In an opinion forming exercise that eventually became this letter I have complied a list of web resources on the UK National DNA database. See also below a full, and previously unpublished article on the subject.
Here they are, collected in January 2010.
Guardian JoePublic Blog The DNA database betrays the rascism of those behind it July 9 2009
Guardian JoePublic Blog The scandal of ‘criminalising’ mental health patients May 2008
Surveillance: citizens and the state (pdf) House of Lords
Nuffield Council on Bioethics The forensic use of bioinformation ethical issues September 2007
Keeping the right people on the DNA database – science and public protection – Home office May 2009
European molecular biology organisation The UK National DNA database Helen Wallace
The dark side of the National DNA database Lancet September 2003
House of Commons
From second session 2006/7 Home affairs committee Young black people and the criminal justice system
See also links at the end of the page
This article eventually made its way into publication in a shortened form as a letter in The Psychiatrist
The National DNA Database. DNA profiling and mental health
Authors: Dr Stephen Ginn and Dr Lisa Conlan
DNA analysis is a powerful tool in crime detection and the UK has the largest DNA profile database in the world. However it is controversial and vulnerable mental health patients may be over-represented. This article outlines our concerns.
In recent years DNA analysis has become one of the most powerful tools available for criminal investigation. In the UK this has led to the creation of the National DNA Database and the British Government now holds the largest DNA database of any country in the world. At present 5.2% of the UK population is on the Database and this compares with 0.5% of the US population.1 The Database was established in 1995 and came into existence via a piecemeal legislative process and without widespread public debate.
Most people agree that public protection from criminal activities is a key responsibility of the state and that the National DNA Database is of great utility in detecting and convicting criminals. However, there are concerns as to how this database should be operated, especially with regards to how DNA profiles are collected and retained and from whom. Some groups, including young black men, are known to be overrepresented on the Database2 and it is likely that individuals with mental health problems are similarly affected. The Database includes the profiles of a large number of people who have never been convicted of any crime compromising the long-standing tradition of presumption of innocence in the UK courts and the principle of equal treatment before the law.
This article aims to outline our concerns about the Database with particular regard to mental health patients and to demystify its complex history and current precarious legal position. We are unaware of any group representing doctors that has taken up the issue of the DNA Database and its relation to patients and we feel this is an unsustainable position.
The DNA Profile
DNA profiling was first developed in 1985.3 The technique makes use of the fact that although the DNA of any two individuals, related or not, is predominantly very similar there are short sequences present in every chromosome which show a large degree of inter-individual variation. Analysis of these sections provides twenty paired numbers and this, in combination with a sex indicator, comprises the DNA profile of an individual. Therefore, although the two are often confused, DNA profiling is quite distinct from full genome sequencing.
The National DNA Database
The National DNA Database is a centralized record of all the DNA profiles taken by police forces in England and Wales. Scotland and Northern Ireland also have their own DNA databases and Scotland submits some profiles to the National DNA Database. It is current practice that an individual’s DNA will be added to the National DNA Database following their arrest for a recordable offence and, by and large, this is how the Database has been populated. A ‘recordable offence’ is any offence which carries the possibility of a custodial sentence and these represent a broad range of offences ranging in gravity from taking part in an illegal demonstration to murder. The powers which allow the police to collect biological samples for DNA analysis were afforded to them in the 2003 Criminal Justice Act. 4 Under this legislation, a sample can be taken from an arrested individual without their consent and regardless of whether a DNA profile may be relevant to the crime being investigated. Once gleaned, all DNA profiles are retained indefinitely, irrespective of whether the person is subsequently charged or convicted of an offence. Strictly speaking the DNA Database comprises solely of a record of DNA profiles and therefore the issue of the fate of the initial biological sample is separate and we will not discuss it further here.
The National DNA Database is estimated to contain 5.6 million profiles belonging to 4.8 million individuals (13.3% of profiles are estimated to be duplicated).5 The estimated number of individuals on the Database who have neither been changed nor convicted of a crime currently stands at just over 980,000.5
There are no estimates available for the number of people with mental disorders on the National DNA Database. However in 2008, nine percent of mental health inpatients were admitted via the Criminal Justice system.10 Furthermore, studies of individuals in prison and on remand have concluded that mental disorder is extremely common in these populations with respective rates of 90% and 63%. 11,12 It would be surprising if the population of the National DNA Database were not to broadly reflect this state of affairs. We anticipate that the National DNA Database contains a substantial number of vulnerable people with mental health problems.
Retention on the National DNA Database
Uniquely amongst those treated by the NHS, patients with mental health problems can find themselves on the National DNA Database by virtue of their illness alone, having been arrested in a state of crisis as a direct result of their mental state. Patients suffering from a psychotic illness, once recovered, may fail to fully appreciate that their DNA has been taken and the feasibility of a patient removing themselves from the National DNA Database is in question.
Indefinite retention of DNA profiles of individuals unconvicted of any crime has been challenged and in December 2008 the European Court of Human Rights found England and Wales unanimously to be in breach of the European Convention of Human Rights.6 This was the result of a legal challenge brought by Marper and ‘S’, two men from Sheffield. Marper had had his DNA taken following charges of harassment by his estranged partner. These charges were later dropped when the couple reconciled. ‘S’ was a teenager charged with attempted robbery but later acquitted. Both wished their DNA and fingerprints removed from public records. Their case was initially rejected by the House of Lords but the European Court of Human Rights ruled:
"The Court was struck by the blanket and indiscriminate nature of the power of retention in England and Wales. In particular, the data in question could be retained irrespective of the nature or gravity of the offence with which the individual was originally suspected or of the age of the suspected offender; the retention was not time-limited; and there existed only limited possibilities for an acquitted individual to have the data removed from the nationwide database or to have the materials destroyed.” 7
In response to this ruling the Home Office released a consultation document proposing that the DNA profiles of those convicted of crimes be retained indefinitely and the profiles of those arrested but subsequently found not guilty of any crime be kept for between six and twelve years.8 The research on which this drew was later discredited and these proposals have since been amended.9 It is now proposed that the DNA of those arrested but never convicted should be kept for six years and then destroyed. DNA of those convicted will be kept indefinitely as before. This is based on research which has not been peer reviewed and which contends that subjects, once arrested, will subsequently have a higher reoffending rate. It will be debated in the next parliament.
Despite the European Court’s ruling, DNA profiles continue to be acquired by the police and the appeals process against inclusion on the National DNA Database has yet to be formalized. The process currently in operation is ad-hoc and the outcome of a removal request depends upon the police authority to which it is made. This process is difficult for anyone to negotiate, particularly those recovering from an episode of mental illness.
The European Court of Human Rights expressed its concern that innocent people held on the National DNA Database were subject to stigmatization and the same treatment as convicted criminals. Although it may be true that inclusion on the Database does not signify a criminal record, the practice is at odds with the principle of equal treatment before the law and the long-standing tradition of presumption of innocence in the UK courts. Retaining the DNA profile of an innocent person on the National DNA Database for any period beyond that necessary for immediate investigations does, in our view, indicate suspicion of future criminality and the possibility of prejudicial treatment. It also violates Article 8: Right to Privacy of the Human Rights Act 1998, an unjustifiable intrusion.
Mental health problems carry with them the burden of discrimination and stigmatization. An innocent mental health patient finding him or herself on the National DNA Database seems not only disadvantaged but also criminalized; a potentially unhelpful outcome for the process of engagement and recovery. In addition, there is increasing concern about the status of ethnic minority groups with mental health problems. Black Mental Health Watch, a campaign group, argues that the National DNA Database particularly criminalizes black people who have mental health problems.14 Black people are considerably overrepresented on the National DNA Database. In 2007 Minister for Justice, Baroness Scotland, told a Home Affairs Select Committee that in the region of 77% of young black males are on the National DNA Database.15
It is current police practice that samples for DNA profile analysis are taken from all people arrested for recordable offences whether or not DNA is likely to be of use in any subsequent investigation. Police powers13 allow that reasonable force may be used to take a DNA sample without consent and so a disturbed and oppositional patient may be hurt in the process. With this possible harm in mind, and the often non-essential nature of sampling, we question whether DNA samples should be taken indiscriminately. As many of our patients have not committed a crime this risk is not justifiable.
Although DNA analysis is clearly a powerful tool for criminal investigation and in the context of an existing suspect good DNA evidence may prove invaluable, the public perception that DNA retention and analysis provides a ‘silver bullet’ for crime detection and reduction is mistaken. In some high profile cases where DNA has been a factor, for example the convictions of Steven Wright and Mark Dixie, it has been incorrectly reported that it was solely the suspect’s presence on the National DNA Database that led to arrest and conviction.16 DNA analysis is open to error17 and there has been concern about the misuse of statistics to establish the probability of a match. There is also anecdotal evidence that the police are prone to drop investigations where DNA evidence is not found at the crime scene.
As employees of the NHS, we regularly ask patients to entrust our record systems with a substantial amount of their personal data, yet government bodies currently have a poor record on managing private and confidential databases and concerns about the security of the National DNA database remain. This, in combination with a collective sense of injustice from inclusion on the National DNA Database, may lead to increased patient requests for restricted data-sharing and mounting reluctance of patients to engage with doctors and healthcare workers in general. If doctors are to act as patient advocates, then we have a responsibility to address the rights of our patients should we feel they are being compromised. If we were to advise patients to remove themselves from the National DNA Database, this would put us in opposition with government policy. We are unaware of any representation having been made by doctors groups on this issue and feel that this is an unsustainable position.
The National DNA Database is the largest DNA database in the world and contains the details of a substantial number of vulnerable people. The concerning issues encompass the criminalization of innocent people, erosion of trust in professionals and the transgression of fundamental civil liberties. We are particularly concerned about the implications resulting from the overrepresentation of minority groups, including mental health patients. We believe it is unacceptable for anyone’s profile to be on the National DNA Database, beyond that time necessary to exclude them from an investigation, if they have not been convicted of a crime. This is an important issue with which doctors need to be informed and actively engaged.
1. Home Office. The National DNA Database. [document on internet] Home Office; 2010 [cited 6 January 2010] Available from: http://www.homeoffice.gov.uk/science-research/using-science/dna-database/
2. National Police Improvement Agency. Statistics [document on the internet] National Police improvement agency; 2009 [cited 6 January 2010] Available from http://www.npia.police.uk/en/13338.htm
3. Jeffreys AJ, Wilson V, Thein SL. Hypervariable ‘minisatellite’ regions in human DNA. Nature 1985; 314(6006):67-73
4. UK Government. Criminal Justice act 2003. The Stationery Office; 2003 Available at http://www.opsi.gov.uk/acts/acts2003/ukpga_20030044_en_1
5. UK Police Improvement Agency. The National DNA Database Annual Report 2007-2009. [document on internet] National Police Improvement Agency; 2009. Available from http://www.npia.police.uk/en/docs/NDNAD07-09-LR.pdf
6. S. And Marper v. The United Kingdom – 30562/04  ECHR 1581 (4 December 2008)
Citation: (2008) 158 NLJ 1755,  ECHR 1581, (2009) 48 EHRR 50, 25 BHRC 557, 48 EHRR 50,  Crim LR 355
Available from: http://www.bailii.org/eu/cases/ECHR/2008/1581.html
7. European Court of Human Rights. Grand Chamber judgment S. and Marper vs. the United Kingdom. Press release issued by Registrar; 2008. Available at http://www.coe.int/t/e/legal_affairs/legal_co-operation/data_protection/Documents/1S.%20AND%20MARPER%20v.%20THE%20UNITED%20KINGDOM%20Press%20EN.pdf
8. The Home Office. Keeping the right people on the DNA database. Home Office 2009. Available from: http://www.homeoffice.gov.uk/documents/cons-2009-dna-database/
9. Written Ministerial Statement Alan Johnson Home Secretary. DNA and fingerprint retention. Home Office; 2009. Available from: http://www.homeoffice.gov.uk/documents/cons-2009-dna-database/
10. Commission for Healthcare Audit and Inspection. Count Me In 2008. Commission for Healthcare Audit and Inspection; 2008. Available from http://tinyurl.com/mr62e4
11. Singleton, N., Meltzer, H. & Gatward, R. (1998) Psychiatric Morbidity among Prisoners in England and Wales (Office for National Statistics). London: Stationery Office.
12. Maden, A., Taylor, C. J. A., Brooke, D., et al (1995) Mental Disorder in Remand Prisoners. London: Home Office
13. Home Office. Police and Criminal Evidence Act 1984 (Section 63 & paragraphs 6.6 and 6.7 of Code C) Available from http://police.homeoffice.gov.uk/operational-policing/powers-pace-codes/pace-code-intro/indexce1a.html?version=17
14. Black Mental Health Watch UK. BMH UK launches campaign to end the criminalisation of innocent mental health patients [document on the internet]. Black Mental Health UK; 2008. [Accessed 6 January 2010]. Available from http://blackmentalhealth.org.uk/index.php?option=com_content&task=view&id=322&Itemid=117
15. Rt Hon Baroness Scotland of Asthal QC, Minister for Criminal Justice and Offender Management. Minutes of evidence 13 March 2007 (Q653) [document on internet] House of Commons [updated 15 June 2007; cited 6 January 2010] Available from http://www.publications.parliament.uk/pa/cm200607/cmselect/cmhaff/181/7031305.htm
16. Liberty’s response to the Human Genetic Commission’s Consultation on the National DNA Database 2008 [document on internet] available from: http://www.liberty-human-rights.org.uk/pdfs/policy08/response-to-consultation-on-national-dna-database.pdf
17. Pascali V, Dobosz M Giampeitro L. The dark side of the National DNA Database. The Lancet 2003 362: 834