The Government's DNA retention policy combined with increasingly sophisticated statistical techniques means that eventually most citizens in the UK will be linked to data stored on the police's DNA database, according to a privacy law expert.
The outcome of an appeal to the European Court of Human Rights (ECHR) that challenges the UK's DNA retention policy will not limit the ultimate reach of the DNA database, only the speed of its compilation, says Dr Chris Pounder of Pinsent Masons.
Under last year's Police and Justice Act, the police are allowed to retain DNA data on those arrested even if those arrested are not convicted of or even charged with any crime. Data derived from these samples are then added to the National DNA Database.
Michael Marper's case before the ECHR could change this law. Marper was accused of harassment by his partner. He was arrested and DNA samples were taken. The charges were dropped when he reconciled with his partner, but police refused to destroy his DNA samples and related data.
Marper exhausted his appeals through the English courts and then complained to the ECHR that the retention of his DNA is a breach of his rights to privacy under the European Convention on Human Rights. Earlier this year the ECHR decided that there was enough of importance in the case that it will hear it.
"The Court finds that serious questions of fact and law arise, the determination of which should depend on an examination of the merits," said the ECHR in January. "The application cannot be regarded as manifestly ill-founded within the meaning of the Convention. No other grounds for declaring it inadmissible have been established."
The ECHR has previously ruled in favour of the police's right to retain DNA, but that case involved a man who had been convicted of a crime. A Dutch bank robber, Mr Van der Velden, argued that police had failed to respect his private life by storing his DNA profile. The ECHR said that this interference with his privacy was proportionate.
The Marper case tests the legality of storing the DNA of people who have not been convicted of a crime. But its outcome is largely redundant because of the emergence of statistical techniques which match DNA on the database to relatives, according to Dr Pounder, a privacy law specialist at Pinsent Masons, the law firm behind OUT-LAW.COM.. These techniques use the genetic fact that an individual's DNA sample is related to the DNA of close family members.
"A national DNA database of the future is likely to span 80% to 100% of the population. The only question is when this will occur," said Pounder.
Home Office statistics state that 33% of men and 10% of women under the age of 35 have a criminal record not related to motoring offences. However, DNA data of those convicted of a crime are never deleted, even when the individual who has provided the sample has died.
"This means that the maximum DNA database coverage of the UK population would inevitably reach 20–25% if current criminal trends remain constant," said Pounder. "Hence the value to the police of statistical methods which aim to identify suspects whose DNA details are not on the database from those whose details are stored on the database."
Pounder anticipates that statistical techniques will develop and become more sophisticated. "In future, a DNA profile of someone arrested could be statistically linked to more and more relatives like parents, siblings, uncles, aunts, cousins, many of whom will not have been arrested," he said.
"In that way, the DNA database, even though it contains data relating to criminals, will span most of the UK population," Pounder said. "If you are ever related to someone with a criminal record, your DNA will have the potential to be linked to that individual's police records."