Performing the Union: the Prüm Decision and the European dream

Ethics as Lived Practice. Anticipatory Capacity and Ethical Decision-Making in Forensic Genetics

Greater scrutiny and demands for innovation and increased productivity place pressures on scientists. Forensic genetics is advancing at a rapid pace but can only do so responsibly, usefully, and acceptably within ethical and legal boundaries. We argue that such boundaries require that forensic scientists embrace 'ethics as lived practice'. As a starting point, we critically discuss 'thin' ethics in forensic genetics, which lead to a myopic focus on procedures, and to seeing 'privacy' as the sole ethical concern and technology as a mere tool. To overcome 'thin' ethics in forensic genetics, we instead propose understanding ethics as an intrinsic part of the lived practice of a scientist. Therefore, we explore, within the context of three case studies of emerging forensic genetics technologies, ethical aspects of decision-making in forensic genetics research and in technology use. We discuss the creation, curation, and use of databases, and the need to engage with societal and policing contexts of forensic practice. We argue that open communication is a vital ethical aspect. Adoption of 'ethics as lived practice' supports the development of anticipatory capacity-empowering scientists to understand, and act within ethical and legal boundaries, incorporating the operational and societal impacts of their daily decisions, and making visible ethical decision making in scientific practice.

Risks and benefits of transnational exchange of forensic DNA data in the EU: The views of professionals operating the Prüm system

Under EU Law, Member States are compelled to engage in reciprocal automated forensic DNA profile exchange within the so-called Prüm system. Presently, 25 operational EU Member States exchange DNA data within the Prüm system to combat terrorism and cross-border crime. This article discusses the perceived risks and benefits of the Prüm system on the basis of a set of 37 interviews conducted in 22 EU countries, with 47 professionals operating the system (the National Contact Points - NCPs). The perceived benefits relate to the intensification of tools for combating transnational criminality; development of standardisation and harmonisation of forensic DNA testing procedures; and reinforcement of professional cooperation. The perceived risks are associated to the possibility that individuals may be prosecuted on the basis of false positives; the lack of available data to measure the effectiveness of the Prüm system; and the different modus operandi of police forces and judicial authorities. Our results reveal that perspectives on the risks and benefits of the Prüm system significantly vary according to the type of work performed by the NCPs. Our data shows a more complex range of perceived benefits and risks than those suggested in previous studies about the Prüm system.

Privacy and data protection in the surveillance society: The case of the Prüm system

The simultaneous localisation and globalisation of 'terrorist threats' and cross-border criminality have led to increased expansion of surveillance activities and greater cross-border police and judicial cooperation, placing a greater priority on these activities within the political agenda of the EU. In this scenario, the expansion of technological systems for surveillance and monitoring, and the large-scale exchange of citizens' personal data play a pivotal role in the "fight against crime". This paper explores the multiplicity of data protection regimes in different EU Member States within the framework of the Prüm system. While EU regulations establish minimum standards for personal data flows at the transnational level, local and domestic practices are extremely heterogeneous. Based on analysis of 37 interviews conducted with professionals involved in the automated exchange of forensic genetic profiles, this paper provides empirical data that highlights the tensions between the local and the global within DNA data exchanges across the EU. These tensions relate to differentiated sociotechnical imaginaries regarding the protection of personal data flowing between Member-States. In sum, this paper analyses the potential threats to human rights created by the exchange of personal data with regards to issues of privacy and data protection.

The Prüm Decisions as an Aspirational regime: Reviewing a Decade of Cross-Border Exchange and Comparison of Forensic DNA Data

The automatic exchange and comparison of DNA data between national databases to combat terrorism and cross-border crime in the EU area has been facilitated by the 2008 Prüm Decisions. While it was anticipated that all EU Member States would have fulfilled the requirements by August 2011, this has not yet occurred. Once each Member State has implemented the Prüm Decisions, which is expected to occur by spring or summer 2019, the EU Commission is planning on submitting a legislative proposal to amend the Prüm Decisions, possibly broadening its scope both in terms of types of data exchanged and the number of countries involved. Therefore, it is a timely place to review the available literature on the existing data on the cross-border exchange and comparison of DNA. However, due to the limited amount of available data regarding the Prüm regime's contribution to combating crime and terrorism, this article reviews national DNA databases' contribution to national criminal justice systems before it turns to the Prüm regime. Outlining how Prüm represents an "aspirational regime" focused on a secure and safe future, we draft recommendations directed towards rendering cross-border exchange of DNA data more transparent and accountable.

Patterns of exchange of forensic DNA data in the European Union through the Prüm system

This paper presents a study of the 5-year operation (2011–2015) of the transnational exchange of forensic DNA data between Member States of the European Union (EU) for the purpose of combating cross-border crime and terrorism within the so-called Prüm system. This first systematisation of the full official statistical dataset provides an overall assessment of the match figures and patterns of operation of the Prüm system for DNA exchange. These figures and patterns are analysed in terms of the differentiated contributions by participating EU Member States. The data suggest a trend for West and Central European countries to concentrate the majority of Prüm matches, while DNA databases of Eastern European countries tend to contribute with profiles of people that match stains in other countries. In view of the necessary transparency and accountability of the Prüm system, more extensive and informative statistics would be an important contribution to the assessment of its functioning and societal benefits.

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Analysis of a full dataset of 5 year statistics of the Prüm exchange of DNA data

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Total match volume and several comparative ratios are examined.

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Higher volume of reported DNA matches concentrates in West and Central European countries.

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Argument for the need of extensive and informative statistics on Prüm DNA exchange

Managing forensic DNA records in a divided world: the Belgian case

Purpose

– This paper aims to describe the activity of managing records related to forensic DNA identification. First, it illustrates the fundamentals behind the technique of forensic DNA identification. Second, it explains the legal and institutional contexts in which it is used as well as the notion of DNA-based judicial records. Third, it provides details of records management issues that are met in practice.

Design/methodology/approach

– An interdisciplinary team reflects upon the practices surrounding the management of DNA-based records in the Belgian National DNA database during more than 10 years.

Findings

– The main problems with managing DNA-based judicial records stem from the existence of natural boundaries between the various stakeholders operating with or within the Belgian judicial system. Six types of issues have been found: non-automaticity and omission, error-prone and inefficient manual operations, electronic issues, results quality, useful reporting and incoherence and duplication. These problems are discussed in terms of four records characteristics: completeness, correctness, traceability and usability.

Research limitations/implications

– The research is limited to the Belgian case with no comparison with other countries.

Practical implications

– This paper attempts to formulate general principles that aim to stimulate good practices in managing records in the field of criminal justice.

Social implications

– The ethical issues surrounding the domain of criminal policy (e.g. the proper use of financial resources, the fair and balance use of records to carry out justice) are of general interest to the public.

Originality/value

– The paper benefits from a large temporal angle (more than 10 years) and applies a multidisciplinary viewpoint on its subject.

Forensic DNA databases in European countries: is size linked to performance?

The political and financial investments in the implementation of forensic DNA databases and the ethical issues related to their use and expansion justify inquiries into their performance and general utility. The main function of a forensic DNA database is to produce matches between individuals and crime scene stains, which requires a constant input of individual profiles and crime scene stains. This is conditioned, among other factors, by the legislation, namely the criteria for inclusion of profiles and the periods of time and conditions for their retention and/or deletion. This article aims to provide an overview of the different legislative models for DNA databasing in Europe and ponder if wider inclusion criteria – and, consequently, database size – translates into more matches between profiles of crime scene stains and included individuals (performance ratio). The legislation governing forensic DNA databases in 22 countries in the European Union was analysed in order to propose a typology of two major groups of legislative criteria for inclusion/retention of profiles that can be classified as having either expansive effects or restrictive effects. We argue that expansive criteria for inclusion and retention of profiles do not necessarily translate into significant gains in output performance.

Science, truth, and forensic cultures: the exceptional legal status of DNA evidence

Many epistemological terms, such as investigation, inquiry, argument, evidence, and fact were established in law well before being associated with science. However, while legal proof remained qualified by standards of 'moral certainty', scientific proof attained a reputation for objectivity. Although most forms of legal evidence (including expert evidence) continue to be treated as fallible 'opinions' rather than objective 'facts', forensic DNA evidence increasingly is being granted an exceptional factual status. It did not always enjoy such status. Two decades ago, the scientific status of forensic DNA evidence was challenged in the scientific literature and in courts of law, but by the late 1990s it was being granted exceptional legal status. This paper reviews the ascendancy of DNA profiling, and argues that its widely-heralded objective status is bound up with systems of administrative accountability. The 'administrative objectivity' of DNA evidence rests upon observable and reportable bureaucratic rules, records, recording devices, protocols, and architectural arrangements. By highlighting administrative sources of objectivity, this paper suggests that DNA evidence remains bound within the context of ordinary organisational and practical routines, and is not a transcendent source of 'truth' in the criminal justice system.