The legality of DNA databases in the criminal investigation

Abstract

The study of genetics and the finding of the mapping of the human genome by 2003 have led to a ‘genetic’ era. This has affected not only the health sector but it also proved to be an indispensable tool for the delivery of justice. The increase in the scientific knowledge has inspired governments, scientists and researchers to continue in the collection of samples and their storage, thus creating ever growing bio banks and DNA databases. The use of these databases in the delivery of justice has thus increased and has raised many challenges while also making felt the need for regularisation and legislation in this regard. The criminal investigation commences by the collection of biological evidence at the crime scene. As Locard opines, anyone who is present in a place leaves a trace behind thus analyses of the samples follows. The DNA profile produced out of the evidence gathered is than compared to other DNA profiles stored in the forensic DNA database. The legal argument raised is whose DNA should be in a DNA database? This is highly debatable. Some theorists suggest that all the population of a state should be profiled so evidence collected at a scene of crime can be easily matched. Others argue that only, DNA profiles from crime scenes, suspects and convicted criminals should figure in a DNA database. Both have their pros and cons however most legal argumentation centres on the human rights at stake. The author is hypothesising that there is a lacuna in the Maltese legislation when it comes to a definition of forensic DNA databases and also there is no specific legislation that regulates the on-going practice of collecting evidence in the process of the criminal investigation by the police force.