Genetic Justice

by Sheldon Krimsky

  DNA collection and retention were initially limited to individuals convicted of a recordable offense. The definition of a “recordable offense” itself has expanded over the years and currently includes many minor offenses, such as being drunk in a public place, begging, taking part in a prohibited public procession, and minor acts of criminal damage caused by children kicking footballs or throwing snowballs. Funding considerations further limited collection in practice to those convicted of violent and sexual offenses and domestic burglary. From 1996 to 2003 U.K. police powers to take and retain DNA were continually expanded. Amendments to the Criminal Evidence Act passed in 1997 allowed DNA to be collected from individuals in prison who had been convicted of crimes before the NDNAD went into effect. In 2000 Prime Minister Tony Blair launched the DNA Expansion Programme, which called for the DNA collection and profiling of “virtually the entire active criminal population”—an estimated 3 million people—by 2004. That goal was nearly achieved: by the end of 2004 the database contained 2.5 million profiles.

  The national database has also been affected by changes in the laws that dictate the retention of samples. Before 2001 samples and profiles taken from individuals who were not charged or prosecuted or who were acquitted of charges had to be removed from the database and destroyed, but that changed through passage of the Criminal Justice and Police Act of 2001. This act gave police authority to retain profiles and biological samples indefinitely from persons not prosecuted or who were acquitted of a crime. In addition, the 2001 act allowed DNA samples provided voluntarily to police for the purpose of exclusion to be uploaded to the U.K. NDNAD on the condition that the individuals provided consent. Once consent is given, the decision becomes irrevocable. Consent also gives the police the right to use the sample for any purpose permitted under the law,8 even if those uses were not in practice at the time consent was provided.

  In 2003 the NDNAD was expanded once again, this time by allowing law enforcement to take DNA profiles and fingerprints without consent from anyone arrested on suspicion of any recordable offense. The law came into force on April 5, 2004.9 Samples and profiles obtained from arrestees are retained indefinitely, regardless of whether the person is charged or convicted. This change in the law made England and Wales the first and only countries in the world to keep indefinitely DNA from persons who were not convicted of any crimes. Since then the United States has moved toward a similar policy of collecting DNA routinely from those arrested, although federal and many state laws enacted thus far either require expungement in cases where an individual is not charged with or convicted of a crime or allow individuals to request expungement of their information in such cases (see chapter 2).

  Northern Ireland has a law on DNA collection that is more or less identical to the law governing England and Wales. It allows the police to obtain DNA samples without consent from anyone aged 10 or over who is arrested or detained in connection with a recordable offense. A leading nonprofit policy research and genetics watchdog group in the United Kingdom, Gene-Watch UK, notes that “this law was introduced by the Secretary of State for Northern Ireland whilst the Assembly was suspended, in order to bring Northern Island’s legislation into line with England and Wales.”10 Starting in October 2005, Northern Ireland began exporting DNA profiles to the NDNAD.

  The situation is somewhat different in Scotland, which has proceeded far more cautiously than England and Wales. The information commissioner for Scotland believes that the indefinite retention of DNA profiles of individuals who are arrested but are not convicted of any offense is an intrusion into their private lives. In May 2006 the Scottish Parliament rejected the permanent retention of DNA taken from individuals who are not convicted of a crime. Under these circumstances the DNA profiles are deleted from the Scottish database and the U.K. NDNAD, and the biological samples from which the profiles are generated are destroyed.

  Between 1995 and 2001 the NDNAD grew to over 1 million profiles. By 2006 it contained DNA profiles of more than 3 million individuals (about 5.2 percent of the population), including more than 18,000 volunteer samples and some 285,000 crime-scene samples of unsolved crimes.11 As of September 2008 more than 4.6 million people—or 7.6 percent of the population, including 32,000 volunteers—had their DNA profiles retained in the database.12 Approximately 1 million of these individuals had never been convicted of or charged with any crime.13 In comparison, other European Union (EU) country databases contain samples representing less than 1 percent of their population. For example, in 2004 Austria, Belgium, Germany, and the Netherlands had forensic DNA databases that contained 0.7, 0.03, 0.3, and 0.02 percent of their populations, respectively.14 The United States’ database numbered approximately 4.8 million at this time, or 1.6 percent of its population, less than one-quarter of the per capita size of the United Kingdom’s database.15 The gender of subject samples in the U.K. NDNAD as of January 2009 was 79 percent males, 20 percent females, and 1 percent unknown. All data held in the national DNA database are overseen by a tripartite board consisting of the Home Office (the lead government department for police, immigration, passports, drug policy, and counterterrorism in the United Kingdom), the Association of Chief Police Officers, and the Association of Chief Police Authorities. Recently the board has expanded to include two representatives of the Human Genetics Commission (a government advisory body) and the chair of the new DNA ethics group, an advisory nondepartmental public body (NDPB), established to provide independent advice on ethical issues to Home Office ministers and the strategy board. The data held in the NDNAD are owned by the police force that submitted the DNA to the database.

  Other Applications of the NDNAD

  Other applications of the U.K. NDNAD, which were introduced through the Serious Organized Crime and Police Act of 2005, include the use of the database to check profiles of casualties from catastrophic events for identification purposes and to investigate illegal immigrants who claim to have family in the United Kingdom. Lord Triesman, the prime minister’s special envoy for returns, was quoted as saying, “Scientific and technical identification of nationality [will be] an important tool” in determining the status of illegal immigrants and their possible return to their countries of origin.16

  The NDNAD and its accompanying stored biological samples have been accessed on many occasions for research. A freedom-of-information (FOI) request filed by GeneWatch UK in 2006 revealed that the NDNAD had been used in a series of research projects. These included “operations requests” by police to search for named individuals or individuals having a specified ethnicity or last name that corresponded with a particular ethnicity (e.g., those “having typical Muslim names”). The biological samples have also been used in research on the Y chromosome that seeks to predict ancestry or ethnicity from DNA. The FOI request also revealed that a commercial company, LGC, kept a “minidatabase” of information sent to it by the police, including individuals’ demographic details, alongside their DNA profiles and samples.17

  For any serious crimes, police can obtain DNA by asking, by employing a ruse, or, if that does not work, by recovering something that a suspect discards. A distinction is made between acquiring a DNA sample and loading it into the national database. The official position has been that covertly obtained DNA samples may be compared with crime-scene evidence but cannot be searched against the database because they have not been obtained under the Police and Criminal Evidence Act (PACE). Uploading DNA to the U.K. database is limited to profiles overtly acquired from suspects investigated under PACE or samples from volunteers who wish to be eliminated as a suspect in an investigation.

  There are some restrictions on the use of information contained in the NDNAD. U.K. law limits the use of the NDNAD to investigating crimes or identifying remains—as in war, fire, or natural disasters—where there are unidentified victims. As written into the Police and Criminal Evidence Act 1984 (as amended), “Samples and profiles may only be used for purposes related to preventing and detecting crimes, investigating an off
ence, conducting a prosecution, or identifying a deceased person or a body part.”18 Analysis of samples to provide information on genetic disorders is generally unlawful, although exceptions can be made in cases where such information might aid a criminal investigation. It is also expressly prohibited to access profiles held in the NDNAD to assist in determining the paternity of a child in civil cases.19

  Familial DNA Searches and Low-Copy DNA Testing

  In addition to paving the way in DNA databank expansion, the United Kingdom has also spearheaded the way in the development of highly controversial DNA techniques, including familial searching and low-copy-number (LCN) DNA analysis. The United Kingdom was the first country to use its database to generate crime suspects from incomplete matches of crime-scene evidence profiles with profiles in the data bank. These so-called familial searches bring criminal investigators to the “suspicionless” family members of an individual whose DNA is a close match to the profile found in the crime-scene evidence.20 The United Kingdom was also the first country in the world to convict someone following identification through a familial search result and is currently the only country in the world that uses this technique routinely in high-profile investigations. By the beginning of 2008, the United Kingdom analyzed 148 cases using familial searching techniques; only 15 of them had been resolved with 9 convictions.21

  Familial searching is highly controversial. Although proponents of the technique claim that it can save time and money in high-priority investigations, critics point out that trawling the database for possible relatives radically alters the nature and intent of the database system and effectively places an entire class of innocent people—those who happen to be relatives of convicted offenders—under lifelong genetic surveillance by way of their relation to individuals in the database. (For a detailed discussion and analysis of familial searching, see chapter 4.)

  The United Kingdom has also championed LCN DNA testing, a technique that seeks to generate a DNA profile from a minuscule amount of DNA, such as trace DNA left behind when a person touches an object. Standard DNA analysis is employed for DNA samples that contain as little as 1 ng of DNA, or as few as 160 human cells, or the size of a tiny blood spot down to 250 picograms ([pg], where 1 pg is one trillionth of a gram) of DNA or about 40 human cells. LCN, by contrast, is used on samples of less than one-tenth this size (100 pg) or 16 cells, or about 1,000 times smaller than a grain of salt.22 This technique has been highly controversial among forensic scientists, and many have questioned its accuracy and reliability. Because the technique relies on such small amounts of DNA—such as DNA transferred to a murder weapon or left behind from a fingerprint—the analysis is highly vulnerable to contamination and other sources of error. Mixtures are even more difficult, if not impossible, to ascertain and separate out than in standard DNA testing. Interpretation of LCN analysis is highly subject to “allelic dropout” (where some alleles do not appear in the analysis because the signal is so low) and increased “stutter” (“stutters” are usually small peaks in the output of the DNA analyzer that are artifacts from DNA amplification and form as a result of halted polymerase activity from the polymerase chain reaction [PCR]).23

  The scientific controversy around LCN rose to public attention through the trial of Sean Hoey, a 38-year-old electrician who was arrested and charged with Real IRA’s bombing in the city of Omagh in Northern Ireland. The 1998 bombing in a crowded market area killed 29 people and injured more than 200. Hoey’s trial, which lasted 56 days, hinged on LCN DNA evidence. Judge Reg Weir strongly rejected the evidence, raising significant concerns about the validity of the technique, as well as the careless handling of the DNA:

  It is not my function to criticize the seemingly thoughtless and slapdash approach of police and officers to the collection, storage and transmission of what must obviously have been potential exhibits in a possible future criminal trial, but it is difficult to avoid some expression of surprise that . . . such items were so widely and routinely handled with cavalier disregard for their integrity. . . . I find that the DNA evidence . . . cannot satisfy me either beyond a reasonable doubt or to any other acceptable standard.24

  Furthermore, the judge cast doubt specifically on the LCN DNA technique, expressing concern over the range of opinion in the scientific community about its reliability and its lack of adoption by most other countries.

  The discrediting of LCN in the Omagh bombing case prompted the U.K. police to impose a brief moratorium on the use of LCN DNA testing that was lifted following a three-week review of pending prosecutions involving the technique.25 The U.K. government also commissioned an expert review of LCN analysis that was spearheaded by Professor Brian Caddy of Strathclyde University. Caddy’s review concluded that LCN typing was “robust” and “fit for purpose” while offering a number of recommendations for improving and standardizing the methodology.26

  This review has not quelled the discomfort and significant doubts that many forensic scientists continue to have about the reliability and use of LCN DNA. Allan Jamieson at the Forensic Institute in Glasgow, who testified in the Omagh trial, has pointed out most fundamentally that since one is starting with DNA from which there was no visible stain, it is impossible to know how it got there, and whether it was relevant to the crime in question.27 Bruce Budowle, former senior scientist of the FBI’s Forensic Science Laboratory, has questioned how the British commission could have come to its conclusion, given that the technique by its nature is not reproducible, and has pointed out the myriad problems that can arise through LCN analysis, including the high potential for error in process and in interpretation, the lack of standard protocols for collecting and handling such low-level DNA samples, and the inability to know the source type of the DNA (e.g., hair, blood, semen).28 Budowle recommends that the technique’s use be limited to developing investigative leads and to the identification of human remains, but that it not be presented as evidence in court. Furthermore, he advocates that the limitations of the technique be fully disclosed and stated up front.29 Citing the lack of consensus in interpretation and the availability of viable alternative approaches, Jason Gilder and colleagues agree with Budowle in response to Caddy’s conclusions on LCN: “Superficial characterizations such as ‘robust’ and ‘fit for purpose’ are a denial of the serious scientific questions that remain about the reliability and validity of LCN testing.”30

  Despite the ongoing controversy about LCN, the United Kingdom has used the technique in more than 20,000 cases and remains the only country to use it routinely.31 Sweden and Australia have also allowed LCN to be presented as evidence in a few high-profile cases. In the United States the New York Medical Examiner’s Office is the only lab to date that admits to using the technique in some cases. The FBI does not allow the technique to be used in criminal investigations and uses it only in missing-persons investigations where trace DNA samples are known to have come from a single source.

  Public Opposition to the NDNAD

  One of the United Kingdom’s most astute scholars on the use of DNA in criminal justice wrote about the seemingly inexorable acceptance of DNA profiling: “The blinding by science of criminal justice professionals and the public (ultimately juries) has met little resistance and widespread acceptance, and indeed judicial encouragement for the NDNAD, which may ultimately see the creation of a national, comprehensive and compulsory DNA database.”32 Indeed, the development and expansion of the NDNAD benefited from broad public support, up to a point. The move to collect DNA upon arrest, and Scotland’s refusal to go along with the policy, invited significant scrutiny within the United Kingdom and around the world. Public confidence in the system was also rattled by the government’s aggressive approach to familial searching, LCN DNA analysis, and the retention of DNA from young children and volunteers.

  The permanent retention of biological samples is one issue that was controversial within the United Kingdom before the start-up of the arrestee testing program in 2004. The U.K. Human Genetics Commission, a
government advisory body that is made up of experts in genetics, ethics, law, and consumer affairs, concluded in a 2002 report that the reasons given for retaining samples were “not compelling.”33 Since then, the Home Office has recognized that retaining samples is “one of the most sensitive issues to the wider public.”34

  The DNA profiles of those who gave DNA samples voluntarily to police for the purpose of excluding themselves as a suspect may also be loaded into the NDNAD with their consent. However, once consent is given, the decision becomes irrevocable. Thus the consent form gives the police the right to use the sample for any purpose they deem important without updating the consent form. The home secretary published a report in May 2009 that sought a change in this policy:

  In giving their consent to the sample, the volunteer is also asked whether they wish to give their consent for their profile to remain on the NDNAD. If such consent is given, the volunteer is not then able to subsequently require that the sample and profile are destroyed. We are proposing that a volunteer who gives their samples for elimination purposes are not placed on the NDNAD. Whilst consent will continue to be required for the taking of the sample, consent will not be sought for the sample or fingerprints to be retained on a national database and subject to future speculative searches.35

  The expansion of the NDNAD to anyone arrested for any recordable offense in 2003 sparked considerable public debate within the United Kingdom and around the world. GeneWatch UK questioned whether more aggressive policies on inclusion of DNA samples have been equitably distributed across ethnic and racial groups.36 If police are more likely to stop, detain, and arrest people of color, then their rate of inclusion in the data bank will be disproportionately higher than their population or their contributions to the crime rate.