28.07.2010
United States of America
39.46 All 50 states in the United States have implemented legislation to create state criminal DNA databases.[56] The Federal Bureau of Investigation (FBI) operates the Combined DNA Index System (CODIS), which comprises a hierarchy of DNA indexes at the local, state and national levels. Local index laboratories upload profiles to the state indexes, and the state index laboratories upload profiles to the national index. CODIS holds four separate indices: convicted offenders, crime scenes, unidentified human remains and relatives of missing persons.[57] As of November 2002, CODIS held over 1,224,034 profiles of convicted offenders, and 44,140 crime scene profiles.[58]
England and Wales
39.47 The Police and Criminal Evidence Act 1984 (UK) regulates the taking of bodily samples in England and Wales. Non-intimate samples (mouth swabs and hair) may be taken without consent from any person suspected of being involved in, charged with or about to be reported for, or convicted of a ‘recordable offence’. Intimate samples may be taken provided the appropriate consent is given.[59]
39.48 Although the police initially focussed on taking samples from suspects for the most serious arrestable offences (for example, murder and sexual offences), this has been extended to include a range of less serious offences.[60] The Forensic Science Service operates the national DNA database, which contains three indexes, for suspects, serious offenders and unknown samples (that is, crime scenes).[61] In May 2002, the database held about 1.5 million profiles.[62]
39.49 As a result of legislative amendments in 2001, a suspect’s sample and profile may be retained even if he or she is acquitted of the crime for which the sample was taken. In addition, volunteers in police ‘intelligence screens’ can be asked to sign a non-revocable consent form for the permanent retention of their samples and profiles.[63] As a result, the database is expected to hold 3.5 million profiles by 2005.[64]
Canada
39.50 Canada authorises the taking of DNA samples from suspects for certain categories of offence pursuant to court warrants. A judge may grant a warrant if satisfied of specified matters, and the sample only may be used to investigate the designated offence for which it was taken. In addition, a judge may order that DNA samples be taken from persons convicted of designated offences, or from persons declared dangerous or who have been convicted of multiple murder or multiple sexual crimes. The judge must consider specified matters before making an order.[65]
39.51 The Royal Canadian Mounted Police operates the national DNA databank, which contains a crime scene index and an offenders index.[66] As at February 2003, the databank held 35,719 profiles in the offenders index, and 8,144 profiles in the crime scene index.[67]
New Zealand
39.52 In New Zealand, as of 2002, blood samples can be taken from suspects and certain convicted offenders by consent or by court order. A sample can be taken from a suspect for an indictable offence by consent. If consent is withheld, a court can order the taking of a blood sample if satisfied of specified matters, including that a crime scene sample is available for matching, and that in all the circumstances it is reasonable to make the order. In addition, a court can order a person convicted of specified offences to provide a blood sample for the database.[68]
39.53 The Institute of Environmental Science and Research administers the national DNA databank on behalf of the New Zealand police. The databank contains suspects and offenders profiles, which are matched against a crime sample database.[69]
Germany
39.54 In Germany, as of 1999, DNA samples can be taken from a suspect where there is a justified suspicion that the person has committed an offence ‘of some gravity’. DNA samples also can be taken from persons convicted of ‘serious crimes’. A court order generally is required if taking the sample involves an invasive procedure, but buccal swabs are not considered invasive.[70] Initially, each of the 16 German states operated their own DNA databases. However, one national database now contains indexes of suspects, convicted offenders and unknown samples for serious crimes (ie serious crime scenes),[71] and each state provides information directly to the central database.[72]
[56] D Crosby, Protection of Genetic Information: An International Comparison (2000), Human Genetics Commission, London [1.73].
[57] Office of the Inspector General, Audit Report: The Combined DNA Index System (2001), Department of Justice, Washington, i–ii, 9. State law determines the offences for which a convicted offender is required to submit a sample.
[58] Federal Bureau of Investigation, National DNA Index System, United States, <www.fbi.gov/
hq/lab/codis/national.htm>, 1 March 2003.
[59] ‘Recordable offences’ include the majority of offences investigated by police, including offences involving violence or dishonesty and that can lead to a prison sentence: Human Genetics Commission, Inside Information: Balancing Interests in the Use of Personal Genetic Data (2002), London, 147.
[60] Ibid, 149.
[61] P Schneider and P Martin, ‘Criminal DNA Databases: The European Situation’ (2001) 119 Forensic Science International 232, 234.
[62] Human Genetics Commission, Inside Information: Balancing Interests in the Use of Personal Genetic Data (2002), London, 145.
[63] See Criminal Justice and Police Act 2001 (UK) ss 81, 82. See also Human Genetics Commission, Inside Information: Balancing Interests in the Use of Personal Genetic Data (2002), London, 148.
[64] S Morris, ‘Police Allowed to Retain DNA of Ex-Suspects’, The Guardian (London), 23 March 2002.
[65] Legislative Council Standing Committee on Law and Justice, Review of the Crimes (Forensic Procedures) Act 2000, Report No 18 (2002), Parliament of NSW, Sydney [2.85]–[2.88].
[66] Ibid [2.90].
[67] Royal Canadian Mounted Police, National DNA Data Bank: Statistics, <www.nddb-bndg.org/
stats_e.htm>, 19 February 2003.
[68] Legislative Council Standing Committee on Law and Justice, Review of the Crimes (Forensic Procedures) Act 2000, Report No 18 (2002), Parliament of NSW, Sydney [2.82]–[2.84].
[69] Institute of Environmental Science and Research, The DNA Databank, ESR, <www.esr.cri.nz/features/
esr_and_dna/databank/index.htm>, 20 February 2003.
[70] Legislative Council Legislation Committee, Forensic Procedures and DNA Profiling: The Committee’s Investigations in Western Australia, Victoria, South Australia, the United Kingdom, Germany and the United States of America, Report No 48 (1999), Parliament of Western Australia, Perth [6.33], [6.35].
[71] P Schneider and P Martin, ‘Criminal DNA Databases: The European Situation’ (2001) 119 Forensic Science International 232, 234.
[72] Legislative Council Legislation Committee, Forensic Procedures and DNA Profiling: The Committee’s Investigations in Western Australia, Victoria, South Australia, the United Kingdom, Germany and the United States of America, Report No 48 (1999), Parliament of Western Australia, Perth [7.35].