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Arrest for the purpose of DNA sampling

A report published today by the Human Genetics Commission (HGC) in the United Kingdom, which advises the government in that jurisdiction in relation to genetic issues, contains a claim that police officers deliberately arrest people in order to get DNA samples from them to add to the DNA database. The claim, put forward by an unnamed retired police superintendent, is contained in a report entitled “Nothing to Hide, Nothing to Fear?”.

Obviously, it is difficult to investigate the truth of the claim that persons are being arrested solely for the purpose of obtaining DNA samples where they would not be arrested in other circumstances, and indeed, such a claim has been denied by the Association of Chief Police Officers. However, the Chairman of the HGC, Professor Jonathan Montgomery, has admitted that there is some evidence to substantiate the allegation. Professor Montgomery has also suggested that the DNA database in the UK has suffered from “function creep” since its introduction in 1995, evolving from a database of offenders into a database of suspects. Liberty‘s director of policy Isabella Sankey has also observed the extent of the use currently being made of DNA databases and the manner in which policing decisions can be influenced:

Not only are we stockpiling the most sensitive information of innocents who have never been charged, let alone convicted, we are also creating a perverse incentive for officers to arrest the innocent.

The UK DNA database is the largest of its kind in the world and this is not the first time that it has been the subject of controversy and debate, although Professor Montgomery suggests that there has not been enough public or parliamentary debate on the issue.

Just short of a year ago, in December 2008, the European Court of Human Rights (ECtHR) ruled against the United Kingdom in the highly significant case of S and Marper v United Kingdom. This case arose out of the indefinite retention on the DNA database of samples taken from the applicants, despite the fact that in the case of the first applicant there was a full acquittal at trial and in the case of the second applicant proceedings were discontinued. While the House of Lords had held against the applicants, ultimately, the Grand Chamber of the ECtHR in a unanimous decision, held that such indefinite retention of the DNA profiles of persons who have not been convicted of any criminal offence amounted to a violation of Art. 8 of the European Convention on Human Rights; the right to respect for private life.

Resultantly, while DNA profiles extracted from samples taken from persons who are ultimately convicted may be retained on a DNA database indefinitely, those relating to persons who are ultimately acquitted or against whom proceedings are not instituted or are discontinued, cannot be indefinitely held. Just last week, the Crime and Security Bill 2009 was introduced in the UK, containing a proposed time limit of 6 years for the retention of DNA profiles of persons in this latter category. After 6 years all such profiles would have to be destroyed.

In Ireland, under the Criminal Justice (Forensic Evidence) Act 1990, as amended by the Criminal Justice Act 2006, bodily samples and any information drawn therefrom (e.g. DNA profiles) must be destroyed at the expiration of 12months from the taking of such samples if proceedings are not instituted against the relevant suspect and the failure to institute the proceedings within that period is not due to the fact that he has absconded or cannot be found. If proceedings are instituted within 12 months and the suspect is thereafter acquitted or discharged or the proceedings are discontinued, the relevant samples or record of information drawn from such samples must be destroyed within 21 days. This is much more restrictive in terms of time limits than the proposed legislation put forward at present in the UK.

The Irish experience of the taking and use of DNA evidence has not been without its controversies, nonetheless. One recent case which examined some relevant issues was People (DPP) v Boyce [2005] I.E.C.C.A. 143; [2008] IESC 62. The accused in this case was convicted in the Central Criminal Court of six counts of rape, attempted rape, indecent assault or sexual assault. A question arose as to the manner in which a blood sample had been taken from the accused in the pre-trial period and as to whether or not such a sample could be taken with the consent of the accused, outside of the statutory requirements of the Criminal Justice (Forensic Evidence) Act 1990. The defence argued that where a person was arrested on suspicion of the commission of an offence under legislation to which the 1990 Act applied, then the statutory regime had to be followed. Both the Court of Criminal Appeal and the Supreme Court, however, held that the 1990 Act was an addition to the common law power to take samples with consent, not a replacement for that power. Therefore, it was held that where there is consent to the taking of a sample (a blood sample in this case, but presumably the principle applies equally to other bodily samples) there is no need to satisfy the requirements of the 1990 Act.

Fennelly J., dissenting in the Supreme Court was of the opinion that the notion that the carefully thought-out scheme within the 1990 Act could be set at nought was “absurd”. Writing elsewhere, Michael O’Higgins SC has suggested that this was

an example of a case where one might have said, was the Supreme Court going to stand up and be counted, by saying that the 1990 Act was passed for a very good reason, but that it had been circumvented.

It seems it was not.

Another controversy in forensic sampling in Ireland relates to the use which can be made of forensic material which has been unlawfully retained and ought to have been destroyed. This arose in the case of DPP (Walsh) v Cash, which is currently before the Supreme Court and was previously highlighted on this blog here. It concerns fingerprint evidence which ought to have been destroyed but was in fact kept on the Garda Technical Bureau database. The fingerprint was used to identify a suspect in a burglary which subsequently occurred and he was arrested and fingerprinted again. The current appeal relates to whether or not the unlawful, and possibly unconstitutional, retention of the fingerprints ought to have led to the exclusion of all other evidence subsequently gathered in the case. In the High Court, Charleton J. held that the evidence was correctly admitted at trial and that

evidence resulting from a detention based upon a suspicion that cannot be proved as being founded entirely upon evidence lawfully obtained is not, for that reason, made unlawful.

It remains to be seen whether the Supreme Court will be of the same opinion.

Returning to the report of the HGC in the UK, that body has suggested that there is need for greater clarity as to when it is appropriate to take a DNA sample from arrested persons. Such clarity may well be of benefit in the Irish context too. More generally it seems clear that all jurisdictions which operate DNA databases ought to be aware of the dangers of function creep and the potential impact which the use of such databases can have on the exercise of police discretion.

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