Maryland v. King and the Road Already Traveled: How the United Kingdom Tried—and Failed—to Balance State Interests With Privacy Rights

• Jurisdiction: United States,Federal
• Citation: Vol. 42 No. 1
• Publication year: 2013

MARYLAND V. KING AND THE ROAD ALREADY TRAVELED: HOW THE UNITED KINGDOM TRIED—AND FAILED—TO BALANCE STATE INTERESTS WITH PRIVACY RIGHTS

Courtney A. Coons Poole^*

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TABLE OF CONTENTS

I. INTRODUCTION ...............................................................................158

A. Background on Forensic DNA Analysis...................................162

II. THE U.K. LEGISLATION ..................................................................164

A. The Royal Commission on Criminal Justice's 1993 Recommendation......................................................................165
B. The Criminal Justice and Public Order Act.............................166
C. The Criminal Evidence (Amendment) Act................................167
D. The Data Protection Act of 1998..............................................168
E. The Police and Criminal Evidence Act of 1984.......................170
F. The Criminal Justice Act Extension.........................................171

III. THE PRIVACY DEBATE ....................................................................172

A. Development of the Right to Privacy in the United Kingdom...................................................................................172
B. NDNAD and Arrestee DNA Considered in Light of the Privacy Debate.........................................................................174

IV. THE EUROPEAN COURT OF HUMAN RIGHTS' DECISION IN S & MARPER V. UNITED KINGDOM .......................................................... ..........................................................180

V. THE SUPREME COURT OF THE UNITED STATES' DECISION IN MARYLAND V. KING ..........................................................................182

VI. CONCLUSION ...................................................................................185

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I. Introduction

Since the discovery of DNA and its potential uses in the field of forensics, countries across the world have been trying to find ways to use DNA testing to their advantage. often, this leads to unique and challenging legal questions. In the United States, arrestee DNA legislation has proven to be a controversial issue with just over half of U.S. states enacting laws for the purpose of creating and maintaining DNA databases, and half the states remaining without such laws.¹ Meanwhile, the federal government also collects arrestee DNA in certain cases.² In many states this type of legislation has been challenged as unconstitutional, despite advocates of such data collection consistently lobbying for it across the nation.³ These challenges have resulted in split decisions amongst state and federal courts across the United States.⁴

Signaling the importance of the matter, the Supreme Court of the United States decided Maryland v. King, in which Maryland's arrestee DNA legislation was challenged as a violation of the Fourth Amendment's

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guarantee against unreasonable searches and seizures.⁵ Petitioner Alonzo King challenged his conviction for rape, claiming that it was based on an unlawful search and seizure, as his DNA profile had been collected upon his arrest for a separate, unrelated crime.⁶ In the majority opinion by Justice Kennedy, the Court held that the collection of a DNA sample upon arrest for a serious offense was reasonable under the Fourth Amendment.⁷

Still, the Court's opinion may be read quite broadly and does not answer all of the questions about DNA collection legislation in the United States. The debate forming around the collection and retention of DNA in the United States may be illuminated by the actions of other countries that have implemented similar laws. Many legislators attempt to strike a balance between citizens' rights to privacy and the legitimate state interests that are served by arrestee DNA sampling and retention as they make a foray into this area of forensic science. By taking note of what other countries have already tried and what other courts have already deemed acceptable or unacceptable, the United States could avoid some of the potential downfalls of DNA sampling and retention.

The first country to implement a DNA databank system was the United Kingdom, followed swiftly by other European nations and the United States.⁸ The U.K. began collecting and maintaining DNA profiles in their National DNA Database (NDNAD) in 1995.⁹ This database was, until very recently, the largest DNA database in the world, with roughly 5.5 million unique profiles collected as of March 1, 2012.¹⁰ Proportionally, it is still the largest database in the world and, numerically, is second only to the United States' Combined DNA Index System (CODIS), which has over 6 million profiles

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collected.¹¹ Proponents of the widespread sampling of arrestee DNA profiles and databases often point to the U.K. as the leading example of how to best implement such systems and how advantageous they can be in aiding criminal investigations and preventing crime.¹²

There have been several studies performed in the United States documenting the purportedly advantageous uses of arrestee DNA databases.¹³ One such study indicated that requiring the collection of DNA profiles upon felony arrest rather than felony conviction could have prevented sixty violent crimes, including fifty-three murders and rapes.¹⁴ The study stressed that the eight convicted persons studied had twenty-one prior felony arrests between them, only seven of which were for violent crimes.¹⁵ A similar Maryland study suggests obtaining DNA samples upon arrest of three individuals charged with a burglary, a sex offense, or a violent crime could have prevented twenty other crimes.¹⁶ One can infer from these studies that in order for arrestee DNA sampling to best serve the public interest, sampling should not be limited to samples taken upon arrest for violent crimes, but should be extended to all felonies, as violent crimes are often committed by people who have previously been arrested for nonviolent felonies. Undoubtedly, the collection, retention, and comparison of

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arrestee DNA samples would provide a significant advantage in criminal investigations and potentially in preventing crime.

While widespread DNA sampling can serve as an important tool in fighting crime, it can also create tension with human rights concerns. In late 2008, the European Court of Human Rights (the ECtHR) declared the U.K.'s widespread collection and indefinite retention of arrestee DNA samples to be a violation of the European Convention on Human Rights.¹⁷ Even prior to this holding, many human rights activists and commentators had expressed concern about the potential violations of privacy that were occurring in the U.K.¹⁸ Additionally, there were concerns that the U.K. databases were being used to perpetuate racial discrimination. Further, commentators noted the databases' potential for future misuse, including accessing the stored information for purposes other than criminal investigations.¹⁹ Finally, statistics showed that the DNA profiles of many people who had either been acquitted or never been charged in the first place remained in the databanks, with authorities refusing to delete them. All of these concerns were brought to light in the ECtHR's 2008 ruling.

The purpose of this Note is to provide a comprehensive overview of the developments in U.K. law in the field of forensic DNA databasing in light of the United States' recent foray into this area. As such, this Note will examine the debate that surrounded the drafting and implementation of the U.K.'s various statutes that allow for such widespread sampling and retention of DNA profiles. Part II will focus on the particular statutes and amendments that expanded DNA profile collection in the U.K. Specifically, U.K. legislators adhered to no overarching legislative scheme; rather, the ability to collect DNA profiles expanded over a number of years by way of piecemeal legislation that gradually increased the police power to obtain and retain DNA profiles.²⁰ Part III will turn to the discourse that surrounded the

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passing of those statutes and amendments, with a particular focus on how the legislature conceptualized individual privacy rights and sought to balance those rights with the original state interests. Part IV will analyze the ECtHR's decision in the case of S. & Marper v. United Kingdom, where the Court held that the indefinite retention of arrestee DNA profiles violated the Human Rights Act of 1998. In its analysis, the Court applied a balancing test, attempting to strike the correct proportion between privacy protection and advancing state interests in crime prevention.²¹ Finally, Part v of this Note will examine the Supreme Court of the United States' recent decision in Maryland v. King and how this opinion differs from that of the European Court of Human Rights. This retrospective look at the United Kingdom's initial venture into the world of DNA databasing provides a comprehensive view of the various downfalls to avoid as the federal and state governments within the U.S. attempt to refine their laws and employ DNA database systems to their fullest capabilities, while simultaneously protecting what privacy rights their citizens have. In light of the recent Supreme Court decision, it appears as if the U.S. may have just taken the first step down a road already traveled.

A. Background on Forensic DNA Analysis

In order to understand many of the topics and concepts embodied in this Note, it is important to understand the mechanisms of forensic DNA sampling and use. In 1985, Professor Alec Jeffreys of Leicester University developed a method by which "patterns of chemical signals within the DNA molecule" that are unique to each person could be identified and recorded.²² This form of identification, known as a DNA profile, soon began to be recognized as a valuable tool in aiding criminal investigations and other situations where determining identity...