Various common law countries share a growing receptiveness to the use of DNA in criminal investigation and prosecution. This is evident with the formalization and steady expansion of schemes of DNA collection and retention.
The establishment of DNA (deoxyribonucleic acid) databases requires nation-states to negotiate the often competing demands of crime control and individual rights: non-consensual collection of genetic material encroaches on the right to bodily integrity, while the subsequent storage and retention of DNA arguably affects the right to privacy as well as the presumption of innocence. (image credit)
Despite a general consensus regarding the significance and value of genetic material in criminal justice, there is considerable divergence in terms of the populations from whom DNA may be collected and the length of time for which DNA may be retained. I analyze this in my article "'Non-Conviction' DNA Databases and Criminal Justice: A Comparative Analysis", published in the Journal of Commonwealth Criminal Law (2011), and summarized in this post.
Crime control measures in the United States often represent a prototype for other countries in terms of the usual trend and direction of policy transfer; however, until recently England and Wales stood as the outlier in regards with the most expansive scheme of DNA retention for innocent persons in the common law world.
Many common law countries are increasing gradually the scope and populations of DNA databases, by permitting collection at arrest or charge, rather than it being predicated on conviction as was once the case. Moreover, judicial approval is not required in the United Kingdom or New Zealand, or at federal level in the United States.
Canada and Australia differ in limiting collection to indictable offences and in requiring a warrant for DNA collection in certain instances. Such a requirement is preferable because of the express articulation of reasonable suspicion and judicial involvement. Limiting the power to authorize DNA collection to judges ensures that an adequate detachment is maintained between the investigating body and the appraiser of reasonable suspicion on which DNA collection is predicated.
Once DNA has been collected pre-trial, divergence is also evident in terms both of the period and of the form of retention.
Indefinite retention of DNA was once permitted in England and Wales, but was impugned in S. and Marper v. United Kingdom (2008) by the Grand Chamber of the European Court of Human Rights. The Court held that the “blanket and indiscriminate” retention of DNA for an indefinite period, with limited possibility for removal from the database, violated the right to a private and family life.
Specific time frames relating to the destruction of DNA material are provided in Scotland, Australia, New Zealand and Canada, and will soon be implemented in England and Wales under the Protection of Freedoms Bill.
In the United States, the DNA Fingerprint Act 2005 does not provide specific retention periods, but states that destruction occurs on receipt of a court order certifying that the charge has been dismissed or resulted in an acquittal, or that no charge was filed. Other than this, there are no rules relating to DNA retention at the United States federal level.
Whether the DNA that is retained is held as a sample or profile may also be relevant for privacy concerns:
► A wider range of intimate genetic information may be gleaned from a sample.
► A DNA profile is a set of identifying characteristics from areas of DNA that do not reveal a person’s physical traits or medical conditions. A DNA profile is held as a code which may only be read with the aid of technology.
Of the comparator jurisdictions on which I focused, until 2011 only New Zealand clearly distinguished between the two formats, requiring the destruction of a sample as soon as practicable after a DNA profile is obtained. Under the soon-to-be-implemented Protection of Freedoms Bill, England, Wales and Northern Ireland will require destruction of a DNA sample as soon as a DNA profile has been derived from the sample, or within six months, if this is sooner. Though these policies limit the amount of information which may be obtained, the right to privacy is still affected by profiles’ retention, given what the European Court in S. and Marper termed the “substantial amounts of unique personal data” contained in them, including information about familial relationships and ethnic origin.
In other words, storage as a profile may mitigate but not resolve completely concerns about privacy.
Presumption of Innocence
A further right or interest which appears to be affected by the retention of the DNA of un-convicted persons is the presumption of innocence.
Although the parameters of the presumption do not, strictly speaking, preclude DNA retention, non-conviction DNA databases embody the state’s suspicion of the risk of (re-)offending on the part of certain people, thereby distinguishing them from “truly” innocent people who have never come to the attention of the police. In broad terms, this may compromise the precept that everyone should be presumed innocent, by keeping the DNA of legally innocent individuals on a database which is otherwise populated by convicted persons. While the schemes in place in the United Kingdom, the United States and Canada narrow the range of affected persons, this does not mitigate the effect on those who remain included in the database.
Overall, the expansion of laws regarding non-conviction DNA collection and retention may be explained by broad trends away from a rights-oriented paradigm towards a more populist and punitive model, by the emphasis in political discourse and practice on the need to avert risk, and by the desire to “rebalance” the criminal justice system in favor of the victim and the wider community. Though there is a common international movement to a risk-based approach, some of the more pressing human rights concerns are mitigated by the requirement of a warrant before collection, by limiting the time frame of retention and by the storing of DNA as a profile.