Matching genes for criminal injustice

Next week, the Nuffield council on Bioethics is set to publish its thoughts on the ethics of using biometrics as forensic tools. In the lead up to the publication of the report, to be entitled The Forensic Use of Bioinformation: Ethical Issues, the debate about the use of DNA, particularly, has intensified.

At the close of The Jill Dando Institute of Crime Science's summer conference on International Crime Science, Tony Lake, Chief Constable of Lincolnshire and Chair of the DNA Board, made his case. He was addressing an audience of entrepreneurial scientists, security minded criminologists and policy advisors from the Home Office and Homeland Security Department who had congregated in the bowels of the British Library.

The police, he explained, obtained 3,000 DNA matches a month (he began by claiming 3,000 matches a day, which we will charitably attribute to a slip of the tongue), the implication being that the database is providing valuable leads in the pursuit of evil doers across the country. But in response to a question from The Register, Lake admitted that the figure included innocent matches.

Such matches result in police investigations of innocent citizens like David Atkinson, who was arrested on suspicion of breaking into a postbox when his biometrics were found inside it.

Atkinson refused to accept a police caution for the offence and subsequent inquiries revealed that the biometrics were on Christmas cards Atkinson had dropped in the ill-fated post-box. His biometrics had been obtained when he was arrested for an offence for which he was later shown to be innocent and never prosecuted; but they were retained on the DNA database in accordance with recent laws.

It is against this background that the public is being asked to debate the extension of the DNA database to include all the citizens of what has already been described as a ‘nation of suspects’.

As criminal justice principles, like the presumption of innocence, hold little sway in a surveillance society regulated by the mantra of ‘nothing to hide, nothing to fear’, what beacons of guidance is the British government providing us with for debating this issue?

The Government has informed the public that on the one hand, extending the database "raises civil liberty concerns" and on the other that DNA matches help the police to solve crimes. It sounds like a difficult dilemma.

The Home Office was unable to provide any statistics for the number of investigations instigated by a DNA match in which the suspect was subsequently cleared or any statistics for the number prosecutions instigated by a DNA match which resulted in acquittal. This makes the debate on the extension of the DNA database a difficult balancing exercise.

Lord Justice Sedley has fuelled calls for the DNA extension to ameliorate the injustice currently being inflicted on those whose data is retained on the database by exposing every citizen to the same level of risk of being investigated for a crime they didn’t commit. Professor Ben Bowling points out that the same argument could be made for other coercive measures, like police powers of stop and search.

What happened to the criminal justice paradigm of retaining forensics from crime scenes and requiring personal data from suspects rather than citizens? A nationwide DNA database will facilitate police fishing expeditions. While placing all of us in the fishbowl might seem more equitable than filling it with the usual suspects, it's a far cry from the lofty ideals of a society that values the presumption of innocence. ®

Amber Marks is a barrister. She is undertaking doctoral research into olfactory surveillance with the Law Department and Forensic Science and Drug Monitoring Unit at King's College, London.