Paige McElhinney: The NZ Police trial, DNA and ‘genetic informants’ - are we ready?

There are issues around privacy and consent when it comes to the current trial, argues Paige McElhinney.

OPINION

New Zealand Police has recently announced a “trial” where they will seek to compare DNA profiles from crimes to public genealogy databases. This has the potential to be a useful tool to resolve cases. However, as with any new developments, it is important to consider the issues and consequences.

Generally speaking, New Zealanders are wary about providing their personal information for data gathering purposes. That cautious attention can manifest in being circumspect about joining mailing lists or signing up for promotions – some of us may not even get Flybuys. Legislation and regulatory frameworks are playing catch up to the advancements of technology companies and their use of personal information.

The DNA analysis technique is not new. Many will be familiar with spitting in a tube or sending off a mouth swab to a commercial entity to develop a data set that is uniquely you to add branches to your family tree. The legacy of our genetic make-up spans generations. The premise of the testing is that the more DNA you have in common with another person, the more likely you are to be related.

In a forensic setting, a DNA profile can be generated from samples found at crimes scenes. This DNA profile can then be used to generate a list of potential relatives of the person who left the DNA at the crime scene. It is then no longer just about that the person who left the DNA at the crime scene; their entire family tree will then become the focus of a criminal investigation. Family members become “genetic informants”.

The science itself is not controversial and internationally well accepted. The controversy lies in whether it is appropriate that DNA data is provided with consent for one purpose (genealogy) but is used for another (crime investigation). Moreover, family members including subsequent generations would not have had the opportunity to consent at all. Not all genealogy databases are accessible to law enforcement. Those that are require the user to provide consent for that purpose. Following recent developments overseas, it is questionable how much that “consent” is honoured: experts overseas have testified in court to using loopholes in the security of genealogy databases to check the DNA data of those who “opted out” and did not provide consent.

Although the project between ESR and the police is described as a trial, the door is now open for application of this technique to more cases. This is important because finding a DNA profile at a crime scene does not immediately mean that individual was involved in the crime. It isn’t always possible to determine how or when a DNA profile was deposited or if it actually relates to an investigation.

Given the probability of opening entire families (and their lineage) to a criminal investigation, investigators need to be confident that the DNA profiles being used only relate to the actual offence in question. Here at The Forensic Group, we routinely encounter DNA profiling results being presented for court that do not relate to the offence in question. This uncertainty sits within a justice system that is far from perfect. There are still miscarriages of justice in New Zealand.

There is no guarantee that this technique will be successful. The databases are based overseas and it is only a small subset of citizens that can afford to load their DNA data to these systems. It is therefore questionable whether these overseas databases accurately reflect our population. Even if potential relatives are identified, there is no guarantee at the end of the investigation that anyone in a branch of that individual’s family tree is the offender. And then the investigation moves to the next family on the list. This potentially means a significant invasion of privacy for a large number of individuals with the small chance of a successful outcome. The technique itself must also be underpinned by strong investigative skills of the investigation team.

Paige McElhinney, a forensic scientist and director of The Forensic Group Ltd

Section 21 of the New Zealand Bill of Rights Act 1990 (NZBoRA 1990) states that: “Everyone has the right to be secure against unreasonable search or seizure, whether of the person, property, or correspondence or otherwise.” While one individual may tick a box on a form saying they consent, this consent does not apply to all the individuals in their family who will then become the focus of a criminal investigation. We have had no indication from NZ Police on whether they consider that a tick on a box overrides a fundamental human right for an entire family spanning generations.

Following the developments from the US where this technique has been in use for years, experts are slowly moving away from the “anything goes” and “justice at all costs” approach to realising there need to be regulations and appropriate safeguards in place.

To that end, the New Zealand Law Commission was ahead of its time. It conducted a review of our own DNA legislation and found it wasn’t fit for purpose for the techniques that are already in use for criminal investigations. This review took a considerable amount of time and resource. It also received input from a wide range of experts across the justice system. The review was completed in 2020 and there has been no move to implement its many recommendations.

We are now adding another DNA-based technique with still no regulation or safeguards in place. The ESR/NZ Police project is described as a “trial” with set criteria to measure success or failure. Those criteria have not been made public. I would expect these to align with the 193 recommendations made by the Law Commission in its review of the DNA legislation. Top of mind was the need to address the issues we already have around privacy and consent. Most importantly, to ensure there is independent oversight so that the right DNA profiles are being used and any DNA database searching is conducted in an ethical manner in line with relevant legislation.

Paige McElhinney is a forensic scientist and director of The Forensic Group Ltd.