Competing Paradigms? The Use of DNA Powers in Youth Justice
| Author | Nessa Lynch,Liz Campbell |
| Published date | 01 April 2012 |
| Date | 01 April 2012 |
| DOI | http://doi.org/10.1177/1473225411435614 |
435614YJJ12110.1177/1473225411435614Campbell and LynchYouth Justice
2012
Article
Youth Justice
12(1) 3 –18
Competing Paradigms? The Use of
© The Author(s) 2012
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DOI: 10.1177/1473225411435614
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Liz Campbell and Nessa Lynch
Abstract
DNA is an important tool for criminal investigations and prosecutions. There has been considerable
comment on its collection and retention from adult suspects and convicted persons, but little analysis of
the particular situation of young people in the youth justice system. This article considers the competing
paradigms at play when young persons’ DNA is collected and stored. The tensions between expanded DNA
powers and norms of youth justice such as reintegration and best interests are considered as well as the
implications for young persons’ rights.
Keywords
comparative analysis, DNA, human rights, policy transfer, youth justice
Introduction
Collecting deoxyribonucleic acid (DNA) from crime scenes and individuals is now
regarded as a critical element of effective criminal investigation and prosecution.
Numerous benefits are said to accrue from the gathering and comparison of DNA evi-
dence: suspects may be speedily identified, innocent parties ruled out, the wrongfully
convicted exonerated and some would-be criminal actors deterred. Retention of DNA in
state controlled databases allows for speculative searching to identify subsequent offend-
ing and to provide leads for unsolved crimes. The collection and retention of convicted
adults’ DNA has been held by European and US courts to be a proportionate incursion on
human rights given the need to tackle crime effectively, although the law relating to
unconvicted persons is more contentious (Campbell, 2010a). The application of DNA
powers to young people in the youth justice system has received less attention.
This article considers the application and expansion of DNA powers in the youth jus-
tice system, and identifies the ‘competing paradigms’ at play. New Zealand and Scotland,
often cited as having progressive and sensitive approaches to youth justice, are used to
Corresponding author:
Dr Nessa Lynch, Faculty of Law, Victoria University of Wellington, Wellington 6140, New Zealand.
Email: Nessa.lynch@vuw.ac.nz
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Youth Justice 12(1)
illustrate the tension between the perceived need for expanded powers of investigation
and prosecution of crime and the rights and interests of young people.1 Both jurisdictions
are recognized for their established emphasis on diversionary and non-stigmatizing
processes in youth justice but, more recently, are experiencing broader trends away from
a rights-oriented paradigm towards a more populist and punitive model. This article
examines the recent expansion of DNA powers in both countries which illustrates a com-
parable trajectory away from conventional youth justice precepts. It assesses
the safeguards, if any, that have been introduced to mitigate this ‘ratcheting up’ of crime
control, which is particularly problematic in the context of young people. In doing so, we
draw on our respective work on DNA and human rights (Campbell, 2010a, 2010b, 2010c,
2011) and the rights of young people in the youth justice system (Lynch, 2007, 2008,
2010a, 2010b). Our analysis of legislative developments has a wider application as many
jurisdictions have adopted elements of the New Zealand and Scottish approaches to youth
justice, and can also contribute to a wider discussion about compliance with international
standards for youth justice in the context of DNA collection and storage.
From Progressive to Punitive Paradigms?
New Zealand and Scotland are recognized as having distinctive approaches to youth
offending. The attributes of the ‘New Zealand model’: diversion, restorativeness, cultural
flexibility, reintegration and decarceration have been highly influential on other jurisdic-
tions (Morris and Maxwell, 2001; Muncie, 2005). New Zealand is unusual in having a
sharp contrast between the progressive youth justice system and the punitive and populist
adult system (Pratt, 2008; Pratt and Clark, 2005), and amongst similar jurisdictions (par-
ticularly England and Wales) in resisting the ‘punitive turn’ (Goldson, 2002) in youth
justice (Muncie, 2008). Similarly, Scotland has long had a distinctive approach to youth
justice, especially when compared with the tactics adopted in England and Wales (Goldson,
2000; McAra, 2008a, 2008b). Most young people who come to the attention of the police
for suspected criminal behaviour are dealt with by the informal lay Children’s Hearing
System (CHS) (McDiarmid, 2001) on the premise that young people involved in offend-
ing behaviour or who are victims of abuse or neglect should be treated in the same system
according to their needs (Kilbrandon, 1964). This distinctive approach embodies the wel-
fare principle and presupposes that any intervention must be in the best interests of the
young person.
Recent developments in both jurisdictions indicate a shift away from such traditional
norms and premises, to a more politicized and punitive means of addressing problematic
behaviour and youth offending. In New Zealand, the youth justice system was a central
issue of the centre-right National Party’s successful election campaign in 2008 (Key,
2008). New legislation, the Children, Young Persons and Their Families (Youth Court
Jurisdiction and Orders) Act 2010, reshapes the youth justice system (Lynch, 2010b,
2010c). Increased punitiveness is evident, particularly in the new power to prosecute
12 and 13 year-old serious and persistent offenders rather than the previous welfare-based
approach (Lynch, 2010c). An increase of the net of control is apparent in the expansion of
Campbell and Lynch
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existing Youth Court orders and new approaches such as compulsory parenting education
programmes and the strongly symbolic (Simon, 1995) ‘military style activity camps’. The
New Zealand youth justice system is now catching up with the adult criminal justice
system which has in the last two decades been characterized by penal populism and an
ever increasing prison population (Pratt and Clark, 2008). In Scotland, a similar trend to
a more risk-oriented, managerial and punitive logic is evident in s. 16 (5) of the Children
(Scotland) Act 1995 which allows the principle of best interests to be overruled in cases
where the young person is considered to pose a risk of serious harm to others. The intro-
duction of anti-social behaviour demonstrates a shift to a more populist and punitive ethos
(Croall, 2005; Piancentini and Walters, 2006). To a lesser extent, the trajectory of Scottish
youth policy parallels that in New Zealand, driven by the co-opting of crime control by
the Scottish Parliament as a means of building political capacity (McAra, 2008a, 2008b).
Thus, while both jurisdictions retain a statutory imperative to divert young people from
prosecution and custody, increased punitiveness is evident, particularly at the edges of
the system. As we emphasize here, the expansion of DNA powers is symptomatic of this
‘layering’ of populist crime control measures on to established youth justice systems.
The Use of DNA in Criminal Investigations
Before considering the particular issues which expanded DNA powers pose for the rights
and interests of young people, it is essential to discuss how DNA is used in criminal inves-
tigations. The genetic material in human DNA determines physical characteristics and
traits, genetic disorders, susceptibility to disease and ethnic origin. An individual’s DNA
is unique (except in the case of identical twins) and is inherited from both one’s parents.
A DNA sample contains a range of intimate personal and family information. In contrast,
a DNA profile, generated from a sample, is a set of identifying characteristics from regions
of DNA that are not known to provide for any physical characteristics or medical condi-
tions of the person. It consists of a list of numbers based on specific areas of DNA known
as short tandem repeats and a gender indicator and thus may only be read and interpreted
with the aid of technology (Parliamentary Office of Science and Technology, 2006). While
profiles are computerized, they still contain ‘substantial amounts of unique personal data’
(S and Marper v United Kingdom (2009) 48 EHRR 50 [73]-[76]) including information
about familial relationships and ethnic origin.
The use of DNA evidence is now widespread in criminal investigations and prosecu-
tion. The primary New Zealand legislation is the Criminal Investigations Bodily Samples
Act 1995 (CIBS Act) which has been regularly amended since enactment. In the 2009/2010
reporting year, 12,089 samples were taken from suspects and volunteers, while 1948 iden-
tifications were made from crime scene DNA (New Zealand Police, 2010). The CIBS Act
provides for a national DNA database on which DNA profiles from voluntary and com-
pelled samples may be stored. As of the end of December 2010, there were approximately
115,500 profiles on the database (Personal Communication from the Institute of
Environmental Science and Research, January 2011). Scotland has a separate legal regime
to the rest of the UK for DNA collection and retention and has its own DNA database,
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Youth Justice 12(1)
established in 1995 and operated by the...
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