Competing Paradigms? The Use of DNA Powers in Youth Justice

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 evidence: 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 offending 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 un-convicted 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 justice 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 illustrate the tension between the perceived need for expanded powers of investigation and prosecution of crime and the rights and interests of young people.2 Both jurisdictions are recognised for their established emphasis on diversionary and non-stigmatising 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 comparable 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, 2011; 2010a; 2010b; 2010c) 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