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Abstract

A growing chorus of forensic professionals believe that forensic science has undersold its potential contribution to crime reduction and has a more significant role to play in policing, with collation and analysis of forensic information used to inform policing tactics, operations or strategy. Domestic law enforcement agencies, as producers, consumers and purveyors of forensic information and intelligence, are also responding to political pressures to expand and accelerate their technological abilities to gather and disseminate forensic information and intelligence within expanding operational boundaries. For example, there are a number of agreements that promise the automated exchange of forensic data internationally, in particular fingerprints and DNA profiles, and many that share other law enforcement information via a variety of channels. However, there is yet to be any detailed consideration of the multifaceted issues raised by the production of forensic intelligence, and the impact of direct access and/or exchanges of forensic intelligence. While technologies are increasingly interoperable, traditional parameters restraining law enforcement information sharing are increasingly inadequate. The lack of oversight of the transnational flows of law enforcement information mean that current processes lack transparency and, consequently, citizens’ ability to know of, understand, and challenge exchanges of their data is almost non-existent. Yet the expectation is that the power to generate, gather, store and share forensic intelligence will be used with integrity. Integrity is essential for generalised trust among not just the direct consumers of forensic intelligence, but also the public. For the integrity of forensic intelligence to be maintained, critical attention must be paid not only to the viability of forensic intelligence production and sharing, but also to its legitimacy and acceptability.
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Forensic data exchange: ensuring
integrity
Carole McCartneya
a Law, Northumbria University, Newcastle upon Tyne, UK
Published online: 12 May 2014.
To cite this article: Carole McCartney (2014): Forensic data exchange: ensuring integrity, Australian
Journal of Forensic Sciences, DOI: 10.1080/00450618.2014.906654
To link to this article: http://dx.doi.org/10.1080/00450618.2014.906654
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Forensic data exchange: ensuring integrity
Carole McCartney*
Law, Northumbria University, Newcastle upon Tyne, UK
(Received 5 March 2014; accepted 17 March 2014)
A growing chorus of forensic professionals believe that forensic science has under-
sold its potential contribution to crime reduction and has a more signicant role to
play in policing, with collation and analysis of forensic information used to inform
policing tactics, operations or strategy. Domestic law enforcement agencies, as pro-
ducers, consumers and purveyors of forensic information and intelligence, are also
responding to political pressures to expand and accelerate their technological abili-
ties to gather and disseminate forensic information and intelligence within expanding
operational boundaries. For example, there are a number of agreements that promise
the automated exchange of forensic data internationally, in particular ngerprints
and DNA proles, and many that share other law enforcement information via a
variety of channels. However, there is yet to be any detailed consideration of the
multifaceted issues raised by the production of forensic intelligence, and the impact
of direct access and/or exchanges of forensic intelligence. While technologies are
increasingly interoperable, traditional parameters restraining law enforcement infor-
mation sharing are increasingly inadequate. The lack of oversight of the transna-
tional ows of law enforcement information mean that current processes lack
transparency and, consequently, citizensability to know of, understand, and chal-
lenge exchanges of their data is almost non-existent. Yet the expectation is that the
power to generate, gather, store and share forensic intelligence will be used with
integrity. Integrity is essential for generalised trust among not just the direct con-
sumers of forensic intelligence, but also the public. For the integrity of forensic
intelligence to be maintained, critical attention must be paid not only to the viability
of forensic intelligence production and sharing, but also to its legitimacy and accept-
ability.
Keywords: forensic intelligence; criminal justice; policing
Introduction
Policing strategies of the twenty-rst century place intelligenceat the heart of law
enforcement, while the use of forensic intelligence in support of criminal investigations,
organised crime control strategies and counter-terrorism measures is heralded as an
increasingly vital feature of efforts to ensure security
27
. Forensic intelligence –‘the
accurate, timely and useful product of logically processing forensic case data
35
is, as
yet, an underutilised product of forensic science, yet has signicant potential to impact
upon crime reduction, crime disruption and reduction of fear of crime
36,37
. Domestic
law enforcement agencies are increasingly working in closer collaboration with their
forensic scientic support units, as producers, consumers and purveyors of forensic
information and intelligence, and are responding to pressures to expand and accelerate
*Email: carole.mccartney@northumbria.ac.uk
© 2014 Australian Academy of Forensic Sciences
Australian Journal of Forensic Sciences, 2014
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their technological abilities to gather and disseminate forensic information and intelli-
gence within expanding operational boundaries. Meanwhile, the signicant investment
of resources in international dissemination of forensic information and intelligence in
law enforcement reects a political belief in the contribution to both crime detection
and risk management coupled with demands to expand and accelerate forensic informa-
tion and intelligence production and exchange.
While the development of forensic intelligence systems is novel
24
, and: Intelli-
gence-led policing tempts forensic science to operate in a new context, within which it
is yet to nd its place
35
, attempts to regulate case-based forensic practice have barely
commenced and are urgently required, with time needed for regulation to bed-down.
Technology progresses faster than the law or social, and political systems can utilise it,
and importantly, regulate it. Those developing the technology (scientists), and those
charged with utilising it (police and legal authorities), rarely interrogate the complex
interrelationship between trust, condence, control, and security inter alia. Further, the
justice siloeffect, where practitioners from different agencies operate in isolation:
rarely communicating or sharing information/knowledge
21
, exacerbates the difculties
posed when multi-organisational interactions are rare. Many scientists and police will
not be conversant with the others role and where their skills, capabilities, or intelli-
gence, may assist one another.
This is not the only challenge facing forensic intelligence, as Legrand and Vogel
comment: forensic intelligence is in its infancy and faces and number of conceptual
and operational challenges. Overcoming these challenges is crucial for ensuring its
operational utility...
23
, but it is the social and ethical challenges facing the utilisation
of forensic intelligence that shall be the focus here. This necessarily incorporates a con-
sideration of how the integrityof forensic intelligence is essential for the production
and maintenance of trust: a critical factor in international policing cooperation.
Trust and integrity
The interrelationships between integrity, condence, justice, and security, and the sig-
nicant role that these have in ensuring trust both within and outside justice systems
and legal jurisdictions, are slowly coming into focus. The system of criminal justice
stands out as requiring trust and cooperation not only from citizens, vital in maintaining
commitment to the rule of law and normative compliance, but equally from other agen-
cies, increasingly from other jurisdictions. As transnational cooperation in policing
increases and spreads globally, trustas the foundation for cooperation and exchange
of intelligence is crucial. Social scientists have long theorised as to the necessity of
trustfor functioning relationships, and how trust can be both created and maintained
(e.g.
10,34
), recognising that trust becomes increasingly problematic with virtualised
relations. Trustis more easily established and maintained within personal relation-
ships, which is how policing cooperation has proceeded
19
, but now the trend is for
automated, or virtualsystems of data exchange.
11
and
12
both argue that faith and
security is attainable within abstractsystems, but these need to be routinely monitored
for competence and effectiveness. They stress that there is an expectation within
abstract relations of regular, honest, co-operative behaviour, based on common norms.
The immediate question that then arises with automated police exchange of data is:
who is routinely monitoring, and whose common normsare being respected? Simi-
larly, there are clear links between trustand control, but in transnational exchange
of forensic intelligence, it is not clear who is in control, if anyone. Thus, trustis a
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critical, yet largely overlooked constituent in cross-border information and intelligence
exchange. Trust across policing bodies nationally and internationally cannot be
assumed: an International Centre for Migration Policy Development (ICMPD) survey
of police and customs ofcers across the EU in 2010, found that 89% of respondents
put trustas an obstacle to future exchanges of information
20
. Developments in trans-
national policing rely upon law enforcement authorities trusting both the processes, and
data produced by extra-territorial authorities. Integrity of data and processes is then
essential for the production of trust among law enforcement agencies, and as a lubri-
cantfor cooperation.
Forensic intelligence: crossing borders, crossing boundaries
There are important aims underpinning the need for international cooperation in polic-
ing and law enforcement. With the free movement of goods and people across open
borders, law enforcement agencies require powers to operate across those borders in
order to tackle criminals, with no concern for jurisdictional boundaries. Thus, the use
of forensic intelligence is growing among security, border, and law enforcement agen-
cies, while rapidly evolving efforts to tackle trans-national crime entail the exchange of
forensic intelligence across jurisdictions and state borders as well as the linkingof
forensic databases of differing provenance. For example, the Australian Organised
Crime Strategic Framework (OCSF) implemented a whole of governmentapproach to
tackling serious crime in Australia, with the international roots of crime demanding
international collaboration and sharing of forensic intelligence
15
. In almost all countries,
there is growth in some variation of fusion centres
30
, which can be traced back to the
report on the 9/11 attacks, which highlighted a lack of communication between differ-
ent agencies with relevant and intersection intelligence. In Australia, this has led to a
National Criminal Science Fusion Capability, with a wider range of traditional and
non-traditional partners sharing information and intelligence. The Australian OCSF also
discusses the international roots of crime, which demand international collaboration and
sharing of forensic science. Within the rst two years of the Organised Crime Strategic
Framework, the Australian Federal Police estimate that 70% of their work has involved
overseas networks, exchanging over 22,000 pieces of separate forensic science informa-
tion with overseas law enforcement agencies
1
. In 2011, Europol, EU Member States
and their partners exchanged 222,135 messages with 200,000 objectslisted in the
Europol Information System by October 2011
7
.
The international utilisation and exchange of forensic intelligence is then becoming
an expectation, with international cooperation increasing in frequency and complexity
28
.
In addition to the international automated exchange of ngerprints and DNA via the
INTERPOL DNA Gateway and the partially implemented EU Prüm Treaty (see
27
, there
are increasing numbers of bi-lateral agreements to exchange forensic intelligence held
by domestic law enforcement agencies. However, there is yet to be any systematic con-
sideration of the multifaceted issues raised by direct access and/or exchanges of foren-
sic intelligence. Such regulation is essential not only in maintaining quality standards,
but in ensuring that practice is legitimate, and does not cross ethical boundaries: the
dismantling of obstacles to cooperation, while creating systems of evaluation, account-
ability and transparency, are the optimal way of ensuring that threats to security and
criminality can be effectively tackled
29
.
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To date, there has been little effort in expressing models and methods in a scientic
debate, so that ethical issues could be discussed. Touted as an essential element in the
ght against crime, forensic intelligence has been widely perceived as a public good
and there have been longstanding powers for State agents to take and retain forensic
evidence, dating back to the birth of ngerprinting at the turn of the twentieth century.
Many States had been meticulous record-keepers for years prior to this, and the collec-
tion and use of forensic evidence (particularly bio-information) has often been por-
trayed as a mere extension of efforts to maintain thorough and accurate records. The
police were thus able to take and retain a great deal of information on citizens because
there was no real public concern, so consequently, no ofcial concern. However, for a
variety of reasons, the: innocent have nothing to fearargument has begun losing
potency. There is now a greater realisation that there may be social consequences of
State powers taking and using bio-information from citizens for forensic purposes. One
concern has been an apparent unchecked growth in police powers (especially retention).
Similarly, there has been apprehension about the uses of forensic information, and more
controversial techniques and technologies (in particular, familial searching and pheno-
typing based on data collected for straight DNA prole identication). These fears
accompany questions raised about the possibility of function creep: the increased use
of information gathered for one purpose, put to another purpose (i.e. forensicdata
being used in research). Much public disquiet was (and still is in many countries,
see
16
) growing at a time when there is a loss of generalised trust in authority and
increasing scepticism of State motivations.
Forensic DNA proling has often grabbed the limelight in such debates, often due
to hyperbolic genetic exceptionalism, but concern over DNA has directed attention to
other police databases. In most countries, the legal parameters for the use of national
collections of DNA, whether or not gathered for forensic purposes, are clearly delin-
eated and legally guaranteed. This affords some certainty about how the DNA may be
lawfully used. Laws most often preclude their use in medical or other research, or in
paternity disputes. Terminology however, may be subject to a wide interpretation that
expands the range of uses to which the information on the databases may legitimately
be put. For example, the law governing the DNA database in Queensland (QDNA),
states that: It is lawful for the [Police] Commissioner to use QDNA or the CrimTrac
database for performing any function of the police service, a particularly vague assur-
ance
33
.
Ensuring Integrity?
Research within socio-legal studies emphasises the necessity of trust in judicial bodies
and systems to maintain commitment to the rule of law and normative compliance with
social order
17
). Thus, integrity is essential for trust among not just the consumers of
forensic intelligence, but also the wider public. The question is then raised, how do we
ensure integrity in forensic intelligence? Expanding use of forensic DNA makes crucial
the need for robust ethical oversight and regulation. Arguably sensitive personal genetic
information warrants strict oversight and advanced levels of ethical and scientic review,
but DNA is not alone in requiring superintendence. As Roux, Crispino and Ribaux
assert, forensic intelligence must be reliable, accurate and timely if it is to be pivotal,
for making decisions at a tactical, operational and strategic level in terms of how to
respond to crime problems
37
. This is not to deny the value of hypotheses that can be
disproven through further research and investigation (being the nature of scientic
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inquiry), provided such hypotheses do not harm individuals, investigations or
prosecutions, or cause any irreversible decisions to be taken with regard to policy or
practice.
Given the potential consequences attendant upon the sharing of forensic intelligence
with law enforcement agencies, there are clear imperatives that the utility of forensic
databases is maximised at the same time as risks of abuse or harmful effects are miti-
gated. There ought also to be an expectation that the power to gather, store and share
forensic intelligence will be: free from corrupt inuence, only when it is lawful, neces-
sary and proportionate to do so
15
. Yet concerns surrounding extant policing liaison net-
works sitting outside governance and accountability frameworks
5
are exacerbated when
expanding such networks to include institutions and practitioners producing forensic
intelligence. There then needs to be agreement upon prerequisites for integrity: what
needs to be ensured to gain and maintain trust in forensic intelligence? The following
may commence such a debate.
Integrity: viability, legitimacy and acceptability
Viability
Ensuring harmonious technical systems and processes is critical: data and intelligence
must be intelligible to those receiving and acting upon the data, with no room for error
(both false positives and negatives), or misinterpretation. Such risks have already come
to light in cases such as the Phantom of Helibronn(where a DNA prole dominated
investigative decision-making despite the prole being later discovered to be a result of
contamination); and the wrongful conviction in Australia of Farah Jama, whose rape
conviction was overturned on appeal when it was demonstrated that contamination had
led to his DNA prole wrongly implicating him in a rape investigation, despite the
absence of any other evidence against him. The justice silo effectwas clearly in oper-
ation in both these instances, with policing professionals failing to ask pertinent ques-
tions of the forensic evidence presented to them, and forensic practitioners failing to
interrogate why their results made no sense in the context of the police investigation.
The DNA evidence in each instance was left to dictate the police investigations, dem-
onstrating the risk of assigning too much power to a piece of forensic evidence. Like-
wise, leaving the forensic scientist isolated from investigations means they are unable
to reassess their conclusions in the light of further information or the bigger investiga-
tive picture. Scientic data are virtually meaningless unless interpreted within the con-
text of other information.
Exchange of DNA and dactyloscopic data under Prüm arrangements have already
struck difculties with harmonisation of technologies and problems raised by near
matchesor mis-typing of DNA
41
. With ngerprint database searches, there were large
shing expeditionsleading to ofcial limits over concerns that national databases
were damaged by overwhelming search volumes. Such issues of capacity and techno-
logical capability are not only raised when dealing with smaller or poorer nations who
may not have the competence to respond to demands: many EU and other countries are
experiencing serious economic pressures, with limited resources to dedicate to the crea-
tion and sharing of standardised forensic data (even with the US donatingits CODIS
system to many countries). The UK for example, has not joined the Prüm arrangements
to date, with little enthusiasm for expending resources on ensuring that the National
DNA Database, one of the biggest globally, can be shared internationally.
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The multiplex systems used in the UK do not yet correspond with those used in the
EU, updated in recent years to enable exchange and prevent multiple DNA standards
proliferating across the EU. With no internationally accepted standards for many foren-
sic information formats, ignoring for now the more nebulous intelligence, the colla-
tion of data from multiple sources with varying formats exacerbates the risk of errors,
with the lack of standardisation rendering data transmitted worthless.
Similarly, domestic powers covering the collection, searching, matching, and reten-
tion of data, particularly sensitive bio-information, varies enormously between coun-
tries, meaning that exchange is not undertaken on a level playing eld. Domestic
governance and oversight of collections of data differ signicantly, with very few safe-
guards in place, and even fewer when data come to be exchanged. In some countries,
staff may be pressured to conform to the requirements of data creation and exchange,
when proper checks are not in place, a situation already seen with Prüm exchanges
40
.
Such problems were anticipated by the European Network of Forensic Science Insti-
tutes (ENFSI) DNA Working Group in 2009. They concluded that while the ESS-loci
are sufcient for the present occasional exchange of DNA-proles between countries,
the much higher volume of exchanges of DNA-proles made possible by the Prüm
Treaty means that the chance of adventitious or false matches may become signicant
6
.
Staff currently working on international cooperation could be overwhelmed by data and
in major investigations face considerable pressure to conrm near matches. These
may become common, as Schneider explains: When massive exchanges of DNA pro-
les are undertaken ..., the seven ESS loci will not be sufcient because the chance of
adventitious matches will no longer be negligible
38
. During trials of the Prüm arrange-
ments, both Germany and the Netherlands had to undertake extensive re-testing to
ensure the validity of many declared matches. The Netherlands now refuses to release
demographic data for near matcheswithout the assurance of conrmatory testing. It is
unclear what other countries are doing about near matches.
Greater obstacles occur with ngerprint data exchange, where there is no accepted
international standard for establishing the validity of matches. The use of the best qual-
ity images is crucial for ngerprint comparison. An international standard for minimum
pixel quality would be desirable, for example, but little progress has yet been made on
devising any international standards for transmission of ngerprint data, beyond the
specication of an agreed le format. Meanwhile, proprietary search and image capture
systems are being developed with little regard for interoperability. Yet false elimination
and false inclusion of suspects based on awed forensic data (both recently occurring
in the UK) are not only damaging to the individuals involved, and the success of police
investigations, but can lead to a catastrophic loss of condence among the public. The
question is then, if there are a predicable number of falsehits that automatisation will
produce, and forensic identication is not perfect, even without considering the trans-
mission of that data across borders and technologies, there appears to be no strategy to
manage false identications and to give quality assessments of forensic data.
Efforts at standardisation and uniformity have commenced, with the Swedish Initia-
tiveof 2009. This Council Framework Decision states that all forensic laboratories
must have ISO17025 accreditation by 2014 (police agencies by 2015). The Decision
states:
The intensied exchange of information regarding forensic evidence and the increased use
of evidence from one MS in the judicial processes of another, highlights the need to estab-
lish common standards for forensic science providers. Information originating from
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forensic processes in one MS may currently be associated with a level of uncertainty in
another MS regarding the way in which an item has been handled, what methods have
been used and how the results have been interpreted. (Ref. 8, paras 4 and 5)
While welcome, the Decision arguably places too much reliance upon the ISO17025
standard, a standard that is limited in its ability to guarantee the veracity of data and
the quality of intelligenceemanating from forensic laboratories. Mistakes still occur
in accredited laboratories, and much forensic work is done outside of the laboratory,
which renders ISO17025 impotent. The abstract regulation of laboratories via accredita-
tion is also detached from the actual reception of intelligence by law enforcement of-
cials, yet forensic intelligence is highly contextual information. When exchanging
forensic data, can caveats, qualications, or contextual detail be conveyed by the auto-
mated sharing of data stored on huge databases and transmission of information across
borders via electronic pro-formas?
In 2011, the Polish EU presidency called for a visionfor forensic science, build-
ing on EU efforts to create a European Forensic Science Areaby 2020. The policy
programme aims to ensure the even-handed, consistent and efcient administration of
justice and the security of citizens, by accrediting forensic institutes and laboratories
and conducting international prociency testing, establishing minimum competence
criteria for forensic practitioners and introducing best practice manuals for laboratory
case-work. There will be minimum quality standards for examining crime scenes and
managing the production of scientic evidence, from the crime scene to the courtroom.
Duplication of effort in different countries should be minimised through mutual recog-
nition of testing and processing of forensic data, and the sharing of forensic databases,
reducing delays in international crime cases. These objectives are laudable and, if
implemented successfully, would go some way towards overcoming obstacles to effec-
tive forensic data exchange and intelligence sharing. However, efforts to set quality
standards without regard to wider issues around the cultureof forensic science
(including considerations of issues around research including the funding of research
and development activities as well as research around interpretation funding, indepen-
dence, education and training, and so forth) could prove to do more harm than
good
26,31
.
As things stand, enormous disparities in national modes of data production and
intelligence generation, coupled with markedly discrepant regulatory regimes, conduces
an extremely complex environment in which to attempt to foster mutual judicial coop-
eration
13
. Such issues can be seen in other similar institutions, where standards which
are intended to ensure reliability of data are being lowered, or not respected, by submit-
ting authorities. EUROPOL, in formulating its Serious Organised Crime Threat Assess-
ment (SOCTA) report, to inform strategy from 2013 to 2017, is changing the criteria
for accepting intelligence based upon its own 4×4 assessment criteria, which, when
cross-referenced, gives intelligence a code relating to its reliability, with attendant risks:
the automatic acceptance of information from Member States and EU agencies pro-
vides a way for unsubstantiated or unreliable data to become accepted as A1quality
at European level. Europol has no powers to examine whether assessment processes at
national level or in EU agencies meet the required standards
39
. There is as yet no
articulation of whether forensic intelligence is to be submitted to a similar evaluation to
relate its reliability to those in receipt of data, but it is essential that any decision mak-
ers who rely upon such intelligence must have some ability to audit the accuracy and
credibility of the intelligence.
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Legitimacy
There should be no question that the instruments that permit the creation of forensic
intelligence, and the exchange of data, must be legally binding and authoritative. It
would be untenable for individuals or institutions to create their own systems and pro-
cesses for delivering forensic intelligence, which can then be retained and used domes-
tically or shared internationally. However, at this time, there are no guarantees that this
cannot happen. Even the Prüm Treaty itself has had its legality and legitimacy ques-
tioned: Transferring privately negotiated treaties into the EU acquis does not full the
requirements of legitimacy. It appears underhanded and dishonest
14
. Frequently, the
introduction of powers to gather, store, manipulate, and share forensic data, precedes
laws regulating such activity. Even when such laws exist, the diversity of legal instru-
ments across nations, and the interpretation of international treaties and national laws
implementing treaties differ, leading to the obstacle of legal problemshighlighted as
problematic in exchanging information
20
.
Again, it should be indisputable that governing legal instruments will be human
rights compliant, but this again is not always the case. The introduction of DNA prol-
ing in a country has frequently preceded laws regulating such activity. Technological
development has often outstripped other considerations, with politicians and police hav-
ing to be reminded that effectiveness is not the sole criterion upon which to base public
policy decisions. With many forensic practitioners exclaiming their ability to create
forensic intelligence (and a private forensic industry keen to sell such technologies)
there must be parallel considerations. The European Court of Human Rights, in the
case of S and Marper [2008] ECHR 1581 gave ofcial voice to the notion that
choiceshave to be made and balances struck, in criminal justice policy. A unanimous
Court ruled:
any State claiming a pioneer role in the development of new technologies bears special
responsibility for striking the right balance between the use of modern scientic techniques
and important private-life interests ... the protection afforded by Article 8 would be
unacceptably weakened if the use of modern scientic techniques in the criminal justice
system were allowed at any cost and without carefully balancing the potential benets of
the extensive use of such techniques against important private-life benets. (para. 112)
It needs to be ensured that when deciding upon the utility of forensic intelligence,
important questions of proportionality and necessity required of human rights law are
not overlooked. In particular, data protection (to secure privacy rights) is integral yet
notoriously vague, patchy in coverage, and often more honoured in the breach. Individ-
uals are reliant upon states checking, and complying with national laws, and upholding
international agreements to data protections. The European Data Protection Supervisor
has been scathing of the country-by-country approachto data protection, with moni-
toring left to often under-resourced national authorities. Data protection is also notably
fragmentary when applied to law enforcement: hedged by multiple derogations, allow-
ing signicant variation in implementation
18
. There remain questions over whether
States are collating excessive information on citizens and their rights to data protection
and privacy. This is particularly the case where the information could be used for dis-
criminatory purposes. There needs to be clarity over why we are collating information
and over its utility.
With the proliferation of channels of exchange and the growing diversity of
information exchanged, traditional parameters restraining information sharing are
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increasingly inadequate. One can normally expect boundariesthat law enforcement
information is not meant to cross for example, between police and health or immigra-
tion databases and vice versa. Such boundaries are increasingly being dismantled (the
latest example being EURODAC, the European-wide ngerprint database of immi-
grants, soon to be available to law enforcement agencies) with enforceable boundaries
regarding data used at a national level often poorly dened and upheld, only for this
situation to then be exacerbated internationally. The use of forensic science is growing
among other security, military, border, and law enforcement agencies, with the linking
of databases of differing provenance. A lack of formal procedures and legal guarantees
exists to prevent unauthorised storage, further manipulation or exchanges of data. Once
created, like Pandoras Box, databases are open to both use and abuse, and data protec-
tion and security becomes an almost Sisyphean task.
Acceptability
With trust in the institutions responsible for forensic intelligence creation, retention and
exchange, citizens can expect that respect for human rights and the democratic process
remain. However, securing and maintaining trust requires independent oversight.
Citizens must have access to sufcient, reliable, public information in order to have
trust, but this information is scarce. There are no signicant bodies with oversight pow-
ers to scrutinise intelligence and yet it must: require at the very least unambiguous
guidelines, close supervision and invasive oversight
2
. The absence of institutions with
either the resources, or the authority to foster greater coordination and collaboration
over ethicalor social issues, provides no condence that risks are being monitored. In
the UK, the National DNA Database Ethics Group recommends that the newly created
post of Commissioner for the Retention and Use of Biometric Material(yet to be
appointed) should check a sample of subject proles being shared internationally, to
ensure that they were based upon the following principles: (a) there must be a policing
purpose; (b) exchange has to be subject to proper legal controls; (c) the use must be
proportionate; (d) it should meet certain scientic standards and (e) ethical consider-
ations should be factored in
32
. The Ethics Group voiced concern however regarding the
volume of exchanges and how this checking could be managed, while also failing to
articulate what ethical considerationsshould be factored in.
Inconsistencies in independent oversight are signicant and while there is limited
oversight of qualitymeasures (in the UK we have a Forensic Regulator although
this role itself is of questionable effectiveness), socialissues are left to Parliament,
which is tasked with balancingindividual rights with societal interests. Very often,
national governments will take a classic risk analysis model approach, relying heavily
upon scientic risk assessment and actually taking very little (if any) account of any
social or ethical risks. To complicate matters, consideration of such risks must also be
coupled with the encouragement of innovation and development: ...it is a misconcep-
tion that best practice standard protocols must be set that must then be followed by all.
That approach would set forensic science in aspic and be counterproductive
3
). A dif-
cult balance must thus be struck between strict adherence to quality assured protocols
and ensuring that practitioners can innovate and exercise professional judgment to
achieve the optimal outcome.
Regulation in the forensic science sector still relies heavily upon the persuasive
power of soft law, rules with no legally binding force but which are meant to inuence
conduct. At the European policy level, there are decisions, resolutions and
Australian Journal of Forensic Sciences 9
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recommendations, all without much force. Further, a risk-based regulatory system does
not ensure qualitybut is aimed at preventing crises. A risk model also relies upon
quantication, with practitioners informing regulators of the risks associated with any
procedure or practice. Thus, there must be an error rate (and identiable errors), or
known limitations of a method. However, one of the major aws in applying the risk
model to forensic intelligence is that these error rates and limitations remain largely
undetermined. Without error rates, how can a laboratory profess to be working within
acceptable parameters? For example, what would be the number of acceptablefalse
positives? The second question of course depends upon the criminal justice system and
the public tolerance of such errors. Signicant research (and the proper funding of such
research) into areas such as error rates, technique and technology limitations, practi-
tioner bias, and so on, all need to take place before the construction of a risk model for
forensic intelligence can take place.
There has also been a signicant conation of risks. The Prüm Treaty and other
instruments specically mention organised crime, terrorism, and illegal migration for
example, but do these pose similar risks? Denitions of each category and their and
demarcations are contentious. Can forensic intelligence science be said to be effective
in all these arenas? Is the retention of forensic data and the exchange of intelligence as
equally acceptable when countering immigration abuses as it is with organised crimi-
nals? With such conation there also comes the danger of over-inclusion. The European
Courts have previously warned Member States in both the S & Marper v UK and
Huber
18
cases, that they must resist the over-enthusiastic collection and retention of
data on citizens. Concerns that policing networks are situated outside of governance
and accountability frameworks have yet to diminish
5
, concerns heightened by apparent
poor accountability mechanisms (for instance, the sharing of data across Europe under
Prüm does not come under the Court of Justices jurisdiction). There is thus no over-
sight of process in terms of proportionalityand lawfulness at European level and yet
we are reliant upon EU political institutions to strike the correctbalance between
societal, individual, and national interests. A consensus approach is necessary but dis-
trust among national and international authorities, with some opting not to share their
data, creates a loose linkin the data chain, leaving a gap exploitable by criminals.
In a time of austerity, there must also be attention paid to costs and effectiveness.
Forensic science requires signicant pre-investment without any guarantee of short-
term quantiable improvement in performance increase[ing] appreciably when it
extends into the international dimension
2
. National policing budgets are under strain,
and forensic budgets are easy to cut, being slashed in many police forces across the
UK and the EU. Investment in forensic intelligence will have to (quickly) demonstrate
its cost-effectiveness and be cost-efcient if it is to attract funding or be sustainable.
However, it remains unknown what the parameters of successor failureare (does
excluding a suspect early on in an investigation count as a successor is success just a
conviction?), and nor with respect to what data are collected, to even measure effec-
tiveness, could it be agreed what successwas. Such limitations seriously threaten the
ability of forensic intelligence to demand the resources required for it to be done to the
highest standards with the requisite checks and balances.
Conclusion
Direct law enforcement co-operation, or cross-border evidence exchange has been
increasing for many years, gaining impetus from the terrorist attacks of 9/11
25
. The
10 C. McCartney
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international forensic data-sharing landscape is set to become denser, more complex
and routine, and will increasingly include forensic intelligence. If this is to be sus-
tained, the public requires greater information and systems must be transparent. Trust
must be ensured and maintained, requiring more than bland assurances of effectiveness
from policing and political bodies. While forensic databases are increasingly interopera-
ble so that sharing of forensic intelligence can occur across agencies and national bor-
ders, traditional parameters of debate over law enforcement cooperation are
increasingly inadequate: Interoperability is more than interconnecting ICT systems, it
has technical, semantic, social, cultural, economic, organisational and legal dimen-
sions
4
. If jurisdictions are going to invest time and money in developing forensic intel-
ligence systems, then the integrity of such forensic intelligence needs to be established,
with critical attention paid not only to the viability of forensic intelligence, but also to
its governance and legitimacy. The type of data, and the manner in which they are
used, presently gives rise to a range of social and legal concerns. Efforts to better
understand the potential benets and impacts of forensic intelligence are incomplete
without a careful consideration of these dimensions. Yet the complex interrelationship
between trust, condence, control and security is rarely considered in such contexts. It
remains a highly sensitive political issue..., to make it look like a mere technical issue
does not create the right context for a serious and in-depth discussion
4
.
It is imperative that the utility of forensic science is maximised at the same time as
the risks of abuse or other potential harmful effects are minimised. However, the
requirements for goodgovernance of forensic science are poorly understood. Clarity
of purpose and aims are prerequisites to any governance: you need to know what it is
that you are aiming to achieve before you can know how then to govern a process.
With forensic intelligence, the aims can be many, and unclear, sometimes contradictory.
This makes it very difcult to govern, particularly in a privatised marketplace (as in the
UK), where concerns such as protability also now come into play. Perhaps as Evans
9
suggests, all that we can hope for (at least temporarily), is good enoughgovernance:
a relative, evolving and culturally dened aspiration otherwise known in mature
democracies as representative, responsible and accountable governmental administration
underpinned by the concept of public value
9
.
Policy in this area is developing rapidly and is highly ambitious: there remains a
need to harness the power of forensic intelligence, at the same time as ensuring it is
viable, legitimate, and acceptable. There are increasing demands for evidence of ef-
cacy in all quarters of the criminal justice system, particularly in an era of severe bud-
get constraints. With media enthusiasm for everything forensicyet to wane, it still
requires empirical evidence to demonstrate that forensic intelligence actually assists in
crime detection and prosecution. This evidence is scarce and equivocal. There are also
worrying signs that forensic intelligence may be going unchallenged in some jurisdic-
tions: with professionals operating within justice silos and placing too great a reliance
upon potentially awed or partial scientic data. For example, Slovenia recently
responded to a UK Law Society survey, stating that the defence in a criminal trial can-
not effectively question DNA due to the opinion of the courts that this evidence is
100% reliable
22
. Whilst intelligencemay be prohibited in some instances from being
adduced as evidence at a trial, this cannot be guaranteed and there is clearly a risk that
extra-territorial evidence, including forensic intelligence, may be held to a lower stan-
dard, and go unchallenged during the criminal process, creating the biggest risk of all:
the wrongful conviction of individuals. Until such risks are precluded, caution must be
the watchword.
Australian Journal of Forensic Sciences 11
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... This includes-through reflection on, and development of shared values, norms, and good practice-building resilience and responsiveness to both challenges to forensic genetics' standing and to hyperbolic claims around the capacity of DNA to facilitate security and justice. This means that validity, utility, and legitimacy (all questions of integrity, and eventually of trustworthiness) [37,38] are as essential to the field as scientific reliability. ...
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... When applied in the courtroom, transparent and meaningful error rates provide context to the weighting of evidence presented to the court to assist its decision making (Aitken, 2004). The collation of forensic information generated by different disciplines, each of differing weight and presented in varying formats for the purposes of developing intelligence leads, exacerbates the risk of analytical and human errors (McCartney, 2015). Having available, measurable error rates associated with the varying data sources supports the development of risk-aware, actionable forensic intelligence. ...
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... Além disso, vários autores identificaram um déficit democrático quando a Convenção de Prüm foi transposta para a legislação da UE (Balzacq, 2005;Balzacq, Bigo, Carrera & Guild, 2006;Bellanova, 2017;Bigo, 2008). Tais questões são agravadas pela falta de sistemas para garantir a transparência, prestação de contas e confiança, bem como a fiscalização ética do fluxo transnacional de informações policiais (Hufnagel & McCartney, 2015;McCartney, 2013McCartney, , 2014aMcCartney, , 2014bPrainsack & Toom, 2010. Ao rever uma década de troca transfronteiriça de dados de DNA forense, Victor Toom et al. relatam como as preocupações com a prestação de contas e transparência colocadas à época das Decisões de Prüm (EU Council, 2008a) continuam a ser problemáticas. ...
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... In this domain, scholars have been outlining the challenges deriving from the mandatory implementation and rapid expansion of the Prüm system. They have highlighted concerns over the enormous disparities in national legislation and data protection; ongoing issues of transparency, accountability and trust; and the lack of ethical oversight of the transnational flow of law enforcement information (Amankwaa, 2019;Hufnagel & McCartney, 2015;Matos, 2019;McCartney, 2014aMcCartney, , 2014bMcCartney, Wilson, & Williams, 2011;Prainsack & Toom, 2010, 2013Toom et al., 2019). In this domain, a recent number of empirically grounded studies exploring what 'ethics' means to forensic practitioners actively involved in transnational DNA data exchanges under the Prüm system have also emerged (Machado & Granja, 2018). ...
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Chapter
Uniformity may be unachievable or unsustainable, in some cases. These are the cases when the sets of uniform Acts are almost impossible to negotiate but even if enacted, these Acts are subject to frequent unilateral amendments, even if all elements of iterative development are present. Examples include sets of uniform Acts in the areas of criminal law, child protection and regulation of road transport. These difficulties in achieving and sustaining uniformity are explained by presence of strong advocacy coalitions.The key proposition underpinning the framework is that actors, including public servants, ‘always perceive the world through a lens consisting of their pre-existing beliefs’. While that is not to say that uniformity is impossible if the influential advocacy coalitions are present. Rather, law reformers, policymakers and legislative drafters should be aware of influential advocacy coalitions in certain areas of the law and should not attempt to achieve harmonisation through set hard deadlines or monetary incentives in these situations.
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[Chinese version of the book "Forensic Genetics in the Governance of Crime"]. This open access book uses a critical sociological perspective to explore contemporary ways of reformulating the governance of crime through genetics. Through the lens of scientific knowledge and genetic technology, Machado and Granja offer a unique perspective on current trends in crime governance. They explore the place and role of genetics in criminal justice systems, and show how classical and contemporary social theory can help address challenges posed by social processes and interactions generated by the uses, meanings, and expectations attributed to genetics in the governance of crime. Cutting-edge methods and research techniques are also integrated to address crucial aspects of this social reality. Finally, the authors examine new challenges emerging from recent paradigm shifts within forensic genetics, moving away from the construction of evidence as presented in court to the production of intelligence guiding criminal investigations.
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Policing and judicial cooperation across international borders is now an expectation, and within the EU, is often mandated, but the desirability of criminal justice cooperation between EU Member States and the UK is now debated. This article examines recent UK political interventions in the field of EU criminal law. This has focused upon the so-called ‘block opt-out’ decision whereupon the UK government has to choose whether to ‘opt out’ en masse of all unamended policing and criminal law instruments entered into prior to the 2009 Lisbon Treaty (under Article 10(1) of Protocol 36). The article will look in particular at two EU instruments central to the ongoing and future development of EU policing and judicial cooperation: the European Arrest Warrant and the exchange of forensic DNA profiles, fingerprints and vehicle registration details under the Prüm Treaty. While the UK government is asserting (at the time of writing) that it is to opt back ‘in’ to the European Arrest Warrant, it is refraining from opting back in (so remaining ‘out’) of the Prüm Treaty. Examining the rationales for the use of the opt-out, and the decisions in respect of each of these instruments, the article will ask whether the choice to ‘opt out’ can be reconciled with the aspiration of securing an EU Area of Freedom, Security and Justice, and whether it is appropriate that the UK should be doing the ‘hokey cokey’ with EU policing and judicial cooperation.
Article
This book provides new insights into police cooperation from a comparative socio-legal perspective. It presents a broad analysis of comparable police cooperation strategies in two systems: the EU and Australia. The evolution of regulatory trends and cooperation models is analysed for both systems and possible transferable strategies identified. Drawing on interviews with practitioners in the EU and Australia this book highlights a number of areas where the EU can be compared to a federal system and addresses the advantages and disadvantages of being a Union or a federation of states with a view to police cooperation practice. Particular topics addressed are the evolution of legal frameworks regulating police cooperation, informal cooperation strategies, Joint Investigation Teams, Europol and regional cooperation. These instruments foster police cooperation, but could be improved with a view to cooperation practice by learning from regulatory techniques and practitioner experiences of the respective other system.