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Policing and judicial cooperation across international borders is now an expectation. Strategies to combat terrorism, organized and serious crime, as well as domestic crime problems, increasingly incorporate the exchange of forensic information and intelligence between national institutions and agencies. While networks of policing cooperation are not novel, their powers and capabilities have been growing in recent years and bilateral and multi-lateral agreements to exchange data between countries proliferate apace. With increasing demand and capacity for the extraterritorial exchange of evidence under mutual legal assistance, as well as direct and more informal exchanges of data between law enforcement professionals there are increasing numbers of criminal investigations where evidence may have been collected, examined, or interpreted across national borders. Since the Prum Treaty of 2005, automated exchange of DNA profiles, dactyloscopic data (fingerprints) and vehicle registration data has become mandatory across the EU. These institutional developments highlight broader concerns raised by the exchange of scientific evidence for use in criminal proceedings in a different jurisdiction from that where the evidence originated. As well as presenting technological challenges of effective and secure information exchange, mutual judicial assistance in evidence-gathering poses questions of principle demanding urgent consideration, given that international exchanges of forensic information and intelligence are set to increase exponentially.
Institutional Context: Mutual Judicial Assistance And EU Criminal Policy
The modern escalation in the mobility of goods and people across international borders has not been limited to those legally permitted to travel. While governments encourage goods and individuals to cross borders for economic gain, this comes at the cost of needing to protect national borders against the illegal movement of goods and people. The benefits to be accrued from crossing borders have been capitalized upon by organized criminals, terrorists, and human traffickers. In addition, many ordinary criminals have gained an advantage over law enforcement agencies, avoiding detection by committing offences in different legal jurisdictions. In response, States have likewise had to work across borders in order to combat these illegal activities. As such, international judicial cooperation has become not merely desirable, but essential in those countries in the European Union that share borders. In 1985, the Schengen Treaty paved the way for the creation of a “borderless” Europe and facilitated (some would say necessitated) transnational exchanges of information on European citizens and visitors.
Policing and judicial cooperation across countries is not a new phenomenon. Older informal networks became formalized with the creation of Interpol in 1923. Within (what is now) the EU, the anti-terrorism focused group “TREVI” was created in 1975. The Maastricht Treaty of 1992 subsequently formalized policing and judicial cooperation within the “Third Pillar” of the EU’s constitutional framework relating to “Justice and Home Affairs.” Europol was then created in 1995, becoming operational in 1999. The Amsterdam Treaty of 1999 created an “Area of Freedom, Security and Justice,” strengthening Europol and continuing the trajectory of expanding legal and judicial cooperation across the EU. The Treaty of Amsterdam endorsed: “The principle of mutual recognition which… should become the cornerstone of judicial cooperation… in criminal matters within the Union.” This was boosted by the Hague Programme of 2004 which propounded the “Principle of Availability” of law enforcement information. This principle, adopted in November 2004 (Brussels European Council, 4/5 November 2004, Presidency Conclusions), anticipated that: “throughout the Union, a law enforcement officer in one Member State who needs information in order to perform his duties can obtain this from another Member State and that the law enforcement agency in the other Member State which holds this information will make it available for the stated purpose, taking into account the requirements of ongoing investigations in that State.” This aspiration was realized across the EU in 2008.
In 2006, the “Swedish Initiative” marked a significant step towards implementing this Principle of Availability, with the adoption of Council Framework Decision 2006/960/JHA on simplifying the exchange of information and intelligence between EU Member States’ law enforcement authorities. Adopting a broad and inclusive approach to information exchange, 49 different types of relevant information were identified, including DNA and Fingerprints (CRIMORG 7, 5815/2/05), the underlying principle being that national parties should apply the same criteria to international exchange across the EU as they do to information-sharing between criminal justice professionals at the national level. Transnational exchanges of information could take place through any of the existing channels of mutual judicial cooperation, including Sirene Bureaux (utilizing the Schengen Information System, SIS), Interpol National Contact Bureaux (NCBs), Europol National Units (ENUs) or Europol Liaison Officers and Bilateral Liaison Officers.
Despite these organizational developments and political exhortations to increase criminal justice cooperation, most day-to-day policing remains a national matter. This truism necessitates that policing efforts to detect criminals whose activities cross borders must primarily focus on sharing information and intelligence. Mutual assistance treaties have made provision for information exchange between law enforcement agencies and judicial bodies across the EU Member States. One of the first treaties was the 1959 European Convention on Mutual Assistance in Criminal Matters (20 April 1959, ETS No 30), which came into force on 12 June 1962, and provided for the transfer of information on previous convictions. This treaty set out the rules for the enforcement of letters rogatory issued by a “requesting” State, to procure or communicate evidence for the purposes of criminal proceedings being undertaken in that State from another State. Requirements were specified for requests for mutual assistance, including who was permitted to make a request, the language to be used and under what circumstances mutual assistance could be refused.
The 1999 Amsterdam Treaty and Tampere Programme for policy development and implementation laid down more precise provisions for cooperation between EU police authorities. These instruments boosted inter-governmental co-operation within the EU on policing matters, while endorsing “mutual recognition” as a cornerstone of European integration. In 2001 a detailed programme of measures was set out in the European Convention on Mutual Assistance in Criminal Matters (Official Journal of the European Union 2001, C326), which introduced a suite of practical tools for enhancing cross-border cooperation, starting with the European Arrest Warrant, later adding the European Evidence Warrant, and most recently the European Investigation Order (Mitsilegas 2009). Cooperative efforts have not stopped there. Nijboer (2009, p. 23) predicts that “the next development will be the EU members” mutual recognition, not merely of court decisions, but also of investigative results such as forensic experts’ reports’. The Lisbon Treaty, which came into force in 2009, took the final constitutional step of abandoning the “three pillar” structure introduced by the Maastricht Treaty, placing criminal justice policy on an equal footing with other core business at the heart of the EU’s activities.
Transnational exchanges of forensic science data and intelligence between EU member states take place within this evolved institutional framework. Resort to forensic science by national intelligence services and by EU and other international security agencies is increasingly frequent. Rapidly evolving strategies to tackle transnational crime foster the exchange of information across borders as well as the linking of databases of different provenance (Lewis 2007). Indeed, international utilization and exchange of forensic intelligence has become a firm expectation of the sector, matched by burgeoning expansion of the mechanisms needed to achieve it. While there have long existed informal professional networks between law enforcement authorities facilitating cooperation across international borders (Loader 2002), modern developments in ICT have produced increased automation of information-sharing and paved the way to multiple-country access to large databases.
An important distinction needs to be drawn at this point in the exposition between the sharing of raw forensic data and exchanges of scientific reports incorporating evaluative expert opinions. Often the two go hand-in-hand, but data and its interpretation do not always coincide and they might not be contributed by the same individuals or institutions. It is far more likely that exchanges of forensic data could be standardized and automated, whereas sharing forensic expert opinions across national borders and legal jurisdictions is a significantly more complex and challenging endeavor. The following discussion will consider each type of information-sharing in turn, drawing out its further implications for principles of mutual recognition and mutual judicial assistance in European criminal proceedings.
Forensic Science Data-Sharing
Direct law enforcement co-operation, or cross-border evidence exchange during investigations and pre-trial processes concerning known crimes or individuals, has been increasing for many years, gaining impetus from the terrorist attacks of 9/11 (Loof 2011). Interpol initially drove the technological phase of international cooperation involving DNA on a global scale. Resolution No. 8 of the Cairo General Assembly in 1998 articulated an aspiration to harmonize DNA profiling and quality assurance systems internationally and recommended that its member countries should create national DNA databases. The Interpol DNA Gateway, created in 2002, enabled its member countries to search unsolved crimescene profiles and search against DNA profiles from other donor countries using the Interpol Standard Set of Loci (ISSOL). In July 2006, it went online via Interpol’s I-24/7 global police communications system. The DNA Gateway does not hold any nominal (demographic) data but acts simply as a conduit between countries who can follow-up any “hits” independently. The DNA Gateway is available for use by all 190 Interpol countries. It can only be used by police forces, however, and this excludes from the system countries (e.g., Belgium and the Netherlands) in which DNA data are classified as judicial information: that is, the information is collected, managed and used by magistrates or prosecutors rather than police agencies. One consequence of these domestic institutional arrangements is that data can be shared internationally only through judicially controlled mechanisms. For this and other reasons, there has consequently been a low submission rate, possibly also attributable to practitioner scepticism that submission will reap much investigative reward (Johnson and Williams 2007, p. 108).
In 1997, the EU adopted Council Resolution 97/C193/02 on the exchange of DNA, recommending the establishment of national DNA databases and the standardization of DNA technology to facilitate information exchange between EU member states. In 2001, Council Resolution 2001/C 187/01 further recommended the limitation of DNA analysis to “non-coding” regions as well as the ongoing standardization of reporting and recording, and the creation in each member state of single national points of contact. This programme was designed to promote harmonization of DNA analysis and the procedures necessary for information exchange and data-sharing. Informal exchange of DNA “in the absence of a supranational authority to govern” was sporadic at this formative stage (Johnson and Williams 2007).
The Prum Treaty, concerned with increasing the exchange of EU law enforcement data in order to combat terrorism, illegal immigration, and cross-border crime, was signed in 2005. The original signatories were Austria, Germany, the Netherlands, Luxembourg, Belgium, France and Spain, who were subsequently joined by six others. The Treaty was transposed into EU law in 2007 (Decision (2008/615/JHA; 2008/616/ JHA), at which point all 27 member states committed themselves to working within the treaty obligations by August 2011. The adoption of the Treaty into the EU acquis (legal framework) created, for the first time, a requirement that member states establish an infrastructure to permit the exchange of DNA, fingerprint, and vehicle registration data. This implies the creation of national databases as a necessary precondition to data-sharing, which some member states still do not have. By January 2012, twelve EU countries were actually exchanging DNA information (with ten exchanging fingerprints and vehicle registration data). The Prum Treaty thus represents a partial step towards the realization of the Hague Programme’s aspiration of free-flowing law enforcement information between EU States under the “Principle of Availability.” The ultimate objective is “a virtual EU-wide database for law enforcement that makes an entry loaded onto any forensic database in any EU country potentially accessible to every police force in the EU” (Human Genetics Commission 2009, para 5.10).
The Prum Treaty stipulates that automated searches by other member states are conducted on a “hit”/“no hit” basis. Only after a “hit” has occurred will there be an exchange of personal (demographic) details and case information via existing mutual legal assistance channels. The second step of the exchange process then falls back on national legislation, affording discretion to each country to decide whether or not to exchange demographic data. To satisfy the stipulated standard for information-sharing, DNA profiles must contain at least six of the seven European Standard Set of Loci (ESSL) for known persons or a minimum of six loci (of any type) for crime scene stains. Mixed profiles are excluded. So also, for speculative searching, are profiles derived from crime stains that have already been “matched” to a particular person. A country may make some profiles unavailable for searching (e.g., profiles of criminal justice personnel compiled for elimination purposes). Declaration of a “match” requires at least six fully matching loci (one mismatch is permitted, to accommodate “near” matches; and one base-pair difference is permitted to allow for microvariants that could be artefacts of the profiling process). A report following a Prum search will include details of: the responding country; the type of “match” (full or near); the characteristics of both matching DNA profiles; the crime stain or reference sample; and the sample code to facilitate follow-up requests for further details via mutual legal assistance mechanisms.
Introduction of the Prum automatic information exchange system has been credited with notable operational successes. After less than 2 months of a trial period of information-sharing between Austria and Germany, for instance, the German authorities had obtained 1,510 “hits” for DNA profiles from unsolved cases against data held by the Austrian authorities, leading to 710 detections (including, 41 hits in homicide cases, 885 hits in theft investigations, and 85 hits relating to robbery or extortion) (House of Lords European Union Committee 2007, pp. 15–16). Advocates, no less than critics, of the Pru¨ m system recognize that these impressive immediate gains partly represent a one-off windfall. When a country first initiates data exchange, large amounts of information about earlier crimes will become available to the prosecuting authorities for the first time (House of Lords European Union Committee 2007, p. 16). It remains to be seen how effective EU data-sharing will be in terms of producing new “hits” leading to detections and prosecutions on a more sustainable, on-going basis.
The biggest practical limitation of the Prum information-sharing framework is geographical, being restricted to EU member states (plus a few additional signatory countries such as Norway and Switzerland). There were soon calls for exchanges of DNA data, in particular, to be extended internationally. The UK’s presidency of the G8 in 2005 inaugurated a project to identify the requirements for greater international exchange and propose technical solutions. The “DNA Search Request Network” (DNA SRN) was duly established, utilising Interpol’s I-24/7 secure email network to send search requests to other G8 countries. Pilot testing began in 2007 with search requests sent to national DNA Bureaux from the USA, Canada and the UK. Japan has since joined the original trio and all four countries have commenced sharing crime scene DNA profiles. The nature and extent of these exchanges has not been made public, however.
Sharing Expert Opinions
Forensic data might consist of nothing more than raw scientific test results. Such information is readily amenable to automatic recording and transmission. For these data to become “evidence,” however, a further vital step is required, that of “interpretation.” Interpretative conclusions may be offered by qualified scientists and other experienced forensic practitioners, but they are also routinely contributed by non-scientific personnel, including police and prosecutors, in many countries. Within the EU, such data fall under the umbrella term “intelligence.” They are transmitted via a range of policing communication channels, including Sirene Bureaux (within the Schengen framework), Europol National Units and Europol Liaison Officers, Interpol National Centre Bureaux, and bilateral mutual assistance arrangements. Such channels are open to the transmission of almost any type of law enforcement data (Gill 2008, p. 143). It is anticipated that the flow of forensic science intelligence will increase within the Schengen system once “SIS II” is brought online, with this express objective.
International policing networks, such as Europol and Interpol, are increasingly focusing efforts on the production and sharing of “forensic intelligence.” It is intended that “the accurate, timely and useful product of logically processing forensic case data” (Ribaux et al. 2003) will inform policing tactics, operations and strategy. In 2002, Europol’s mandate was extended to cover all serious forms of international crime (including crimes against persons, financial crime and cyber-crime) perpetrated by organised criminals, or where more than one EU Member State is directly affected. Europol Liaison Officers (ELOs), based in The Hague and representing their respective national law enforcement agencies, form bureaux to exchange a range of law enforcement information and intelligence, either on a bilateral or multi-lateral basis. They also share information and intelligence with other competent national authorities, such as customs officials, border control agencies, etc. Each Liaison Bureau contains a Europol National Unit, which acts as a gateway to supply Europol with information and intelligence for its databases. In addition, Eurojust, established in 2002, is tasked with fighting serious crime in the EU by stimulating judicial cooperation and the coordination of investigations and prosecutions which involve more than one Member State. Eurojust aims to improve cooperation by facilitating international mutual legal assistance in order to make cross-border crime investigations more effective. There are also cooperation agreements in place with Norway, Iceland, the USA, Switzerland and Croatia. The organization collates forensic intelligence as part of its mandate as a centre of terrorism-related expertise.
Beyond raw data exchange, it is the further step of interpreting forensic data and producing “intelligence” within the context of a particular investigation that perhaps poses the greatest challenge to effective cross-border information-sharing. Suppose, for example, that DNA profiling produces a database “hit” indicating an association with a crime scene stain from another country. This “hit” then requires further interpretation and investigation, and may prompt further forensic processing. These steps will determine whether and to what extent the declared “match” between two profiles is relevant and sufficiently reliable to inform the course of criminal investigations and, perhaps, to be used later as evidence in criminal proceedings. The standards for this interpretation, who conducts the interpretation, and the amount of further information required will all have an impact upon the “strength” of the evidence and the reliance that can reasonably be placed upon it in criminal investigations or prosecutions. However, there are currently no standardized protocols or mechanisms of international quality assurance governing forensic scientific interpretation or the formulation of expert opinions. Furthermore, there are huge variances across the globe, and even within the EU, in who can offer expert opinions in courts and the stringency of the tests that expert opinion must undergo before being admissible at trial. The degree of critical scrutiny afforded to admissible expert evidence is also highly variable across legal jurisdictions. This degree of variability naturally generates concerns about the quality of scientific evidence being proffered by experts and relied on by courts in different countries. In the context of mutual judicial assistance and intelligence-sharing, it raises the spectre of flawed scientific opinion or misinterpreted forensic data spreading miscarriages of justice across borders.
Forensic Data Exchange
Information exchange under the Prum Treaty typically precedes the institution of formal criminal proceedings, since the national authorities will usually have evidence of suspected criminality but, at this stage, no identified suspect. Investigators hope that intelligence sharing will produce an identifiable suspect, e.g., through a matching DNA profile or vehicle registration records. Since information shared through mutual judicial assistance is therefore often pivotal to the progress and outcome of an investigation, ensuring its integrity and reliability is vital to the proper administration of criminal justice. The need for such guarantees is all the greater in relation to evidence widely considered inherently reliable (such as fingerprint and DNA evidence), as domestic courts (and juries) may be in the habit of taking its reliability on trust.
There are rudimentary quality controls in place. For example, there must be compliance with ISO 17025 or equivalent standards for all laboratories processing DNA profiles. No personal data is transferred between member states, via mutual legal assistance channels, until a “hit” has been declared. There must be a commitment to the European Data Protection Directive (or equivalent national law) and also an estimation of the number of adventitious matches expected after a search (Van der Beek 2008). This “two-step” approach is intended to provide an opportunity to assess domestic legislation and gauge whether the exchange falls within legal parameters and whether data protection measures are in place prior to the exchange of personal data. It also provides an opportunity for a “near match” to undergo further testing by the country reporting the “hit” prior to the recipient country relying upon the “hit” to commence investigations.
Widespread distribution of automated database searching could potentially generate candidate match overload. Such problems were anticipated by the European Network of Forensic Science Institutes (ENFSI) DNA Working Group in 2009 (ENFSI 2009). The Working Group concluded that while the current ESS loci are capable of handling occasional exchanges of DNAprofiles between countries, the much higher volume of profile-sharing and searching made possible by the Prum Treaty means that the chance of adventitious or false matches may significantly increase. An adventitious match occurs when the DNA profiles of two individuals (who are not identical twins) genuinely match (theoretically a rare, but not impossible, occurrence with the latest, highly discriminating, DNA profiling systems). A “false match” is a match declared in error, where closer examination shows the result to be invalid (e.g., owing to laboratory contamination or interpretational errors). Investigators will often be able to eliminate adventitious or false matches when it becomes apparent that the individual concerned had nothing to do with the crime. However, those wrongly suspected may have suffered considerable intrusion into their private lives before the confusion was resolved. The reverse situation – a false elimination – may be almost equally damaging for the administration of justice. With increasing horizontal integration of criminal justice data, international liaison officers could be overwhelmed by information and in major investigations may experience considerable pressure to confirm “near matches” as reliable leads. As Schneider (2009, p. 1) explains: “When massive exchanges of DNA profiles are undertaken… the seven ESS loci will not be sufficient because the chance of adventitious matches will no longer be negligible.” Both Germany and the Netherlands have reported having to undertake extensive re-testing when matches are identified, to exclude adventitious and false matches. The Netherlands now refuses to release demographic data for “near matches” without the assurance of confirmatory testing (Van der Beek 2008).
The Interpol International Gateway was a relatively low-cost initiative for information searching. The political momentum driving Pru¨ m clearly envisages much greater investment to facilitate multiple database searching and the generation of new data, as well more effective exchange of existing data. Germany claims that it cost less than €1 million to set up its national Pru¨ m data exchange system. However, the UK government estimate a start-up figure of some £31 million (including £2.5 million first-year operating expenditure) (House of Lords European Union Committee 2007, pp. 23–24). This does not include the additional costs of tracing suspects, their arrest, detention and deportation, following “hits” identifying foreign nationals or fugitives residing overseas. In 2009–2010 UK authorities effected the arrest, detention and extradition of 1,032 people under the European Arrest Warrant framework, prompting some commentators to question why UK taxpayers should foot the £25 million annual bill for sending individuals abroad for trial The UK police process 20 times as many arrest warrants as they submit (Slack 2011).
Even greater obstacles confront fingerprint data exchange, since there is no accepted international standard for declaring valid matches. Transmission of raw data and the preparation or presentation of information for analysis, theoretically at least, presents fewer technical problems. However, use of the best quality images is crucial for fingerprint 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 fingerprint data, beyond the specification of an agreed file format. Meanwhile, proprietary search and image capture systems are being developed with little regard for interoperability.
Responding to threats of “match overload” and excessive strain on examiners required to analyze thousands of prints, the EU has placed limits on the number of searches that can be conducted of fingerprint databases (Document 5860/5/10 REV 5 JAI 92 CRIMORG 16 ENFOPOL 29). Dror and Mnookin (2010) argue that the scale and speed of automated database searching inevitably increases the risk of erroneous identifications by multiplying the number of candidate matches based on incidental similarities, some of which may be artifacts “both of the relative similarity of the patterns being compared and of the human cognitive architecture involved in pattern matching” (Dror and Mnookin 2010, p. 56). This parallels the problem of DNA “near matches,” and may similarly require significant investment of resources to re-check and eliminate specious “hits.” Reliance must be placed on national authorities to be diligent in undertaking the necessary re-testing to confirm initial results, before treating shared fingerprint “matches” as a reliable basis on which to initiate criminal prosecutions.
Laboratories developing imperceptible latent prints from crime scenes must satisfy the rudimentary quality controls required for accreditation under ISO 17025. However, police fingerprint bureaux are exempted, placing Automatic Fingerprint Identification Systems (AFIS) outside this quality framework. The UK Association of Chief Police Officers (ACPO) has declared its aspiration to ensure that all fingerprint bureaux are accredited to ISO 17025 by 2020. In the meantime, fingerprinting, like DNA profiling, is widely perceived as reliable and routine. This may foster the impression that regulatory frameworks are equally robust and unproblematic, reinforcing implicit faith in these types of evidence. However, the regulation and governance of both fingerprint and DNA data in England and Wales, and internationally, have attracted critical scrutiny in recent years (see e.g., Nuffield Council on Bioethics (2007); Human Genetics Commission (2009); House of Commons Home Affairs Committee (2010); McCartney et al. (2010)). More effective regulation of the forensic sciences in general has been demanded for many years. Regulatory initiatives in England and Wales were recently expanded EU-wide under the Council Framework Decision 2009/905/JHA on the accreditation of forensic service providers carrying out laboratory activities (EU Council 2009a).
Exchanging Expert Opinions
Scientific data are virtually meaningless unless interpreted within the context of other information. As we have seen, this interpretation can be undertaken by forensic science practitioners, police or prosecuting authorities, often in a different country from where forensic data were originally generated. It is therefore important to ensure the integrity of systems of accreditation of forensic experts in various countries, and to set appropriate international standards for interpreting forensic data. While forensic laboratories may be accredited to ISO 17025, this standard does not guarantee the quality of individuals’ case-work nor does it govern activities outside the laboratory (e.g., crime scene investigations). Accreditation of individual experts remains a major unresolved issue, which has been addressed in a variety of ways, and with varying success, by different countries. The Council for the Registration of Forensic Practitioners (CRFP) was established in the UK in 1999 to accredit individual experts for forensic work, but this encountered various practical problems and was disbanded in 2007, largely on economic grounds. Subsequently, the Netherlands Register of Court Experts (NRGD) was set up in 2009 to provide Dutch courts with a register of scientific experts whose professional quality can be relied upon (see http://english.nrgd.nl/home/). However, these are exceptional efforts in international terms. Few other countries have introduced similar mechanisms or systems to gauge the professional competence of scientific experts. There is consequently significant variation in the use of forensic expertise in criminal proceedings, much depending on individual trial judges’ discretion. Yet judicial evaluations are often largely based upon an expert’s formal professional qualifications or training, a poor substitute for a thorough examination of the competence of individual experts and of the reliability of their methodology, data and conclusions. Rarer still are sanctions for an incompetent expert or one who provides flawed testimony in court. In the absence of international standards for interpreting forensic data, it is almost impossible to harmonise the format or substance of expert reports.
The Human Genetics Commission (2009, p. 84) noted the growing pressures for sharing information:
[T]here are .. . substantial pressures to create the conditions for the horizontal integration of criminal justice databases, and the sharing of information between national jurisdictions. Whereas the exercise of law enforcement powers of European Union (EU) member states are confined within national borders, for the transfer of information relevant to law enforcement these borders are increasingly dissolving. We identify three developments in the ‘third pillar’ of EU policy (police and judicial cooperation in criminal matters) that have contributed to the cross-border linking of forensic bioinformation: the establishment of a system of co-operation based on a central information system making use of electronic databases; the creation of a presumption and then an obligation in favour of data sharing; and the commitment of the UK and other member states to align with such a system.
The UK Government previously explained how the Prum Treaty would “speed up and improve the quality and quantity of information exchanged” about DNA, fingerprints and vehicle registration in order to identify and bring to justice terrorists and criminals. Ministers stated that the Government had negotiated hard “to get an outcome that enables [the UK] to sign up to Prum and get all the benefits in terms of fighting cross-border crime and counter terrorism where so much depends on good data exchange and intelligence led policing” (House of Lords European Union Committee 2007, Ev.1-2 and Q8). In reply, parliamentarians and ethicists emphasized that “privacy-related issues concerning the use and transfer of DNA and other data for interjurisdictional criminal matters must be considered and agreed in parallel with arrangements for availability, exchange and linkage” (Nuffield Council on Bioethics 2007, p. 105). The UK has yet to announce when it expect to be taking part in information-sharing under the Prum Treaty.
For the time being, mutual judicial cooperation and data exchange in relation to DNA and fingerprints remains on a fairly modest scale, compared with efforts to detect criminals travelling with stolen or lost travel documents. At the end of 2011 the Interpol Stolen and Lost Travel Documents (SLTD) database held 31 million records, accessed by 161 countries (see http://www.interpol.int/@en/INTERPOLexpertise/Databases). The database can be made interoperable with national border control data systems. In 2008 law enforcement and border control officers carried out 25 million international searches of the database. This resulted in the identification of more than 5,000 individuals travelling on fraudulent documents (McCartney et al. 2010, p. 44).
In 2011 the Polish EU presidency called for a “Vision for European Forensic Science 2020.” Building on increasing police cooperation and in recognition of the demands of maintaining and developing the EU as an area of “freedom, security and justice,” the EU is working to create a “European Forensic Science Area” by 2020. This policy programme aims to “ensure the evenhanded, consistent and efficient administration of justice and the security of citizens,” by accrediting forensic institutes and laboratories and conducting international proficiency testing, establishing minimum competence criteria for forensic practitioners and introducing best practice manuals for laboratory case-work. There will also be minimum quality standards for examining crime scenes and managing the production of scientific evidence, from the crime scene to the courtroom. Duplication of effort in different countries should be minimized through mutual recognition of testing and processing of forensic data, and the sharing of forensic databases.
These objectives are laudable and, if implemented successfully, would go some way towards overcoming current obstacles to effective forensic data exchange and intelligence sharing. As things stand, enormous differences in national modes of data production and intelligence generation, coupled with markedly discrepant regulatory regimes, conduces to an extremely complex environment in which to attempt to foster mutual judicial cooperation (Gill 2008, p. 132). These complexities are overlaid by major differences in national legal traditions and judicial systems, which are far from being comprehensively harmonized (even supposing this to be desirable). For example, in almost all of the initiatives, mechanisms and organizations which seek to build collaborative links and facilitate forensic data and intelligence sharing, the emphasis has been squarely on policing and prosecutorial cooperation. There is almost a complete lack of attention to defence rights and interests. Procedural safeguards for defendants in criminal proceedings and equivalent access to evidence for the defence have largely been ignored in the drive to re-arm investigators and prosecutors in the fight against cross-border crime. These deficits are likely to become more salient in the coming months and years, as the provision of adequate procedural rights for the defence rights rises up the EU criminal policy agenda (see, in particular, EU Council 2009b).
All forms of human cooperation and collaboration require mutual trust. The EU’s 2009 Stockholm Programme, which promised to deliver “An Open and Secure Europe Serving and Protecting Citizens,” stressed that mutual trust was “the basis for efficient cooperation in this area. Ensuring trust and finding new ways to increase reliance on, and mutual understanding between, the different legal systems in the Member States will thus be one of the main challenges for the future” (EU Council 2010, para.1.2.1). However, significant obstacles to effective cross-border policing cooperation have yet to be overcome. Immediate practical difficulties such as language differences, time limits and technical legal constraints (e.g., the doctrine of double criminality in extradition law) seem to preoccupy policymakers, at the expense of more fundamental considerations of proportionality, necessity, and public acceptability. The Stockholm Programme did acknowledge that “[i]n order to improve cooperation based on mutual recognition, some matters of principle should also be resolved” (EU Council 2010, para 3.1.1.). Yet “principled” considerations have largely been absent from much subsequent debate.
Pressing issues demand resolution prior to further expansion of international exchanges of forensic data, information, and intelligence. The existing fragmentary regulatory framework must be developed to set international quality standards to ensure the competency of individual forensic practitioners and the scientific validity and reliability of their results. Agreed protocols for data interpretation and report writing need to be adopted, and issues of training and resources addressed. At a more fundamental level of principle, urgent consideration must be given to implementing procedural safeguards and equivalent powers for the defence, to ensure that transnational data and intelligence sharing does not undermine the accused’s fair trial rights. Most “cooperation” instruments are silent on these matters. Robust rules need to be in place to ensure that evidence exchanged across borders is relevant, reliable and not obtained through illegal or unfair means. The exchange of evidence between national authorities should not provide an excuse to drive down procedural standards to the lowest common denominator, nor to enable prosecutors to gain access to evidence that would have been legally unavailable to them in their own jurisdictions. To the contrary, mechanisms of mutual judicial assistance should be used to establish and promote best international practice in evidence gathering, production and presentation.
Perhaps most important is the oversight of these transnational flows of law enforcement information. The process lacks transparency, and consequently citizens’ ability to challenge exchanges of their personal data is almost nonexistent. Concerns raised by den Boer (2002) that policing networks sit outside political frameworks of democratic governance and accountability remain apposite. Simply ensuring that the system “works” for the law enforcement professionals involved is inadequate for maintaining public confidence. Transparency and accountability are key to the long-term acceptability of expanded networks of data and intelligence sharing across national borders and mutual recognition of judicial evidence. As Professor Spencer explained to a House of Lords Select Committee: “What is done in trans-border cases has to be acceptable to public opinion, not just prosecutors and people who work the system. If there are dysfunctions in the criminal justice systems of some other Member States… they are not likely to be sorted out just by people getting to know each other.. .Unless these matters are addressed, public opinion will not accept the too ready functioning of cross-border criminal justice” (House of Lords European Union Committee 2012, p. 11).
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