THE MINISTER FOR Justice Alan Shatter has published the Criminal Justice (Forensic Evidence and DNA Database) Bill, which legislates for the creation of a DNA database in Ireland. The creation of such a database has long been on the political agenda but a combination of political lethargy and unexplained delays (which have in part been driven by relevant European case law and resource constraints) have hampered progress in this area.
On publishing the Bill the Minister observed: “The intelligence generated will be invaluable to the Gardaí in relation to identifying prolific offenders involved in volume crime such as burglary but also in relation to serious offences against the person, such as homicide and sexual offences. It will contribute to the move towards more effective, targeted and smarter policing and will also facilitate cooperation with other police forces in relation to mobile criminals.”
It is difficult to dispute the Minister’s remarks. In theory, the concept of a DNA database is a phenomenal tool for the criminal process; ranging from its ability to rapidly include and exclude individuals in an investigation, to its ability to provide a genetic silent witness to another wise seemingly unsolvable case, to its increasing ability as a ‘liberator’ in exonerating those who have been a victim of miscarriage of justice.
However it is vital that we do not let this phenomenal potential ‘overbear’ or ‘steam role’ the serious issues that are concomitant with the creation of a DNA database. Due to the sensitivity of the actions involved (ie allowing the state to access and retain an individual’s genetic information), the collection, retention and use of such information creates a myriad of human rights, due process, and ethical concerns (notably around privacy and presumption of innocence).
However the purpose of this article is not to embark upon a ‘rant’ in favour of human rights and due process values. On the contrary, its purpose is to promote a sense of rationality and reason to a potentially volatile and often manipulated debate. One of the major problems that have stifled and maligned DNA database debates since the establishment of the first DNA database in the United Kingdom in 1995 (there are current approximately 60 operational DNA databases internationally), is the lack of informed public discourse on this issue.
When debate does occur, two archetypical viewpoints tend to come to the fore those in favour of its establishment and those who vehemently argue against. Those in favour often focus upon the databases theoretical benefits and proffer sensationalistic success stories (for example, see the ‘DNA Saves’ campaign that is currently advocating in favour of expanding the scope of DNA databases in the United States) or tend to cherry pick and provide ‘favourable’ statistics (which are often distorted and take out of content) from other jurisdictions who have an operating database.
In contrast, those opposed to the creation of such a database will argue that the retention of our DNA by the state (described as our ‘blue-print to life’) is an unjustifiable intrusion and rebalancing of the relationship between the individual and the state.
Their arguments tend to adopt a scaremongering methodology, often equating the creation of such a database as the first step towards a Gattica (ie a genetic deterministic) type of society. The concern is that such protagonists often neglect to highlight that the genetic material that is predominately retained consists of a DNA profile which only contains a snap shot of an individual’s DNA as such it does not give rise to the same ethical issues surrounding the retention of a DNA sample.
The difficulty is that both sides often adopt defensive postures for their particular positions, which results in an impasse in lieu of progressive debate and discourse. To avoid this impasse and avoid the subsequent debates becoming dominated or ‘bogged down’ in misleading or underdeveloped supposition and policy, it is important that upcoming deliberations surrounding the 2013 Bill remain relevant, informed and constructive.
For example, concerns should focus on, inter alia, locating clear empirically identified justifications for the retention of an individual’s DNA on a state database, developing appropriate and organic safeguards and governance mechanisms to ensure those targeted by the state remain adequately protected and the range of uses to which the retained material may be utilised (for example, should databases be limited to a ‘match no match’ basis or should the state be allowed to ‘dig around’ in an individuals retained DNA (such as familial DNA searching) in the aspiration of developing an additional line of inquiry).
Given the sensitive nature of the material involved, to ensure public confidence (which will be vital for the success or failure of the database) key stakeholders involved (notably the government, the human rights watchdogs, the national Forensic Laboratory and the media) need to avoid the use of generalised rhetoric and instead engage with the public in an open, transparent, informed and dispassionate debate on the type of database necessary from an Irish perspective.
David O’Dwyer has recently been awarded a PhD in Law from the University of Limerick, entitled ‘DNA and the criminal process – Striking the Right Balance: The case for a ‘reflective approach’, for which he was awarded a Government of Ireland Scholarship. David also holds a BA in Law and Accounting from the University of Limerick and an LLM in Criminal Justice from University College Cork.
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