Forensic Identification and Criminal Justice

Carole McCartney

• Publisher: Routledge
• Year: 2013
• eBook ISBN: 9781134013302
• Edition: 1
• Topic: Social Sciences
• Subtopic: Criminology
• Index: Social Sciences

This book provides an account of the development of forensic identification technologies and the way in which this has impacted upon the legal system. It traces the advent of forensic identification technologies, focusing on fingerprinting and forensic DNA typing, and their growing deployment within the criminal justice system. It also elucidates the ways in which these new technologies are accelerating procedural changes to investigative practices, and shows the ways in which in some areas human rights (such as privacy rights and rights against discrimination) are coming under threat. The use of forensic evidence in criminal investigations and trials is analysed in detail.

This book uncovers the way in which this new reliance on forensic technologies has gained a foothold within the criminal justice system, and the risks and dangers that this can pose. The National DNA Database provides a particular focus of attention. The author seeks to move beyond an approach that has seen forensic DNA profiling as error free, situating her analysis within broader risk discourses.

Chapter 1

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Forensic identification: the legal framework

Police investigations and forensic identity evidence

There is no denying the power of fingerprints and forensic DNA evidence to exculpate innocent suspects and incriminate the guilty, potentially assisting with the swift and certain detection of criminal offences. However, these forensic identification techniques may also have undesirable side effects. As risk aversion priorities predominate in late-modern society, precautions are increasingly taken that do not attempt to ‘balance’ risks, but seek to avoid risks (at the cost of potentially creating other risks). This chapter, in documenting the use of fingerprinting and DNA technology during criminal investigations, considers whether the ‘risks’ addressed by policing (such as victimisation, criminality, insecurity, etc.) are not averted without the potential for new ‘risks’ (such as wrongful arrests and miscarriages of justice) being created. Detailing the use of forensic identification techniques in the context of police investigations, the legal provisions, and the potential influence that forensic identification evidence can have on investigations, the chapter considers the protections afforded suspects during investigation in light of forensic identification evidence, including the potential for refusing sampling and consequences flowing from refusal to consent.

The identification and verification of the identity of suspects is not the only purpose for which bodily samples are demanded by law enforcement authorities. Indeed, fingerprints and buccal swabs (for DNA profiling) are not the only instances where the law provides the police (or others such as immigration officers) with powers to compulsorily demand fingerprints and samples from individuals. Road traffic offences, most obviously drink-driving offences, give rise to a raft of police powers to demand samples of breath, urine or blood from drivers. These however are not for the purposes of identification but for proof of commission of a crime i.e. exceeding the blood alcohol limit whilst driving. Likewise, in connection with drug or other offences they can prove class A drug use; relevant to determine charges, bail conditions, and possible sentence, for example.¹ The provision for the taking of samples in road safety legislation, while highly controversial upon introduction in 1967,² now appears accepted as necessary if not desirable (Evans 1973).

The rationale for powers to take samples from drivers differs slightly from that of the law regarding fingerprinting or DNA sampling, both of which remain primarily used to prove identity (although semen stains in rape cases for example can be probative evidence, and a blood-soaked shirt may strongly suggest that the wearer was involved in assault, particularly if it is the victim's blood, etc.). The presence of fingerprints or DNA does not usually constitute proof of guilt for any crime on its own (as yet), though fingerprints have long been used to secure convictions for property crimes where latent prints are found on stolen goods.³ Bodily samples are increasingly being utilised to evidence guilt however. In the case of R v. Apicella,⁴ a bodily sample was used by the prosecution to prove that the appellant suffered from the same disease contracted by the victims of sexual assault, a precedent followed where men have been prosecuted for infecting others with HIV.⁵

The Police Reform Act 2002 s. 56 provides for the taking of blood samples from unconscious drivers, or those medically unable to consent, invoking concerns about issues of consent and the ethical involvement of medical personnel in taking blood from non-consenting adults. Such provisions stretch ‘public safety’ justifications to their fullest extent, with police powers being extended and drivers increasingly subject to instant penalties, and offences proved by ‘objective’ evidence, such as bodily samples, or other evidence such as speed or red-light cameras. Whilst perhaps the public attitude towards road safety continues to permit the extension of police powers (though some road safety measures are increasingly questioned), safeguards are likewise being eroded in other areas of the law, with the removal of requirements for consent and the provision for the use of ‘reasonable force’ by the police to obtain bodily samples. Such changes are taking place in the legal provisions for fingerprinting and DNA sampling.

Fingerprints⁶ and DNA sampling: the legal framework

The genesis of the ‘science’⁷ of dactyloscopy — commonly known as ‘fingerprinting’, has been well documented.⁸ Credit for the work that saw fingerprinting become a universal identification tool for the police and legal system is disputed, remaining shared between three men. Francis Galton undertook in the late 1880s to build upon the work of a civil servant using fingerprints in India; William Herschel, while Henry Faulds, a Scottish physician working as a medical missionary in Japan also ‘discovered’ fingerprint identification. Edward Henry utilised the work of Galton to establish the first Scotland Yard fingerprint branch in 1901, although it was Henry Faulds who published a ‘Guide to finger-print identification’ in Nature in 1905, and it was his classification system that saw the adoption of fingerprints as the identification evidence of choice for the legal system (Beavan 2003).

Fingerprints serve two purposes within the criminal justice system: to identify individuals before the police for the purpose of matching them with their criminal record, and secondly, to compare with ‘latent’ prints located at the scene of a crime (Lidstone and Palmer 1996: 461). The impetus for the development of reliable identification systems came from the need to certify the identity of those before the courts and detained in prisons for the determination of sentence (repeat offenders being in receipt of harsher penalties), as it moved away from its origins as a tool in civil disputes and in the correct disbursement of pensions in the British colonies. However, it was their second purpose — the detection of suspects and offenders for the successful prosecution of crime — that later came to prominence, and this remains, in the public imagination, the principal utility of fingerprints. This remains so even though at a typical crime scene, approximately only 10 per cent of latent prints will result in a match.⁹

With the adoption of fingerprinting by the legal system, the law had to set out criteria for when individuals were to be lawfully subject to it. Likewise, after the technique first known as ‘genetic fingerprinting’ was used in 1985 in a major police investigation (see later, the case of Pitchfork), the potential of the technique developed by Prof. Alec Jeffreys (see Jeffreys et al. 1985) was realised, and laws enacted to utilise this scientific development.

Fingerprint collection

The Penal Servitude Act 1891 first provided for the measuring, photographing and fingerprinting of convicted prisoners.¹⁰ Those on remand could only be fingerprinted pursuant to a warrant issued by a magistrate on the application of a police officer not below the rank of superintendent. In the event of a person being subsequently discharged, their fingerprints were to be destroyed (Leigh 1985: 228). This legal framework remained relatively unchanged for almost half a century, providing the only statutory authority for the compulsory collection of fingerprints. Home Office Circular (481468/34) of January 1926 clarified that the police had no common law power to take the fingerprints of an accused, and that fingerprints may only be taken — should the accused object — after he has been remanded to prison, or an order authorising the taking of fingerprints had been obtained either from the Secretary of State or from a Justice of the Peace.

In Scotland there had been an early series of appeals dealing with the taking of fingerprints. In 1916 in Adamson v. Martin,¹¹ Adamson had been taken to a police station (not under arrest) to be fingerprinted against his wishes, and the court ruled that the forcible taking of fingerprints amounted to an assault under common law. In Adair v. McGarry,¹² the only evidence against the accused was fingerprints on stolen items. However, contrary to the ruling in Adamson, it was held that when the identity of the criminal depends upon the identification of the suspect by means which the accused bears about his person, it is:

beyond all doubt that, provided a person has been legally arrested by the police, they may search him for stolen goods, or weapons, or other real evidence connecting him with the crime, and that neither his consent not a magistrate's warrant is required for that purpose.¹³

The admission of fingerprint evidence taken without consent was justified by reasoning that while every man is entitled to his personal liberty ‘he forfeits that right by committing crime’, and his liberty will be unavoidably invaded to the extent necessary for police to establish the identity of the accused and his connection with the crime.¹⁴ If the accused is innocent: ‘no harm is done in fingerprinting … If, on the other hand, he is guilty, the process renders it more likely that his guilt may be established’.¹⁵ While the protection of individual liberty was desirable, the taking of fingerprints was considered important:

Promptitude and facility in the identification of accused persons and the discovery on their person or on their premises of indicia either of guilt or innocence are of importance for criminal investigation with a view to the detection of crime. On the other hand, the liberty of the subject must be protected against any undue or unnecessary invasion.¹⁶

In 1944, in Dumbell v. Roberts, Scott LJ posited th...

Table of contents

• Cover
• Half Title
• Full Title
• Copyright
• Contents
• Acknowledgements
• Introduction
• 1 Forensic identification: the legal framework
• 2 Forensic identification: the criminal investigation
• 3 Forensic identification: the criminal trial
• 4 The development of forensic identity databases
• 5 Forensic identification in other jurisdictions
• 6 The future of forensic identification: issues and prospects
• References
• Index