The Development of a DNA Database in Ireland - Assessing the Proposed Legislation (original) (raw)
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The UK National DNA Database: Implementation of the Protection of Freedoms Act 2012
Forensic science international, 2018
In 2008, the European Court of Human Rights, in S and Marper v the United Kingdom, ruled that a retention regime that permits the indefinite retention of DNA records of both convicted and non-convicted ("innocent") individuals is disproportionate. The court noted that there was inadequate evidence to justify the retention of DNA records of the innocent. Since the Marper ruling, the laws governing the taking, use, and retention of forensic DNA in England and Wales have changed with the enactment of the Protection of Freedoms Act 2012 (PoFA). This Act, put briefly, permits the indefinite retention of DNA profiles of most convicted individuals and temporal retention for some first-time convicted minors and innocent individuals on the National DNA Database (NDNAD). The PoFA regime was implemented in October 2013. This paper examines ten post-implementation reports of the NDNAD Strategy Board (3), the NDNAD Ethics Group (3) and the Office of the Biometrics Commissioner (OBC) (4...
DNA Databases and Innocent Persons: Lessons From Scotland?
Databases of DNA samples are increasingly seen as a key element in the investigation of criminality, by providing a mechanism for detecting and resolving crimes effectively and expeditiously and by circumventing the need for new genetic tests of specific suspects in the context of each criminal inquiry. These factors, in addition to exonerative and deterrent effects, lend weight to the pragmatic argument that samples collected from all individuals who come to the attention of the police should be included in DNA databases, so as to enhance the likelihood of a successful match between a crime-scene sample and stored DNA. Holding an innocent person’s DNA in such a repository for future speculative searches engages and affects various civil liberties, but the relevant Scottish legislation has been cited approvingly by the European Court of Human Rights (ECtHR) in S and Marper v United Kingdom as proportionate and compliant with human rights norms. The current UK administration intends to bring the law in England, Wales and Northern Ireland in line with the legal framework in Scotland, in order to address criticisms of the English law in the same decision. This article analyses Scottish law on non-conviction DNA retention to determine if it represents the model of best practice, as was expressed by the ECtHR. I question whether Scotland should in fact be heralded as a lodestar in this context by unpacking three elements of the judgment in S and Marper, namely the right to privacy, the presumption of innocence, and the interest in not being stigmatised. Furthermore, I point to recent developments introduced in Scotland by the Criminal Justice and Licensing Act 2010 which are potentially problematic in a human rights sense.
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The article focuses on the provisions of the Criminal Law (Forensic Procedures) Amendment Act 37 of 2013, which established the National Forensic DNA Database (NFDD) of South Africa. The implications of DNA taking, retention, and profiling on an individual’s constitutional rights are discussed with special reference to the provisions of the Protection of Personal Information Act 4 of 2013 (POPIA). The value of DNA evidence in combating crime is not disputed. Policies relating to the parameters of the database and the duration of DNA storage are also highlighted. It is submitted that the different categories of expungement of DNA samples and profiles raise constitutional issues. The article also deliberates whether there is adequate awareness of rights and adequate resources to ensure the proper destruction or expungement of DNA samples. Although the writers are prima facie of the opinion that the individual’s right to privacy is not violated by the abovementioned Acts, only time wil...
‘Of weighty reasons and indiscriminate blankets: The retention of DNA for forensic purposes’
Technology and Society (ISTAS), 2010 IEEE …, 2010
This article explores the fallout from the decision in S & Marper v. UK (2008), where the European Court of Human Rights (ECtHR), in ruling that the UK's DNA retention regime breached human rights, was 'struck by the blanket and indiscriminate nature' of the power to retain DNA and stated that the UK government required 'weighty reasons' to justify the retention of DNA in cases of unconvicted individuals. Since the ruling, successive UK governments have drafted new retention regimes but serious doubts remain as to whether the issue of DNA retention has been satisfactorily resolved.
ABSTRACT The study of genetics and the finding of the mapping of the human genome by 2003 have led to a ‘genetic’ era. This has affected not only the health sector but it also proved to be an indispensable tool for the delivery of justice. The increase in the scientific knowledge has inspired governments, scientists and researchers to continue in the collection of samples and their storage, thus creating ever growing bio banks and DNA databases. The use of these databases in the delivery of justice has thus increased and has raised many challenges while also making felt the need for regularisation and legislation in this regard. The criminal investigation commences by the collection of biological evidence at the crime scene. As Locard opines, anyone who is present in a place leaves a trace behind thus analyses of the samples follows. The DNA profile produced out of the evidence gathered is than compared to other DNA profiles stored in the forensic DNA database. The legal argument raised is whose DNA should be in a DNA database? This is highly debatable. Some theorists suggest that all the population of a state should be profiled so evidence collected at a scene of crime can be easily matched. Others argue that only, DNA profiles from crime scenes, suspects and convicted criminals should figure in a DNA database. Both have their pros and cons however most legal argumentation centres on the human rights at stake. The author is hypothesising that there is a lacuna in the Maltese legislation when it comes to a definition of forensic DNA databases and also there is no specific legislation that regulates the on-going practice of collecting evidence in the process of the criminal investigation by the police force. Key words: Forensic DNA databases, Criminal Investigation, DNA profiles, Legal Argumentation, Maltese Legislation
“Non-Conviction” DNA Databases and Criminal Justice: A Comparative Analysis
Common law countries share a growing receptiveness to the use of DNA (deoxyribonucleic acid) in criminal investigation and prosecution, with the formalisation and steady expansion of schemes of DNA collection and retention. Despite a general consensus regarding the significance and value of genetic material in criminal justice, there is considerable divergence in terms of the populations from whom DNA may be collected and the length of time for which DNA may be retained. This article takes a comparative approach by assessing the trajectory of the law relating to DNA collection and retention in a range of common law jurisdictions, and ascertains how aspects of particular countries‟ laws seek to resolve common problematic issues that arise concerning human rights, in particular the rights to bodily integrity, of privacy and the presumption of innocence. It identifies a common international movement to a risk-based approach and concludes that of the comparator jurisdictions the Canadian model provides the most fitting accommodation for human rights in DNA database expansion.
'Non-Conviction' DNA Databases in the USA and England: Historical Differences, Current Convergences
Collecting DNA from crime scenes and individuals and storing it in databases is regarded increasingly as critical for criminal investigation and prosecution. This paper considers the development of non-conviction DNA databases in the United States and England and Wales, and examines why current legal trajectories are in opposite directions, with the US becoming more permissive in terms of database expansion and England and Wales less so. It posits that any such trend is contingent on many factors. Political and cultural variables in England and Wales prompted database expansion, facilitated by the absence of robust constitutional protection for privacy. Nevertheless, the jurisprudence of the European Convention on Human Rights now limits this scheme. In contrast, classical liberal ideology and the construal of the norm of privacy provided a brake in the American context, yet it appears that non-conviction databases will become more common there given extant interpretation of the US Constitution.