Should the DNA of those suspected of a criminal offense be taken and retained?

Tues, December 16, 2008

Irish Times-Dublin, Ireland

HEAD TO HEAD DEBATE:Fine Gael justice spokesman Charles Flanagan says Yes, Tanya Ward of the Irish Council for Civil Liberties says No.

YES:

We need a DNA database to serve as a potent aspect of crime prevention , says CHARLES FLANAGAN.

IT WAS Edmond Locard, the Sherlock Holmes of France, who laid down the law that "every contact leaves a trace". He prophetically articulated this ostensibly simple principle long before DNA tracing was possible. He was, nonetheless, quite right.

Every contact leaves a trace, and it is a trace that can be immeasurably important in the vindication of the rights of victims. In this country in the past few years, we have seen people convicted of rapes and murders committed decades ago due to DNA links. Justice delayed, but justice nevertheless.

We need a DNA database that serves, not just to speedily and cost-effectively create links between crimes and criminals, but to serve as a potent aspect of crime prevention. Recent statistics in England and Wales show half of all police detections involved DNA evidence. What Ireland needs is a criminal DNA database that deters as well as detects.

To that end, practical and proven measures must be taken. It is a responsibility, not a choice. Fine Gael is in favour of the introduction of a criminal DNA database as a practical and proven measure to address crime. DNA material is already used on a case-by-case basis, usually successfully, to prove a suspect's innocence or guilt.

The victim should remain at the centre of all investigations and it is negligence not to avail fully of a facility that provides evidence that can drastically increase the likelihood of a conviction. Fine Gael would go further and seek DNA samples from suspects in certain serious crime investigations that could be retained for a period, possibly until a particular crime is solved. Indeed, inferences could be drawn from a refusal to provide such a sample as is the case in the right to silence. The ultimate objective must be to establish a criminal DNA database that is as comprehensive as a fingerprint database, allowing instant cross-referencing when a crime is committed in which DNA traces are identified.

The need for a comprehensive criminal database is reinforced by the fact that, in most European states, police forces have access to a database recording the DNA profile or genetic fingerprint of convicted sex offenders. No similar database exists in this State to assist the Garda in a serious investigation.

The European Court of Human Rights recently ruled that keeping the DNA records of innocent citizens on a criminal register would breach the human rights convention. Although not strictly bound by the rulings of the court, the Government must carefully consider this judgment in advance of drafting legislation on a DNA database and ensure that any proposals are compliant with our Constitution and EU law.

Notwithstanding this recent ruling, there is a growing consensus that there are many benefits to be gained from DNA records.

The Irish Council for Civil Liberties has acknowledged the benefits of DNA technology in crime investigation. It is also essential that the collation of a DNA database would have to be rigorously policed to retain its credibility.

Imagine this: a rape or murder is committed. The Garda establishes a link between DNA left on the body and the genetic fingerprint of a key suspect. The case goes to court, but due to a technicality, does not result in a conviction. The European court says that keeping DNA material in such circumstances would carry "the risk of stigmatisation". How? The public cannot wander into a forensic science laboratory and make negative judgments against the owners of a sample. The consequence of such woolly thinking is that the presumption of innocence that demands the expunging of DNA from the records may grievously interfere with the possibility of its owner being convicted of a future offence. Another consequence is that the knowledge of their own impunity may empower them to commit such a crime.

Of course every citizen is innocent until proven guilty. Every citizen must live their life free of the assumption that they may commit a crime at some future point. But a balance must be struck between the rights of victims and the rights of suspects, and Fine Gael believes that, in recent years, this balance has tilted too far towards the rights of suspects.

Most civilised nations take measures to monitor convicted sex offenders following their release. Why? Because statistics prove the likelihood that a person who has, say, sexually abused a child is likely to do it again. If we apply the civil libertarian argument, we would not electronically tag or require such offenders to report to Garda stations once they'd served their sentence because we cannot presume their intention to commit a crime in the future.

It is essential we use all technological advances when attempting to solve crimes and that we legislate to make video evidence admissible in court as well as the use of overt and covert surveillance where appropriate. DNA databases are an advance we must capitalise on. • Charles Flanagan TD is Fine Gael spokesman on justice.

NO:

Sweeping up the innocent with the guilty does not fight crime, says Tanya Ward.

THE INDEFINITE retention of DNA profiles of people suspected but not convicted of offences is unnecessary and interferes with the right to respect for privacy. Last year, the Government published legislative proposals to establish a DNA database to aid criminal investigations. The Government proposed to retain biological samples from convicted criminals together with DNA from persons arrested but not convicted of a crime. This was apparently inspired by the system in England and Wales, where DNA samples are retained from anyone arrested for a recordable offence. In a new development, the European Court of Human Rights ruled this month that the English and Welsh system was in breach of the right to privacy.

DNA profiling was first developed in the 1980s and scientists soon pioneered techniques enabling them to generate a profile based on unique parts of a person's DNA molecule. DNA profiling is used in criminal investigations to establish the presence of a suspect at a crime scene.

Investigators will usually seek DNA samples from a suspect's bodily fluids or hair and compare them with "stains" from the scene.

DNA has been used to solve some "cold cases", most notably that of Phyllis Murphy, a Kildare woman who was raped and murdered in 1979. John Crerar was convicted of this crime after volunteering for a mass DNA screening of potential suspects in 2001. DNA has also been used to resolve miscarriages of justice. The US-based Innocence Project has relied upon DNA to exonerate over 200 people who have been wrongly accused by proving they were never at the crime scene.

Despite these positive outcomes, there are limits to DNA technology. DNA can rarely be used by itself to convict without other evidence and profiles cannot be developed if a sample is incomplete. Identification can also be difficult if a scene has been contaminated.

The English and Welsh DNA database holds profiles from almost 6 per cent of the jurisdiction's population. Campaigners are critical of this system as DNA is only relevant to a small number of violent crimes and yet the database holds profiles from 850,000 innocent people, including 200,000 children.

Another concern relates to how DNA information could be exploited. Scientists are discovering genes identifying a predisposition to cancer, Alzheimer's and inherited diseases. Imagine how banks and insurers could use this information when deciding to issue mortgages and life insurance.

The English and Welsh laws on DNA retention have been scrutinised by the European Court of Human Rights in the S and Marper judgment. This challenge was taken by "S" who was 12 when he was charged with attempted robbery in 2001, but later cleared.

Michael Marper, also a party to the case, was charged with harassing his partner in 2001 but the case was later dropped when they reconciled. Both men subsequently asked for their fingerprints and DNA profiles to be destroyed, but south Yorkshire police refused and stated the samples would be retained "to aid criminal investigation". The applicants complained to the courts that their right to respect for privacy under Article 8 of the European Convention on Human Rights was breached. They appealed a negative decision from the House of Lords to Strasbourg.

The European court rejects the claim that sweeping up the innocent with the guilty is necessary to fight crime. Distinguishing between the retention of fingerprints and DNA, it notes DNA contains much more sensitive information.

The court contrasted England and Wales to other European countries, including Ireland, where taking DNA information in criminal cases is limited to special circumstances or more serious crimes. The court was also struck by the "blanket and indiscriminate nature" of the power of retention in England and Wales and compared it with Scotland, where samples are retained for three years only in relation to violent or sexual offences.

The UK government argued for the retention of the current system by providing statistics demonstrating matches from profiles of innocent people to specific crimes scenes. While the court accepted the evidence, it questioned whether these matches could have been made through other means or led to higher conviction rates. Nothing is more personal or private than a person's genetic make-up and the court was unconvinced that retaining innocent people's DNA indefinitely was justifiable, or could be regarded as necessary in a democratic society.

The ECHR Act 2003 requires the Government to carry out its functions in a manner compatible with the convention. This means the Government will have to rethink its proposals on indefinite retention of the DNA of innocent people. As the court made clear, innocent people are entitled to be treated differently from convicted people.

• Tanya Ward is deputy director of the Irish Council for Civil Liberties and a PhD candidate at the school of social justice, University College Dublin.