Northern Ireland’s DNA Database Proposals: A Risk or Rights Based Approach

This post comes from David O’Dwyer, a PhD student at the University of Limerick, funded by the IRCHSS, who is conducting a human rights analysis of the growing phenomenon of DNA Databases. Here David considers recent proposals for the Northern Ireland database.

In March 2011, the Northern Ireland Department of Justice released a Consultation on Proposals for the Retention and Destruction of Fingerprints and DNA in Northern Ireland. The Consultation paper outlines the proposed amendments to the law in response to the S & Marper v UK judgement by the European Court of Human Rights (ECtHR). In that case, while the ECtHR agreed that the retention of fingerprint and DNA data pursued a legitimate aim, namely the detection and prevention of crime, it held that the blanket policy of indefinite retention operated in England, Wales and Northern Ireland was disproportionate in a democratic society and could not be justified under Art 8(2) of the ECHR; the right to privacy.  The challenge as recognised by the Northern Ireland report then, is

“to develop a framework in terms of protecting individual freedom whilst retaining as far as possible the benefits to collective security that the existing indefinite retention policy offers”.

The ECtHR referred specifically to the retention model in Scotland as a positive solution to the retention issue. The ‘Scottish model’ allows police to retain fingerprints and DNA from persons who have been charged, but not convicted, or serious violent or sexual offences for a period of three years with further extensions of two years on application to a court.

Given the promotion of the Scottish model by the ECtHR it is of little surprise that the Northern Irish proposals are “closely aligned” with the model in Scotland. The consultation proposal proposes the indefinite retention of all adults convicted of a recordable offence and retention of fingerprints and DNA profile from a person charged, but not convicted, of a serious offence for a period of three years, with an extension of two years available to the courts.

The proposal also places a strong emphasis on differentiating between adults and juveniles, echoing the ECtHR concerns about the potential stigmatising effect that biometric retention may have on a minor. Thereby it recommends a three year retention period for juveniles charged, but not convicted, for serious offences which may be extended for a further two years on application to a court. Juveniles convicted of minor offences will be exempt from retention on one occasion (a second conviction will result in indefinite retention); a juvenile convicted of a serious offence will result in indefinite retention.

In addition, the Chief Constable will have the ability to extend retention of any material, obtained under PACE and terrorism legislation, by periods of two years for the purposes of national security. Under devolution, national security remains an excepted matter in the legislative process and is the responsibility of the Westminster Government. Therefore it is important to note the relevant amendments in the proposed Protections of Freedom Bill (see discussion here & here). The proposed changes will still attempt to utilise the DNA database and the allure of the ‘cold hit’ (where a DNA profile is speculatively entered on the database and locates a ‘match’ of a previously unsuspected individual. The practice has produced a number of spectacular success stories in recent years, including the cases of Jennifer Schuett, Sally Ann Bowman, Katie Sepich and Teresa Cormack.)

The difficulty with the DNA debate, similar to most issues which engage human rights, is that “two archetypically opposed” viewpoints habitually come to the fore; namely, ‘Camp Enthusiastic’ and ‘Camp Hostile’. Those pitching their tent in ‘Camp Enthusiastic’ argue for wide DNA sampling powers and lengthy retention periods i.e. as large a database as possible. Those shaking their heads over in ‘Camp Hostile’, cite the significant civil liberty and due process concerns inherent in the collection and retention of our ‘blue print to life’. The difficulty is that during any debate on the issue we inevitably become bogged down in trench warfare between the two camps. To locate an appropriate middle ground we need to avoid the use of rhetoric and engage with the public in an open, transparent and dispassionate debate. In small countries with relatively low crime rates is a database actually of substantial benefit or given the currently restrained financial climate might resources may be better directed elsewhere. Added to this the sucess of databases can be conflated but recent analysis highlights that in the UK in 2004-05 DNA was only involved in 0.35% of recorded crime cases in the same year.

The proposed framework is similar to the proposed amendments in England and Wales under the Freedom Bill. Both draw heavily on the ‘Scottish model’ in an attempt to reduce the number of non-convicted individuals retained on the database, drawing the line at those charged with a serious, violent or sexual offence. However, while this ‘Scottish model’ has found favour with the ECtHR (and others such as the Nuffield Council of Bioethics) the logic behind this retention principle is not entirely clear. It has been subject to recent criticism, as Ashworth & Redmayne observe the

“more serious offences tend to have lower recidivism rates than less serious ones, so in terms of risk of reoffending the Scottish policy might even be said to target the wrong people.”

While it is important to secure convictions of serious crimes, it does not automatically follow that those arrested and charged with serious crimes should have their rights and due process safeguards disregarded particularly if they are subsequently released, charges dropped or acquitted. One may suggest that we should be enhancing and rigorously defending the safeguards for those arrested for serious offences as in reality these individuals have considerable more to lose than those charged with lesser offences.

The main difficulty with the ‘Scottish model’ which is providing the foundation for the proposals in Northern Ireland, is that there is no clear reason why this ‘3 year retention period for those arrested for serious crime’ has been adopted. There is a paucity of research on the appropriate retention periods for DNA profiles of those arrested, never mind research indicating that 3 year retention of those arrested for serious crime is a suitable categorization. By accepting this rationale we unavoidably shift the debate towards one of risk as opposed to rights theory. If we accept that those who are arrested for serious crimes can have their rights denigrated on the ‘chance’ they may reoffend, then we have moved to a risk rationale. The concern is that this ‘risk rationale’ is being camouflaged by drawing the line at a serious offence. ‘Us’ (the law abiding citizens) see this line as effecting ‘them’ (the barbarians at the gate) by adopting a higher threshold of offence. Therefore it is submitted that we have two clear choices, either we adopt a risk focus or rights approach. If we are to allow risk discourse to dictate the DNA debate then we should openly do so, under such a scenario we need to revaluate and objectively analyse ‘who’ (in terms of risk) should be retained on the DNA database. If we are to focus on rights, then we need to accept that we will be under utilising-the potential of this powerful policing technique.