Adverse inferences will be drawn from a refusal to give a DNA sample, writes Donncha O'Connell
Prof David McConnell makes compelling arguments in favour of DNA as a reliable instrument of exculpation and in favour of a universal or "comprehensive" DNA database as a means of guaranteeing a free and secure society.
The scientific basis of his thesis is well made but he fails to answer some practical questions.
It is easy to overestimate the importance of such evidence in establishing criminal guilt. In fairness to Prof McConnell, he acknowledges this point. However, the perception that it might be the "be-all and end-all" of crime-solving is pandered to by opportunistic politicians with a good nose for a moral panic on crime.
Obviously DNA evidence can, in the context of a rape case, establish whether or not two persons have had sexual intercourse. That is, however, purely circumstantial and does not establish, as a matter beyond reasonable doubt, that the crime of rape has taken place. Similarly, in the context of murder, DNA may establish as a matter of fact that a suspect was at or near the scene of a crime but that does not prove that the person in question was the murderer.
In the area of criminal culpability intention or consent remain essential factors and cannot be proven beyond doubt by forensic evidence. The creation of a DNA database may make the use of such evidence more efficient, but it is easy to exaggerate the extent to which it will contribute to the solving of crime unless, of course, it is proposed to whittle away other due process rights, especially in the area of corroborative evidence.
Such whittling away is exactly what will follow from an increased reliance on DNA as a tool of investigation. A database that starts with the retention of DNA samples of convicted persons will expand to include the samples of all arrested persons, many of whom might never be convicted of any crime. Adverse inferences will be drawn from a refusal to give a DNA sample; such a refusal coupled with an exercise of the right to silence (without the presence of a lawyer during interrogation) will be used to corroborate other possibly weak evidence of guilt.
The proponents of a DNA database will, of course, argue that "safeguards" can be put in place, but the first thing to be compromised by politicians responsive to the clamour of unreliable public opinion will be the "safeguards". Public Enemy Number One may remain the criminal but Public Enemy Number Two will be the safeguards.
The analysis is incomplete without a fully open and honest assessment of the risks a DNA database poses to civil liberties. Prof McConnell quite rightly calls for a new independent state entity with full control over a DNA database and with the sole function of checking whether or not samples submitted by the prosecution authorities match any sample on the database. Such an entity must exist in complete independence of the police and other prosecution authorities.
At the heart of this well-meaning suggestion lies a naivete as to the operation of the prosecutorial function. The State has a monopoly on criminal prosecutions even if various agencies of the State have powers of prosecution. This is a necessary evil in any democratic society. How can true independence and incorruptibility be guaranteed to such an agency in the control of something as susceptible to corruption as a DNA database? Just because an entity is State-run and governed by law does not mean that it is infallible or even less fallible than other institutions. It would be excessive to fully rehearse the legacy of institutional State "fallibility" at this point.
One need only recall the combination of civil and criminal negligence in the control of blood supply agencies in various states to conceive of the potentially tragic chaos that could emerge from the corruption of a "real world" universal DNA database. Even if such an agency behaved with the utmost probity and was governed by the strictest legislation it would be impossible to shield it from external corruption.
Furthermore, a DNA database is a computer-based system. The danger of unauthorised access to such a system - whether through the geeky adventurism of "hackers" or the more sinister activities of "cyber-terrorists" - is clear.
In other jurisdictions one of the major problems with DNA databases has been one of "function creep". As DNA is such a useful, durable and multi-purpose genetic fingerprint it can be put to uses other than that for which it has been collected. In the US, in particular, this has led to various forms of genetic discrimination on racial grounds with the result that many states have been compelled to introduce legislation to combat such discrimination in the workplace. Prof McConnell does address this point squarely in arguing for a universal database.
But how can such a database be established if sceptical citizens exercise a conscientious objection and refuse to contribute a DNA sample? Is Prof McConnell proposing that privacy rights be jettisoned and overridden by a state power or "right" to use reasonable force to extract samples from unwilling citizens?
If that is so, the status of privacy as an informing principle of civil society is much diminished. No doubt this question will be given due weight by the Law Reform Commission in its consideration of DNA databases in light of its previously expressed views on privacy.
The logic of the argument for a non-discriminating universal database is that it must be cross-jurisdictional to reflect the reality of crime that recognises no borders. It is frightening enough to think of how a national state agency to control such a database might be safeguarded without even beginning to speculate as to the myriad hazards involved with a trans-national body.
In a globalised world, states cannot be trusted to resist the pressure of private interests (such as the insurance industry), not to mention their own temptations to expand the uses to which a DNA database might be put. This need not be a debate between Luddite or obscurantist civil libertarians, on the one hand, and pioneers of the science of human security, on the other. As far as science goes, Prof McConnell is on solid ground but his argument would have much greater force in an ideal world. Unfortunately, there is no place on earth like an ideal world.
Donncha O'Connell is a lecturer in law at NUI, Galway and the Irish member of the EU Network of Independent Experts in Fundamental Rights established by the European Commission in 2002