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Genetics
The retention of forensic DNA samples: a socio-
ethical evaluation of current practices in the EU
N Van Camp, K Dierickx
Interfaculty Centre for
Biomedical Ethics & Law, Faculty
of Medicine, KU Leuven, Leuven,
Belgium
Correspondence to:
Dr K Dierickx, Interfaculty Centre
for Biomedical Ethics & Law,
Faculty of Medicine, KU Leuven,
Kapucijnenvoer 35 blok d - box
7001, 3000 Leuven, Belgium;
Kris.dierickx@med.kuleuven.be
Received 23 June 2007
Revised 27 November 2007
Accepted 17 December 2007
606
ABSTRACT
Since the mid-1990s most EU Member States have
established a national forensic DNA database. These
mass repositories of DNA profiles enable the police to
identify DNA stains which are found at crime scenes and
are invaluable in criminal investigation. Governments have
always brushed aside privacy objections by stressing that
the stored DNA profiles do not contain sensitive genetic
information on the included individuals and that they
reside under the statutory privacy protection regulations.
However, it has been generally overlooked that the police
also store the DNA samples from which the DNA profiles
are derived. Although these DNA samples are actually a
potential source of genetic information, they have so far
scarcely been the subject of discussion. In this article we
will show that both European and national regulations
offer inadequate protection to completely prevent function
creep, that is, the use of these forensic DNA samples for
purposes beyond those envisaged at the time of
collection.
Since its introduction in 1984, forensic DNA
profiling has gradually become an indispensable
part of the criminal justice system.1 i Formerly,
prosecutors could only rely on witness testimonies,
alibis and certain other pieces of material evidence
such as latent fingerprints to prove that a suspect
had been present at a particular crime scene. These
fact-finding techniques do not always yield water-
tight proof. DNA profiling has revolutionised
criminal investigation because it provides prosecu-
tors with irrefutable evidence. Its main contribu-
tion consists of the possibility to determine with
almost perfect accuracy whether two bodily
samples belong to the same individual. Therefore
it allows investigators to both include and exclude
crime suspects in criminal investigations.2 ii In the
beginning it was only used in individual cases for
which additional evidence was needed. As this kind
of use of DNA profiling presupposes that there is
actually a suspect available, its range of applica-
tions is rather limited. Therefore the idea was
launched that the storage of the DNA profiles of
individuals who had already been convicted of a
i
The DNA profiling technique was developed by Alec Jeffreys and his
colleagues at the University of Leicester.1
ii
One of the first cases that was solved using DNA profiling was the
famous 1985 Pitchfork-case (R v Pitchfork and Kelly (1987)). After a
violent double-rape murder, the police asked all young males from a
small English village to deliver a blood sample. When this so called
‘‘dragnet’’ did not produce a positive match, it became apparent that
a local baker called Colin Pitchfork attempted to avoid detection by
delivering a false sample. He was re-tested and eventually
confessed, wherupon another suspect—who was wrongfully held by
the police—was released.2
criminal offence would significantly increase the
efficiency of criminal investigations and that it
would probably also create a serious deterrence
effect. This belief led to the creation of forensic
DNA databases, large repositories of digitalised
DNA profiles of individuals which can be com-
pared at any time with newly discovered unidenti-
fied crime scene DNA stains. A forensic DNA
database typically contains two kinds of DNA
profiles. The first category consists of profiles
which are derived from unidentified crime scene
stains. These are bodily samples such as skin cells,
hair, blood or saliva which possibly belong to an
individual who has been involved in a criminal
offence. The other category, which in most
countries makes up the largest part of the database,
consists of the DNA profiles of individuals who
have been convicted of a criminal offence or who
are a suspect of a crime that is still under
investigation.
In recent years, the steady expansion of these
forensic DNA databases has provoked a number of
critical questions on issues related to this practice,
such as the entry and removal criteria of these
databases,3 the intrusiveness of coercive sampling,4
and the possible creation of databases covering the
entire population.5 In spite of these critical ques-
tions, it does not seem likely that the powers
which are currently assigned to these databases
will be curtailed in the near future. On the
contrary, it has been observed that ‘‘no country
has ever reduced its established forensic DNA
collection or sought to curtail its uses once it has
been embedded successfully into its criminal justice
system’’.6 Governments defend this policy by
referring to the high efficiency of these databases
in their fight against crime and by stressing that
the stored DNA profiles are derived from the ‘‘non-
coding’’ sequences of the DNA.7 With the latter
they want to reassure their citizens that the
storage of DNA profiles does not pose any threat
to their genetic privacy. DNA profiles do not
contain much sensitive information on an indivi-
dual and therefore should not be treated differently
than any other kind of data stored by police
services.
However, the situation is more complex than
that. In fact the DNA samples which are collected
in order to create these DNA profiles, are indeed a
source of highly sensitive information on the
genetic architecture of an individual and hence
ought to be protected by more specific legal
safeguards.8 However, in their political discourse
as well as in their regulations, both the European
bodies and EU Member States have mostly failed
to address this issue properly. After outlining a
J Med Ethics 2008;34:606–610. doi:10.1136/jme.2007.022012
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number of threats to genetic privacy to which this negligence
could lead, we will show that current European regulations do
not offer appropriate safeguards and that EU Member States
have in fact increased the risks of harmful secondary use due to
their differing sample retention policies.
THREATS TO GENETIC PRIVACY
One of the most well known applications of DNA analysis is
that it can reveal whether someone is genetically predisposed to
developing a certain physical disorder. In this context George
Annas has equated genetic information with a ‘‘future diary’’
because it has a certain predictive value for our personal medical
future.9 Although he stresses that this does not mean that genes
are deterministic, he does consider genetic information as a very
private signpost to our possible future.10 As genetic information
might be used for purposes that are highly undesirable for both
the individual and society at large, genetic privacy ought to be
protected by appropriate legal safeguards. Exposure of genetic
information derived from forensic DNA samples to third parties
such as insurance companies or employers could for example
lead to discriminating measures against individuals with a
particular genetic make-up.11 Furthermore, since genes are partly
shared with relatives, the genetic information of individuals
does not only disclose elements about their own current and
future medical situation, but also about that of their parents,
siblings and children.
Governments also have an interest in certain other uses of
these samples besides DNA profiling for identification purposes.
One of the most noted possibilities in this context is that they
will be used for research into genetic predispositions to violent
behaviour.12 Indeed, the availability of large collections of DNA
samples which originate from criminal offenders seems hard to
ignore for behavioural geneticists who are eager to find the so-
called ‘‘criminal gene’’ and for governments who want to
develop more effective strategies to prevent and fight crime.
Although the scientific value of this kind of genetic research into
behavioural traits is still highly controversial, even the mere fact
that this research would be undertaken should be worrying. As
previous genetic studies of this kind have shown,13 iii even
inconclusive results could induce the idea that propensity to
violent and antisocial behaviour is genetically determined and
could therefore lead to discriminating measures against indivi-
duals of whom it is suspected that they carry these genes.14
REGULATIONS REGARDING FORENSIC DNA SAMPLES
Although we should not exaggerate the possibility that forensic
DNA samples are used for ends such as those described above,
the ongoing expansion of forensic DNA databases and police
sampling powers do give rise to justifiable concerns regarding
the consequences of these evolutions for genetic privacy.
Originally, only DNA profiles and samples of individuals who
had committed serious criminal offences such as rape and
murder would be included in such a database. In contrast with
the federal states of the US where this principle still lies at the
basis of their various database policies,15 iv most European
national forensic DNA databases have been gradually trans-
iii
Certain ethologists thought that the explanation of violent behaviour could be found
in the established fact that certain men have two instead of one Y chromosome.
Although this conclusion has been refuted in many other studies now, even
governmental agencies still use the story of the XYY man to push towards more
research into the genetic causes of violent and antisocial behaviour.13
iv
For an overview of the situation of forensic DNA database policies in the USA, see
for example Kimmelman.15
J Med Ethics 2008;34:606–610. doi:10.1136/jme.2007.022012
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formed from convict databases into suspect databases. In EU
Member States such as the UK,v Slovakia, Estonia and Latvia
the police are allowed to take a DNA sample for processing and
storage into their national databases from everyone who is
arrested of any recordable offence. In England and Wales, even
the samples and profiles of those who are acquitted or freed
from charges are retained for a non-fixed time. Together with
the extension of police powers to coercively collect DNA
samples from suspects and offenders, these inclusion criteria
have resulted in a vast increase of the number of individuals
included in the various European forensic DNA databases
during the last few years.vi As these evolutions have made the
question for appropriate legal safeguards for sample retention
and secondary use more pressing, we will examine current
relevant regulations at both EU and national states’ level.
European regulations
EU Member States have to take several governmental levels into
account. Although these structures stimulate and ensure
European cooperation and harmonisation, they also cause
regulations concerning one and the same issue to be scattered
over several official documents, which all have a different legal
status. This is also the case for the present issue. Measures
which aim to protect privacy, and mutatis mutandis genetic
privacy, can be found in both EU and Council of Europe
regulations. This dissemination of regulations has important
consequences for their legal value. EU regulations can be issued
under the guise of Ordinances, Directives, Decisions,
Recommendations or Opinions. Only the first three of these
regulations create binding law, although not in the same way.
While Ordinances bind every party (Member States and
civilians) directly, Directives only bind as far as results are
concerned. It is up to the different Member States to decide how
these results can best be achieved. Decisions only bind those
parties, both Member States and civilians, who are directly
addressed by them. The Council of Europe, on the other hand,
cannot issue any directly binding law. Its main aim is to achieve
a greater unity between its members by stimulating the drafting
of agreements to which their Member States can voluntarily
accede. However, as genetic privacy is being considered in a very
specific setting, other problems enter the picture. Focusing
primarily on economic integration the EU Member States have
so far been reluctant to regulate justice and security issues on a
European level. Therefore, it seems that privacy issues in this
field have received less attention than elsewhere. Furthermore,
as indicated above, a distinction has to be made between DNA
profiles and DNA samples. European regulations should take
this into account if they want to offer an appropriate safeguard
for genetic privacy.
Probably the major shortcoming of European regulations
regarding the processing of personal information is that they do
not apply to justice and security issues. This can clearly be
observed in the Data Protection Convention of the Council of
Europe (Article 3, Section 2) which explicitly mentions that it
does not apply to measures taken in the interests of ‘‘protecting
state security, public safety, the monetary interest of the state
or the suppression of criminal offences’’(Article 9, Section 2).17
On the EU level a similar provision was included in EU Directive
95/46/EC.18 As the provisions of this Directive would make it
v
Although England and Wales, Scotland and Northern Ireland all have their own
forensic DNA database, they do share the same inclusion criteria.
vi
However, none of the European national databases exceeds the England and Wales
NDNAD which now holds over three million DNA profiles.16
607
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otherwise well-nigh impossible for the Member States to use
DNA profiling techniques and operate DNA databases, Article 3
clearly states that this Directive does not apply to ‘‘[…]
activities of the State in areas of criminal law’’.18 By introducing
these exceptions into the various regulations the national states
have made it clear that they would rather keep this competence
at their own discretion.
The former observation is closely connected to the second
weakness of the relevant European regulations: those which
deal most explicitly with DNA samples and DNA profiles in the
context of criminal justice do not constitute binding law. As the
national states want to keep control over issues in the sphere of
criminal justice, European initiatives in this field mostly appear
in the form of recommendations, resolutions, circulars and the
like. Recommendation No. R (92) 119 of the Committee of
Ministers of the Council of Europe offers a good example. It is
currently the only document that directly addresses the fate of
forensic DNA samples by stating that ‘‘samples collected for
DNA analysis and the information derived from such analysis
for the purpose of the investigation and prosecution of criminal
offences must not be used for other purposes’’(Section 3).19
Furthermore, it apparently completely shuts the door to
possible abuse by stating that the ‘‘samples […] should not be
kept after the rendering of the final decision in the case for
which they were used […]’’(Section 8).19 Destruction of the
samples is indeed the most effective measure against harmful
secondary use. Its status as a Recommendation, however,
exempts national states from the obligation to adopt its
provisions into their legislations and practices.
Finally, although it has sometimes been argued that DNA
itself is information,20 this issue is not in any way touched upon
in the various relevant European regulations. The definition of
‘‘personal data’’ which is used in Directive 95/46/EC, for
example, therefore does not include bodily samples: ‘‘‘Personal
data’ shall mean any information relating to an identified or
identifiable natural person (‘data subject’)’’ (Article 2a).18
Directive 95/46/EC therefore only becomes applicable if data
are extracted from the biological material. Although this
Directive seems to prevent third parties who do not operate
within the sphere of justice and security to use forensic DNA
profiles and genetic information derived from forensic DNA
samples, it does not explicitly forbid government agencies to
derive and use genetic information from the samples as long as
it is performed for purposes which are broadly related to
activities in the field of justice and security such as research into
the ‘‘criminal gene’’. Furthermore, in accordance with the non-
applicability of the definition of ‘‘personal data’’ to bodily
samples, Directive 95/46/EC does not forbid the transfer of
these samples from state agencies to third parties as long as no
identifiable information is extracted from them.
Regulations in the EU member States
As there are apparently no clear-cut and binding regulations on
the European level that deal with the fate of forensic DNA
samples, EU Member States can still largely develop their own
policies regarding the retention and destruction of these
samples. The only official document on the European level
which has brought forward clear benchmarks regarding this
issue is the aforementioned Recommendation No. (92) 1 of the
Council of Europe. In contrast with the Data Protection
Convention and Directive 95/46/EC, it does not make an
exception for the processing of data in the field of justice and
security and thereby explicitly forbids any secondary use except
those for the purpose of the investigation and prosecution of
608
criminal offences. However, the Recommendation does also
allow for an exception when the samples are used for ‘‘research
and statistical purposes’’(Section 3).19 Although these uses
would require anonymisation, it is not in any way defined
exactly which kind of research is allowed. Hence, it seems that
some controversial uses, such as research into the ‘‘criminal
gene’’, are not explicitly prohibited by this Recommendation.
Therefore it does not really offer a final solution to the issues
which are left unaddressed by the more general regulations.
However, it does urge governments to destroy the biological
material taken for DNA profiling after the final decision in the
case for which they were used has been rendered. As we have
indicated above, this measure is indeed the only absolute
safeguard against violations of genetic privacy rights. Therefore
it is reasonable to assess the Member States’ policies against this
latter provision.
The sample retention policies of the various EU Member
States are scattered over a host of laws, protocols, codes and
circulars. It is therefore not easy to collect all the required
information. After having analysed the relevant national laws,
where available, we contacted at least two specialists in each EU
Member State, either in a university setting or in forensic
divisions of the police, and requested them to fill in a short
questionnaire. Between February and June 2007, we received
completed questionnaires from specialists in 25 Member States.
Six Member States currently do not have a national forensic
DNA database and are therefore omitted from the discussion.
After several fruitless attempts to contact specialists in Bulgaria,
Romania and Slovenia we were unable to obtain information
from these three EU Member States. Poland announced that it
has established a national database in 2001, but our local
contact persons could not confirm whether it is already
operational (see table 1).21 vii
Overall, four different policies regarding the retention of
forensic DNA samples can broadly be distinguished, ranging
from immediate destruction of all samples after the correspond-
ing DNA profiles are created to not establishing an exact time of
destruction (see table 2).
Germany, Lithuania, Sweden and Belgium are the only
Member States that pursue the policy of immediate destruction
of DNA samples. Hence, it can be concluded that these are the
only Member States that completely preclude any possible
secondary use of the samples.
A second group of Member States distinguishes between
suspects and convicts with regard to the treatment of their
respective DNA samples. In accordance with Recommendation
No. (92), 1 which demands that the samples should not be
retained after the final decision in the case for which they were
used has been rendered, Member States in this group destroy
the samples of crime suspects as soon as they are acquitted or
freed from charges. This ensures that governments do not have
access to identifiable bodily material of individuals who were
found innocent. Member States which pursue this policy
include Cyprus, The Czech Republic, Finland, France,
Hungary, Luxemburg, Scotland, Slovakia and The
Netherlands. Austria adopts a very similar policy, but it requires
that suspects submit a written request for sample destruction
after they are acquitted.
Regarding the DNA samples of convicted offenders, on the
other hand, these Member States allow for their retention for a
substantial period of time and therefore exceed the storage time
vii
For an extensive overview of the EU Member States’ forensic database policies and
the relevant national legislation, see Van Camp N, Dierickx K.21
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Table 1 DNA sample destruction policies in the EU

Country Convicted Offenders Suspects

Austria Samples have to be destroyed when they reach the age of 80 years Samples are usually retained; when the suspect is acquitted, a written
request for destruction can be submitted
Belgium Samples have to be destroyed as soon as the DNA profiles are created There is no suspect database; samples of suspects have to be destroyed
as soon as the public prosecution office has made sure that a counter-
enquiry is not going to be proceeded or when the result of a counter-
enquiry has been communicated to the suspect who has ordered it
Bulgaria, Romania, Slovenia No information No information
Cyprus Samples have to be destroyed when record is cleared Samples have to be destroyed when suspect is freed of charges or upon
acquittal
Czech Rep. Samples have to be destroyed after 80 years No suspect database
Denmark Samples have to be destroyed 2 years after their death or when they reach Samples have to be destroyed 2 years after their death or when they
the age of 80 years reach the age of 80 years
Estonia Time of destruction not fixed Time of destruction not fixed
Finland Samples have to be destroyed 10 years after their death Samples have to be destroyed within 1 year starting at the moment the
prosecutor has made sure that there is no evidence of an offence,
charges have been dismissed or when the sentence has been nullified. If
the samples are not removed earlier, they must be removed 10 years
after the death of the individuals
France Samples have to be destroyed 40 years after the sentence has been passed Samples are treated like any other piece of evidence; if suspect is
or when they reach the age of 80 years acquitted, the sample has to be destroyed.
Germany If they are no longer considered useful for the investigation, samples have to If they are no longer considered useful for the investigation, samples
be destroyed immediately after the DNA profiles are created have to be destroyed immediately after the DNA profiles are created
Greece, Ireland, Italy, N/A (No national database) N/A (No national database)
Malta, Portugal, Spain
Hungary Samples have to be destroyed 20 years after the sentence has passed Samples have to be destroyed upon abandonment of the proceedings or
upon acquittal
Latvia Samples are retained for 75 years Samples are retained for 75 years
Lithuania Samples have to be destroyed once the DNA profiles are created Samples have to be destroyed once the DNA profiles are created
Luxemburg Samples have to be destroyed 10 years after their death Samples have to be destroyed when suspect is acquitted or when the
prescription term is reached. When the suspect dies, his DNA profile is
retained for 10 years
Poland Unknown Unknown
Slovakia Sample is retained Samples have to be destroyed upon acquittal
Sweden Sample have to be destroyed as soon as possible Samples have to be destroyed as soon as possible
The Netherlands Samples have to be destroyed after 20 years when the sentence involves a Samples have to be destroyed upon acquittal
prison sentence of 6 years or less; after 30 years when the sentence
involves a prison sentence of 6 years or more; 20 years after the death of
the individual
UK (Eng. & Wales) Time of destruction not fixed Time of destruction not fixed
UK (Scotland) Time of destruction not fixed Samples have to be destroyed when no criminal proceedings are
instituted or upon acquittal

which the Recommendation considers reasonable. This period
varies from 20 years after the expiry of the sentence in Hungary
to for a non-fixed time retention in Scotland. We should
mention, however, that the inclusion criteria for convicted
offenders vary sharply from Member State to Member State,
which means that the number of samples stored is smaller than
the number of offenders convicted. Some Member States, such
as France and Hungary, have laid down that only those who are
convicted of serious criminal offences such as murder or sex
crimes are to have their samples included in the database.
Others, such as Finland and The Netherlands, on the other
hand, have stipulated that only samples of those who have
committed an offence that could lead to a certain term of
imprisonment can be entered. With these provisions govern-
ments intend to indicate that they only store DNA samples and
profiles of individuals who pose a direct danger to the safety of
their citizens.
A third group of Member States retains the DNA samples of
both categories of individuals for a certain period of time.
Denmark retains all samples until the included individuals have
reached the age of 80 years and Latvia retains all samples for 75
years. As these two Member States do not distinguish between
crime suspects and convicted offenders and moreover do not
take the severity of the offence of which somebody is suspected
or convicted into consideration, this policy could be considered
to be at odds with the principle of proportionality.
Finally, a fourth group has not set an exact term for the
destruction of the samples. In England & Wales, this practice
was contested in the Marper case.22 In this case, it was argued
that the retention of DNA samples of individuals who were

Table 2 policy types for sample destruction in the EU

Destruction of Time of
Immediate destruction Suspects’ samples: Convicts’ samples: all samples after destruction
of all samples upon acquittal after certain period certain period not fixed

Belgium, Germany, Lithuania, Austria, Cyprus, Czech Republic, Finland, Denmark, Latvia England & Wales,
Sweden France, Hungary, Luxemburg, Scotland, Estonia
Slovakia, The Netherlands

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arrested but acquitted afterwards, implies a violation of Article
8 (1) of the Convention for the Protection of Human Rights and
Fundamental Freedoms.23 Both the Court of Appeal and the
House of Lords concluded that while this may be a minor
violation, it is justified under Article 8 (2) which says that an
exception is made for matters of public safety and for the
prevention of disorder or crime. This judgment therefore
confirms once more the above mentioned observation that
international regulations are not properly equipped to deal with
the specific issues raised by DNA profiling and databasing.
Apparently, most EU Member States do not comply with the
provisions of Recommendation No. (92) 1 and, particularly with
regard to convicted offenders, retain the DNA samples beyond
the term which this document considers reasonable. Two
arguments are usually advanced to defend this policy. Firstly,
some argue that retention of the DNA samples is necessary to
enable upgrading of the DNA profiles as soon as new
technologies are available.24 It is then argued that the database
would need to be rebuilt every time a new profiling technology
is implemented. Secondly, it has also been put forward that a
reference sample is needed to enable retesting in case of a
dispute on the accuracy of the original test results.24 The latter
argument can easily be refuted because a new sample can
always be obtained from the person concerned. It can however
be conceived as an argument in favour of retention of the
unidentified DNA samples which are found at a crime scene. As
long as no match is established between these samples and a
suspect, it seems indeed justifiable to retain them. Therefore, it
is almost universally accepted that these kinds of samples and
profiles should be automatically stored into a database.25 The
argument of the necessity for technological upgrades, on the
other hand, does carry considerable credibility. To date, there is
indeed no alternative method available in case of a radical
change in technology. However, as the evolution in technology
is probably never coming to a definite end, this argument can be
used ad infinitum. As it has been indicated that shortcomings of
the presently used STR markers can be put right without having
to abandon the already stored profiles,26 this argument seems
equally hard to sustain.
CONCLUSION
The collection and storage of large quantities of biological
material by police services call for specific regulations regarding
their use and term of retention. As the EU Member States’
national policies regarding these issues are diverse and some-
times even non-existent, a unified legislative framework on the
European level would offer the most effective safeguard for the
protection of genetic privacy. Recommendation No. (92) 1 of
the Council of Europe offers a good starting point. However, as
it does not contain concrete guidelines as to how samples may
be used and as it does not constitute binding law, there is an
urgent need for a new initiative on the EU level. In this context,
an appealing suggestion was made by the Data Protection
Working Party. In an assessment of Directive 95/46/EC the
issue of DNA forensics was addressed explicitly advising that
‘‘consideration should also be given to the legal status of DNA
samples’’.27 Bearing in mind that this Directive creates
imperative law, it seems understandable that the Member
States are eager to keep justice and security matters out of its
scope. Nevertheless, the sensitive nature of genetic information
calls for an exception regarding the regulation of the DNA
samples taken for forensic purposes.
610
Acknowledgements: We are most grateful to all those in both university
departments and forensic divisions of the police who supplied us with the most up-to-
date information on their country’s situation.
Funding: This work was supported by GeneBanC, an EU–FP6 supported STREP
contract number 036751.
Competing interests: None declared.
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 Downloaded from http://jme.bmj.com/ on March 18, 2015 - Published by group.bmj.com

The retention of forensic DNA samples: a

socio-ethical evaluation of current practices
in the EU
N Van Camp and K Dierickx

J Med Ethics 2008 34: 606-610

doi: 10.1136/jme.2007.022012

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