regulatory bodies de-scribed earlier. Perhaps for this reason, the use of fa-milial searching was reconsidered while they negotiatedwith these bodies over whether and how criminal in-vestigators should employ such innovative proceduresin the future. Forensic scientists, the police and theNDNAD custodian may need to develop new forms ofconsultation with relevant agencies and policymakersin advance of the next round of innovations in forensicDNA profiling and databasing if these innovations aresuccessfully to be introduced into exceptional or routineinvestigative operations.

ConclusionThe establishment of any forensic DNA database,which contains DNA profiles obtained from individualsubjects for use by the police in support of current andfuture criminal investigations, requires legislative au-thorisation, financial support and judicial endorse-ment. The success of such a database depends on thecomprehensiveness of its coverage and the degree towhich operational policing strategies respond to theintelligence opportunities it provides. In jurisdictionslike the UK, where a national forensic DNA database isunderstood to make a substantial contribution to thedetection and prosecution of offenders, there are in-

evitable demands to increase its inclusiveness, broadenthe scope of the intelligence provided from its interro-gation, and find new ways of utilising this intelligenceto inform police enquiries.

A central feature of these considerations - about whoshould be sampled and profiled, what information sam-ples and profiles currently and potentially provide, andhow such information should be used to support crim-inal investigations - is that they circulate continuouslybetween two different, but social and organisational"sites." These are: sites of operation (e.g. criminal inves-tigation departments, police forensic science units, re-search and service forensic laboratories, etc.) and sitesof deliberation (e.g. government departments respon-sible for policy development and implementation; ju-dicial committees; government advisory commissions;independent social and human rights groups, etc.). Ineach jurisdiction that possesses a national DNA data-base it is possible to discern various key organizationsand agencies within each of these kinds of sites thatcontribute to the co-production and co-development ofthe large number of material and discursive practicesthat together make up the appropriate and legitimateuses of these technological resources.' " Therefore, theexistence and continued operation of any national DNAdatabase relies upon a series of continuous considera-tions and negotiated agreements amongst a range of ac-tors seeking to satisfy different aims, expectations, am-bitions and relevant expert and lay constituencies.

Technological and organisational innovations in theuses of genetic information that offer to enhance the ef-fectiveness of investigations themselves become subjectto interrogation and commentary by individuals andagencies beyond the limited forensic and policing com-munities from which they emerge. In some instances,what seems operationally ingenious to investigatorsmay seem dangerously intrusive to external observers.When the deployment of investigative ingenuity dis-rupts or challenges agreed understandings of whatforensic genetic profiles are, or how the genetic prop-erties of persons should be utilised successfully to de-tect crime, then deliberative interventions into opera-tional practice are the likely result.

The recent history of familial searching in Englandand Wales provides an example of how previouslyagreed understandings can become disrupted and thussubjected to further deliberations. The current out-come of such deliberations in this instance is a 'Mem-orandum of Understanding' between ACPO and theFSS on the use of familial searching. This document(whose circulation remains restricted) contains agreedunderstandings between the police, the custodian of theNDNAD and other relevant parties on what genetic, ITand investigatory resources can be used for such


Robin Williams

searches as well as the additional organisationalarrangements that should supplement their uses.

In cases where criminal prosecutions depending oninitial intelligence derived from familial searching haveresulted in the conviction of offenders the judiciaryhave not questioned the propriety of the policing meth-ods employed. This is unsurprising since, as we have de-scribed above, there is v^allingness among senior judgesin England and Wales to support levels of DNA collec-tion and retention that exist nowhere else in the worldat this time. This is just one aspect of the celebration ofthe application of genetic science and technology insupport of policing, a celebration which also incorpo-rates the support of the mass media and substantialpublic approval throughout the UK. However, the de-bate regarding the actual intrusiveness caused by theNDNAD is far from settled in the UK. It is still possi-ble that the implementation of the CJA 2003 (resultingin a larger proportion of the population being held onthe database) wall occasion a growing awareness andunderstanding of the consequences of increased inclu-sion amongst a much wider section of UK citizenry.With the technological developments created by famil-ial searching, a large population of databased individ-uals and the people genetically related to them will faceimplications created by the storage and use of theirDNA. The reach of the NDNAD in the UK is alreadywide but with the capacity to sample all arrestees, andthe use of familial searching, the investigative capacityof the database is enormous. Since a quarter of all adultmales in the UK have been arrested at least once,^' theNDNAD is set to hold 25% of all adult males in Englandand Wales (along with about 7% of adult females). Withthis level of inclusion concerns about the scope for in-dividual and familial intrusion will surely grow signif-icantly. As such, therefore, the need for expanded de-liberative involvement in determining the futuredirections and use of the NDNAD is essential.

AcknowledgementsWe would like to thank participants at the ASLME Workshop #2 onDNA and Civil Liberties for helping us clarify some of the ideas in thispaper. We are also grateful to Alice Noble and the anonymous refer-ees for their careful and detailed comments on an earlier draft.Funding for this article was provided by the National Human GenomeResearch Institute of the NIH, Grant NO. RO 1-HG002836-01.

References1. D. Lazer and M. Meyer, "DNA and the Criminal Justice System:

Consensus and Debate," in D. Lazer, ed., DNA and the CriminalJustice System: The Technology of Justice (Cambridge, MA: MITPress, 2004): 357-390, at 357; M. Lynch, "God's Signature: DNAProfiling, The New Gold Standard in Forensic Science" Endeavour27, no. 2 (2003): 93-97.

2. L. Townley and R. Ede, Forensic Practice in Criminal Cases (London:The Law Sociefy, 2004): at 8; Her Majesty's Inspectorate of Constab-ulary, Under the Microscope: Thematic Inspection Report on Sci-entific and Technical Support (London: Home Office, 2000): at 12.

3. There are many accounts of these matters available, but for a re-

cent short review, see M. A. Jobling and P. Gill, "Encoded Evi-dence: DNA in Forensic Analysis,"iVatMre/?eOTet«s 5 (2004): 739-751; Lazer, supra note 1, provides an authoritative account of thistrajectory - especially in the US. See also M. D. Lynch and S.Jasanoff, eds., "Contested Identities: Science, Law and ForensicPractice," Social Studies of Science 28, Special Issue (1998).

4. The literature on these matters is extensive. Essential sources in-elude P. R. Billings ed., DNA on Trial: Genetie Identification andCriminal Justice (New York: Cold Spring Harbour LaboratoryPress, 1992); Lazer, supra note 1; Human Genetics Commission,Inside Information: Balaneing Interests in the Use of Personal Ge-netic Data (London: Department of Health, 2002); G. Laurie, Ge-netie Privacy: A Challenge to Medico-Legal Norms (Cambridge:Cambridge University Press, 2002); O. O'Neill, Autonomy andrnistmB2oetAic«(Cambridge: Cambridge University Press, 2001);and T. H. Murray, "Genetic Exceptionalism and Future Diaries: Isgenetic Information Different from Other Medical Information," inM. A. Rothstein, Genetic Secrets: Protecting Privacy and Confi-dentiality in the Genetic Era (New Haven: Yale University Press,1997): 60-73.

5. The first considerations given to a number of these issues in the UKcan be found in the Scottish Law Commission, Report on Evidence:Blood Group Tests, DNA Tests and Related Matters (Edinburgh:HMSO, 1989); and the Royal Commission on Criminal Justice, Cm2263 (London: HMSO, 1993). There has been a continuous returnto these issues over the ten years since the establishment of the Na-tional DNA Database of England and Wales (NDNAD) in 1995.

6. In Scotland the legislative provision for the police collection anduse of DNA differs significantly from that in England and Wales.For a discussion of these differences, see P. Johnson and R.Williams, "DNA and Crime Investigation: Scotland and the 'UKNational DNA Database,'" Scottish Journal of Criminal JusticeStudies 10 (2004): 71-84.

7. The "DNA Expansion Programme" delivered about £200 Millionbetween 2000 and 2004. £60 Million has been granted for the ex-tension of this programme for the year 2004-2005. These moniesare spent on the collection and analysis of biological materialsfrom crime scenes and offenders and for the support of police unitsto integrate resulting DNA matches into force criminal intelligenceand investigation systems.

8. A "recordable offence" is any offences which carries a sentence ofimprisonment on conviction (irrespective of the period, or the ageof the offender or actual sentence passed) as well as the non-im-prisonable offences under the Street Offences Act 1959, section 1(loitering or soliciting for purposes of prostitution), the Telecom-munications Act 1984, section 43 (improper use of public telecom-munications systems), the Road Traffic Act 1988, section 25 (tam-pering with motor vehicles), the Malicious Communications Act1988, section 1 (sending letters, etc. with intent to cause distress oranxiety) and others listed in the National Police Records (Record-able Offences) Regulations 2000. PACE, "Code of Practice for theIdentification of Persons by Police Officers," Home Office, 2004.

9. Statistics taken from Forensic Science Service, National DNADatabase Annual Report 2003-2004 (London: HMSO, 2004),available at <http://www.forensic.gov.uk/forensic_t/inside/about/docs/NDNAD_AR_3_4.pdf> (last visited June 28, 2005).

10. Criminal Justice and Public Order Act 1994, Section 58.11. Original in Police and Criminal Evidence Act 1984, Section 63

(3B)(b).12. Criminal Justice and Public Order Act, 1994, Section 55.13. In 1999/2000, 228,088 profiles obtained from individuals were

loaded onto the database. By 2001/2002 this figure had more thandoubled to 586,026.

14. R V. Brown [1996] 1 All E.R. 545 at 556)15. Lord Hoffman, UKHL 56 (2004): 50.16. N. Taylor, "Policing, Privacy and Proportionality," European

Human Rights Law Review Special Issue (2003): 86-100 at 95.17. R VMarper &S 2002 a [2002] EWHC 478 (Admin). High Court

of Justice Queen's Bench Division Administrative Court; R v.Marper & S 2002b [2002] EWCA Civ 1275. Court of Appeal(Civil Division); R v.Marper efS2004. [2004] UKHL39. Houseof Lords (Appellant Committee).

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18. Whilst "proportionality" is not a term found in the text of theECHR, it has become a major resource for the formulation of ar-guments and judgements concerning the police uses of DNA inthe light of the ECHR. Proportionality, as the Lord Chief Justicestated in his judgement of i? v. Marper & 'S'supra note 17, 2002b, is usually absorbed by the consideration of "balance" which thecourt is asked to make; that is, to judge an appropriate balance be-tween an individual right and a collective or social good. Often inBritish jurisprudence a distinction is made between a "balancingtest" and a "necessity test." To judge necessity a court deliberatesthe possibility that the objective under consideration (in this case,the future prevention and detection of crime made possible by theNDNAD) could be met using different and less intrusive means.In R V. Marper & S'supra note 17, the necessity test has been con-tended by arguing that the current 'blanket policy' of the police inretaining all samples and profiles of those once charged with, butnot subsequently convicted of, a recordable offence is incompat-ible vidth the actual wording of the legislative provision in PACEwhich states that the police may retain samples and profiles. Theappellants have argued that the intrusiveness created by the re-tention of samples and profiles, should there be a proven neces-sity for such a practice in particular instances, would be reducedby a case-by-case consideration of retention. This has been con-sistently ruled against on the grounds that such a situation wouldbe potentially more intrusive because it would rely on the policemaking decisions about the 'character' of individual suspects. AsLord Wolf argued: "It would be highly undesirable for membersof the public to be treated differently on the basis of some scale ofinnocence derived by the police" (R v. Marper & '5'2002 b, supranote 17, at 12).

19. D. Feldman, Civil Liberties and Human Rights in England andWales (Oxford: Oxford University Press, 2002).

20. Article 14 of the ECHR, which prohibits discrimination, states:"The enjoyment of the rights and freedoms set forth in this Con-vention shall be secured without discrimination on any groundsuch as sex, race, colour, language, religion, political or otheropinion, national or social origin, association with a national mi-nority, property, birth or other status."

21. There are certain problems in assessing proportionality in relationto the individual/society balance. As Lord Sedley notes "propor-tionality [is] an issue which, with respect, I do not think can everbe absorbed in a simple balancing exercise as between the indi-vidual and the public (an exercise which in a majoritarian democ-racy the individual will always lose, and which the [EuropeanConvention on Human Rights] is there precisely to redress)" {RV. Marper & S, supra note 17, 2002 b: paragraph 77).

22. Rv. Marper & 'S' 2002 b, supra note 17.23. R V. Marper & '5'2002 b, supra note 17, at 20.24. Hansard, The Lord Bishop of Worcester, House of Lords, October

29, 2003.25. Rv Marper & 'S'2OO4, supra note 17, at paragraph 78.26. R. Williams and P. Johnson, "'Wonderment and Dread': Repre-

sentations of DNA in Ethical Disputes about Forensic DNA Data-bases," iVeoi Genetics & Society 23 (2004): 205-222.

27. J. Pugliese, "Identity in Question: A Grammatology of DNA andForensic Genetics," International Journal for the Semiotics ofLaw 12 (2000): 419-444.

28. P. Rabinow, "Galton's Regret: of Types and Individuals," in P. R.Billings ed., DNA on Trial: Genetic Identification and CriminalJustice (Nevf York: Cold Spring Harbour Laboratory Press, 1992):5-17; But note that Cole reminds us that the idea that finger-prints convey more than identity lasted well beyond Galton, in S.A. Cole, Suspect Identities: A History of Fingerprinting and Crim-inal Identification (Cambridge MA: Harvard University Press,2001); and S. A. Cole, "Fingerprint Identification and the Crim-inal Justice System: Historical Lessons for the DNA Debate," in

D. Lazer ed., DNA and the Criminal Justiee System: The Tech-nology of Justice (Cambridge, MA: MIT Press, 2004): 63-90.

29. Murray, supra note 4.30. See P. Gill and D. J. Werrett, et al., "An Assessment of Whether

SNPs will replace STRs in National DNA Databases," Science andJustice 44, no.l (2004): 51-53.

31. R V. Marper & '5'2002 b, supra note 17, at 18.32. R V. Marper & '5'2002 b, supra note 17, at paragraph 78.33. Criminal Justice and Police Act, 2001, Section 82.34. R V. Marper & 'S'2OO4, supra note 17, at paragraph 86.35. The Human Genetics Commission, supra note 4.36. A review of the Forensic Science Service was undertaken by

Robert McFarland on behalf of the Home Office between 2002and 2003. The Home Office have not made the final report of thereview publicly available. The executive summary is available at<http://www.homeoffice.gov.uk/docs2/reviewfssjuly2003.pdf>(last visited June 29, 2005).

37. The establishment of a National DNA Database was first made in thefinal report of the Royal Commission on Criminal Justice in 1993.

38. Home Office Press Release, September 1, 2003.39. NDNAD, Annual Report 2002-2003, supra note 9 at 4.40. See Human Genetics Commission 2002, supra note 4.41. Forensic Science Service, supra note 9.42. Assertions of the spectacular potential of forensic DNA analysis

can quickly lead to levels of investigatorial enthusiasm for recentinnovations that cannot always readily be met even by those di-rectly responsible for their introduction. The case of Low CopyNumber (LCN) DNA is an example of such a problem in the UK.

43. F. Bieber, "Science and Technology of Forensic DNA Profiling:Current Use and Future Directions," in D. Lazer, ed., DNA and theCriminalJustiee System: The Technology of Justiee (Cambridge,MA: MIT Press, 2004): 23-61.

44. A. J Jeffreys and V. Wilson, et al., "Hypervariable 'Minisatellite'Regions in Human DNA," JVatore 314 (1985): 67-72.

45. Some of this work arose from previous efforts to deal with "close-relative defences" in prosecutions involving DNA identification(see for example I. W. Evett, "Evaluating DNA Profiles in a CaseWhere the Defence is 'It Was My Brother,'" Journal of the Foren-sic Sdenee Society 32 (1992): 5-12). Subsequent published stud-ies of the same topic by others include T. R. Belin and D. WGjertson, et al., "Summarizing DNA Evidence When Relatives arePossible Suspects," men'caw Statistical Association 92, no 438(1997): 706-716; and M. Sjerps and A. D. Kloosterman, "On theConsequences of DNA Profile Mismatches for Close Relatives ofan Excluded Suspect," International Journal of Legal Medicine112 (1999): 176-180.

4'6.FovensicScienceService,NationalDNADatabaseAnnual Report2002-2003 (London: HMSO, 2003): at 25.

47. The CJPA 2001 also authorised the indefinite retention and con-tinuous speculative searching of DNA samples taken during massscreens - subject to the "irrevocable consent" of the individualfrom whom such a sample was requested. It seems unlikely thatfamilial searching would have been envisaged by anyone whoconsented to give their DNA under these circumstances.

48. Forensic Science Service, supra note 9.49. J. Gans "Something to Hide: DNA Databases, Surveillance and

Self-Incrimination," Current Issues in CriminalJustiee 13 (2001):168-84.

50. Here we borrow concepts which have been developed by SheilaJasanoff and her colleagues. See for example S. Jasanoff, ed..States of Knozvledge: The Co-production ofSeience and SoeialOrder (London: Routledge and Kegan Paul, 2004).

51. T. Budd, C. Sharp and P. Mayhew, Offending in England andWales: First results from the 2003 Crime and Justice Survey (Lon-don: Home Office, 2005).


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Inclusiveness, Effectiveness and Intrusiveness: Developing Uses … · 2018-11-25 · DNA Fingerprinting and Civil Liberties: Fourth in a Series of Articles In the article,"Inclusiveness,