Maureen O’Sullivan a lecturer in law (Above the Bar) at NUI Galway, a Fellow at the Oxford Centre for Animal Ethics and Chairperson of the Vegetarian Society of Ireland. She is also a PhD candidate at the University of Edinburgh where she is doing a PhD in reform of the European patent system.
DNA sampling of convicted criminals and the DNA database
In the early years of the twenty-first century, the Law Reform Commission commenced consideration of the establishment of a DNA database, culminating in the passage of legislation to effectuate such a resource in 2014. The combination of the forensic and computer revolutions have, on the one hand, made crime detection much easier, but their use and increasing intimate intrusion cause human rights concerns to arise. Additionally, human error may skew evidence that otherwise would have provided conclusive information. This article briefly explores some of the perceived advantages of databases, along with potential pitfalls and the significant ethical concerns that arise in the context of the use of DNA sampling and its storage in an increasingly globalised world. Despite the numerous advantages which accrue from the discovery of DNA and its subsequent use in solving crime, one must not forget that whilst the law seeks definitive answers to questions which it poses, science’s truth rests on probability and the concept of absolute truth is, at best, nebulous. Public information, discussion and debate would be worthy pursuits in this increasingly complex realm.
Arguments in favour of obtaining and storing DNA in order to solve crime generally claim that the innocent have nothing to fear, and that solving crime is a greater good in the small sacrifice involved in giving the state access to one’s genetic information. DNA samples obtained from convicted criminals contain such information and their retention is the cause of controversy. The retaining of such information, however, may prevent crime by acting as a discouragement for the criminally-inclined to reoffend. Crime suspects may be exonerated if their DNA is absent or does not match and Ireland does have a database of DNA collected at unsolved crime scenes. Those who have been wrongly convicted may also have their names cleared, so DNA testing may not just be a state-sponsored imposition but also a human right in certain circumstances. Some countries, such as Portugal, considered establishing a national DNA database which, arguably, could mitigate discrimination if information were available on everyone’s genetic identity. However, its Ethics Council expressed concern, after which the remit of the database was confined to the criminal population. DNA databases may help to resolve unsolved crimes and can be used to justify mass screening which does, at times, achieve its objective.
However, the boundaries of the right of privacy and a right against self-incrimination clash with notions of community security and it may be that communities under scrutiny feel obliged to cooperate lest neighbours view human rights concerns in a poor light. Highly emotive crimes solved by DNA evidence often lead to sympathy to this sort of state surveillance. Indeed, several unsolved murders of women may be aided by the retention of the DNA of Elaine O’Hara’s murderer in the recent Dwyer case.
There are ethical issues in DNA sampling and retention, however, and every young lawyer learns some vital principles at the start of their degree; one of particular relevance in this instance is that “hard cases do not make good law”. Therefore, it is imperative that sampling and retention be looked at from myriad perspectives. For instance, DNA evidence is not always conclusive: profiling may be unreliable if not enough DNA has been gathered and there have been instances of, and concerns around, contamination of samples in Australia and the US, to name but a few. The manner in which such samples are obtained has also caused polemic: reasonable force may be used if the subject is not compliant and although the right to bodily integrity has been recognised in Ireland as an unenumerated right, it is not absolute, and can be made subject to the perceived greater good of crime prevention. Samples taken usually include only mouth swabs and singly-plucked head hair and are, therefore, minimally intrusive. DNA samples retained from crime suspects who are later exonerated should be erased and some oversight provided to ensure that this occurs.
Focusing on the gathering of DNA samples of convicted criminals, cogent questions arise relating to whether all crimes should be covered, who has access to the information, and how long the data should be retained. DNA presence at a crime scene, of course, is not conclusive proof of one’s guilt, and data breaches, misuse, and sale by either the state or commercial companies providing storage facilities and software security are other concerns. Furthermore, the Europeanisation and internationalisation of cooperation on such ventures means that national databases are steadily and stealthily being globalised. Data gathered for one purpose may be used for another and while we do have data protection legislation in place, by the time such breaches are discovered, harm may already have occurred. One may find oneself refused employment, insurance or a mortgage and, arguably, even if the victim is a convicted criminal, once one’s debt to society is paid, one should be free from sanctions.
Technology and the benefits which it can yield come with a price which can be perceived at times as Orwellian. Ultimately, as the purported beneficiaries are society and its inhabitants, governments and international agencies should take it upon themselves to educate the public about the advantages and disadvantages of aspects of technological advancement. Decisions should not be made behind closed doors but, rather, should be carried out in a transparent manner after substantial public deliberation and participation.