Legal aspects of DNA profiling

DNA SYMPOSIUM

Legal aspects of DNA profiling A GRUBB "The greatest dangers to liberty lurk in insidious encroachment by men of zeal, well-meaning but without understanding". [I]

Introduction These words of Louis Brandeis, one of America's greatest judges in the 20th century, were spoken in 1928. He alerts us to the dangers that societies face due to the effects of Government intrusion into the lives of the ordinary citizenry of the State. If they were worth reflecting on in 1928, it seems clear beyond a peradventure that we should take them seriously today, 65 years later, as the State's involvement in, and technological ability to intrude into, our lives is ever increasing. There are numerous examples which we could take where the liberty of individuals may be compromised by Government action. These call for careful public examination lest individual liberty should be unreasonably affected in the cause of preventing or detecting crime, for example, through telephone tapping and in the arrest and detention of suspected criminals. However, my brief is with the dangers that exist in the collection, storage and use of genetic information such as DNA profiles for use in the detection and prevention of crime. The prevention and detection of crime is most obviously a valid, indeed necessary, societal goal. However, rarely will it be attainable without some infringement of individual liberty. It is, of course, the potential threat to this most precious and venerable of human rights-that of individual liberty-which should put us on our guard against the unchecked development of DNA profiling and DNA databases (by which I mean stored DNA profiles) or databanks, (by which I mean the storage of other genetic information or the sample of human material itself). As long ago as 1890, Louis Brandeis, along with his then law partner, Samuel Warren, encapsulated the essence of the liberty right in a seminal Harvard Law Review article as "the right to be let alone" [2]. The right--described by Brandeis J (as he became) as the "most valued by civilised man"-is widely recognized throughout the world. As a general right it is

recognized in section 7 of the Canadian Charter of Rights and Fundamental Freedoms as part of the "right to life, liberty and security of the person" and in the jurisprudence of the US S u p r ~ m eCourt, for example, in Griswold v Connecticut in 1965 [3], in which Justice Douglas spoke of the "zone of privacy" created by the Constitution protecting individuals from unwarranted Government intrusion. More specifically, in the area of law enforcement the right is recognized in section 8 of the Canadian Charter and the Fourth amendment of the US Bill of Rights which prohibit "unreasonable searches and seizures". Closer to home, the right to be "let alone" is enshrined in the European Convention on Human Rights and Fundamental Freedoms [4]. In particular, article 5(1) guarantees "the right to liberty and security of the person" and article 8(1) states that "[elveryone has the right to respect for his family life, his home and his correspondence". But, equally (and importantly), article 8(2) goes on to permit an interference with this latter right if it "is in accordance with the law and is necessary in a democratic society", inter alia, "for public safety o r . . . for the prevention of crime". There is, therefore, a tension between the need to prevent or detect crime, and the rights of individuals (whether suspects or others) to respect for their individual liberty or privacy. Striking the appropriate balance between these two countervailing factors will determine the propriety of the methods of collecting DNA profiles and of their storage and use. As a concluding introductory remark, it is worth noting that the burden is upon those who assert the State's interest in any particular situation to establish that this outweighs the "right" of the individual. There is a danger that we should be aware of: namely that the "spooky" nature of DNA information and the mystic that surrounds access to, and control of, genetic information, may fool us into thinking that a special set of problems arise here. It may be that the current developments do not give rise to any greater concerns than exist already in the collection and use of fingerprints as a forensic tool for identification. Having said that, however, future developments with DNA profiling will probably raise new and greater concerns for individual liberty. JFSS 1993; 33(4): 228-233

DNA profiling The first reported use of DNA profiling to obtain the conviction of a criminal was a rape case in 1987, where DNA profiling matched a semen stain on the victim's clothing with the defendant [5]. Its first use, however, seems to have been in 1986 when it resulted in the exoneration of a suspected rapist and murderer (R v Pitchfork and Kelly, discussed in [6]). It is now a well established scientific procedure as a forensic tool to link (or not, as the case may be) by identification an individual with a victim, the scene of a crime or a piece of real evidence, such as a knife, used in the crime. Other forensic uses include identification of relationship in paternity and immigration cases [7]. There have been problems recently with the use of the results of profiling in criminal courts in England [8,9]. I do not propose to dwell on this aspect of DNA profiling other than to make a few brief remarks. First, the admissibility of this evidence is also being challenged with increased success in other countries, for example, in America [lo, 111 and Canada [12]. There, the courts have, on the whole, excluded the evidence where there was inadequate quality control. By contrast in the English cases, as I understand it, the courts have excluded DNA profiling evidence on a different ground, namely that the statistical basis for the conclusions drawn from the hard evidence of the profile may not sufficiently take account of ethnic or other groups within the population. This has also happened elsewhere, for example, in America. In Commonwealth v Breadmore, [ I 11, the court zxcluded DNA profiling evidence because the supporting statistical evidence of DNA profile frequencies within the population was not established. No doubt both of these problems can be overcome in the future. Secondly, the reliability and accuracy of DNA profiling is relevant to two issues: whether it should be done at all and, also, whether profiles should be stored for use in future cases. Only if the evidence is reliable and is accurate and there is adequate quality control, should we contemplate the intrusions of liberty that flow from DNA profiling and storage of the resulting information. The development of databases containing the DNA profiles of individuals perhaps first attracted widespread public attention in late 1991 with the case of Roy Williams. H e had been questioned during a murder enquiry in 1988 but cleared of any involvement. He subsequently believed that his DNA profile derived from a sample he had volunteered for analysis was on the Metropolitan Police's computer database of DNA profiles [13, 141. After Liberty, the civil rights organization, had JFSS 1993; 33(4): 228-333

indicated their intention to challenge the storage of his DNA profile as a breach of article 8 of the European Convention, it was discovered that his profile was not stored, and the case was dropped. The case, nevertheless, raised the public's consciousness about the collection and use of DNA profiling evidence for forensic use in criminal cases. World-wide concerns have been expressed about the civil liberty aspects of this. In December 1991, a working group of the European Community recommended that a Code of Practice be developed for the procurement, storage and destruction of biological samples and DNA profiles [15]. Subsequently, in February 1992, the Council of Europe adopted just such a Code [16].

The areas of concern It seems to me that there are two main areas to consider: the taking or collection of samples for testing; and the storage and use of samples and profiles. Taking or collection of samples DNA profiling requires the taking of a sample of biological material from the suspect or individual whom it is sought to exclude from the criminal inquiry. The evidence may be sought from elsewhere also, for example, an existing confidential record or sample; this would be "excluded material" under section 11 (and 12) of The Police and Criminal Evidence Act 1984 (PACE) [17], and hence access could only be obtained if the strict conditions laid down in Schedule 1 of PACE were complied with. It is sometimes suggested that a sample could be obtained by a trick (e.g., urine taken when the defendant goes to the lavatory). Such evidence would be admissible but the judge would have a discretion to exclude it under section 78 of PACE [18]. More generally, however, what restrictions should be placed upon the taking of a biological sample? Sometimes, of course, this will not involve the biological material of the suspect, for example, where skin (believed to be that of the victim) is taken from under the nails of the suspect. But in many cases it will involve the taking of blood or a mouth swab. As with any interference with the body of a suspect by the police, all civilized societies need to regulate and place limits upon such interference to protect the suspect from, in the language of the North American Constitutions, "unreasonable searches and seizures". To fail to do so, or to do so inadequately, would undoubtedly be an infringement of article 8 of the European Convention. Any interference mast, so as to be legitimate under the jurisprudence of the European Court of Human Rights, be "necessary", "proportionate" and the result of a pressing social need [4,19].

If we consider the provisions of PACE which applies to England, Wales and (with some important modifications) Northern Ireland-but not Scotland [20], we see the balance that Parliament has struck between the individual suspect's liberty or privacy interest and the need to prevent or detect crime [21]. In essence, PACE distinguishes between the taking of "intimate samples" and "non-intimate samples". Intimate samples are defined in section 65 as "a sample of blood, semen or any other tissue, fluid, urine, saliva or pubic hair, or a swab taken from a person's body orifice". By contrast, a non-intimate sample includes any hair (other than pubic), a sample taken from a nail or a swab taken from any part of a person's body other than a body orifice. As will be clear, often an intimate body sample will be required for a DNA profile. However, these samples may only be taken if two conditions set out in section 62 of the Act are satisfied: first that the suspect gives his written consent and secondly, that an officer of the rank of superintendent or above has reasonable grounds for suspecting the individual as being involved in a "serious arrestable offence" [22] and for believing that the sample "will tend to confirm or disprove [the suspect's] involvement". In addition, the suspect must be informed of the grant of authorization, the grounds for giving it and the nature of the offence suspected, and these matters must be recorded. Samples other than urine or saliva must be taken by a doctor [23,24]. A non-intimate sample, on the other hand, may, under the terms of section 63 of the Act, be taken if the second condition is satisfied even if the suspect does not consent. As a result, invasive sampling requires the consent of the suspect. O n the face of it, this presents an impediment to obtaining material for DNA profiling because it has been said that "[gliven current testing techniques, most of the samples available under section 63 do not yield material suitable for DNA analysis" [25]. The balance is, I would suggest, rightly struck in favour of the protection of the privacy of a suspect. The Act seeks in section 62(10) to provide some compensation for the veto power of the suspect by allowing a court to draw an inference from a refusal to consent to a sample being taken where it is "without good cause" and allowing it to be some evidence by way of corroboration against the suspect in a subsequent trial for the suspected offence. It should be noted at this stage that the conditions for obtaining intimate samples are stricter than those that

pertain for obtaining a suspect's fingerprints under section 61 of the Act. These may be taken without consent in the same circumstances as the consent of a suspect may be dispensed with for the taking of a non-intimate sample. Probably, this regime strikes a proper balance between the needs of society and the rights of the suspect. What would be more troubling would be a regime which permitted the taking of body samples which involved intrusive measures without the consent of the suspect. This would, I think, raise questions about compatibility with the European Convention. When 1984 Act provisions were applied to Northern Ireland in 1989 [26,27], Parliament shifted samples taken from a suspect mouth or a sample of saliva from the category of intimate samples into the category of non-intimate samples [26,27]. The effect of this is that in Northern Ireland, but not in England and Wales, a mouth swab may be taken by force providing a senior officer is satisfied of the conditions in section 63 [28]. This was specifically enacted to deal with recalcitrant terrorists trained in techniques of resisting and frustrating interrogation [29]. But, of course, the provisions in Northern Ireland are of general application even if it is assumed that more draconian powers are needed for terrorist cases. Further, of course, there is the real risk that pressure will mount to extend the Northern Ireland provisions to England and Wales [29]. Arguably, as a result, these provisions infringe article 8 of the European Convention since they would not be seen by the European Court as falling within the exception in article 8(2) of being "necessary in a democratic society.. .for the prevention of crime". Remember, the intervention may be authorized by a senior police officer. It is arguable that invasive sampling without consent is only justified if authorized by an independent judicial body, for example, by the issue of a warrant by a magistrate. After all, there is no risk of the suspect destroying the evidence whilst a warrant is sought. Certainly, this conclusion is consistent with the experience in America and Canada when the courts have interpreted these countries' constitutional prohibition on "unreasonable searches and seizures" [30]. The main argument against this view is that the very same attack can be made against the fingerprint provisions in section 61 of PACE. By way of response, however, the degree of intrusiveness in taking, for example, a mouth swab by force would, in my view, distinguish it sufficiently from the taking of fingerprints by force. The need for a judicially issued warrant for the taking of body samples was JFSS 1993; 33(4): 228-233

recommended in a Report of the Canadian Law Commission in 1991 [31]. Before I move on to consider storage and use, I would like to consider two final situations which could arise in the future. First, it has been suggested by some, including the Home Affairs Committee of the House of Commons in 1990, that a database of DNA profiles of the general population (or of all males) should be created, as this would facilitate the detection of criminals. At present such a scheme would require legislation for its creation since no one could be forced to provide a sample for DNA profiling. However, in my view, such legislation would not survive a challenge in Strasbourg. Albeit that some benefit to society can be seen from such a scheme, given its arbitrary interference with individual liberty I would not expect the European Court to find it as either "necessary" or "proportionate" under article 8(2) of the Convention. Legislation of this breadth would not conceivably pass constitutional muster in Canada or the United States of America [30]. Secondly, a more limited source of DNA profiles might be all convicted criminals as, in essence, is the case with fingerprint evidence. There is less difficulty here as the State could show a legitimate interest in preventing further crime at least where the offences were of a type that might be committed again. Routine taking (and storage) of convicted criminals' DNA profiles occurs in some American jurisdictions, for example, in California, Colorado and Virginia [32]. On the whole, however, compulsory taking is restricted to sex offenders and violent criminals. Subject to adequate controls and access and use of such information, I see no overreaching civil liberties difficulties with this restricted development [33]. Storage and use Here, we see problems relating to control and access and the privacy issues raised by misuse and inappropriate access to DNA profiles. Currently, as I understand it, the practice is only to store DNA profiles of convicted criminals, those awaiting trial and so-called "open-case" profiles from unresolved crimes. Given the limited identifying evidence contained in the DNA profile bar-code, this practice does not seem to be objectionable as a reasonable societal response to prevent and detect future crime: it is "necessary in a democratic society. . . for the prevention of crime". Indeed, can it be distinguished from the well accepted practice of storing fingerprints? I doubt it. JFSS 1993; 33(4): 228-333

Could the database be expanded to include the profiles of others? Of course, the samples would need to be obtained first and I have already dealt with that issue. Here, I am concerned more with the propriety of retaining, for example, the profiles of acquitted criminals, excluded suspects and others. PACE contains a curious twist in this regard. In respect of fingerprints, section 64 (introduced in 1988) requires that these and any copies must be destroyed unless a suspect is convicted of an offence or admits the offence and is cautioned "as soon as is practicable". The same requirement of destruction applies in respect of fingerprints taken from a person who is not suspected of an offence, e.g., a householder who provides his fingerprints to exclude himself during a burglary investigation. Similar provisions apply in relation to samples taken for, inter alia, DNA profiling. However, these provisions do not extend to the DNA profile itself, since this is distinct from the sample tested and the Act does not cover the product of the sample, namely the DNA profile. This is curious and quite unjustifiable. At the time the 1984 Act was passed, Parliament can be excused from not having dealt with the particular problem of DNA profiling, since it was not in use at that time. But, the destruction provisions were, in fact, added in 1988 by the Criminal Justice Act of that year. The explanation for the oversight is not, therefore, clear. A practice of retaining DNA profiles in situations where PACE requires the destruction of a fingerprint is, in my view, wholly unjustified. I understand that the practice is to follow the spirit of the provisions applicable to fingerprints. This should be enshrined in the law, and in England PACE should be amended to this effect. Both the Council of Europe in its 1992 Recommendations and the Privacy Commissioner of Canada in his Report (also of 1992) strongly oppose the storage of DNA profiles except in the case of individuals who have been convicted of serious offences or in "open case" situations, unless the individual has consented. What are the dangers for individuals' civil liberties if expanded databases are introduced? The answer primarily lies in two matters: control of access and use of the stored information. Once the DNA profiles are stored on a centralized computer, they may be used for the detection and prevention of crime. Nevertheless, access by others and unauthorized use (i.e., for any other purpose) must be prevented. As the Council of Europe Recommendations make clear-the data protection principles set out in the Data Protection Act 1984 must be observed.

What then of the future [32]? A number of possibilities exist which raise concerns. We have already seen the suggestion of a general population database. What would be the effect of such a database? Would it be any different from a universal fingerprint database or a national identity card scheme? As regards fingerprinting, there is a difference. An individual's genetic code is unique but a DNA profile may not be, since it represents an inaccurate representation of the individual's genetic code. A random search for a suspect against a national database would, in all probability, produce a number of suspects; perhaps as many as 10 to 20 matches against the incriminating DNA profile. These "suspects" would not, through any action of their own, have made themselves suspects. Their status would derive solely from the fact that their DNA profile was entered upon the computer database. There is, therefore, a very real danger that a number of innocent members of society would be required to explain why they were not the criminal by, for example, providing an alibi or some such other exculpatory evidence. What, in these circumstances, has happened to the presumption of innocence in English and Scottish law? Is there really compelling evidence that a population database would be so beneficial as to outweigh the interference with the innocent "suspect's" privacy? Perhaps not. This problem will be overcome when the DNA profiling techniques allow for the production of a unique DNA profile. The use of multiple single locus probes and digital indexing of sequences appear to offer this potential. There are other possible extensions of the current database. What if the information stored contained other genetic information going beyond the current identifying information stored in a bar-code? I have in mind the possibility one day of recording information which would, perhaps, relate to ethnicity, a pre-disposition to develop disease, or show that the individual was a carrier of a disease or would develop a condition in the future, for example, Huntington's Chorea. This type of personal information is incredibly sensitive. The implications for insurance and employment purposes have been well documented in studies considering the implications of the Human Genome Initiative. Others may, therefore, seek the stored personal information. An essential protection before such information could be stored would be adequate access security provisions and limited (perhaps no) use outside the law enforcement process. I would go further, however. Given the

sensitive nature of genetic information, perhaps, since such information is likely to be of marginal law enforcement benefit, it should not, if available, be stored on the database. It may be misused or misunderstood by the general public. As one commentator has put it, "[s]ymbolically, keeping criminally relevant records by ethnicity and race may contribute to a perception that such categories are important, even causal, factors in criminal behavior. . . experience with mistreatment of ethnic groups in the past should make us cautious about assembling information that could lend itself to such misuse". [34]. The association believed by some in the 1960s and 1970s to exist between the XYY combination of chromosomes and criminal or antisocial behaviour should remind us that the dangers of misusing genetic information is a real concern. Prudence in a concern for individual privacy means that the minimum necessary amount of information to further legitimate law enforcement functions should be stored on the database. The recommendations of the Canadian Privacy Commissioner and the Council of Europe in its Draft Code is to seek to limit stored information to identifying information only. These fears should also prevent the development of a genetic databank of actual samples as seems to have occurred in California. Certainly, such storage would have no immediate law enforcement aim beyond that achieved by storage of DNA profiles. It would, on the other hand, provide a ready sample for testing and determining other genetic information about the individual. There are, so far as I am aware, no plans to store samples in Britain. In my view, such a development would be wholly unwarranted and create dangers for individual civil liberties which would be difficult to overcome.

Conclusion DNA profiling has already proved its worth in the detection of crime [35], but the collection of DNA profiles is not without its costs for the infringement of individual privacy. The world-wide trend seems to be to consider DNA profiling as raising novel problems for law not faced elsewhere, for example, in the collection and storage of fingerprints. On the whole, at present, this may be an over-reaction. Nevertheless, the disquiet expressed widely is reflected in the Council of Europe's call for national codes, perhaps legislation, to regulate DNA databases. Public anxiety is undoubtedly engendered by the use of DNA technology. Formal regulation seems a necessary part JFSS 1993; 33(4): 228-233

of the protection of our (particularly suspects) civil liberties and will help to prevent what Louis Brandeis, it will be recalled, called the "insidious encroachment" on our liberty [I].

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