Criminal Justice and Global Public Goods
| Author | Tim J Wilson |
| DOI | 10.1177/0022018316668450 |
| Published date | 01 October 2016 |
| Date | 01 October 2016 |
| Subject Matter | Articles |
The Journal of Criminal Law
2016, Vol. 80(5) 303–326
Criminal Justice and Global
ª The Author(s) 2016
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Public Goods: The Pru¨m
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DOI: 10.1177/0022018316668450
Forensic Biometric
clj.sagepub.com
Cooperation Model
Tim J Wilson
Professor of Criminal Justice Policy, School of Law, Northumbria University, Newcastle, UK
Abstract
This article places sharing forensic biometric data for international criminal justice coop-
eration purposes within the domain of global public goods. Such cooperation is a rational
response to globalisation, but faces several obstacles. These range from sociocultural and
political concerns about national legal and criminal justice autonomy to the potential impact
of market fundamentalism on scientific standardisation and cooperation mechanism delivery.
The significance of such inhibitors will vary as societal and personal perceptions of stability
change. These issues are examined by analysing the progress achieved with the EU Pru¨m
forensic biometric data exchange model. Shocks to European stability, such as the increased
scale of terrorist crimes and the UK EU referendum result will inevitably test the resilience of
Pru¨m. Combining insights from global public goods and criminal law scholarship, however,
may help to identify how reactions to such shocks, including questions about future UK
participation in Pru¨m, might be managed.
Keywords
International criminal justice cooperation, global public goods, forensic science standardisation,
market fundamentalism/neoliberalism, Brexit
Introduction
This article responds to the publication of Forensic Science and Beyond: Authenticity, Provenance and
Assurance (hereinafter Walport) by addressing the three policy objectives falling within the Chief
Scientific Adviser’s remit, namely: (a) identifying how significant emerging technology might be
Corresponding author:
Tim J Wilson, School of Law, Northumbria University, Newcastle City Campus, 2 Ellison Pl, Newcastle upon Tyne NE1 8ST, UK.
E-mail: tim.wilson@northumbria.ac.uk
304
The Journal of Criminal Law 80(5)
exploited either directly or indirectly in the national interest, (b) providing evidence to support policy-
making and (c) improving national resilience and security.1
Following an earlier chapter commissioned for Walport, it invests them with an international dimen-
sion, but differs from its precursor in three respects.2 First, it focuses exclusively on one scientific or
technological development: the automated exchange of forensic bioinformation (DNA and finger/palm-
prints) data. Secondly, following the UK referendum on EU membership, consideration will be given to
how this might affect UK policy-making that had only several months before settled on and had obtained
political approval to join Pru¨m. Thirdly, it considers the future prospects for the Pru¨m model following
major shocks within the EU from terrorist crimes, which could result in a greater emphasis on security
(hereinafter ‘securitisation’) in international criminal justice cooperation.3
Neither Pru¨m nor the international criminal justice cooperation this facilitates is a ‘final global public
good’. Instead, this data sharing is treated as an ‘intermediate input’ into the production of a global
public good or goods.4 Comparisons from public health are, respectively, the development of pharma-
ceutical knowledge and the eradication of polio.5 Loader and Walker similarly refer to transnational
policing as an intermediate input to the final good of security.6 Therefore this article seeks to answer the
following questions: (a) is Pru¨m an effective model as an intermediate input into a global public good(s)
and (b), if so, (i) why, (ii) how stable is this approach and (iii), given the Walport focus of this special
issue, what are the implications of the EU referendum results for UK law- and policy-making towards
this model of international criminal justice cooperation?
Irrespective of how the final and intermediate input to the public good (or goods) are described,
arguably criminal justice cooperation brings to international development the doctrinal robustness of
law. This may complement the normatively rich attributes of public goods, such as government free from
the taint of corruption or more generically goods contributing to the improvement of human life. This
assumption is tested by the multidisciplinary approach in this article that enables significant congruency
to be highlighted between global public goods research findings and various legal doctrines.
Global public goods is a concept that originated in development economics. It was primarily intended
to improve international decision-making—in response to globalisation—for the benefit of poorer
countries. There is a clear argument for locating Pru¨m in this domain. International criminal justice
cooperation supports UN Sustainable Development Goal 16.3: ‘promote the rule of law at national and
international levels and ensure equal access to justice for all’.7 Deference to such ideals is found in many
criminal justice cooperation texts, but may be combined with more normatively ambiguous objectives.
For example, the EU–US Mutual Legal Assistance (MLA) agreement refers to the ‘consolidation of the
1. M. Walport, Annual Report of the Government Chief Scientific Adviser 2015: Forensic Science and Beyond: Authenticity,
Provenance and Assurance, vol. 1 (Government Office for Science: London, 2015) 4. Available at: https://www.gov.uk/gov
ernment/uploads/system/uploads/attachment_data/file/506461/gs-15-37a-forensic-science-beyond-report.pdf
(accessed
14
July 2016).
2. T. Wilson, ‘The Global Perspective’ in M. Peplow (ed.), Annual Report of the Government Chief Scientific Adviser 2015:
Forensic Science and Beyond: Authenticity, Provenance and Assurance: Evidence and Case Studies 82–93. Available at:
https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/506462/gs-15-37b-forensic-science-beyond-
evidence.pdf (accessed 14 July 2016).
3. The term ‘securitisation’ is used in this article to denote an increased emphasis within criminal justice agencies, such as police
services, and their international cooperation activities on protection and prevention against security risks (including terrorism)
and not in its more usual financial sense of how assets are used to guarantee loans.
4. P. Eigen and C. Eigen-Zucchi, ‘Corruption and Global Public Goods’ in I. Kaul, P. Conceic¸a˜o, K. Le Goulven and R.U.
Mendoza (eds), Providing Global Public Goods: Managing Globalisation (OUP: New York, 2003) at 583.
5. I. Kaul and R.U. Mendoza, ‘Advancing the Concept of Public Goods’ in Kaul et al., above n. 4 at 80–89 and Eigen and Eigen-
Zucchi, above n. 4 at 576–597.
6. I. Loader and N. Walker, ‘Locating the Public Interest in Transnational Policing’ in A. Goldsmith and J. Sheptycki (eds),
Crafting Transnational Policing: Police Capacity-Building and Global Policing Reform (Hart: Oxford, 2007), n. 2 at 117–118.
7. United Nations, General Assembly, Report of the Open Working Group of the General Assembly on Sustainable Development
Goals, A/68/970, August 2014. Available at: https://sustainabledevelopment.un.org/focussdgs.html (accessed 13 April 2016).
Wilson
305
rule of law and respect for human rights and humanitarian law, as well as the preservation of peace’ and
then adds ‘and the strengthening of international security’.8
Kaul and Mendoza have observed how ‘as national borders become porous and cross-border eco-
nomic activity increases, these goods become indivisible across borders or transnational’.9 Globalisation
has created an impetus for the promotion of criminal justice cooperation. It has also, particularly with
terrorist crimes, ceased to be geographically remote throughout the EU and has gained ‘a civil dimen-
sion’, thus blurring possible distinctions between criminal justice and security cooperation.10 National
boundaries (even maritime borders) are increasingly irrelevant economically and socially, offering little
check to unauthorised entry or protection against transnational offending.11 Similarly, in a liberal
democracy, at a theoretical level, criminal justice conforms to the two defining characteristics of pub-
licness: (a) non-excludability (the producer cannot exclude any person from benefiting from it) and (b)
non-rivalry (consumption by one person does not diminish its availability for others).12 It is possible to
classify global public goods on the basis of ‘the nature of their publicness and the conditions of their
provision’ (for example natural or human-made).13 What appears to be more pertinent, however, in a
criminal justice context is how to structure cooperation to achieve ‘globalness managed to mutual
advantage’. This is seen within a global public goods context, as placing the onus of proof on those
proposing an international solution to justify such a strategy.14 This offers an initial example of a degree
of congruence between global public goods and legal doctrine. The former might justify an approach to
international negotiations. Should the negotiations eventually result in rights-limiting legislation (inev-
itable with forensic bioinformation), the necessity stage of proportionality analysis places a similar
requirement on the state during judicial review.
The article begins by describing the principal theoretical and empirical issues covered. These arise
from four factors: (i) the social nature of the good and, in the case of forensic...
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