INTRODUCTION
Since the discovery of DNA profiling in the mid 80s and the implementation of the first DNA database in England & Wales (1995), the significance, influence and contribution of forensic science to criminal justice systems has grown steadily. Fingerprints as an effective means of identification have been available for over 100 years but their systematic use was limited until the full implementation of the National Fingerprint Identification System ( NAFIS) in 2001. Most developed countries in the world now use DNA and fingerprint databases as major components of criminal justice policy and practice. Notwithstanding, these systems are still relatively novel and few, if any, have been subject of systematic study and evaluation. The impact of forensic databases is determined by a range of factors including the jurisdiction, the precise legal framework, operational practices, resourcing and effective management. It is also essential that public confidence in their value and use is maintained.
The identification of individuals is a fundamental aspect of the criminal justice process. It is essential that the courts are confident that those brought before them are who they purport to be. At the point of arrest and charge by the police, it is important to ensure that there are no outstanding warrants against individuals or that they are seeking to avoid identification. In cases where potential fingerprint or DNA evidence is found at the scene of an incident, it may also be necessary to eliminate individuals who may have deposited material for innocent reasons. This avoids wasteful use of resources and unfruitful lines of inquiry in the investigation of crime by the police. In homicides, terrorist incidents and civil disasters, DNA and fingerprints play a central role providing rapid, reliable, identification of bodies and body parts.
The importance of identification means that it is the subject of considerable activity and use of resources by the police and other agencies. Therefore any means by which this process can be made more efficient or effective is of value to the police and public in general, as it supports the bringing of offenders to justice and the safeguarding of innocent individuals.
THE MODUS OPERANDI OF DNA AND FINGERPRINT DATABASES
DNA and fingerprint databases work by storing and comparing samples from individuals and those recovered from crime scenes and incidents. Although the detailed operation of the databases varies, this is of limited importance in relation to this review. DNA differs from fingerprints in that the sample contains private genetic information which remains in storage if the sample is retained. The forensic DNA profile is produced by the analysis of a specific number of genetic sites (loci) of an individual, usually from a mouth swab. Profiles are also obtained from body fluid stains ( e.g. blood, saliva) recovered from crime scenes. The loci analysed are selected on the basis of their forensic value and do not contain other genetic information about the individual. A standard means of analysis is used and this should be distinguished from more complex analytical methods for minute traces of DNA (low template or low level DNA analysis).
Fingerprint identification is based on the number and sequence of minute characteristics (minutiae) in the ridges of the skin. Fingerprint samples from an individual are in essence an image or representation of a pattern on the skin and contain nothing more than this. The sequence and pattern of minutiae can also be stored in digital code and this forms the basis of the current UK national fingerprint data base ( IDENT1). Impressions recovered from crime scenes or items involved in crime such as weapons are known as finger marks. IDENT1 stores prints from individuals, marks from scenes and from other items involved in incidents such as weapons. These differences in operation and the differences historical development of the databases in part explain the variation in legislation between DNA and fingerprints.
The DNA database in England and Wales is the largest database of its kind in the world. The DNA databases in Scotland and Northern Ireland, which are considerably smaller, are linked to the database in England and Wales but operate under separate legislation. This variation in legislation means that each of the databases is different in nature and operation and it is therefore difficult to compare them directly. The most significant differences relate to the retention of subject samples. In England and Wales, once a legally obtained sample has been placed on the database, it can be retained indefinitely. This includes individuals who are arrested on suspicion of a recordable offence (but not necessarily charged), and who have not been convicted. Voluntary samples from individuals in England & Wales are also retained permanently and there is no right to withdraw this consent. The right to retain samples indefinitely from non-convicted persons was held by the House of Lords not to infringe Articles 8 and 14 of the European Convention of Human Rights 1 but this is currently the subject of challenge in European Court of Human Rights 2.
In Scotland, forensic samples and data can only be permanently retained following conviction. However, the current law allows for temporary retention of samples and data from non-convicted persons for a specific range of offences. The possibility remains that the judgment by European Court of Human Rights on Marper & S, may have some bearing on the law in Scotland. Consent to retain samples voluntarily provided and stored on the Scottish DNA database can also be withdrawn at any time.
THE 2005 REVIEW
In 2005 the Scottish Executive carried out a consultation exercise in relation to DNA and fingerprint acquisition and retention. This was in response to changes in the law in England & Wales and the perceived potential benefits in expanding the sample range to provide the police in Scotland with equivalent opportunities in investigating and prosecuting crime. The legal position in England and Wales following the enactment of Criminal Justice and Police Act 2001 provided for the permanent retention of samples legally taken from individuals, irrespective of whether they were convicted or not. The main issue explored in this consultation, was whether the law in Scotland should be altered to bring it line with that of England & Wales. The outcome of the consultation was summarized in a Scottish Parliament Information Centre briefing 3 :
'The…responses demonstrate a clear split in the views of respondents. Some support the policy…on the grounds that it would help the police to solve crimes,…[t]hose who oppose the policy believe that the human rights concerns outweigh the benefits involved in tackling crime. Some also dispute the effectiveness of the retention policy in England and Wales'
Although this issue was given further consideration, particularly by Justice 2 Committee of the Scottish Parliament, proposals to alter the law in Scotland to bring it fully in line with England and Wales were not taken further at that time. Following further deliberations, Section 18A of the Criminal Procedure (Scotland) Act 1995 was inserted by section 83 of the Police, Public Order and Criminal Justice (Scotland) Act 2006. Section 18A, of the 1995 Act was then brought into force on 1 January 2007. This amendment altered the law in relation to DNA samples (but not fingerprints). These changes allowed for the temporary retention of DNA from individuals who had criminal proceedings initiated against them for certain offences but who had not been convicted. Full details of this legislation are provided in appendix 1.