DNA and the criminal process: 'striking the right balance': the case for a 'reflective' approach

DNA profiling has become synonymous with modern criminal investigation. Since its discovery in 1984 its rapid acceptance into the criminal process has been ‗driven‘ by its exciting potential: inter alia, its ability to rapidly include and exclude individuals in a criminal investigation, to reach back through time to provide the ‗silent witness‘ to a crime that has long gone ‗cold‘ and to provide reliable, probative and ‗objective‘ evidence in a court of law, while also proving to be a useful ‗liberator‘ in exposing miscarriages of justice in the post-convictional sphere. This alluring potential has been enhanced by continuing developments in technology and science which enabled the collected DNA to be placed on searchable electronic repositories in 1995, in the form of a DNA database. However, despite its potential, the use of DNA within the criminal process (exacerbated by the sensitive information contained within a DNA sample) creates substantial human rights, due process and ethical concerns. Thus it is imperative that any regime enabling the state to utilise this powerful identification technology is embedded with adequate safeguards and protocols to protect those targeted by the process. The concern is that in a modern ‗security conscious‘ society in which individual rights and due process values are coming under increasing pressure an appropriate balance for its use should be located. A concern that is heightened by the increasingly distorted public perception surrounding the ‗oracle‘ like ability of DNA profilng. This distortion has aided the apathy surrounding the incremental growth and ‗function creep‘ of DNA policies and techniques within the criminal process. Discourse that has occurred has habitually been situated within pugilistic contests in which both sides have been guilty of adopting aggressive defensive postures – often resulting in an impasse inhibiting progressive debate. The scope of this thesis extends to the investigative phase of the criminal process as opposed to the entirety of the process. The thesis offers a ‗reflective‘ approach as an amenable solution to the conflicts that are often encountered during the earlier stage of the process. The approach is predicated on a number of ideals: firstly, it promotes an all encompassing ‗reflective‘ approach to decisions (i.e. it incorporates opinions from the divergent schools of thought); and secondly, it recognises the developing nature of DNA technology so it postulates an adaptive, organic and discursive approach to the scope, application and safeguards surrounding its use. The aim of such a methodology is to seek to benefit from the exciting potential of DNA technology whilst concomitantly ensuring that those targeted by the process remain sufficiently protected.