Implications of collecting DNA samples

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Rainsborough
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Re: Implications of collecting DNA samples

Postby Rainsborough » Thu Jun 30, 2011 9:44 am UTC

Whimsical Eloquence wrote:
Rainsborough wrote:
I'm pretty sure that neither of us can win this argument, practicalities aside we have differing views on what Privacy constitutes,


Hang on, I thought your objection was on grounds of Assault - Right to Bodily Integrity rather than Privacy? Which didn't seem to be the view of the European Courts (you share the view of the Court, not the document, only the Court's current interpretation of the Document).

As for your actual objection:

Rainsborough wrote:
That's not really what I'm going for. To obtain a DNA sample I necessarily have to be assaulted or more technically battered.

Question: What if a mandatory database is introduced and someone refuses to give a sample? Would you advocate the use of force to retrieve one.


Okay. I think you've a somewhat confused understanding of the Law/Jurisprudence here. The State has a necessary monopoly on force by virtue of the Social Contract - it employs this monopoly of force - legal, authoritative force (which is not comparable or even related to assault) - to enforce the laws and statutes it enacts. Hence, the enforcement of any State order - whether the supply of sample, the supply of taxes, the apprehension into custody, the forcible removal from property - is done via necessary force. To protest against x specific measure on the grounds that the State will have to use force to implement it is really object to idea of State using Force, by consequence the very idea of the State itself. It's to protest against any general use of force. So that doesn't really hold as an argument against this specific thing which requires some, specific argument.

Obtaining of a DNA sample doesn't necessitate any greater application of force than the enforcement of any other given State enactment - as has been pointed out, a used coffee cup would suffice.


I have several principle objections. The most fundamental being right to privacy (see my previous posts where I quoted both the ECHR, the Supreme Court of the United Kingdom and the Nuffield Council on Bioethics.

However it is you that is confusing jurisprudence at the very least in England and Wales. There are only two lawful uses of force when there is no consent. The first is self defence and the second is a police constable exercising their powers of arrest:

Rainsborough in a short essay on Police Powers wrote:
In COLLINS v WILCOCK [1984] a Police constable, Tracey Wilcock, accosted a woman named Alexis Collins, whom W suspected of soliciting contrary to the Street Offences Act 1959. Collins attempted to leave the area and the Constable grabbed Collins by the upper left forearm, Collins in response scratched the Constable with her nails and was consequently arrested for assaulting a police officer in the execution of her duty. While Collins was convicted at first instance on appeal, she successfully argued that as Wilcock had not been exercising her power of arrest at the time of the alleged assault, the grabbing of Collins arm by Wilcock was, prima facie, a battery. Therefore Collins' action in scratching the police constable's arm was self defence and the court consequently quashed her conviction.

This case is the leading authority on police powers regarding physical contact and as Goff LJ correctly stated: "excepting the lawful exercise of his power of arrest, the lawfulness of a police officer’s conduct is judged by the same criteria as are applied to the conduct of any ordinary citizen of this country."


If you want to talk on the state monopoly of violence then fine, but that is a question for political philosophy not the law.
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Aaeriele
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Re: Implications of collecting DNA samples

Postby Aaeriele » Thu Jun 30, 2011 6:49 pm UTC

Deep_Thought wrote:But this is part of the reason I posted the link about fingerprints above - most police forces around the world use fingerprints as their primary method of identification, and it's never actually been subject to any proper scientific scrutiny. Is that ever told to juries? There is also the possibility that juries will be just as woefully misinformed as they are now and DNA will maintain weight as significant evidence. We just don't know. That's the joy of "hypothetical".

And that is why defense lawyers exist in the first place. To tell juries things that the prosecution might not want to disclose, but are relevant to the case.
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