Conncil of Europe: Explanatory Memorandum to Recommendation No. R (92)1 on the use of analysis of  deoxyribonucleic acid (DNA) within the framework of the criminal justice system

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COUNCIL OF EUROPE
COMMITTEE OF MINISTERS
 

 

EXPLANATORY MEMORANDUM

to Recommendation No. R (92) 1
of the Committee of Ministers to member states
The use of analysis of deoxyribonucleic acid (DNA)
within the framework of the criminal justice system

(Adopted by the Committee of Ministers on 10 February 1992
at the 470th meeting of the Ministers' Deputies)

 

Introduction 

1.         The Council of Europe has interested itself for a number of years in the impact of new technologies on matters relating to human rights and fundamental freedoms. It has done so in the belief that, on the one hand, the evolution and use of these new technologies are necessary and justified in the interest of the progress of society but, on the other hand, that the use of such technologies sometimes carries an inherent risk of infringing human rights and fundamental freedoms if the proper balance is not struck between opposite interests in accordance with what is necessary in a democratic society. 

2.         The Ad hoc Committee of Experts on Bioethics (CAHBI) studied a number of these new technologies and their impact on matters relating to ethics and human values. It realised during these studies that a new technique, analysis of deoxyribonucleic acid (DNA), had been developed recently during the 1970s and in particular during the 1980s. In 1985, a case in the United Kingdom used so-called multilocus probe analysis (see the glossary in Appendix I) and became the first use of DNA technology in a forensic case (A.J. Jeffreys et al, “Positive Identification of an Immigration Test Case Using Human DNA Fingerprints”, Nature 317:818-819, 1985). The technique could in particular prove valuable for identifying an individual in the investigation and prosecution of criminal offences, in that it would be possible either to exculpate a suspect or prove his guilt by the use of the technique. It was at the same time evident that use of the technique in itself carried risks, not only in the technical application but also, and in particular, as regards fundamental rights such as the rights to respect for the private and family life, the right to a fair trial and the respect of the human body. The CAHBI decided therefore to propose to the European Committee on Crime Problems (CDPC) the setting up of a working party to study the use of DNA analysis in the investigation and the prosecution of criminal offences. 

3.            Following this initiative the Working Party on genetic testing for police and criminal justice purposes (CAHBI/CDPC-GT) was set up in 1990. 

4.         The CAHBI/CDPC-GT's terms of reference were to examine the issue of DNA analysis and to make a recommendation on the matter. 

5.         The CAHBI/CDPC-GT was composed of experts from eight Council of Europe member states (Austria, Belgium, France, Germany, Malta, Sweden, Switzerland and the United Kingdom). Four of the experts were nominated by the CAHBI and four by the CDPC. This procedure was resorted to so as to ensure that the working party would consist of experts covering a wide range of expertise such as forensic sciences, social sciences and ethics, biomedical sciences, as well as criminal law experts and judges. Dr T. Rothwell (United Kingdom) was elected Chairman of the working party. In addition, the working party was assisted by experts on data protection at different stages of its proceedings. The Secretariat was provided by the Directorate of Legal Affairs of the Council of Europe. 

6.         The CAHBI/CDPC-GT held its first meeting in September 1990. A preliminary draft recommendation which it had prepared during the meeting was discussed by the CAHBI at a meeting in December 1990 and by a working party set up by the Committee of Experts on data protection in February 1991. It revised the draft recommendation on the basis of the comments made during these meetings and of answers to a questionnaire sent out to the Heads of Delegations to the CDPC on the question of the possibility to take blood samples without the consent of the suspect. The draft was discussed by the CDPC at its 40th plenary session in June 1991. The CAHBI approved the text of the draft recommendation at its plenary session in November 1991 and transmitted the draft to the Committee of Ministers which adopted the text at the 470th meeting of their Deputies on 10 February 1992 and authorised the publication of the explanatory memorandum. 

General considerations and commentary on the preamble 

The use of DNA analysis in the field of criminal justice 

7.         The fight against crime is a prime concern within all the member states of the Council of Europe, and this fight needs to be pursued with the most modern and effective means at the disposal of the investigator. Forensic science can offer considerable assistance in the investigation of crime, taking advantage, as it does, of scientific developments in many different fields. One of these developments has been the introduction of DNA analysis, or genetic profiling as it is often called. This is a method by which an individual may be identified through an examination of a very small amount of his blood or other body tissues. 

8.         The use of DNA analysis during the investigation of an offence may provide proof that a suspected person was involved in the crime; conversely, and certainly just as important, it may positively eliminate an individual from an inquiry. 

9.         When a technique with a potential as great as that of DNA analysis is introduced into the criminal justice system it is right that certain safeguards should be applied. The Council of Europe, with its overview of the activities of its many member states, is well placed to offer guidelines on the proper application of these procedures. 

10.       The complexity of DNA analysis necessitates a high level of sophistication in the working methods of laboratories undertaking such examinations. The governments of member states need to be assured, not just of the reliability of results produced by laboratories within their own spheres of influence, but that work done in neighbouring member states is of a similarly high standard, because crime is not necessarily constrained by national boundaries. 

11.       It is also essential to ensure that fundamental principles are observed. These will include proper respect for the human body and the inherent dignity of the individual. While all member states recognise basic human rights, domestic law differs between countries. For example, during its deliberations the working party noted particular differences in this respect in the manner in which blood or other body samples might be obtained for examination. In such instances these recommendations provide the principle, while the detail is determined by the law of the member state concerned. 

12.       DNA analysis can be an expensive and time consuming procedure, and its use may thus be inappropriate in relatively minor cases. However, even in minor cases it is important to remember that the technique can exonerate an individual from involvement in a crime. The rights of the defence should not be overlooked either in this regard or in any other: information on and access to DNA analysis should be available on the same basis to both prosecution and defence. 

13.       A properly proved fingerprint is accepted as being unique to the individual, and a suspect may be convicted solely on such evidence. Although DNA analysis is sometimes referred to as “DNA fingerprinting” the analogy is incorrect. The differentiation achieved by a genetic profile will depend on a number of factors, such as the technique employed and, particularly, the quality of the original material. At best a profile may provide odds of several million to one against the DNA having originated from someone other than the individual involved. At the other end of the scale the differentiation achieved may be low. It is accordingly not possible to generalise over the use of DNA analysis as the sole basis for a conviction: it will be for the court to decide in any particular case. 

14.       It should always be borne in mind that DNA analysis is a rapidly evolving science. These recommendations are designed to ensure that the techniques are employed in a sensible manner; there is no intention to stifle scientific development. It should, however, be possible for DNA analysis to evolve and develop without compromising any of the basic principles enshrined in these recommendations.

The need to differentiate between individuals 

15.       In many walks of life there is a need for reliable means of distinguishing between individuals. This differentiation can take many forms. At the most basic level, for instance, it is obvious that hair colour varies, and this can be used to distinguish one person from another. Within the criminal field fingerprints have been used for many years for such a purpose, for, as far as is known, each individual possesses a different fingerprint pattern.  

For any system of differentiation to be reliable and credible it must be part of the fundamental make-up of the individual. In this respect a characteristic such as hair colour is of little value for, although it may reflect the genetic constitution of the individual, it may be readily changed by the actions of that person. 

The blood groups are a good example of characteristics which are reliable for use in distinguishing between individuals. Blood groups are determined genetically. Therefore any individual's blood group reflects the contributions made to a child by each of its parents. And these blood groups, once determined, are immutable throughout the course of that individual's life.

The use of blood groups 

16.       The first blood group system to be discovered – by Landsteiner in 1901 – was the ABO system. This is still the most well known, although many others have been found subsequently. The medical importance of blood groups lies in blood transfusion, in which compatible groups have to be used to prevent adverse reactions in the patient. 

The techniques have been adopted for the purposes of differentiating between individuals for criminal justice and other legal purposes. For instance, during an assault blood from the victim may be spattered on to the assailant's jacket. Grouping this blood may provide some evidence to link the suspected assailant to the crime. 

These groups are not restricted to blood, for similar substances occur in most body fluids. Thus, following a sexual assault, it may be possible to determine the blood group of the assailant by testing semen left as a result of the offence. 

Because the blood groups in any individual reflect the genetic contributions made by each parent, blood grouping can be useful in the investigation of disputed paternity. For instance, examination of the groups present in the blood of a child, its mother, and the putative father can provide evidence of a relationship between the man and the child. 

The grouping of blood has thus for many years been an important tool in the armoury of the forensic scientist. The finding of, for example, blood of group A on a suspect's jacket could indicate that an attack had been perpetrated on a victim of this group. Within many populations group A occurs in about two persons in every five. Accordingly this finding provides some – limited – evidence to connect suspect and crime. On the other hand, a full DNA analysis may provide evidence showing only a one in twenty million chance that the blood came from anyone other than the victim of the attack. 

The advent of DNA analysis must be considered against this background. It is the latest in a line of techniques developed to meet the needs of the lawyer and the criminal investigator to distinguish between individuals. It is, however, potentially a vastly more powerful tool than any previously used, and it is right that its use should be subject to certain safeguards.

DNA as the basis of inheritance 

17.            Although a knowledge of the structure and function of DNA is not needed in order to understand the value of DNA analysis in the criminal justice system, some background information and an introduction to the terms in common use may assist those not familiar with the topic. 

18.       The human body is composed of millions of tiny cells, the basic building block of every living organism. These cells are too small to be seen by the eye without the use of a microscope. Within most cells is a structure called the nucleus, and this in turn contains the chromosomes which are the vehicles of inheritance. Chromosomes are minute structures visible only with specialised microscopic techniques. 

19.       The mechanism of inheritance, the genetic code which specifies the structure of the individual, is contained within a complex substance called deoxyribonucleic acid – in short, DNA – which makes up the chromosomes. The DNA itself is composed of many thousands of even smaller units, arranged in particular sequences; it is the form and arrangement of these sequences which constitutes the genetic code, and which in turn controls the production of the various substances which lead to the development of the individual. 

20.       A chromosome is a ribbon-like structure: there are forty-six chromosomes in the human cell, two basically similar sets of twenty-three. One set will have originated from the mother and the other set from the father. Inherited characteristics are controlled by genes, each of which consists of a small section of the DNA strand. The locations of genes on the chromosome are fixed. For instance, the colour of the eyes will be controlled by a gene at a specific locus; that is, a particular point on a particular chromosome. This locus will be present on one chromosome in the set contributed by the mother, and on a corresponding chromosome in the set contributed by the father. These matching chromosomes, which bear equivalent gene loci, are known as homologous. Any particular characteristic of an individual will accordingly be the result of the activity of two genes, one from each parent. 

21.       Thus, at the ABO blood group locus (which is on chromosome 9), the gene on the chromosome originating from the mother may be group A while the other, contributed by the father, may be group B. The actual blood group of the individual will therefore be group AB. Such an individual is referred to as heterozygous with respect to the ABO blood group. If both mother and father contributed a group A gene, the individual's actual blood group would be group A and he would be said to be homozygous with respect to the ABO blood group. The genes responsible for different aspects of a particular characteristic (such as the groups A and B within the ABO blood group system) are known as alleles. 

22.       Not all cells contain two sets of chromosomes. When the gametes (egg or sperm) are formed only half the total complement of chromosomes goes into each, although one of each of the twenty-three types of chromosomes is present. On fertilisation of the egg by a sperm the gametes fuse, and the chromosome set from one gamete pairs up with the chromosome set from the other, to give the developing individual its full complement of genetic material. This is the procedure which ensures that the individual receives equal contributions to its genetic code from each parent. Identical twins are formed by a splitting of the developing embryo. Thus each twin will possess the same genetic code. 

23.            Variations in the sequences of units present in the DNA are responsible for the physical differences between individuals; other factors, such as the susceptibility to certain diseases, may also be a function of the structure of the DNA. 

24.            Analysis of the DNA, or genetic profiling as it is often called, identifies the sequences present in the material, and thus gives access to one of the most powerful methods ever developed for identifying people as individuals.

The analysis of DNA – an outline of the technique 

25.       The DNA which comprises the chromosome is a long chain-like molecule, coiled into a spiral structure. The chain is built up from a large number of small sub-units. There are four types of these sub-units, and it is the sequence in which they occur which constitutes the genetic code. The chain actually consists of a double strand of material, in which the sequence on one strand is always matched by a complementary sequence on the adjoining strand. The two strands together form the famous “double helix” structure postulated by Watson and Crick some forty years ago. Analysis of the DNA depends on the isolation and identification of the various sequences present in the chain. 

26.       One method of analysis focuses on sections of the DNA chain in which short sequences are repeated, sometimes many times over. The number of repeats varies between individuals, and these sections of the DNA are usually known as “variable number tandem repeats” (VNTRs) or “hypervariable minisatellite regions”. These sections of the DNA do not generally form part of a gene, but appear to punctuate the gene sequence. These highly variable regions of the chain are often referred to as non-coding DNA. There is some ethical advantage in using such non-coding DNA for criminal justice purposes; genetic profiling can then lead only to the identification or exclusion of an individual and nothing can be deduced about their physical characteristics because no genes are included in the analysis. 

27.       The technique of analysis involves extracting and purifying the DNA from a suitable source of cellular material such as blood or semen. The purified DNA is then mixed with restriction enzyme – a chemical which cuts the relatively large DNA molecule into small fragments. It does this by recognising a certain sequence in the DNA and attacking the structure at this point. By choosing appropriate enzymes the VNTR sequences can be cut out of the DNA chain. Any particular DNA sample will be cut into a number of fragments of different but quite specific sizes. Different individuals' DNA generates fragments of different length, and it is the distribution of the fragment sizes which constitutes the DNA profile. These sub-microscopic fragments are then separated by electrophoresis, a process which sorts them into groups on the basis of their size along a gradient created by an electric current. 

The fragments of DNA are then treated with a probe in order that they can be seen and permanently recorded. A probe is a specially prepared type of DNA which can recognise and attach itself to specific sequences in the DNA being analysed. The probe is usually radioactive, which allows the presence of the material to be recorded on a photographic film. After processing, the film will show dark areas corresponding to the position of particular fragments of

DNA produced by the analysis. 

28.       Genetic profiles produced during earlier stages of the development of the technique had the appearance of a bar-code, as used to price goods in the retail trade. Each “bar” corresponded to a concentrated band of DNA fragments of a particular size. Profiles of this nature were produced using multi-locus probes (MLPs) – specifically prepared materials designed to render visible the whole range of DNA fragments resulting from the analysis. 

Comparison of profiles, for example, from semen produced as a result of a sexual assault and from the blood of the assailant, is performed by placing the profiles side by side and comparing the relative positions of the bands of DNA. If the DNA in the samples examined was in good condition a large number of bands – perhaps fifteen or more – may be located, the relative positions of which are the same on both profiles. It is this process of identifying the various points at which the profiles match which produced the analogy with fingerprints and led to use of the term “DNA fingerprinting”. However, DNA analysis is not analogous to a fingerprinting procedure and the term is best avoided. 

29.            Although an analysis resulting from MLP use can lead to a high degree of differentiation between individuals thus reinforcing the probative value of the analysis, the profile is complex and may be difficult to interpret. Degraded DNA – that is, DNA which for one reason or another has deteriorated since the blood or other body tissue was shed – may yield an inadequate profile in which few bands are visible. For these reasons, more recent work has focused on the use of single locus probes (SLPs) which suffer to a lesser extent from these disadvantages. 

30.       The initial stages of the analysis are similar, but the single locus probe does not react with all the DNA fragments. Instead, the SLP responds to a particular structure in the DNA chain at a specific genetic locus, and the photographic film which is the end product of analysis shows that the profile consists of one or two bands only. If the individual is homozygous both alleles at that genetic locus are identical, and a single band of DNA fragments appears in the profile. The individual heterozygous at that locus carries two different alleles which will in turn give rise to two bands of DNA fragments in the profile. An SLP profile is accordingly simpler and easier to interpret than one derived using the MLP procedure. 

31.       As with the MLP procedure it is the relative position of the DNA bands revealed in the profile which is important. Comparison of profiles is performed in a similar fashion, by placing them side by side and noting whether the bands occupy the same relative positions. While reliability of the SLP procedure is as high as that involving MLPs, it is inherently less differentiating and a number of different single locus probe analyses will usually be performed in order to improve the differentiation between the individuals concerned.

32.       Single locus probes can be superior to MLPs in circumstances in which the DNA is degraded; the overall sensitivity of the procedure is also improved, so that smaller samples of material are required for analysis. The information resulting from SLP use can be coded in a form suitable for manipulation and storage in a computer. This in turn can lead to requests from criminal investigators and others to institute a DNA register; a database of DNA profiles against which new profiles can be compared in order to link offences with individuals already convicted of serious crime. 

33.       One of the next steps in the development of DNA analysis is likely to be the introduction of the polymerase chain reaction (PCR) procedure. This technique makes use of the inherent powers of the DNA for self-replication under suitable conditions. The PCR technique can be used to prepare relatively large amounts of DNA from a small seed of the material: the DNA thus prepared is identical to the original. Such a procedure renders the DNA analysis much more sensitive, and will allow a genetic profile to be obtained from much smaller samples of material than is presently the case. 

34.       All developments in science have both positive and negative aspects, however. In the case of PCR, the amplification process will multiply the quantity of unwanted DNA in the sample – DNA, perhaps, present in bacteria contaminating the sample being examined – as well as increasing the quantity of the DNA of interest. Introduction of this procedure may thus have to be linked to new procedures for ensuring the integrity and cleanliness of the materials under investigation. 

Application of DNA analysis 

35.       DNA analysis can be applied to a wide range of samples originating from the human body. This is because DNA is present in the nucleus of the cells which comprise the body. For any individual, the same profile will be obtained whatever the sample examined, whether it be blood or other tissues such as the roots of hairs. Body fluids, such as saliva, which generally contain very few cells are unlikely to yield sufficient DNA to produce a satisfactory profile; semen from a vasectomised man falls into this category. Blood, a fluid which contains many cells, is a suitable material for analysis although it should be noted that it is only the white cells which contribute to the profile. The much more numerous red cells contain no nuclei, and thus no chromosomal DNA. 

The analysis of DNA therefore finds wide application in the investigation of assaults and sexual offences. And the technique is not necessarily limited to material of human origin, as the genetic code of other animals and plants is similarly constituted of DNA. 

36.       DNA profiling is a new scientific technique. As such it is rapidly evolving: tests which are more sensitive, more robust, take less time to accomplish and provide better differentiation are steadily being developed. Accordingly, it is important that guidelines for the use of these tests should not simply take into account what is being achieved today but should look to the future, allowing DNA analysis to mature within a secure legal and ethical framework. 

Commentary on the recommendations 

1. Definitions 

37.       The working party thought it necessary to include in the recommendation only definitions of words which were necessary for the proper understanding of the recommendation. It considered whether it was necessary to define what was meant by “criminal offence” in the recommendation but decided against it. It was considered best to leave the matter to national legislation, which could, for instance, include or exclude administrative penal sanctions such as Ordnungswidrigkeiten in Germany.  The working party had before it a glossary of terms which had been prepared in the field of genetic testing and screening for health care purposes by another working party set up by the CAHBI (CAHBI-GT-GS). In taking into account the high scientific value of the glossary prepared by the CAHBI-GT-GS, the CAHBI/CDPC-GT decided to draft its own glossary for the intention of another target group, namely judges, lawyers, legislators and other “laymen”/non-scientists who, perhaps, would read about DNA analysis for the first time in the Council of Europe publication and who would usually not be familiar with the highly specialised terminology used by the experts. It also bore in mind the fact that in the case of a trial by jury the purpose of DNA analysis should be explained to the jurors in plain and clear language. This is why the working party chose to adopt a functional and simplified approach in the drafting of the glossary of terms which is appended to the explanatory memorandum, see Appendix I.  The working party discussed what term should be used to properly describe the collection and use of DNA for criminal justice purposes. “Genetic fingerprinting” was often used by the press but was not considered accurate. “DNA-profiling” had the disadvantage that it could raise questions as to the limit of the methods whereas “DNA-testing” or “DNA-typing” were considered too vague. “DNA-identification” would have been a proper term to indicate that, when used for criminal justice purposes, the method concerned only the identification of persons and not, for instance, diseases. The working party finally elected to use the more neutral term “DNA-analysis”.  “DNA analysis” would not necessarily include only laboratory procedures. Computer analysis would also fall under the definition.  “Samples” refers to any material of living origin which may be utilised for the purpose of DNA analysis. Some jurisdictions, in particular in the common law countries, make a distinction between “intimate” and “non-intimate” samples for the purposes of the possibility of taking samples without the consent of the suspect. The term “sample” refers to both categories of samples.  The term “DNA file” was chosen instead of “DNA register” at the request of data protection specialists who felt that the term “DNA register” would create the impression that a prolonged storage of the data was necessary. The term “DNA file” suggests that the data will not be stored either for long periods or on large sections of the population, see the commentary under Recommendation 8. 

2. Scope and limitations 

38.       The working party thought it important to limit the scope of application of the operative provisions to the use of DNA analysis for the purposes of the identification of an individual within the framework of the criminal justice system. This makes it clear that identification of an individual for other purposes, for instance for health care purposes or in an immigration case, is not included within the scope of application of the recommendation. Recommendation 3, paragraphs 2 and 3 provide however for two exceptions, see the commentary under these provisions. 

The working party discussed whether it would recommend that the use of DNA analysis should be restricted to non-coding DNA, as had been suggested in some countries. It thought however that this would unnecessarily restrict those countries which allowed for use of coding DNA.  The scope of application of the recommendation is not limited to the suspect. It also applies to other persons who might be involved in the investigation of offences, for instance victims. The law of most countries usually provides that samples may be collected from third parties with their consent. Cases have occurred where this has taken place on a number of persons who were neither victims nor suspects, for instance the entire population of a village. If the national law allows such procedures, the recommendation will apply also to such cases.  The recommendation applies “within the framework of the criminal justice system” (see its title). By adopting this wide language, the experts wanted to indicate that results of a DNA-analysis may be used, for instance, when a victim of an offence claims compensation from the perpetrator, although such proceedings might in some countries be considered “civil” and not criminal. The claim is however, in such cases, raised following the commission of a criminal offence.  It is possible that DNA analysis in exceptional circumstances might be used to identify the modus operandi of an offender. Since the purpose also in such a case would be the identification of the offender, the CAHBI considered that the case was covered by the recommendation.  Although the recommendation applies to the collection of samples, this does not necessarily mean that the samples themselves constitute personal data for the purposes of data protection legislation (see Recommendation 7). 

3. Use of samples and information derived there from 

39.       People have a fear, legitimate or not, that samples collected for DNA analysis might be used for purposes other than those for which they were collected. It is therefore important that clear and unambiguous rules are given so that the fear of unlawful use of samples and information derived from it be eased. On the other hand, it is acceptable, when particularly legitimate interests warrant exceptions, that the samples and information may be used for other purposes. Some exceptions were identified by the working party. Where the individual from whom the samples were taken so wishes, the information should be given to him. He would then be in a position to use the information, for instance, for health purposes. Another exception would be research and statistical purposes. Where the individual is deceased, his relatives or legal representatives might wish to have access to the information, for instance by reasons of health. Where the domestic law so permits, they should in such cases be given access to the information.  The second paragraph refers to the case which is not a priori covered by the scope of application of the recommendation, that is to say when samples have been collected for medical purposes. Such samples and the information derived from them should not be used in the investigation and prosecution of criminal offences unless there are circumstances to warrant an exception. These circumstances might be cases where the patient gives his consent or where medical secrecy might be lifted according to national law in very serious cases. The CAHBI thought that such circumstances remain exceptional.  It goes without saying that these exceptions may not be construed so as to permit the police or prosecuting authority to have free access to medical records. Such access is, in each member state, circumscribed with appropriate legal safeguards in the domestic legislation. The right to professional secrecy for doctors is generally recognised in member states.   By “domestic law” in the second paragraph of the principle is not meant that it is necessary to have any specific legislation on the subject. The “identifying references” referred to in the third paragraph might be personal identification numbers, so called PINs.  Regarding the samples themselves this is referred to in the commentary under Recommendation 7. 

4. Taking of samples for DNA analysis 

40.       The working party conducted a survey on the possibility in the member states to take samples for the purposes of DNA analysis in criminal investigations without the consent of the suspect, the victim or a third party who is not involved in the offence. The survey shows that the issues raised are so new to some countries that no specific legislation or jurisprudence exists. In general, a difference is noticeable between the common law countries and the continental law countries in that common law countries would usually require consent, sometimes written, whereas the continental law countries may often use constraint to obtain a blood sample. On the other hand, consent is usually required in respect of victims or third persons. The common law countries are the only ones which seem to make a distinction between intimate and non-intimate samples.  The use of constraint regarding the suspect would be permitted, either on grounds of specific legislation or because of proposals or an interpretation of the law in, for instance, all five Nordic countries, Germany, Greece, Luxembourg, the Netherlands and Switzerland.  The decision to take a sample is usually tied to several procedural guarantees or the taking of the sample may only be authorised under certain circumstances or in particular cases such as: if there is a strong suspicion that the suspect has committed the offence; if the offence is punishable by deprivation of liberty (of a certain length in most cases) or constitutes a serious offence under the legislation; when there are reasons to believe that the analysis is of crucial importance to the investigation; if the taking of the sample or the examination can be carried out without risk or considerable pain; if there is a special law which allows for the taking of the sample; if it is in the public interest; if it is not contrary to the principle of proportionality; if the analysis is limited to non-coding DNA.  Consent is required in France and, in respect of certain samples in the United Kingdom where the situation differs slightly between England, Wales, Scotland and Northern Ireland. The legal situation differs also in respect of intimate (blood, sperm, etc.) and non-intimate samples (hair, nails etc.). The taking of intimate samples would, generally speaking, seem to require written consent, suspicion of a serious offence and reasonable ground to believe that the taking of the sample will confirm or disprove the suspect's involvement in the offence. A suspect's refusal to give his written consent may be used by the court against him as corroborating evidence. Reasonable constraint may be used in the taking of non-intimate samples when the suspect is in police detention and authorisation has been given by a superior police officer.  Taking of samples is not allowed in Cyprus, at least not samples which would involve an intrusion into the human body. In Belgium, the taking of samples which would involve an intrusion into the human body may be authorised, but only under the strict condition that the person involved consents; no constraint may be used for this purpose. Reasons invoked relate to human dignity, the Constitution and the European Convention on Human Rights.  Concerning the taking of samples in respect of the victim or third persons consent is in general required. In Germany samples may be taken only where it is indispensable for the determination of the truth; all other options must be excluded. In Scotland the police might technically obtain a warrant, but it is not envisaged as a practical possibility.  Most countries require that a decision to order the taking of a sample must be made by the judge (Norway, Denmark – other samples than blood samples unless written consent; Sweden, Iceland, Luxembourg, Switzerland, Germany).   Exceptional situations such as urgency or written consent may warrant that the taking of the sample is ordered by a prosecutor or a senior police officer in which case the decision may be reviewed by the court. Blood samples may in general only be taken by qualified medical staff, that is to say physicians or nurses. Some laws contain special rules (indoors, separate rooms, written records) or general rules which may apply to these cases (right to counterexpertise, right to lodge an appeal against a decision but not in all countries).  In some countries private practitioners who are not in public service may refuse to carry out the test (Denmark, Switzerland) whereas in some countries the inverted situation is regulated, that is to say that physicians in public service may not refuse to carry out the test unless extraordinary reasons exist (Norway, Denmark – may refuse if hazardous, painful, risky or the patient is in bad physical condition; Sweden, Switzerland, Germany – doctors working for the police).  In the United Kingdom and Iceland the doctor may refuse to carry out the test on grounds of breach of professional medical ethics. 

41.       The working party studied some decisions by the European Commission on Human Rights (Application No. 8239/78 and 8278/78) in respect of applications made by persons who had been subjected to blood tests in a paternity case or who were under suspicion of having committed the offence of drunken driving.   It noted that the Commission was of the opinion that enforcing a blood test on a person is a deprivation of liberty which would fall under Article 5 of the European Convention on Human Rights even if the deprivation is of very short length. However, sub-paragraph 1.b of Article 5 permits detention of a person for non-compliance with the lawful order of the Court or in order to secure the fulfilment of any obligation prescribed by law.  The Commission further noted that a compulsory medical intervention, even if it is of minor importance, must be considered as an interference with the right to respect for private life as guaranteed under Article 8 of the Convention. It must therefore be examined in the light of the requirements under Article 8, paragraph 2 of the Convention, whether the interference is justified or not. Paragraph 2 of the article requires that interference in the right to respect for private life must be in accordance with the law and necessary in a democratic society in the interests of certain defined areas such as for the prevention of disorder or crime or for the protection of the rights and freedoms of others. There should be a certain number of guarantees which exclude arbitrary decisions or abuse. Where vital interests are at stake and no other alternative exists, an infringement with the right guaranteed under Article 8 must be permitted. In the case of drunken driving, the protection of the society and in particular road traffic safety and the protection of other people's health, justify an exception to Article 8, paragraph 1 of the European Convention. 

42.       Having noted that the Codes of Penal Procedure vary to a considerable degree and having in particular taken into account the case law of the organs of the European Convention on Human Rights, the working party adopted a cautious approach in the drafting. The taking of samples must, in accordance with the decisions made by the European Commission, be determined by the law and justifiable for reasons stated in the European Convention.  The working party noted that the use of mass screening of large groups may entail a difficult question in respect of the presumption of innocence. If a person declines to take part in a screening procedure this should not automatically lead to suspicion. There may exist valid grounds for refusal to take part in a screening exercise. 

43.       The principle of proportionality in the use of coercive powers is recognized in all member states, sometimes in the constitutions. This principle is expressly referred to in the second paragraph. It is a matter for each state to decide the consequences of a refusal to submit to a blood test. 

5. Recourse to DNA analysis 

44.       The purpose of Recommendation 5 is to point out that it should be possible to have recourse in practice to DNA analysis to all kinds of cases and not only the serious ones. This is in particular important to the defence which would perhaps, through the use of DNA analysis, be in a position to exclude the guilt of the suspect. This is why the principle of proportionality has not been mentioned in this paragraph since the defence might wish to have recourse to DNA analysis in minor cases.  It is another matter that in practice recourse to DNA analysis, in particular such analysis requested or carried out by the prosecution, would be limited to serious cases. It is obvious that DNA analysis, if not only for reasons of cost/efficiency, should not be carried out in simple cases of shop-lifting (if at all possible) or in minor road traffic offences. The use of the word “recourse” instead of “access” shows this distinction. The rule of the best evidence must however be taken into account. 

6. Accreditation and control of DNA analysis 

45.            Properly carried out, DNA analysis would allow a much higher level of differentiation than blood testing, but the use of the technique is constantly evolving and involves highly sophisticated technical equipment. It is therefore important, when the technique is used in the criminal justice system, that only such laboratories are used which meet the highest standards of scientific integrity and technical skills and experience. One way of ensuring this would be to institute some form of accreditation and control system. In France, for instance, the Ministry of the Interior had investigated 18 laboratories and found that only five of them met the standards required by the Ministry. Investigating judges were recommended by the Ministry to use only these laboratories. On the other hand, it is not possible to order judges to have recourse to certain laboratories, since this would infringe upon the liberty of the judge to choose the expert. However, with a proper system of accreditation and control, judges would probably resort to the accredited laboratories which were most suitable to handle the analysis.  DNA analysis is provided by a number of public authorities, for instance the Home Office in the United Kingdom, police laboratories such as that of the Bundeskriminalamt in Germany, etc. This fact would, at least in theory, pose some problems in respect of the notion of independence of the laboratories. On the other hand, those tests provided by private companies could be accused of being prejudiced in favour of the person who paid for the analysis. If a laboratory meets the standard of “scientific integrity” required by the recommendation, such misgivings are fully met.  It is thus important that the methods of analysis with high specificity should be developed so as not to obtain irrelevant information, for instance information relevant to the health of the individual. 

7. Data protection 

46.       The recommendation serves as a reminder, together with the preamble, that in particular the data protection aspects of the matter are of importance. In this context, Recommendation No. R (81) 1 on regulations for automated medical data banks should be recalled although a new recommendation, which also would cover genetic data, is currently being drafted.  The collection of the samples do not per se constitute personal data for the purposes of data protection legislation. At the very most, they are capable of being so regarded when the samples are analysed and information is deduced from them. This is why the collection itself of the samples is not carried out in accordance with data protection legislation but under normal rules governing police powers or the codes of penal procedure. Storage of the data and use of the information would however be governed, inter alia, by data protection legislation.  In so far as the collection of the information is concerned, reference is made to Principle No. 2 in Recommendation No. R (87) 15 regulating the use of personal data in the police sector. This principle requires that the collection of personal data for police purposes should be limited to such as is necessary for the prevention of a real danger or the suppression of a criminal offence. Any exception to this provision should be the subject of specific national legislation. This principle excludes an open-ended, indiscriminate collection of data by the police. “Real danger” is to be understood as not being restricted to a specific offence or offender but includes any circumstance where there is reasonable suspicion that serious criminal offences have been or might be committed to the exclusion of unsupported speculative possibilities. 

8. Storage of samples and data 

47.       The working party was well aware that the drafting of Recommendation 8 was a delicate matter, involving different protected interests of a very difficult nature. It was necessary to strike the right balance between these interests. Both the European Convention on Human Rights and the Data Protection Convention provide exceptions for the interests of the suppression of criminal offences and the protection of the rights and freedoms of third parties. However, the exceptions are only allowed to the extent that they are compatible with what is necessary in a democratic society. 

48.       Under Recommendation No. R (87) 15, Principles 3 and 7, the storage of personal data should be limited to accurate data and to such data as are necessary to allow police bodies to perform their lawful tasks. The data should be deleted when they are no longer necessary for the purposes for which they were stored. 

49.       Since the primary aim of the collection of samples and the carrying out of DNA analysis on such samples is the identification of offenders and the exoneration of suspected persons, the data should be deleted once persons have been cleared of suspicion. The issue then arises as to how long the DNA findings and the samples on which they were based can be stored in the case of a finding of guilt. 

50.       The general rule should be that the data are deleted when they are no longer necessary for the purposes for which they were collected and used. This would in general be the case when a final decision has been rendered as to the culpability of the offender. By “final decision” the CAHBI thought that this would normally, under domestic law, refer to a judicial decision.

However, the working party recognised that there was a need to set up data bases in certain cases and for specific categories of offences which could be considered to constitute circumstances warranting another solution, because of the seriousness of the offences. The working party came to this conclusion after a thorough analysis of the relevant provisions in the European Convention on Human Rights, the Data Protection Convention and other legal instruments drafted within the framework of the Council of Europe. In addition, the working party took into consideration that all member states keep a criminal record and that such record may be used for the purposes of the criminal justice system (see Recommendation No. R (84) 10 on the criminal record and rehabilitation of convicted persons). It took into account that such an exception would be permissible under certain strict conditions: 

–              when there has been a conviction; 

–            when the conviction concerns a serious offence committed against the life, integrity and security of a person; 

–              the storage period is limited strictly; 

–              the storage is defined and regulated by law; 

–              the storage is subject to control by Parliament or an independent supervisory body. 

51.       It is a matter for each state to define what is meant by “serious offences against the life, integrity and security of persons”. It is the intention of the drafters of the recommendation that such DNA files should be limited only to those cases which merit the storage of DNA information. 

52.       The working party saw the need to make some other exceptions to the main rule. When the concerned person so requests, samples or body tissues might be stored for longer periods, for example to provide evidence about a possible miscarriage of justice. Another exception relates to samples which were found at the scene of a crime and which may not be attributed to an individual. Such samples may be stored until the prosecution of the offence is statute barred, as the case may be under domestic law.  The exception laid down in paragraph four of Principle 8 concerns cases where the national security of a country is involved. In drafting this provision, the working party took into account that Article 8 of the European Convention on Human Rights allows for an exception in the interests of national security. It thought that this exception would in particular apply to terrorist offences which have for a long time been a priority concern of the Council of Europe (see, for instance, the European Convention on the suppression of terrorism, 1977 (European Treeaty Series, No. 90) and Recommendation No. R (82) 1 concerning international co-operation in the prosecution and punishment of acts of terrorism).

9. Equality of arms 

53.       This recommendation takes into account that the codes of criminal procedure are different in the member states and, in particular, that the system of investigation and prosecution is different in states which apply the adversarial system and those which apply the inquisitorial system. It is important that the DNA analysis should be accessible to the defence, in particular in states where the laboratories are operated by the prosecuting authorities or in order to obtain a second opinion. The fact that the decision to have recourse to DNA analysis could be taken by the judge in accordance with criteria defined by the law would not be contrary to this principle. 

54.       The heading “equality of arms” refers to a terminology which is often used in respect of the concept of a fair trial under the European Convention on Human Rights. If the danger exists that the test material might be completely wasted, the defence should be informed so as to permit that its own expertise, wherever practicable, may follow the procedures. The equality of arms is of particular importance in this context. DNA analysis is also an instrument for the defence to acquit a person from further suspicions. 

10. Technical standards 

55.       Work is already being carried out at national and European level in order to promote the standardisation of various methods of DNA analysis, for instance by the Swiss Academy of Medical Sciences and the “EDNAP” which is a collaboration between 15 laboratories from different states which work as a sub-group of the International Society of Forensic Haemogenetics. The recommendation is intended to encourage such work which is seen as absolutely necessary in order to achieve the highest possible standards, both at national and international level. 

11. Intellectual property 

56.       This recommendation is intended to warn against monopolies by certain biomedical firms or police laboratories which at present seem to dominate the market. Such monopolies might prevent in particular the defence from gaining access to DNA analysis, which would be contrary to the spirit of the recommendation. On the other hand, it must be recognised that intellectual property rights exist which might be associated with certain methods of DNA analysis. Such rights are of course not questioned by this recommendation, which encourages the holder of the property rights to give access to the technique. 

12. Transborder exchange of information 

57.       If all the requirements of this recommendation are satisfied, and in particular the requirements concerning professional knowledge, etc., in Recommendation No. 6, it should be possible to obtain a DNA analysis from another country which could be used before the courts of the requesting country. Cases have occurred, for instance in Germany, where courts have used analysis from laboratories situated in the United Kingdom. The courts should in such cases have the assurance that the standards laid down in the recommendation are met. If on the other hand these standards are not met, states should not resort to international co-operation with laboratories situated in countries which do not apply them. Such a requirement would apply also to non-member states of the Council of Europe. 

58.            Transborder communication of the conclusions, or for that matter of the samples, may be carried out under the relevant treaties on exchange of information in criminal matters, in particular the European Convention on Mutual Assistance in Criminal Matters (European Treaty Series, No. 30). Such assistance may take many forms, for instance as a letter rogatory under Article 3 of the convention requesting an expert in a laboratory performing DNA analysis to give evidence on oath. 

59.       Article 12 of the Data Protection Convention provides that a state shall not, for the sole purpose of the protection of privacy, prohibit or subject to special authorisation transborder flows of personal data going to the territory of another state. Two exceptions to this rule are made in the convention.

Glossary of terms 

Alleles 

Alternative forms of a gene occurring at the same locus on a particular chromosome. Allelic genes control the same inherited characteristic, for example the ABO blood group, but produce variations of that character, for example blood group A, B or O. 

Cell 

These structures are tiny, and visible only under the microscope, yet constitute the basic building blocks of every tissue and organ, whether plant or animal. Living organisms are made up of millions of cells. 

Chromosomes 

The elements inside the nucleus which carry the means of inheritance. The human cell has forty-six chromosomes, existing as two basically similar sets. One set will have been inherited from the mother and the other from the father. Chromosomes are ribbon-like structures carrying the genes along their length. 

DNA 

Deoxyribonucleic acid – the complex chemical substance which is found in the chromosomes. It is composed of a very large number of small sub-units that are arranged in sequences. The size of the sequence and the organisation of the sub-units within it is characteristic of the individual.

DNA fingerprint 

Another term used to describe a genetic profile, more specifically the complex pattern of DNA fragments resulting from multi-locus probe analysis (see probe). The procedure is not analogous to ordinary fingerprinting and the term is best avoided.

Gamete 

The cell involved in the reproductive process; the female gamete is the ovum (egg) and the male gamete, the spermatozoon (sperm).

Gene 

The fundamental physical and functional unit of heredity. Genes control the development of inherited characteristics of the individual, for instance, the colour of the eyes. Each gene is composed of a sequence of DNA and all the genes have their own specific locations on particular chromosomes. Because the cell contains two basically similar sets of chromosomes, one from each parent, the specific location responsible

Genetic code 

The use of analysis of DNA for the control of a particular characteristic will occur twice in each cell. Every characteristic is thus controlled by two genes, one originating from each parent.

The information which determines inheritance. 

Gene mapping 

The process of determining the relative locations of different genes on a particular chromosome.

A technique for analysing the DNA. It involves breaking up the DNA structure into small fragments consisting of sequences of sub-units. The size and organisation of the sequences will be characteristic of the individual. 

Genetic profiling 

Rendering these groups of DNA fragments visible, using one of a number of biochemical techniques, reveals the genetic profile of that individual. 

Genome 

All the genetic material in a cell or, more specifically, carried by a gamete. 

Heterozygote 

An individual having two different forms (alleles) of a gene at a given locus on homologous chromosomes. For instance, a blood group AB person would possess the gene for group A on one chromosome and the gene for group B on the other chromosome at the locus controlling the ABO blood group. 

Homologous 

The corresponding chromosomes, one originating from the chromosomes mother and one the father, which bear the same genes. 

Homozygote 

An individual having two identical forms (alleles) of a gene at a given locus on homologous chromosomes. 

Locus 

The site of a gene or some other DNA sequence on a chromosome. The locus may be occupied by one of a number of alleles. 

Non-coding DNA 

Nucleus 

Those parts of the DNA which do not represent genes, and therefore do not control any physical characteristics but which may in some circumstances be analysed in genetic profiling.

The nucleus is a structure found inside the cell. Almost every cell contains a nucleus, the most notable exception being the human red blood cell. The nucleus contains the chromosomes. 

Polymerase chain reaction (PCR) 

A technique for increasing the sensitivity of DNA analysis. It is a means of amplifying a sequence of the DNA, identical in structure to the initial seed material, in order to provide sufficient DNA for analysis.

Probe 

A sample of specially prepared DNA used to visualise the DNA during analysis. Single-locus probes (SLPs) react only with particular fragments of the DNA, revealing just a part of the genetic profile. Multi-locus probes (MLPs) reveal a large number of profiles.

Restriction enzyme 

A “biological scissor” produced by certain bacteria, used to cut the DNA into small fragments.



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