Putting the genie back in the bottle

We should be grateful to Lord Justice Sedley for one thing - re-igniting the debate about the national DNA database. His prescription, however, is completely wrong, and unjustifiable. He is right when he says that:

...the current database, which holds DNA from crime suspects and scenes, was "indefensible" because it was unfair and inconsistent.

but we should be very wary of his suggested fix for that, that...

...whole population and every UK visitor should be added to the national DNA database.

He is of course correct that the current situation is indefensible, Black men are more than twice as likely to be on the database than white, just because of the disproportionate way in which the police target black men for stop and search operations. But his prescription that:

"Going forwards has very serious but manageable implications. It means that everybody guilty or innocent should expect their DNA to be on file for the absolutely rigorously restricted purpose of crime detection and prevention."

So, we are to be scared from committing any crimes because we know they already have our DNA and when they find that at the scene it'll be an easy next step to "pull" anyone whose DNA is found for questioning. With no other probable cause than that their DNA was at the scene - Paul Walter's Liberal Burblings puts this much better than I have, describing it as "presumed guilt", overturning what must probably be, after Habeas Corpus perhaps, the key principle of English law.

One could imagine a situation where, for example, a victim of crime in the hours before being raped or murdered or whatever was in a place with lots of other people - perhaps a bar or a club. He or she brushed up against countless innocent bystanders, some of whom left a hair on the victim's clothes or sneezed over them or somehow transferred DNA to them or to another item of evidence. The police could just pull all of those people for questioning. Or perhaps that the crime scene was quite a publicly frequented place, and countless innocent samples are collected and the owners of that DNA pulled for questioning.

And as if that weren't enough, what sort of access would the defense have to be given to make this fair? Someday one could imagine the argument succeeding that with evidence disclosure rules, the defense could subpoena anyone whose DNA sample was found to try to create reasonable doubt for their client.

And in future, when the purpose of individual genes are steadily discovered, a witness statement might describe someone that may or may not be involved at the scene and based on that physical description the police could pull all blond men with blue eyes and the obesity gene in the local area to question?

The judge talks also about how many "cold cases" have been solved using DNA evidence. Yes, that may be one of the advances that has been made possible with DNA technology. But I wonder how many of them have actually been solved simply by matching up with the database. I rather suspect very few. That most have probably been a case of arresting the person first suspected many years ago and then checking them up against the DNA. Ie that DNA is used merely to corroborate existing evidence that somehow proved insufficient at the time to convict. That's a very different proposition from having a pro-active database from which to go and pull every person that brushed past the victim twenty years ago and happened to leave DNA that was subsequently collected.

No, storing our DNA is storing a little part of each and every one of us. As I said last week, our DNA should be subject to habeas corpus. It's like putting us all on bail for further questioning, sometime, about any other matter they feel we might be able to help with. The implications even now, let alone in some future time when we may have a seriously authoritarian regime in power or where the technology is available to extrapolate from descriptions what the suspect's DNA might look like, are horrendous.

In an accompanying article, the BBC puts the other side of the case. We already hold proportionally more DNA samples than any other country. Since it was first allowed in 1995 it has been steadily extended. The evidence of "mission creep" is clear already. We cannot trust any government with this sort off information. One only has to have seen the film Gattaca to know why. We must go back to the 1995 regulations, and strengthen them indeed so that people have rights to know and control whether their DNA is held if they are not currently in the criminal justice system for a good reason.