Report No. 271
E. United Kingdom
5.11 DNA profiling was first used in a criminal case in England in 1986. DNA samples collected from the men living and working within the neighbourhood of two rape and murder scenes resulted in two positive outcomes. The one man initially convicted was proved to be innocent and the guilty criminal was caught, one year later.
5.12 UK has an extensive legal foundation regarding DNA technology. In the UK the question of consent and privacy has been debated and ultimately it was held that the court will not order a blood test to be carried out against the will of a parent. The essence of every law in UK is to protect one's personal liberty. Although there are statutory provisions, where under blood samples can be taken without parent's consent, for example, testing for diseases like HIV.
5.13 In 1994, the British Parliament passed the Criminal Justice and Public Order Act, which provided the legal foundation for the National DNA Database (NDNAD). The Act allows the police to take DNA samples without consent from anyone charged with any offence that is classified as 'recordable', and also to search the database speculatively for matching profiles. Because of Parliamentary Act, the police is permitted to take DNA's of the arrested person before the investigating process begins so as to make the process faster. The Home office by this step has a complete record of active criminal population, making it easy to first eliminate the innocents.
5.14 The Court of Appeal, in R (on the application of S) v. Chief Constable of South Yorkshire 80 , upheld a legislation compelling preservation of finger prints, bodily samples, DNA profiles and DNA samples. It was contended that the amended provision was incompatible with Articles 8 and 14 of the Human Rights Act, which dealt with protection of privacy and hence it was prayed that the fingerprints and DNA samples of the concerned parties should be destroyed.
In the said case, a distinction was drawn between the `taking', `retention' and `use' of fingerprints and DNA samples. The statutory basis for the retention of physical samples taken from suspects was addition of new Section 64(1A) of the Police and Criminal Evidence Act, 1984 which provides that these samples could only be used for the purposes relating to the 'prevention or detection of crime, the investigation of an offence or the conduct of a prosecution'. The Court observed:
So far as the prevention and detection of crime is concerned, it is obvious that the larger the data bank of fingerprints and DNA samples available to the police, the greater the value of the data bank will be in preventing crime and detecting those responsible for crime. There can be no doubt that if every member of the public was required to provide fingerprints and a DNA sample this would make a dramatic contribution to the prevention and detection of crime. To take but one example, the great majority of rapists who are not known already to their victim would be able to be identified. However, the 1984 Act does not contain blanket provisions either as to the taking, the retention, or the use of fingerprints or samples; Parliament has decided upon a balanced approach.
5.15 In Saunders v. United Kingdom 81 , the court explained the difference between identification and self-incrimination when it comes to collection of DNA samples etc., observing:
"The right not to incriminate oneself is primarily concerned, however, with respecting the will of an accused person to remain silent. As commonly understood in the legal systems of the Contracting Parties to the Convention and elsewhere, it does not extend to the use in criminal proceedings of material which may be obtained from the accused through the use of compulsory powers but which has an existence independent of the will of the suspect such as, inter alia, documents acquired pursuant to a warrant, breath, blood and urine samples and bodily tissue for the purpose of DNA testing."
5.16 In the case of S and Marper v. United Kingdom,82 the court upheld the right to privacy and said that retention of DNA samples is a substantial threat to privacy.