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Police to trial genetic investigative tool to solve cold cases – Expert Reaction

New Zealand Police will be trialing Forensic Investigative Genetic Genealogy (FIGG) on two high profile cold cases.

FIGG combines DNA testing with genealogical research to analyse genetic relationships between individuals who share very small amounts of inherited DNA with the crime scene DNA sample, using genealogy databases and publicly available records.

In 2020, the Law Commission published a report highlighting significant gaps in the rules around how DNA is obtained, used and retained for criminal investigations. In the response, the Government accepted the conclusion that the Criminal Investigations (Bodily Samples) Act 1995 is no longer fit for purpose and that the regime lacks adequate independent oversight and governance structures. The Government also accepted the recommendation for a new Act for the DNA regime and the recommendation to establish an independent oversight body. The scope and timing of this work has not been set.

The SMC asked experts to comment on the announcement.

Paige McElhinney, Director and Forensic Science Consultant, The Forensic Group Ltd, comments:

“This development comes at a time when the Law Commission has already highlighted issues with the regulation and safeguarding of DNA techniques currently in use in New Zealand.

“There is no doubt this technique has the potential to be a useful investigative tool but without governance and appropriate legislative control, there is the real risk of inappropriate use.

“It is important to note that identification of a DNA profile does not immediately mean that that individual was involved in the offence in question because it isn’t always possible to determine how or when the DNA was transferred or if it relates to the case at hand. In other words, there must be certainty that the DNA profile relates to the offence being investigated and we have to be sure of where the samples being tested originated.

“There are significant privacy concerns around the use of genealogy data, including relatives unknowingly becoming “genetic informants”. In line with the 193 recommendations made by the Law Commission, this technique needs independent oversight given it is potentially a very powerful technique that has the potential to disrupt the lives of anyone wrongly accused and the associated risk of miscarriages of justice.”

Conflict of interest: Involved in the independent review of the scientific findings in criminal investigations on behalf of criminal defence lawyers and their clients. No involvement with DNA interpretation software development.

Dr Karaitiana Taiuru, Taiuru & Associates Ltd, comments:

“There are three main areas to consider from tikanga/mātauranga Māori and Māori Data Sovereignty perspectives.

“Firstly, with the genetic data that is already in direct-to-consumer company/public databases such as, there are very little new concerns about this procedure as all Māori cultural concerns and precautions have been ignored when the originally individuals provided their details to the online company, signing away their and their descendants’ rights to their DNA. Any individual is essentially giving up all of their privacy rights when they use such services.

“Secondly, the use of other databases would include the Police DNA samples that ESR maintain. The Law Commission report “The Use of DNA in Criminal Investigations” in 2020 showed that Māori suspects (including a lot of youth) were more likely to have a DNA sample taken by the Police than non-Māori suspects and that there are no Māori cultural protocols in place to protect the samples. Also, that even if innocent, the DNA sample remains in the DNA bank.

“This will result in discrimination of a large population of Māori and possibly their wider whānau could be questions and possibly asked for further DNA tests to reduce the pool of suspects.

“Finally, the victims’ DNA that will be used. ESR are applying Māori Data Sovereignty to the testing by only sending the digital DNA. It is still a breach of tikanga and mātauranga. But, if we apply Sir Hirini Mead’s tikanga test to this situation, it would state the benefits outweigh the situation and that any breach of tapu is justified as we have two unsolved murders with many family members and society who need to be considered.”

No conflict of interest.

Dr Andelka Phillips, Senior Lecturer in Law, Science & Technology, University of Queensland, comments:

“I believe strongly that the Law Commission’s recommendations should be acted upon. We need to develop governance mechanisms and processes for using this technology if it is going to be used. I have previously made recommendations for how the direct-to-consumer genetic testing industry could be regulated. We need much stronger regulation at both local and international levels.

“Engaging with the personal genomics industry raises serious privacy risks. At present, when a consumer buys a test from one of these companies, they are normally interested in a particular thing, which may be learning about their ancestry or their health and they may not be aware of how their data could be used for secondary research. At present, most of these tests are not standardised and this means individuals may receive contradictory results from different companies, which raises the question of what is the nature of the benefit that a consumer actually gets from buying a test.

“As with most online services, consumers will often disregard privacy policies and online contracts, but this is problematic, as these documents are typically used by companies to govern relationships with consumers.

“While DNA evidence can be important in investigating crimes, we need to take a broader view and think about issues such as consent, proportionality, and the rights of individuals to due process and fair trials.

“Remember people can leave traces of DNA anywhere they go quite unintentionally and without any connection between this and criminal activity.

“Sometimes DNA evidence will be nothing more than that. It is not a magic bullet capable of solving all crimes.”

No conflicts of interest declared.

Dr Geoff Chambers, Alumnus Scholar, School of Biological Sciences, Victoria University of Wellington, comments: 

“The NZ Police recently announced that they intend to use Forensic Investigative Genetic Genealogy (FIGG) in the investigation of two well-known cold cases. This is not a new technology and has been in widespread use overseas for some time now.

“In conventional DNA profiling crime scene data are compared with records on the NZ national profile database. The FIGG method extends these comparisons to include the huge sets of records held by commercial genealogy testing companies. Positive matches can include ‘hits’ that pick out close relatives of actual perpetrators. This is much in the way that original genealogical reports given to a client may identify ‘a second cousin of theirs living in Hawaii’.

“In summary, there is nothing new or alarming in this approach to solving crime and it has proved very valuable when no clear suspect has so far emerged. It is proven to be a secure identification method and DNA profiles remain very strong support for the exoneration of innocent people.

“FIGG does raise ethical issues about the nature of the informed consent contract between testing companies and their clients regarding who can see their DNA data. In NZ, further questions may arise around the more general matter of ‘data sovereignty’. Public debates on these questions are still to take place in New Zealand.”

Conflict of interest: No direct conflicts of interest or external funding but remains in active contact with colleagues in ESR Ltd and at Universiti Sains Malaysia, Kelantan regarding collaborative research work for the Royal Malaysian Police and Legal Authorities in Ghana.