UK: New law on DNA profiles
01 January 2000
The amendment to Section 64 of PACE (the Police and Criminal Evidence Act) will permit the police to keep and check all profiles that are given voluntarily and which should be destroyed under current rules. PACE was previously amended in 1994 (by the Criminal Justice and Public Order Act) to allow DNA samples to be taken under largely the same circumstances as fingerprints - from anyone suspected, charged or convicted of a recordable offence. However, profiles from people who are not prosecuted or are acquitted must be destroyed (unless the investigation with which they were connected results in a conviction, in which case the sample can be kept in case the matter is subsequently reviewed). Samples taken from anyone convicted of a recordable offence are put into the national DNA database.
Taking DNA samples from large populations ("mass-screenings") during the course of the investigation of a serious crime is a celebrated tool of police forensic science - 110 such operations had been conducted in the UK by mid-1999. At present, consent is given by those asked to provide a DNA sample on the basis that their profile be destroyed following the conclusion of the investigation. If people face their profiles being "retained" (meaning added to the national DNA database) and put to further use, it has been suggested by Liberty that people might well be less likely to consent. They are also concerned that people who refuse to give a sample may be viewed by the police and the community as a suspect, and that this possibility may be in the minds of people asked to volunteer their profile.
The UK rules in context
Britain offers an individual's DNA less respect for privacy than any other EU country, even without the new proposals. The police's far reaching powers to take a sample by force came as a shock to one privacy advocate - a visitor to the UK who joined a protest against the AFCEA (Armed Forces Communication and Electronics Association) arms fair held in London last October. Forty demonstrators gathered in front of a Heathrow hotel in which many of the conference participants were staying. Their entirely non-violent action lead to inevitable arrests: their symbolic mass-die had resulted in criminal damage - water-paint (fake blood) the offender, the pavement the victim. One of the offenders described being arrested at around 5pm and interviewed some nine hours later. She was charged and detained to appear before magistrates the nest day. A short while after an officer returned to say to say that something had been forgotten: a DNA sample was required. As a Dutch national, this procedure was somewhat alien - the authorities in the Netherlands have no such powers and she refused to co-operate. She says five officers subsequently restrained her so as to allow the obligatory two swabs of saliva to be taken from her mouth. Having pleaded guilty to the charge (a decision she now regrets taking), her DNA profile may well be on the UK's national database.
In a ruling in Massachusetts, USA, the State Superior Court found that a 1997 law enabling state authorities to take samples involuntarily from anyone in prison, on parole or on probation was unconstitutional. The ruling invalidated the state's "DNA Seizure and Dissemination Act" in finding it in violation of the probable cause statement in the Fourth Amendment of the US Constitution. In contrast to this interpretation of forced DNA sampling, one can return to the UK's Police Superintendent's Association who have already called for every child to be profiled at birth and placed in the national database (at present there are around half a million samples from suspects in the system).
The European DNA database
The legislation proposed by the Home Office also includes a call for statutory powers to search foreign sets of DNA data. This proviso relates to EU moves to create a European DNA database by linking national systems. A 1997 EU Council Resol