Here, regular contributor Vicky Conway, introduces our blog carnival on DNA Databases which sets out the context and objective of the debate.

The Criminal Justice (Forensic Evidence and DNA Database System) Bill 2010 was presented to the Dáil in January 2010. This is a dual purpose Bill which aims to develop the taking of forensic evidence and to establish the first formal DNA database in Ireland.  Of central relevance to these developments is the decision of the European Court of Human Rights of S & Marper v. UK in December 2008 in which the Court ruled that the British system which allowed for the indefinite retention of the samples of all suspected persons was a breach of the right to privacy, not justified by any evidence provided. While the Court acknowledged the problems posed in the fight against crime, particularly terrorism and organised crime, it was troubled by the fact that England, Wales and Northern Ireland, who were a ‘vanguard state’ in the development of this technology were the only state among Council members “to allow the indefinite retention of fingerprint and DNA material of any person of any age suspected of any recordable offence.”  The UK government had referred to eighteen specific cases in which information on the database had been used in the successful investigation of a crime but there was a narrow margin of appreciation applicable in this situation. Concluding that there had been a breach of the applicants rights the Court held

“ the Court is struck by the blanket and indiscriminate nature of the power of retention in England and Wales. The material may be retained irrespective of the nature or gravity of the offence with which the individual was originally suspected or of the age of the suspected offender; fingerprints and samples may be taken – and retained – from a person of any age, arrested in connection with a recordable offence, which includes minor or non-imprisonable offences. The retention is not time-limited; the material is retained indefinitely whatever the nature or seriousness of the offence of which the person was suspected. Moreover, there exist only limited possibilities for an acquitted individual to have the data removed from the nationwide database or the materials destroyed (see paragraph 35 above); in particular, there is no provision for independent review of the justification for the retention according to defined criteria, including such factors as the seriousness of the offence, previous arrests, the strength of the suspicion against the person and any other special circumstances.”

Specific mention was made by the Court of the stigmatization which could arise, whereby convicted and unconvicted persons were treated the same. Particular concerns were also expressed over the lack of safeguards in place for minors, which the applicant S was. Overall the extent of the interference with the right to privacy could not be considered necessary in a democratic society. Positive mention was made of the system existing in Scotland which contains limits and procedures for destruction of samples. This will be discussed later by Liz Campbell.

The law for England and Wales required redrafting following this decision. Liz and I have blogged about developments in that regard here and here but the decision is of course important for all members of the Council of Europe who could face challenges before the courts if similar laws are in operation in their jurisdictions. At the time of this decision Ireland had published the schedule of the Bill which was redrafted in light of that decision.

This Blog Carnival will focus on the establishment of a DNA database and examine the human rights issues emerging from this development. A number of questions should be borne in mind throughout these discussions:

• What are the justifications for using databases? The obvious answer is to suggest that they help to fight crime but the extent to which this is true is unclear. Less obvious is the fact that they may help to identify miscarriages of justice. The Innocence Project in New York has, to date, helped 253 persons to be exonerated, all on the basis of DNA evidence. Many of these cases were concluded by the real perpetrator committing another crime much later, their sample being entered on the database and returning a hit for the earlier crime. And as the Irish Bill indicates, it is also believed that the database will help in identifying and locating missing persons.
• To what extent do such databases interfere with ECHR rights? The Marper decision makes it clear that they certainly have the potential to do so, but the Court in that case was presented with a particular set of facts; it may be that other facts would suggest breaches in other directions.
• How can databases comply with ECHR requirements? In Marper specific reference was made to the Scottish system but today we will also consider developments in other jurisdictions such as Australia.
• Do the Irish proposals achieve this? This will perhaps be the central question for this discussion and will be a theme in most posts. Hopefully through this carnival we can spark some discussion as to whether Ireland is approaching this issue, which we know interferes with fundamental rights but has important aims, in a fair, proportionate and legitimate way.

In addition to posts by a number of regular contributors we are delighted to welcome guest posts from David O’Dwyer, a PhD candidate in the School of Law, University of Limerick and Prof Jeremy Gans from the University of Melbourne.