Edition 1DX TUE 13 NOV 2001, Page Law 5

DNA's danger to legal rights - Paul Dentith

The Government's plan to retain DNA samples and fingerprints from suspects who are not charged or who are acquitted may lead to serious miscarriages of justice, says Paul Dentith.

Criminal defence lawyers will recall their horror at hearing that the fundamental rights of innocent but suspected persons had been significantly curtailed by a little-publicised, virtually undebated and almost secret piece of legislation which effectively removed the right to silence. Many more must now be similarly concerned to learn that history has repeated itself with the amendment to the Police and Criminal Evidence Act 1984 and the Criminal Justice and Police Act 2001, brought into force a few months ago, which allows police to retain fingerprints and DNA samples taken from arrested suspects who are later acquitted.

Until now, police had to destroy such samples after an accused had been found not guilty or the proceedings discontinued. Perhaps even more alarming is the new requirement for the police to retain this evidence, even when they themselves decide not to proceed with any charge. This means that even when the police conclude through their own investigation that the person suspected is entirely innocent of any crime, they retain the fingerprints and DNA samples taken from what now must be considered the innocent victim of the criminal justice system. Samples taken from an arrested person, which do not require the suspect's consent, were redefined sometime ago. A sample to be taken from the inside of the mouth and other areas most would consider intimate are now classified as non-intimate samples and may be taken by force if the suspect does not consent.

This means, in effect, that police may arrest you and take your DNA, by force if you do not consent, for any recordable offence and retain it on record even if you are determined by the police themselves to be innocent. The justification for this significant further erosion of rights, as stated by the Home Office, is that "law-abiding individuals have nothing to fear". History has however, repeatedly proven this to be a lie.

Take a moment to consider the following scenario: a young man in his late teens, out on the town with his friends, is involved in a fracas. He is arrested, interviewed, charged and required to go to court, as are all the group. At charge, his fingerprints, photograph and DNA samples are obtained. Subsequently the police obtain CCTV video footage of the incident and realise that only one of the group had committed any crime. They withdraw proceedings against all but the guilty individual, yet keep on record this blameless young man's samples. Years later, this same, not now so young, man has his mobile phone stolen. He thought that he had misplaced it in a restaurant, had not thought to report it stolen and was going to get round to calling the bistro to see if it was still there. The thief now goes on to commit a very serious crime. He is chased from the scene and drops the mobile while running away. The police recover it and do DNA tests on the mouthpiece. The innocent phone-owner is arrested, hauled from his bed at the crack of dawn by a team of police officers who have raided his home, and dragged down to the police station where he spends many hours being questioned on the basis of that ancient DNA sample. When he tells the police that he had lost his phone, they counter with "likely story, what else would we expect you to say, if it's true why did you not report it to anyone?" He is unfortunate in being 5ft 10in to 6ft tall, of average build and dark-haired, a common appearance which nevertheless fits the general description of the criminal suapected of committing the crime. As far as the police are concerned DNA evidence connecting him to the phone is the answer to all their problems: this kind of evidence is held in such high regard that it is regarded as determinative of the man's guilt. Now he finds himself charged. The offence is so serious that he is refused bail and spends weeks in custody. He may be fortunate: a judge may decide that there is simply insufficient evidence to continue with the proceedings and release him, but not before he has spend some time in prison. Even being released will no doubt leave him with the stigma of being arrested; there will be those who think he must have been guilty - after all, the police did charge him with the offence. And although the police had rightly decided that there was insufficient evidence to charge, and then set the man free, his details would be kept on record as a suspect of a serious crime, and he could have his daily movements examined by police at some later stage. Had the police not been able to rely upon the DNA and fingerprint samples obtained years before, they would have had to conduct a thorough investigation.

It is easy to see - with police manpower and budgetary problems - how they would settle for the easier target to satisfy pressures for "a result" rather than undertake a lengthy, time-consuming and costly investigation. An unlikely scenario? It is certainly far from impossible. It is merely one of many examples that can show how an innocent person may come to be arrested - and worse, convicted. As the number of retained samples becomes larger, it can only be matter of time before a possibility becomes a reality. Such a significant change in the rights of the individual should surely have been the subject of much publicity, lobbying and discussion - to ensure safeguards against miscarriages of justice. Even if the police consider it justifiable to enter by the back door, the Government should not be afraid to walk openly up the path to the front door, ring the bell loudly and seek permission before trampling over prized and valuable rights.