Irish Law Times
(2012) 30 ILT 83: Article: THE DNA DATABASE BILL 2010 — TIME FOR A REASSESSMENT? : Stephen
Donoghue* * Stephen Donoghue B.Sc., Ph.D., LL.B. is a former Harvard fellow with a background in
biotechnology and molecular pathology. He is currently studying to be a solicitor. — Page1
CRIMINAL
THE DNA DATABASE BILL 2010 — TIME FOR A REASSESSMENT?
Stephen Donoghue* [* Stephen Donoghue B.Sc., Ph.D., LL.B. is a former Harvard fellow
with a background in biotechnology and molecular pathology. He is currently studying to be
a solicitor. ]
The Criminal Justice (Forensic Evidence and DNA Database System) Bill was published by the
Department of Justice, Equality and Law Reform in 2010. [1] With the collapse of the last
government the Bill was shelved; however, recent legislative and court developments in the UK
suggest that certain provisions in the legislation would be in conflict with the S and Marper ruling in
the European Court of Human Rights. [2] Although the Bill was drafted after Marper and with the
ruling in mind, it is contended that the full ramifications of the judgment were not realised. In
addition, it needs to be clarified whether Eolaiocht Fhoireinseach Éireann (EFÉ), the body to be
established to run the DNA database, will be authorised to carry out more controversial types of
analysis such as familial profiling.
THE PROTECTION OF FREEDOMS BILL AND THE R (GC) RULING
In a recent address to the Garda Representative Association, the Minister for Justice and Equality
informed the audience that the establishment of a DNA database in this jurisdiction was a priority
but that “substantial amendments” were required to the existing Bill. [3] In the Dáil, in response to
queries the Minister further indicated that the revised Bill would include provisions for greater
co-operation with other states within the EU. [4] The Minister is referring here to the provisions of
the EU Prum Treaty and the Council Decision mandating the automated access between the
twenty seven European Union member states of DNA profiles, dactyloscopic data and certain
national vehicle registration data. [5] The DNA Bill 2010 already contained measures to deal with
the sharing of DNA data and it is likely that the specific provisions described by the Minister are
concerned with the Council Resolution on the exchange of DNA results. [6] This resolution has to
do with the “European Standard Set” as endorsed by the European DNA Profiling Group and the
European Network of Forensic Science Institutes Working Group. These bodies have
recommended a greater number of loci to be exchanged by EU member states in order to reduce
the possibility of potential false matches. It is also probable that the Department of Justice and
Equality is digesting the recently published proposal for a directive regarding the privacy of data by
authorities responsible for processing criminal evidence. [7]
However, it would also be hoped that the government is reconsidering certain aspects of the Bill in
the light of recent movements in the UK. Prior to the ground-breaking ruling in the European Court
of Human Rights with S and Marper , the treatment of DNA samples and profiles in the UK had
been receiving critical attention by legal commentators and bioethicists. [8] The majority of
common law jurisdictions now detain the profile of DNA samples of those convicted of a serious
crime. However it is the treatment and scope of non-conviction profiles, as termed in a recent
paper by Liz Campbell, which can often cause difficulties in some jurisdictions. [9] These are
effectively the profiles of individuals who have either been arrested and released, or charged and
acquitted by a jury. It also includes the profiles of so-called “volunteers” in a database. These could
range from victims of a serious crime or individuals whose profiles have been obtained in order to
rule them out of police enquiries. Indeed, how volunteer DNA profiles are treated varies
enormously in different jurisdictions. [10] Of course, it was this policy of retaining the profiles of
non-convicted individuals indefinitely in England and Wales that was heavily criticised by the
European Court in S and Marper :
“… the blanket and indiscriminate nature of the powers of retention of the fingerprints,
cellular samples and DNA profiles of persons suspected but not convicted of offences, as
applied in the case of the present applicants, fails to strike a fair balance between the
Irish Law Times
(2012) 30 ILT 83: Article: THE DNA DATABASE BILL 2010 — TIME FOR A REASSESSMENT? : Stephen
Donoghue* * Stephen Donoghue B.Sc., Ph.D., LL.B. is a former Harvard fellow with a background in
biotechnology and molecular pathology. He is currently studying to be a solicitor. — Page2
competing public and private interests and that the respondent State has overstepped any
acceptable margin of appreciation in this regard. Accordingly, the retention at issue
constitutes a disproportionate interference with the applicants’ right to respect for private life
and cannot be regarded as necessary in a democratic society”. [11]
With S and Marper the then Labour government was forced to introduce legislation to curb the
ever-burgeoning scope of the UK National DNA Database (NDNAD). After the production of a
specially commissioned Home Office paper, [12] the government framed the Crime and Security
Act which was the first legislation to attempt to reverse the continuous so-called “function creep”
that was a characteristic of the NDNAD since the amendments to the Police and Criminal
Evidence Act 1984 introduced in 1994. [13] Under the Crime and Security Act, a DNA sample had
to be destroyed as soon as a DNA profile was obtained from that sample or within six months of it
being obtained; whichever was sooner. Moreover, if an individual was arrested or charged with a
recordable offence, but not convicted, his or her DNA profile could be retained for six years. In
addition, if that same individual was arrested or charged with a recordable offence before the six
years had passed, the clock started again. Following the May 2010 general election in the UK, the
provisions of the Crime and Security Act dealing with DNA retention were not brought into force.
However, the treatment of the so-called non-conviction DNA profiles is still of major concern in
England and Wales and it is questionable whether the Crime and Security Act dealt with them in a
manner amenable to the ruling in S and Marper .
The new Conservative government actually campaigned in the previous election on reducing the
size of the database and it has drafted a Protection of Freedoms Bill which, it is thought, goes
further than the Crime and Security Act in complying with the ruling in S and Marper . [14] Indeed,
as the Nuffield Council on Bioethics has reported, the Bill makes a number of recommendations in
line with its seminal report on the regulation of bioinformation. [15] Effectively the new Bill brings
the provisions in England, Wales and Northern Ireland into line with that of Scotland. It should be
noted that in Marper the provisions in Scotland regarding the detention of non-conviction DNA
profiles were expressly recommended. First, the size of the NDNAD will be considerably reduced
as the DNA profiles taken from persons arrested for or charged with a minor offence will be
destroyed “as soon as reasonably practical”. With regard to individuals charged, but not convicted,
for a serious offence the DNA profiles may be retained for three years. There is also a provision to
extend this period by application to a Sheriff by a Chief Constable. In addition, the DNA profile of a
volunteer will be destroyed as soon as it has fulfilled the purpose of the investigation. Like the
Crime and Security Act the sample from which the DNA profile was obtained will be destroyed as
soon as the profile is obtained, or in any event, within six months of the sample being taken.
However, a recent ruling in the UK Supreme Court has delved even further unto this issue. The
NDNAD is currently governed by the National Policing Improvement Agency (NPIA) and in
January 2006 the Association of Chief Police Officers (ACPO) published guidelines concerning the
removal of a profile from a database. [16] These guidelines recommended that any record in the
NDNAD be retained until the individual reached his or her 100 [th] birthday, whether they were
living or dead. The guidelines also indicated that a profile could only be removed in “exceptional
circumstances”. In R (GC) an application was made by two individuals who were arrested but not
convicted to have their DNA profiles removed from the NDNAD. [17] The details of each case in
the GC ruling are informative. GC had been arrested for common assault on his girlfriend and
released without ever being charged. C was arrested on suspicion of rape, harassment and fraud.
He was charged with rape but acquitted after the prosecution offered no evidence. The solicitors
for both individuals requested that their profiles be removed from the database; however, in each
case the Commissioner refused to do so on the grounds that there were no exceptional
circumstances within the meaning of the ACPO guidelines. Unsurprisingly, in the light of Marper ,
the Court found that the guidelines published by the ACPO were incompatible with the European
Convention on Human Rights. However it did not order any changes to be made to the guidelines
as it recognised that “Parliament is already seised of the matter”. [18]
MARPER V THE WORLD
Irish Law Times
(2012) 30 ILT 83: Article: THE DNA DATABASE BILL 2010 — TIME FOR A REASSESSMENT? : Stephen
Donoghue* * Stephen Donoghue B.Sc., Ph.D., LL.B. is a former Harvard fellow with a background in
biotechnology and molecular pathology. He is currently studying to be a solicitor. — Page3
A snapshot of how different common law countries treat these so-called non-conviction DNA
samples and profiles was examined recently. [19] Although the apparent “retreat” of England and
Wales from the expansion of the database is ongoing, it is interesting to observe that in some
countries there are movements afoot to expand the scope of DNA databases, especially with
regard to banking the profiles of arrestees. The notable exception to this trend is Canada, which
appears so far to have resisted calls for a loosening of the reins with regard to the type of profile
collected and for how long. [20] However, in the USA many states now provide for the sampling
and addition to a state DNA database of arrestees. [21] The ranges of crimes to which these
provisions apply vary, but the individual must be accused of a serious felony or offence. Indeed in
an interview with the popular American show “America’s Most Wanted” President Obama
appeared to agree with the host, John Walsh — whose own child Adam was abducted and brutally
murdered — that the DNA profile of every arrestee should be banked in a state DNA
database. [22] These opinions became concrete when the US Congress drafted the so-called
Katie’s Law. [23] Under this legislation states that collect DNA from individuals arrested for certain
serious crimes would receive a bonus in federal crime prevention grants. This shift towards the
taking of DNA from arrestees has actually resulted in a pressure group encouraging states to pass
such laws. [24] According to its website, to date twenty six states have enacted laws requiring the
sampling of DNA from arrestees on felony charges. [25]
It should, however, be borne in mind that none of these jurisdictions come under the auspices of
the European Convention on Human Rights and the Marper ruling in that court. Therefore, despite
the greater expansion of the reach of these databases in some common law jurisdictions, with the
possible exception of Canada, it is the scope of other European countries, including the UK, which
is most relevant for Ireland. As noted earlier the impending Protection of Freedoms Bill purports to
significantly reduce the scope of the NDNAD in the UK. It is therefore hoped that the “substantial
amendments” referred to by Minister Shatter will take this legislation and the recent ruling in GC
into account. Currently the Irish DNA Bill is actually more restrictive in some areas when compared
to the existing English legislation. For example, the range of relevant offences in the Irish DNA Bill
only extends to serious crimes which have a minimum punishment of five years. Likewise the Irish
Bill requires a detention of an individual, as opposed to just an arrest, for a serious crime before a
sample can be taken for a DNA profile.
However, it is Pt 10 of the current Bill, which is concerned with the destruction of samples and
profiles, where the Irish legislation may be at severe odds with the impending English legislation
and European Court jurisprudence, as well as the recent ruling in GC . The default destruction
period for samples taken from individuals, either with or without consent, is three years from the
taking of the sample. [26] This is entirely disproportionate to the provisions of the Crime and
Security Act and the Freedom of Protections Bill in the UK. Both pieces of legislation allow for the
destruction of the sample as soon as a DNA profile is obtained or within six months. This long
default destruction period in the Irish Bill applies even if proceedings were not instituted or the
individual was acquitted or discharged. [27] Furthermore, this default destruction period may be
extended by the District Court. Section 88 outlines the provisions allowing for the extension of the
default time period for the destruction of intimate and non-intimate samples taken from persons in
custody, offenders, child offenders and former offenders. According to the section the judge “may
make an order authorising the retention of the sample for such purpose permitted by this Act or
such period as he or she considers appropriate”. [28]
Likewise, the default destruction period for the DNA profile of a detainee would appear on first
glance to be disproportionate in comparison to the ruling in Marper . The Irish Bill provides for a
removal of a detainee’s DNA profile after ten years where proceedings are not instituted or the
person is acquitted. It will be noted that the default destruction period for samples is substantially
shorter than that of the DNA profiles. Campbell observes that this is in line with recommendations
by bodies such as Genewatch in the UK because of the potential for a greater invasion of privacy
and breach of rights with an investigation of the sample. [29] However, the new Freedom of
Protections Bill will only allow for the retention of a profile of a non-convicted individual charged
with a serious offence for three years. This is in marked contrast to the ten years in the Irish Bill.
And again, s. 88 allows for an even longer retention in the Irish database. Subsection 3 provides
for a judge of the District Court to make an order to allow for a greater retention of a DNA profile
such as he or she considers appropriate. Furthermore, subs. 5 allows a similar retention of either
Irish Law Times
(2012) 30 ILT 83: Article: THE DNA DATABASE BILL 2010 — TIME FOR A REASSESSMENT? : Stephen
Donoghue* * Stephen Donoghue B.Sc., Ph.D., LL.B. is a former Harvard fellow with a background in
biotechnology and molecular pathology. He is currently studying to be a solicitor. — Page4
the sample or the DNA profile from volunteers, either from a DNA dragnet or from individuals to be
eliminated from enquiries, to be further retained at the discretion of the court.
Similarly to the English system, the Irish Bill does allow for an application for removal from the
database. A s.74 application may be made by an individual with a non-conviction profile. That is,
the person was acquitted or the charge was dismissed or the proceedings were discontinued. If
these situations apply to an individual, he or she may apply to have the sample destroyed and the
profile removed from the database before the default destruction and removal periods. However,
like the English ACPO governance system, the removal may occur only if “exceptional
circumstances exist that justify the making of the application”. [30] The relevant section outlines
the various circumstances involved, including a situation where it is discovered that no offence
was committed, that there has been a case of mistaken identity or the taking of the sample
concerned was unlawful. [31] In the light of the GC judgment and its decision that the ACPO
guidelines were unlawful, it is likely that these provisions are incompatible with the European
Court.
CONTROVERSIAL PROFILING?
Part 1 of the Bill defines a DNA profile as “comprising a set of identification characteristics of the
non-coding part of DNA derived from an examination and analysis of a sample of biological
material”. Sections 56 and 57 of the Bill set out the structure and purpose of the database. Section
57 describes how the database shall only be used for the investigation of criminal offences. This
would suggest that the database could not be used to investigate certain trends in crime
prevention or studies in criminology, although the Bill does not strictly forbid it. Liz Heffernan has
commented that the inclusion of the words “criminal investigation” does appear to prohibit the
types of studies conducted on the data contained in the NDNAD. [32] Medical research biobanks
are governed by strict guidelines with regard to privacy and consent in the UK and the NPIA has
been criticised for allowing research into the DNA profiles in the database, the majority of which
one presumes were not given voluntarily. The recent report on the NDNAD published by the NPIA
for 2007-2009 provides some information with regard to the number of such requests submitted for
criminological research. [33]
However, in s.57(g) the Irish Bill does state that the database may be used in the investigation of
criminal offences for “any other related purposes”. This general provision has been criticised and
may allow for the more controversial elements of the use of a database to be carried out, including
familial profiling. This provision should also be considered in light of the often overlooked
recommendations of the LRC concerning phenotypic or ethnic profiling. This type of profiling
involves the analysis of information from the coding parts of the genome to determine the
phenotype of the biological sample. In its consultation paper the LRC recommended such racial
profiling of a crime scene sample in cases where there a degree of certainty that the sample
belonged to the perpetrator, and where there were limited avenues of investigation. [34] These
recommendations were endorsed in the report:
“The Commission continues to support the views expressed in the Consultation Paper that
analysis of coding regions should be permitted, where possible, to determine non-sensitive
phenotype information. This information is not considered sensitive and it could be of great
benefit to the Gardaí when investigating serious crime”. [35]
The types of information referred to in the report — the phenotypic information — are race, hair
colour, eye colour, weight and age. It is certainly debatable whether this information could be
considered non-sensitive. It was readily acknowledged at the time that the science in these areas
was only developing and that such testing might not come to fruition. However, the definition of
DNA profiles as outlined in Pt 1 indicates that no analysis of coding DNA will be done for inclusion
in a database and this would appear to exclude phenotypic profiling. Nevertheless, the
recommendations by the LRC are controversial and have received surprisingly little attention in the
media.
Irish Law Times
(2012) 30 ILT 83: Article: THE DNA DATABASE BILL 2010 — TIME FOR A REASSESSMENT? : Stephen
Donoghue* * Stephen Donoghue B.Sc., Ph.D., LL.B. is a former Harvard fellow with a background in
biotechnology and molecular pathology. He is currently studying to be a solicitor. — Page5
In the LRC report reference is made to the development by the Forensic Science Service (FSS) in
the UK of these types of phenotypic profiling. It is therefore quite surprising that no reference is
made in the report to familial profiling, which was receiving substantial attention in the media when
the report was written in 2005. Familial profiling is a deliberate search of a DNA database with the
intention of identifying close biological relatives, usually males, which partially match the crime
scene DNA profile. The technique essentially depends on a greater genetic similarity between
close family siblings. With the exception of identical twins the genome of each individual is unique
and is inherited from their biological parents. Essentially two parents divide out copies of their DNA
to their offspring and these different forms of inherited DNA are referred to as alleles. Therefore
each person inherits two copies of a gene. It is important to note that for any particular genome an
individual’s parents may already have the same, identical sequence of DNA and in that case the
offspring will have homozygous alleles. Regular DNA profiling however attempts to measure those
non-coding genomic areas that have been found to have a substantial variation between
individuals and hence their progeny. It should also be apparent that close biological relatives, such
as brothers, will have a substantial degree of overlap with regard to these alleles. The UK uses the
Second Generation Multiplex Plus (SGM Plus) system developed by the FSS which analyses ten
areas of a non-coding genome and hence 20 alleles (because each individual inherits an allele
from their parent) that allow for a complete match or hit between a crime scene sample and a
reference sample in a database. It is thought that a search for approximately 15-16 alleles that
match a crime scene sample would provide an investigational avenue for the police to pursue a
familial link. [36]
By the time the LRC report was published the FSS were actively engaged in familial profiling in
limited circumstances and this was publicly known. Familial DNA profiling is now used by the
relevant authorities to investigate crimes in the UK and in certain states in the USA. In a recent
publication the Forensic Science Service (FSS) indicated that familial profiling has been carried
out in approximately 180 resulting in the apprehension of 33 offenders. [37] Indeed the FSS has
developed a ‘bespoke’ software service that allows for a reduced partial stringency in searching for
an offender’s close relative. [38] One year before the LRC report was completed Craig Harman
became the first person in the world to be successfully prosecuted using familial DNA
profiling. [39] Harman had brought about the death of a lorry driver by throwing a brick from an
overpass on a motorway which caused the driver to have a heart attack. Familial profiling
combined with other evidence produced a list of possible suspects. A brother of Harman who was
already on the database topped the list, sharing 16 alleles out of a possible 20. After interviewing
the brother the police found that Craig was the likely suspect as he lived close to the incident.
Although it has proven to be a useful tool for the detection of persons connected with serious
crime, the legal and ethical dimensions of conducting familial profiling are substantive. [40] The
impact on personal and family privacy can be considerable. Family members may learn that a
close relative has been arrested or even convicted of a crime. Even more serious, familial profiling
may unearth a hitherto unknown genetic relationship. The discovery of such facts could have
profound implications for the parties involved, including domestic violence. Finally, there are
constitutional issues with regard to the presumption of innocence and whether the investigation of
a relative on the basis of a genetic link is allowable under due process.The European Court of
Human Rights has not directly addressed the issue of familial or phenotypic profiling, although in
the S and Marper case it drew from the Nuffield Council of Bioethics report on bioinformation in
making brief comments. The Nuffield report “considered the use of the DNA database in searching
for family relatives as particularly sensitive”. [41]
The issues around the dangers of ethnic or racial profiling were also alluded to and the Court noted
how the police when taking the sample routinely classified suspects into one of seven ethnic
categories. [42] Furthermore, the fact that certain inferences can be made regarding race even
from the non-coding DNA profile was noted. [43] The claim by the applicants that a greater
invasion into their privacy through the retention of the DNA sample was observed in the ruling, and
put into context with regard to the family. The court agreed claiming:
“In addition to the highly personal nature of cellular samples, the Court notes that they
Irish Law Times
(2012) 30 ILT 83: Article: THE DNA DATABASE BILL 2010 — TIME FOR A REASSESSMENT? : Stephen
Donoghue* * Stephen Donoghue B.Sc., Ph.D., LL.B. is a former Harvard fellow with a background in
biotechnology and molecular pathology. He is currently studying to be a solicitor. — Page6
contain much sensitive information about an individual, including information about his or her
health. Moreover, samples contain a unique genetic code of great relevance to both the
individual and his relatives.” [44]
A recent report commissioned by the Irish government indicated that there has been a significant
underfunding for forensic services in this country for some time. [45] Consequently there is a
history of DNA samples being sent to public and private parties in the UK for more advanced
analysis. For example, crime scene samples for both Sophie Toscan Du Plantier and Robert
Holohan were sent to the UK for more advanced DNA analysis. [46] In this regard it should be
noted that there is also a provision in the Bill that allows for the performance of the function of the
database to be carried out outside the state. [47] There would therefore be a concern that any
vague provisions in the DNA Bill would allow the EFÉ to carry out familial profiling.
CONCLUSION
It has been argued that the limited scope of the Bill, in that only those convicted of a serious crime
will have their DNA profiles indefinitely retained, is to be recommended. Nevertheless it is now
clear that the provisions of the Bill fall well short with regard to how it treats the samples and
profiles and non-convicted individuals in comparison to the ruling in GC and the imminent
Protection of Freedoms Bill. Undoubtedly the legislation was drafted with Marper in mind but it
would appear that the full consequences of the European Court decision were not
comprehensively understood. The prevailing jurisprudence in England and Wales would suggest
that the default provisions in the Irish Bill for the destruction and removal of samples and profiles
are disproportionate. Likewise, the ruling in GC indicates that the procedures for an application to
have the sample destroyed and the profile removed are unlawful. Other more controversial
elements of the Bill, such as the potential to carry out so-called DNA dragnets, have received
surprisingly little attention. More importantly, the vague provision in s.57 , coupled with the LRC’s
recommendations regarding phenotypic, or racial profiling, suggest more controversial types of
analysis could be carried out with the establishment of a database. Attitudes to phenotypic or racial
profiling have hardened considerably since the report and there is very little activity in this area in
Europe or the USA. However, as indicated earlier the stipulation for analysis to be carried out only
on non-coding parts of the genome would suggest phenotypic profiling will not be carried out. The
situation is markedly different with regard to familial profiling. Although the Protection of Freedoms
Bill will reduce the size of the database in the UK there is nothing to suggest that the police in that
jurisdiction intend to stop carrying out familial profiling. In the USA the Federal Bureau of
Investigation (FBI) is reluctant to carry out the procedure without permitting federal legislation
however as of March 2008 it decided that policies regarding familial profiling should be determined
by the individual states. [48] As of November 2011 four states, including California, Colorado,
Texas and Virginia had actually passed legislation allowing familial profiling. [49] Conversely, a
number of states have prohibited the procedure. [50] However other investigations indicate that a
number of states permit it without passing legislation. [51] Furthermore federal legislation has
been introduced in the US House of Representatives that would allow the FBI to conduct familial
profiling. [52] Going forward it needs to be made clear by the Department of Justice and Equality
whether it intends carrying out this type of controversial analysis on DNA profiles in this
jurisdiction.
[1]
[Criminal Justice (Forensic Evidence and DNA Database Bill) 2010
http://www.oireachtas.ie/viewdoc.asp?fn=/documents/bills28/bills/2010/0210/B0210D.pdf ]
[2]
[ S. v U.K. , 48 E.H.R.R. 1169 (Grand Chamber of the European Court of Human Rights) ]
[3]
[Address by Mr Alan Shatter TD, Minister for Justice, Equality and Defence, to the 2011
Annual Conference of the Garda Representative Association, April 13, 2011.
http://www.justice.ie/en/JELR/Pages/SP11000042 ]
[4]
[http://debates.oireachtas.ie/dail/2011/07/20/00196.asp#N2 .]
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(2012) 30 ILT 83: Article: THE DNA DATABASE BILL 2010 — TIME FOR A REASSESSMENT? : Stephen
Donoghue* * Stephen Donoghue B.Sc., Ph.D., LL.B. is a former Harvard fellow with a background in
biotechnology and molecular pathology. He is currently studying to be a solicitor. — Page7
[5]
[Council Framework Decision 2008/977/JHA. ]
[6]
[Council
Resolution
2009/C
296/01
http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:C:2009:296:0001:0003:EN:PDF .]
[7]
[“Proposal for a directive of the European Parliament and of the Council on the protection of
individuals with regard to the processing of personal data by competent authorities for the
purposes of prevention, investigation, detection or prosecution of criminal offences or the
execution of criminal penalties, and the free movement of such data” COM(2012) 10 final.
http://media.europa-nu.nl/9353000/1/j9vvhjsfpncqnhs/viwn5rc19mzm ]
[8]
[Nuffield Council of Bioethics, The Forensic Use of Bioinformation,
http://www.nuffieldbioethics.org/bioinformation/bioinformation-what-bioinformation ]
2007
[9]
[Liz Campbell, “Non-Conviction DNA Databases and Criminal Justice: A Comparative
Analysis” Journal of Common-wealth Criminal Law (2011)1, 55-77. ]
[10]
[See n.8. ]
[11]
[See n.2 at para.125. ]
[12]
[Keeping the Right People on the DNA Database: Science and Public Protection, UK Home
Office,
May
2009
http://webarchive.nationalarchives.gov.uk/+/http://www.homeoffice.gov.uk/documents/cons-2009
-dna-database/dna-consultation2835.pdf?view=Binary ]
[13]
[Crime and Security Act 2010 ; Criminal Justice and Public Order Act 1994 .]
[14]
[Protection
of
Freedoms
http://services.parliament.uk/bills/2010-11/protectionoffreedoms.html ]
Bill
2010-2011;
[15]
[Nuffield Council of Bioethics, The Forensic Use of Bioinformation: Ethical Issues, 2007
http://www.nuffieldbioethics.org/bioinformation ]
[16]
[Association of Chief Police Officers, “Retention Guidelines for Nominal Records on the
Police
National
Computer”,
2006
http://www.acpo.police.uk/documents/PoliceCertificates/SubjectAccess/Retention%20of%20Rec
ords06.pdf .]
[17]
[ R (GC) v The Commissioner of Police of the Metropolis ; R (C) v The Commissioner of
Police
of
the
Metropolis
[2011]
U.K.S.C.
21
http://www.supremecourt.gov.uk/docs/UKSC_2010_0173_JudgmentV2.pdf. ]
[18]
[See n.17 at 46 as per Lord Dyson. ]
[19]
[See n.9. ]
[20]
[See n.9 at p.61. ]
[21]
[Alaska, Arizona, California, Kansas, Louisiana, Maryland, Michigan, Minnesota, New
Mexico, North Dakota, South Carolina, South Dakota, Tennessee, Texas, Vermont and Virginia
have laws authorising arrestee DNA sampling according to the website of the National State
Legislatures:
http://www.ncsl.org/IssuesResearch/CivilandCriminalJustice/StateLawsonDNADataBanks/tabid/1
2737/Default.aspx. However, the lobbying group DNA Saves has indicated 26 states have such
Irish Law Times
(2012) 30 ILT 83: Article: THE DNA DATABASE BILL 2010 — TIME FOR A REASSESSMENT? : Stephen
Donoghue* * Stephen Donoghue B.Sc., Ph.D., LL.B. is a former Harvard fellow with a background in
biotechnology and molecular pathology. He is currently studying to be a solicitor. — Page8
legislation including the above states and Alabama, Arkansas, Colorado, Illinois, Florida, Missouri,
New Jersey, North Carolina, Ohio and Utah. ]
[22]
[http://www.politico.com/blogs/joshgerstein/0310/Obama_talks_DNA_on_Americas_Most_
Wanted_transcript.html ]
[23]
[Katie
Sepich
Enhanced
http://www.opencongress.org/bill/112-s517/show ]
DNA
Collection
[24]
[DNA Saves http://www.dnasaves.org ]
[25]
[http://dnasaves.org/states.php ]
[26]
[See n.1 s.76 .]
[27]
[See n.1 s.77 .]
[28]
[See n.1 s.88 .]
[29]
[See n.1 s.73 .]
[30]
[See n.28. ]
[31]
[See n.28, (a)-(c). ]
[32]
[Liz Heffernan, “A DNA Database” , (2008) I.C.L.J. 18 , p.105 .]
Act
2010
[33]
[National Policing Improvement Agency: National DNA Database Annual Report 2007-2009
http://www.npia.police.uk/en/docs/NDNAD07-09-LR.pdf at p.39. Forty-six requests were obtained
and twenty-six approved in this period. Some of these requests were made by universities and
foreign agencies, such as the European Network of Forensic Science Institutes (ENFSI). ]
[34]
[The Law Reform Commission: Consultation Paper on the establishment of a DNA
Database at para.7.12. ]
[35]
[The Law Reform Commission: Report on the establishment of a DNA Database at
para.3.18. ]
[36]
[Craig Harman, the first person ever to be convicted from a familial profiling analysis, was
questioned on the basis of a crime scene match of 16 out of 20 alleles with his brother; see n.39. ]
[37]
[Adam Gregory and Lee Rainbow, Enhanced Prioritisation of Familial DNA Searches,
Journal of Homicide and Major Incident Investigation (2011) 7 p.75. ]
[38]
[Susan Pope, Timothy Clayton, Jonathan Whitaker, John Lowe, Roberto Puch-Solis More
for the same? Enhancing the investigative potential of forensic DNA databases Forensic Science
International: Genetic Supplement Series 2 (2009) 458–459. ]
[39]
[See n.36 and http://www.dnaforensics.com/FamilialSearches.aspx#harman. ]
[40]
[Sonia M. Suter, “All in the Family: Privacy and DNA Familial Searching”, Harvard Journal of
Law and Technology (2010) 2 32 pp.327–368. ]
[41]
[See n.2 at para.39. ]
Irish Law Times
(2012) 30 ILT 83: Article: THE DNA DATABASE BILL 2010 — TIME FOR A REASSESSMENT? : Stephen
Donoghue* * Stephen Donoghue B.Sc., Ph.D., LL.B. is a former Harvard fellow with a background in
biotechnology and molecular pathology. He is currently studying to be a solicitor. — Page9
[42]
[See n.2 at para.40. ]
[43]
[See n.2 at para.40. ]
[44]
[See n.2 at para.72. ]
[45]
[Kopp Review of Resource Needs in the Forensic Science Laboratory 2008. ]
[46]
[The Scotsman, “The murder that won’t go away”, January 29, 2002
http://www.scotsman.com/news/the_murder_that_won_t_go_away_1_595238;
The
Irish
Independent, “He has served his sentence so let’s now leave him be”, January 17, 2008
http://www.independent.ie/national-news/he-has-served-his-sentence-so-lets-now-leave-him-be1267669.html .]
[47]
[See n.1 , s.64 subs.3 .]
[48]
[Scientific Working Group on Data Analysis Methods Ad Hoc Committee on Partial
Matches: SWGDAM recommendations to the FBI Director on the “Interim plan for the release of
information in the event of a ‘partial match’ at NDIS”. Forensic Science Communications (2009) 11
4. ]
[49]
[Joyce Kim, Danny Mammo, Marni B. Siegel and Sara H Katsanis, “Policy Implications for
Familial Searching” Investigative Genetics (2011) 2 22 p.2. ]
[50]
[See n.49. ]
[51]
[http://www.councilforresponsiblegenetics.org/dnadata/usa/usa2.html. ]
[52]
[H.R.6011: Utilising DNA Technology to solve Cold Cases Act of 2010 .]