On 4 December 2008 the European Court of Human Rights found that the Government’s current DNA retention policy breached Article 8 of the European Convention on Human Rights. Since the decision, there has, unfortunately, been some confusion over its impact.
Statements made by the Prime Minister, the Home Secretary and the Association of Chief Police Officers in response to the decision muddied the waters and on 9 December 2008 the Government’s Home Office minister, Lord West, even went as far as to say that convicted rapists may be released as a result of the ruling. This is a legal nonsense. Under law there is absolutely no possibility of convicted rapists (or indeed persons currently on trial) walking free as a result of the S & Marper judgment.
Contrary to some of the commentary around the case, the decision does not dispute or aim to undermine the important role that DNA evidence can play in the detection and prevention of crime. While DNA is only ever relevant in a small number of crimes, it can be extremely useful in bringing criminals to justice.
The decision in S & Marper will not prevent the police from doing extremely important investigatory work. It will not stop DNA being taken from suspects in the course of an investigation. It will not prevent that DNA from being retained while the investigation is ongoing. It will not prevent DNA taken from those on arrest being matched against the database of unidentified crime scene DNA and it will not prevent the DNA of those convicted of violent and sexual offences from being retained on the National DNA Database (NDNAD).
Press releases about S & Marper:
- Retaining DNA samples of innocents breaches human rights
- European Court of Human Rights DNA case will promote national database debate, says Liberty
Example DNA cases
Below we examine some high profile cases where DNA evidence has been significant. We show that in spite of some misleading statements none of these convictions would have been affected by a more proportionate retention policy.
Steve Wright was convicted in 2008 for the murder of five women in Ipswich. At the time it was reported that he was only linked to the murders as a result of a DNA sample that had been collected and retained for a minor theft several years earlier. In fact, CCTV footage studied during the investigation placed his car in close proximity to several of the victims making him a police suspect.
A failure to provide a satisfactory explanation for the circumstantial evidence against him would have provided the required ‘reasonable suspicion’ threshold for arrest and DNA extraction. Nothing about the S & Marper judgment would prevent DNA being extracted on arrest.
Traditional policing techniques which had identified Mr Wright as a suspect would, on the facts of this case, have provided sufficient evidence for an arrest; a DNA sample to be taken; and the prosecution which followed.
In November 2008 Tobin was convicted of the murder of Vicky Hamilton. Tobin was not initially on the NDNAD. Despite a 1992 conviction for raping a 14 year-old girl this arrest and conviction took place before DNA retention began. As with many convicted criminals, whose arrests and convictions took place before the creation of the NDNAD his DNA was not retained by the authorities. Instead, he was eventually linked to the disappearance of Vicky Hamilton following a 2006 conviction for the murder of Polish student, Angelina Kluk.
Police began Operation Anagram which focused on Tobin’s past. They discovered numerous aliases that were previously unknown and among other leads, they discovered that Tobin had been living close to the area from which Vicky disappeared in 1991. Following this lead, Tobin’s previous address was searched and DNA evidence linking him to Vicky was discovered.
While DNA evidence corroborated police suspicion, it did not lead the police to Tobin. Instead, as more information about Tobin’s movements came to light, the police were able to re-open an old investigation and eventually to charge and prosecute.
Maninder Pal Singh Kohli
In November 2008, Maninder Pal Singh Kohli was convicted of the rape and murder of 17 year old Hannah Foster. Kohli was linked to the crime after DNA matching Hannah was found in his van. Samples taken from Kohli’s wife and children after he had fled the country to India also provided a match to DNA found on Foster. Once a sample was eventually taken from Kohli, this also matched DNA at the crime scene.
The NDNAD did not play a role in this conviction as it was other evidence that led the police to Kohli. DNA evidence taken during the course of the investigation simply corroborated other evidence that had been gathered by the police. Kohli was eventually extradited from India in 2007. He was tried and convicted of Hannah’s murder on 25 November 2008.
Another case, often cited in support of DNA retention is that of Mark Dixie, convicted in 2008 for the murder of Sally Ann Bowman. Mark Dixie’s DNA was taken by police nine months after the murder following his arrest for a drunken brawl in a Sussex pub. It was this DNA swab that revealed his link to Sally Ann’s murder after it was compared with the database of unidentified crime scene DNA. Mark Dixie was then arrested, charged and prosecuted.
The decision in the S & Marper case would not prevent DNA taken on arrest from being compared with DNA on the unidentified crime scene database as happened in the Dixie case. This is because comparing the DNA of someone who has been arrested for a violent or sexual offence with past crime scene DNA is very different to the indefinite retention of the DNA of innocent people.
If police are routinely taking DNA upon arrest it makes sense from a resource and efficiency perspective for that DNA to be compared with unidentified DNA from unsolved crimes. If no link is found, and no charges pressed, the DNA should be destroyed unless further retention can be justified for a limited period.