The UK National DNA Database: Implementation of the Protection of Freedoms Act 2012

Abstract

In 2008, the European Court of Human Rights, in S and Marper v the United Kingdom, ruled that a retention regime that permits the indefinite retention of DNA records of both convicted and non-convicted ("innocent") individuals is disproportionate. The court noted that there was inadequate evidence to justify the retention of DNA records of the innocent. Since the Marper ruling, the laws governing the taking, use, and retention of forensic DNA in England and Wales have changed with the enactment of the Protection of Freedoms Act 2012 (PoFA). This Act, put briefly, permits the indefinite retention of DNA profiles of most convicted individuals and temporal retention for some first-time convicted minors and innocent individuals on the National DNA Database (NDNAD). The PoFA regime was implemented in October 2013. This paper examines ten post-implementation reports of the NDNAD Strategy Board (3), the NDNAD Ethics Group (3) and the Office of the Biometrics Commissioner (OBC) (4). Overall, the reports highlight a considerable improvement in the performance of the database, with a current match rate of 63.3%. Further, the new regime has strengthened the genetic privacy protection of UK citizens. The OBC reports detail implementation challenges ranging from technical, legal and procedural issues to sufficient understanding of the requirements of PoFA by police forces. Risks highlighted in these reports include the deletion of some "retainable" profiles, which could potentially lead to future crimes going undetected. A further risk is the illegal retention of some profiles from innocent individuals, which may lead to privacy issues and legal challenges. In conclusion, the PoFA regime appears to be working well, however, critical research is still needed to evaluate its overall efficacy compared to other retention regimes.

Trends in forensic DNA database: transnational exchange of DNA data

“…Firstly, it is the oldest national DNA database in the world. Between 2001 and 2013, the minimum threshold for indefinite inclusion on the NDNAD was an arrestee of a recordable offence [7]. This was in contrast to the legal system in most other EU countries, which restrict inclusion to mainly serious crime offenders and continuous retention to fixed periods [26].…”

“…Whilst databases may serve public security interests, they pose a significant threat to the civil liberties of individuals. Existing literature indicates concerns about privacy (including "function creep" and misuse of data), lack of data on the overall effectiveness of databases and public education gap about DNA databases [5][6][7][8][9][10].…”

DNA Databases and Big Data

“…However, the use of such databases raises diverse and complex ethical, social and political questions which, from our perspective, must be considered in the context of suitable involvement of various social actors: legislators, judicial operators, forensic experts, politicians (Machado & Silva, 2015a, 2015bWienroth, Morling, & Williams, 2014). Commentators from different professional fields and scientific disciplines have pointed out the need to consider that the use of forensic genetic databases should be conducted while considering ethical concerns and the need to respect fundamental human rights, such as freedom, autonomy, privacy, presumption of innocence and equality (Amankwaa & McCartney, 2018;Krimsky & Simoncelli, 2011;Van Camp & Dierickx, 2007). The most controversial ethical issues related to DNA databases for criminal investigation above all concern the criteria related to the selection of the DNA profiles to be included and to the collection, conservation, use and circulation of data.…”

The evolution, devolution and distribution of UK Biometric Imaginaries

“…Biometric governance at the national level such as in the UK presents no less significant complexities. McCartney and Amoako ( 2018 ) and Amankwaa and McCartney ( 2019 ) have drawn attention to the challenges facing relevant national-level agencies such as the Forensic Science Regulator and UK Biometrics Commissioner (McCartney and Amoako 2018 ; Amankwaa and McCartney 2019 ). These studies have focussed on individual commissioners and regulators, but national-level research has not yet considered these agencies in concert despite being framed as key to overseeing the Biometrics Strategy (see below).…”