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DNA victory puts issue of crime and human rights under the microscope
With calls for the delete button to be pressed on the DNA samples of a million innocent people, Sarah Freeman asks is the case of two Sheffield men a victory for human rights or the launch of a villains' charter?
In 2001, there was nothing particularly newsworthy about the arrest of Michael Marper. Seven years on and the case has left the country's DNA database in chaos and put police forces on a collision course with human rights lawyers.
Mr Marper, now 45, from Sheffield, had been charged with harassing his partner, but three months later, the couple were reconciled, the case was dropped and that should have been the end of the matter.
But despite Mr Marper having had no previous convictions, the police, having gone to all the bother of taking a DNA sample, decided, as they were legally allowed to do, that it should be kept on a national database for future reference.
The sample joined the DNA fingerprints of almost a million other individuals who had either been acquitted or released without charge.
To Mr Marper, the move appeared in conflict with the fundamental principle of innocent until proven guilty, and yesterday, after hearing details of his case and that of 19-year-old, also from Sheffield, who was cleared of attempted robbery, the European Court of Human Rights agreed that it breached their right to a private life.
Unsurprisingly, the ruling, which could now see the whole database overhauled, was heralded as a victory for commonsense and civil rights. Others let some stark figures do the talking. Since 2004, 53 murders, 33 attempted murders and 94 rapes have been detected through samples that, under
the Marper ruling, would have been destroyed.
"This is difficult decision," says human rights lawyer Simon McKay, of McKay Law, in Leeds. "The ruling is undoubtedly a correct interpretation of the law, but it will inevitably lead to calls that the Human Rights Convention is a villains' charter. In reality, whichever side of the fence you are on, it is a sad day for English law, which has been found lacking."
The source of the current mess, which affects one in five samples on the database, can be traced back to 2001.
Two men arrested but never charged for minor offences had their DNA kept on file. The samples were later matched
to murder and a rape, but when the Court of Appeal ruled that
the information could not be used as it should have been destroyed, the ensuing outrage led to a quick change in the existing law.
"No-one wants to see criminals get off scot free, and in an attempt to stem a flood of similar cases, Chief Constables were given the power to determine whether someone's DNA should be destroyed or not," says Mr McKay.
"Given the green light, most forces kept every sample they took, there was very little deliberation. I have had three clients challenge their inclusion on the database. They have all been successful, but it wasn't easy. It took some reasonably forceful correspondence to get the relevant forces to change their mind.
"It was a complete knee-jerk reaction by the Government and the really unfortunate thing is that the amendment to the Police and Criminal Evidence Act could have been drafted so that it met human rights regulations. Sadly, it was rushed through without sufficient consultation and that is what has led to the unfortunate set of circumstances we find ourselves in today."
The Marper case was debated in the House of Lords and the Court of Appeal before it reached the European Court of Human Rights. Some, including Home Secretary Jacqui Smith, expressed disappointment.
The Government is now "carefully considering" the verdict before deciding what action to take, but with DNA fingerprinting, introduced 13 years ago, now resulting in more than 3,500 matches a month, it is understandably keen to avoid any adverse effect on conviction rates.
Meanwhile, solicitors are now preparing for an influx of calls from other innocent members of the public seeking compensation.
"I really struggle to comprehend how the Home Secretary was so surprised when it was her Government who drafted the original amendment," says Mr McKay. "While it will inevitably be seen as a victory for human rights, in fact, it shows the perilous state of human rights in this country.
"It has thrown the whole system into chaos and if we are not careful, it could leave the database in complete meltdown."
Currently holding the details of 4.5 million people and 30,000 new samples each month, Britain has the largest DNA database in the world. The sheer number of samples has been one reason for its success, but it could also now be its downfall.
"We could soon be in the situation where one in five records could now have to be deleted," says Mr McKay. "It's a process which is likely to be time-consuming, costly and a logistical nightmare."
Whatever the fall-out of the Marper ruling, it is hoped
that after years of wrangling, it may ultimately lead to a uniformed approach to a vital crime-fighting tool.
"It's easy to say the only people who need to worry about their DNA being stored on a database are those who have something to hide," says Mr McKay.
"But that's simply not true. There is a stigma which comes with being included whether you have done anything wrong
or not.
"Also, a system where Chief Constables have to decide who stays and who goes, is open to abuse, even if it's subconscious. It's easy to see a situation where samples of white middle-class youths are not held because they are deemed to come from decent backgrounds, whereas black teenagers from broken homes end up staying on.
"The truth is that we are failing to legislate in a human rights compliant way. This Government introduced the Human Rights Act 1998 but has failed to embrace or understand what
a rights-based approach to law means.
"It is a grim day, not just in terms of the chaos the decision will cause but because the UK's human rights record has been struck a fundamental blow."
DATABASE DATE
At the end of September 2008, the National DNA Database contained computerised DNA profiles from approximately 4.7 million individuals, equivalent to more than 7 per cent of the UK population.
An estimated 925,385 individuals had their DNA profiles added to the database when they were under 18.
In 2007, Baroness Scotland confirmed to the Home Affairs Committee that three- quarters of the young black male population would soon be on the DNA database.
It has been estimated that under current laws, the database will expand to include 25 per cent of the adult male population and 7 per cent of adult women
In March this year, the total number of people with DNA profiles but with no police record of conviction, caution, formal warning or reprimand was estimated as 857,366.
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