The DNA Expansion Programme and criminal investigation

doi:10.1093/bjc/azi094 BRIT. J. CRIMINOL. (2006) 46, 175–192 Advance Access publication 25 October 2005 THE DNA EXPANSION PROGRAMME AND CRIMINAL INVESTIGATION CAROLE MCCARTNEY* DNA evidence is a powerful investigative tool, able to incriminate as well as exculpate. Yet, increasingly common portrayals of DNA as being able to solve crimes almost instantaneously, beyond any doubt, even from ‘beyond the grave’, may overstate the degree to which DNA currently assists in criminal investigations. Strong government support, and financial investment in the DNA Expansion Programme, have been bolstered by repeated legislative extensions of police powers to obtain and retain DNA samples. Despite this, DNA evidence remains marginal in terms of assisting with overall criminal detections and experts now suggest that the massive National DNA Database expansion has not resulted in the improvement in detection rates originally anticipated. This paper also suggests potential concerns over the ‘tactical’ use of DNA evidence during suspect interviews, and the risk of abbreviated police investigations. Insufficiently ‘forensically aware’ police officers may resort to DNA evidence in lieu of proper detective work, with literature on ‘case construction’ informing analysis of potential pitfalls of early reliance on DNA results, which may increase the risk ‘tunnel vision’ in criminal investigations. Portrayals of the infallibility of DNA and its unrivalled ability to ‘solve’ crime have led to determined effort and financial investment in significantly increasing the forensic use of DNA. Indeed, one of the National DNA Database (NDNAD) ‘strategic objectives’ is stated as being to demonstrate value for money from the database, especially in crime detection and, through this, crime reduction (NDNAD 2003/04: 3). The ‘Forensic Integration Strategy’ from the Home Office also aims to ‘achieve a step change in the impact of forensic science on police performance in order to make major contributions to crime reduction and closing the justice gap’ (Home Office 2004a: 18). This was reinforced in the Home Office Strategic Plan 2004–08, which stated that the police detection rate will be raised ‘by improving police effectiveness and deploying new technology, including enhanced DNA testing … across the country to target criminals more effectively’ (Home Office 2004c: 10). In considering recent statistics on police detection rates, supported by qualitative interview data,1 this paper asks whether the massive government investment in the DNA Expansion Program has paid dividends, i.e. whether there have been significant improvements in criminal detection rates attributable to the DNA Expansion Programme. Considering first the legislative changes to the DNA sampling regime in England and Wales, the uses of forensic DNA evidence and the NDNAD, and the impact upon police ‘clear-up’ rates, it goes on to highlight potential side effects on police investigations * ESRC Postdoctoral Research Fellow, School of Law, University of Leeds, 20 Lyddon Terrace, Leeds LS9 2JT, UK; ctmccartney@aol.com. 1 Fourteen individuals who deal directly with DNA evidence, or the law and policy regarding DNA evidence within their occupations, including forensic scientists, police officers and legal professionals, were interviewed in depth regarding issues relating to forensic DNA evidence and the NDNAD, policing and civil liberties, as part of doctoral research. Thanks are extended to all participants, who shall remain anonymous. 175 © The Author 2005. Published by Oxford University Press on behalf of the Centre for Crime and Justice Studies (ISTD). All rights reserved. For permissions, please e-mail: journals.permissions@oxfordjournals.org MCCARTNEY and some possible limitations to the utility of the NDNAD. In so doing, it suggests that forensic DNA evidence may in fact be creating new ‘risks’ that require acknowledgment and, where possible, aversion. For example, caution may be required when the very same evidence that can remove a suspect from an inquiry can also lead to ‘tunnel vision’ on the part of investigators—a phenomenon recognized as a cause of wrongful convictions (see Radelet et al. 1994). The DNA Expansion Programme The DNA Expansion Programme, launched in April 2000, aimed to increase the growth of the NDNAD until all of the ‘known active offending population’ (estimated at the time at 3 million individuals) were on the database. This funding was in addition to £19 million per annum from individual police forces. Total government investment in the programme to March 2005 stood at £240.8 million.2 The funding enabled police forces to increase the sampling of suspects; the recruitment of 650 additional Crime Scene Examiners and other staff; equipment purchases; and the collection and analysis of more DNA material at crime scenes (Home Office Science Policy Unit 2004: 12). The DNA Expansion Programme also provided for an upgrade of 22,000 subject samples, taken since 2001 and reported as matching crime scene samples. Of these, 6,000 have been upgraded from SGM to SGM Plus profiles and have been compared again with the crime scene samples, with 52 per cent confirming the original match.3 It is claimed that the targets set for the programme have been achieved, with the NDNAD holding just under 2.9 million samples from individuals and 237,500 profiles from crime scenes as of March 2005.4 The United Kingdom now has the largest domestic forensic DNA database per capita in the world (Townsley and Laycock 2004: 3), with the database projected to grow yet further, it suggested it could eventually encompass up to 10 per cent of the population (or at least 5 million individuals) (Jobling and Gill 2004: 739). Automation of DNA profiling processes has also meant a significant increase in loading of samples, with the Forensic Science Service more than doubling their monthly load rate.5 The government ‘targets’ for the NDNAD and police targets to take samples from suspects in particular offence types (i.e. the recent focus on DNA in volume crimes) mean that sample taking is now a routine element of police detention procedures. By 2001–02, DNA was used in approximately half of all cases received by the Forensic Science Service from the police—a significant growth from a quarter of cases in 1997–98 (Comptroller and Auditor General 2003). In 2001, it was declared that 14,785 crimes were detected using the DNA database compared with 8,612 the previous year (Home Office 2001: 32). This increase is a result not only of greater understanding of forensic DNA potential, and decreasing costs, but the speeding up of the process—the ‘turnaround’ time for DNA analysis five days, down from almost a year in 1997 (Comptroller and Auditor General 2003: 6). In addition to this financial investment and technological innovation assisting the expansion effort, legislative reform and case law since the advent of forensic DNA profiling have repeatedly expanded the list of those 2 Forensic Science Service, ‘NDNAD Fact Sheet’, July 2004, available online at: www.forensic.gov.uk. National DNA Database, Annual Report 2003–04, at 16, available online at: www.fss.gov.uk. 4 Forensic Science Service, ‘NDNAD Fact Sheet’, March 2005, available online at: www.forensics.gov.uk. 5 Forensic Science Service, Press Release 2004, available online at: www.forensic.gov.uk. 3 176 THE DNA EXPANSION PROGRAMME AND CRIMINAL INVESTIGATION from whom a sample may be taken, downgraded the authority required to sanction and perform sampling, increased access to the NDNAD, as well as permitting the resultant data profile and sample to be retained indefinitely (see McCartney 2004). Legal provision for the collection and retention of forensic DNA samples The Criminal Justice Act 2003, s. 10 (amending s. 63 of PACE), permits the taking of non-intimate samples without consent upon arrest for a recordable offence, providing they have not already been supplied as part of that investigation. This enables police to take DNA samples from almost all arrestees and pre-empts technological advances which are expected to see mobile DNA testing kits in the coming years (by omitting the words ‘in police detention’). It means that a sample (usually a cheek swab) can be taken upon ‘reasonable suspicion’ for an offence, regardless of whether it will indicate guilt or have any possibility of use during the investigation. The law, then, is explicit: anyone who comes under police suspicion is liable to have a DNA sample taken, searched against the samples on the NDNAD, and retained. The course that an investigation takes or whether a prosecution proceeds is of little, if any, significance. The law permitting indefinite retention of DNA samples was challenged in Marper;6the House of Lords asked to consider the law with regard to Art. 8 privacy rights, and Art. 14 rights against discrimination. Lord Steyn concluded that ‘in respect of retained fingerprints and samples article 8(1) is not engaged. If I am wrong in this view, I would say any interference is very modest indeed’ (para. 31). Any interference was justified under Art. 8(2): ‘… it is in the public interest in its fight against crime for the police to have as large a database as possible’,7 with no adverse impacts upon those whose samples were retained; ‘The retention … does not affect the appellants unless they are implicated in a future crime’ (para. 37). Lord Brown concluded the appeal rejection, summing up the benefits of an enlarged NDNAD (para. 88): … it seems to me that the benefits of the larger database brought about by the now impugned amendment to PACE are so manifest and the objections to it so threadbare that the cause of human rights generally (including the better protection of society against the scourge of crime which dreadfully afflicts the lives of so many of its victims) would inevitably be better served by the database’s expansion than by its proposed contraction. The more complete the database, the better the chance of detecting criminals, both those guilty of crimes past and those whose crimes are yet to be committed. The better chance too of deterring from future crime those whose profiles are already on the database. And these, of course, are not the only benefits. The larger the database, the less call there will be to round up the usual suspects. Instead, those amongst the usual suspects who are innocent will at once be exonerated. The issue may not rest with this resounding dismissal. The European Court of Human Rights has previously held that the non-consensual taking of an intimate sample could contravene Art. 8, with even minimal physical interference with a person requiring justification (X v. Netherlands).8 However, a Council of Europe Recommendation does not 6 R v. Chief Constable of South Yorkshire Police (Respondent) ex parte LS (by his mother and litigation friend JB) (FC) (Appellant) R v. Chief Constable of South Yorkshire Police (Respondent) ex parte Marper (FC)(Appellant) (2004) House of Lords (United Kingdom) 39. 7 R v. Chief Constable of South Yorkshire Police (Respondent) ex parte Marper (FC) (Appellant) [2002] Court of Appeal, Civil Division (England & Wales) 1275, per Waller L.J., para. 66. 8 Commission Decision of 4 December 1978, App. 8239/78. 177 MCCARTNEY forbid coercion in forensic sampling, but states that ‘such sampling should only be carried out if the circumstances of the case warrants such action …’.9 Protection against torture, inhuman or degrading treatment or punishment (Art. 3) may prevent the use of force, with the use of force not strictly necessary for the detention of the individual being contrary to Art. 3.10 However, the effects of the force used must be sufficiently serious, and it is unlikely that the forced taking of non-intimate samples, such as through the plucking of a hair or a mouth swab, will attract censure.11 In X v. Netherlands12and Peters v. Netherlands,13 the European Commission of Human Rights held that compulsory sampling was contrary to Art. 8(1). However, interference for the ‘prevention of crime or disorder’ was justified in the case of a prisoner. So in order to comply with human rights obligations, the sampling laws must be justifiable by reference to Art. 8(2), being necessary in the interests of national security, public safety and the prevention of crime or disorder, or protection of freedoms of others. Such demands necessitate assessment of the actual use of DNA sampling powers in criminal investigations, to establish whether forensic DNA sampling is indeed fulfilling these aims (see further Roberts and Taylor 2005). DNA Evidence in Criminal Investigations It is claimed that science and technology ‘play a vital role in modern policing’, with the NDNAD ‘revolutionising’ crime detection (Home Office 2004a: 1) with reports that DNA ‘has not merely enhanced existing police capacity, but has even begun to replace the slow, tedious and expensive traditional investigative methods of police interviews’ (Watson 1999: 325). What is clear is that DNA samples are now taken on a scale quite different from that revealed by a 1997 Home Office study (Bucke and Brown 1997) when non-intimate samples were taken from just 7 per cent of individuals in police detention. With arrest now sufficient for taking DNA samples since the enactment of the Criminal Justice Act 2003 (the provision came into force on 5 April 2004), there has been a steep increase in the number of samples taken from arrestees. Before the Expansion Programme, an average of just over 200,000 offenders were sampled per year; it now averages 40,000 a month, with 4,000 crime scene samples recovered monthly.14 As Chief Constable Mike Baxter of the Association of Chief Police Officers (ACPO) states, all people entering police stations will now have their fingerprints and DNA samples taken as a matter of course.15 In addition to sampling of arrestees to match with crime scene samples, or speculatively search against the NDNAD, for the prosecution of those offences, forensic DNA has also leant itself to further applications in criminal investigations such as mass ‘intelligence’ screens, and is also being used as an ‘intelligence’ tool, or subject to research for potential future uses such as producing offender ‘identikits’ or familial searching. 9 Council of Europe Recommendation No. R (92) 1, p. 7. Ribitsch v. Austria (1995) 21 European Human Rights Reports 573, para. 38. 11 See Raninen v. Finland (1997) 26 European Human Rights Reports 563, paras 56–57. 12 (Application no. 5239/78) 16 DR 184. 13 (Application no. 21132/93) 77-A DR 75. 14 ‘NDNAD Fact Sheet’, March 2005, available online at: www.forensic.gov.uk. 15 Paper presented at Forensic Science Society Annual Conference, Wyboston, 5–7 November 2004. 10 178 THE DNA EXPANSION PROGRAMME AND CRIMINAL INVESTIGATION Targeted intelligence screenings Intelligence screens began in the late 1940s with fingerprints taken en masse from local areas where serious crimes had occurred.16 In the first case to utilize a mass DNA screen, indeed the first use of DNA in a criminal investigation in the United Kingdom, analysis of a DNA sample from a man confessing to the second of two rapes occurring in rural Leicestershire proved him not to be the rapist, and that the rapes had been perpetrated by the same offender. Police proceeded in January 1987 to take DNA samples from all the males aged 16–34 of three local villages. The 5,500 samples taken failed to match to the crime stains. However, months later, police were notified that one man had given a sample on behalf of a colleague, Colin Pitchfork. Both men were arrested and Pitchfork’s sample matched the crime scene samples. Pitchfork confessed and was convicted in January 1988 (Walker and Cram 1990: 480). Since this first use of a DNA screen, the police have increasingly resorted to screens to solve serious crimes, with there being 292 screens utilized across England and Wales between April 1995 and January 2005. By March 2005, 50 of these screens were still ‘active’ (where the sampling and analysis is ongoing) and 242 ‘inactive’ (where samples have not been submitted within the last 12 months or notification of successful completion has been received).17 The largest screen to date involved the analysis of over 4,500 samples taken from local men after the recovery of the body of Louise Smith in a quarry in Chipping Sodbury in 1996. None of the samples matched a crime scene profile, until further investigative work targeted a local man who had since moved to South Africa, who was then sampled and after a match, was convicted and sentenced in 1998. The use of mass screens has attracted criticism. The Australian police have utilized the technique in several high-profile cases which triggered debate over the authenticity of consent and the effectiveness of rights to refuse (Findlay and Grix 2003). In Davis v. Mississippi,18 the US Supreme Court ruled ‘dragnets’ were unconstitutional, as there would not be individualized suspicion, echoing the earlier dictum in Schmerber v. California,19 that ‘[t]he interests in human dignity and privacy which the Fourth Amendment protects, forbids any such intrusions on the mere chance that desired evidence might be obtained’ (Peterson 2000: 1232). Police intimidation, public reluctance to cooperate, and repeated approaches for samples have all been cited as consequences of the strategy of mass screens, which have also been castigated as a ‘waste of money’.20 Pressure to submit to such screenings in high-profile cases is intense, with sanctions for non-compliance and immediate suspicion cast upon those who refuse cooperation. The use of mass screens requires the local population to prove their innocence rather than the police using conventional investigative techniques to raise suspicions against particular individuals, indeed: There is a tendency for DNA testing to replace trial, since a charge becomes determined by the apparently definitive and publicly conclusive DNA test. The presumption of innocence is reversed, undermining a key element of the right to a fair trial, even though a myriad of scientific, statistical, and procedural issues may affect the accuracy of a particular DNA test. (Saul 2001: 78) 16 e.g. in May 1948, in the ‘Blackburn baby’ case, fingerprints were taken from the entire male population of Blackburn, where a three-year-old girl had been sexually assaulted and murdered. 17 Forensic Science Service ‘Factsheet’, March 2005, available online at: www.forensic.gov.uk. 18 Davis v. Mississippi, 394 Unites States: Supreme Court Reports 721 (1969), at 727. 19 Schmerber v. California, 384 Unites States: Supreme Court Reports (1966), at 769–770. 20 ‘Rights Fears over DNA Plan’, Friday 30 July 1999, available online at: bbc.co.uk/news. 179 MCCARTNEY In the recent ‘Operation Minstead’, 1,000 black men in South London were ‘profiled’ in the hunt for a serial rapist; those men were then requested to volunteer for DNA tests. Of those, 125 initially refused, leading to ‘intimidatory’ letters from the police, urging re-consideration, and five were arrested, their DNA taken post-arrest and added to the NDNAD. Such actions have raised questions of legality, with arrests only lawful with ‘reasonable suspicion’ of an individual having committed a criminal act. If the police are to arrest on non-compliance with a DNA request, then that casts non-compliance as a crime—a step that worries civil libertarians and may lose the spirit of cooperation essential in these circumstances.21 Despite such concerns, the use of mass screens and the retention of the samples voluntarily submitted are just the latest development in the expansion of forensic databases. DNA databases as ‘intelligence tools’ The NDNAD has changed the use of forensic evidence in criminal investigations, with it being used to identify offenders from the outset, not simply to support cases against suspects already identified: What we have seen … is a shift from [DNA] being seen as something about the courts and evidence to being about information, intelligence, and identifying suspects. So the traditional role of forensic services, someone was arrested and gave a no comment interview or denied the offence, and then people thought of using forensic science as a means of generating evidence for the courts. What the intelligence databases has allowed us to do is to identify a suspect from a cold search …. That’s why now forensics is more important to the police as it’s one of the main means, particularly in some types of crime such as burglary … [of identifying offenders]. (Senior police officer) Further to their direct use in criminal investigations, forensic identity databases are increasingly vital ‘criminal intelligence’ tools. Indeed, the NDNAD is already available to researchers working on ‘crime patterns’ and criminal careers. Such research has shown a series of ‘crime-to-crime’ links, e.g. there are approximately 30–40 crimes committed by the same offender over a wide geographic area but who is not coming to the attention of police, known as an ‘unidentified prolific’. Such developments dovetail nicely with ambitions of ‘intelligence-led policing’:22 If you are looking at intelligence-led policing, which is about understanding your criminal problem, and devising strategies to deal with it, that’s going beyond just simply measuring detections and counting crimes. Forensic intelligence databases give you an insight into the problem …. What forensics gives you is a perspective on criminality, which provides intelligence which gives you a strategy to reduce it. This is the future use of forensic databases, giving an insight into criminality combined with other information. (Senior police scientific manager) The drive to expand the NDNAD is then underpinned by the expectation that such a wealth of information will improve the ability to tackle crime: “In the long run, when it [the NDNAD] reaches critical mass, you could use it to understand criminal careers, from a research perspective. That may reveal some very valuable insights into patterns 21 22 Ford and Tendler, ‘Innocent Men Forced to Give DNA Samples’, The Times, 9 July 2004. See the National Policing Plan 2004–08, available online at: www.policereform.gov.uk/natpoliceplan. 180 THE DNA EXPANSION PROGRAMME AND CRIMINAL INVESTIGATION of crime. If you understand the criminal career, you can perhaps do something about it” (Senior police scientific manager). Future directions for forensic DNA evidence In addition to developments in the analysis of DNA, such as the production of DNA profiles from mixed, single-cell or degraded samples,23 there has been research into DNA profiling automation and miniaturization. Automated processes have now been introduced and are proving successful. However, prototype ‘lab-on-a-chip’ systems are proving problematic (Home Office 2004a: 8).24 Additionally, ongoing research is seeking to produce ‘DNA identikits’—a description of a suspect’s physical appearance from their DNA—so that police can focus their investigations using the scientist’s description in lieu of eyewitnesses. At present, the Forensic Science Service (FSS) offer an ‘ethnic inference’ service, giving the results of: white-skinned European; Afro-Caribbean; Indian Subcontinent; South East Asian; and Middle Eastern. In addition, there is a ‘red hair’ test which can detect approximately 84 per cent of redheads, which can be used to supplement ethnic profiling. Ongoing research on the human genome is promoting further advances in this type of research, with expectations that in the future, other characteristics may be identified from DNA samples.25 Familial searching is used when a full profile has been obtained from the scene of a serious crime, but there are no matches on the NDNAD. The profile can then be searched looking for ‘close’ matches, e.g. where the suspect could be a parent/child or a sibling of someone whose profile is on the NDNAD. The technique was first used in 2002 to identify a rapist and murderer, with a list of 100 ‘close’ matches leading the police to a previously named suspect who had since died. After taking samples from surviving relatives, Joe Kappen was exhumed and his DNA matched samples obtained from the bodies of his three victims.26 Familial searching has now been successfully used in a criminal prosecution, with Craig Harman convicted of manslaughter in April 2004 after a close relative’s DNA was found on the NDNAD.27 There may be broader ethical and civil liberties implications of familial searching that have yet to be explored, e.g. ‘… it brings with it the indirect lifelong surveillance of citizens simply because they are related to someone whose DNA profile is on the record’ (Bieber 2004). DNA and Criminal Detection Rates Criminal detection rates have become the bane of the police, with the Audit Commission in 1993 strongly criticizing poorly organized and ‘reactive’ investigative work. Detection rates have been steadily declining, dropping from 41 per cent in 1979 to 27 per cent in 23 For example, there are now techniques to separate male from female DNA; to analyse mitochondrial DNA; analysis of ‘mixed’ samples; to get profiles from very degraded or single-cell samples and to get samples from sperm within vaginal samples. Some of these techniques remain controversial, with courts in the United States recently refusing to admit Low-Copy Number DNA analysis into court. 24 Although mobile fingerprint systems are now being trialled in Project Lantern, DNA mobile or handheld analysis may yet take longer, with efforts ongoing as part of the police science and technology strategy. 25 Forensic Science Service, ‘Fact Sheet: Commonplace Characteristics’, available online at: www.forensic.gov.uk. 26 Forensic Science Service, ‘Fact Sheet: Familial Searching’, available online at: www.forensic.gov.uk. 27 See the Casefile on Craig Harman, available online at: http://www.forensic.gov.uk/forensic_t/inside/news/ list_casefiles.php?case=24. 181 MCCARTNEY 1992 (Audit Commission 1993). The latest criminal statistics report a further drop, with detections for sexual offences down 4 percentage points on the previous year, while the overall crime detection rate in 2003/04 was 23.5 per cent (47 per cent for violent crimes) (Home Office 2004b: 103–04). However, there are indications that resort to DNA in criminal investigations can significantly improve detection rates. Since the establishment of the NDNAD in April 1995, there have been 584,539 suspect to scene matches and 38,417 scene to scene matches reported.28 The Home Office Science Policy Unit (2004: 1) report that in a typical month, suspects are identified for ‘15 murders, 31 rapes and 770 car crimes’. In 2003/04, 41,618 crime scenes were associated with one or more suspects, and 4,500 crime scenes were linked. The probability of the FSS nominating a suspect when a crime scene sample is loaded is now 45 per cent, with an additional 9 per cent probability that suspects will be identified for further crimes when new subject samples are loaded onto the NDNAD.29 The clear-up rates for crimes where DNA evidence is available are significantly higher than those crime scenes with no DNA evidence recovered, with the overall detection rate of 23.5 per cent rising to 38 per cent (although the government claim a rise to 43 per cent)30 where DNA is successfully recovered, with different crime types improving further; in domestic burglary, the detection rate rises from 14 to 48 per cent (Home Office 2004a: 12). Of course, not all ‘matches’ result in a conviction, or even an arrest. Indeed, in 2002–03, the Home Office reported just 21,000 ‘DNA detections’ (detected crimes in which a DNA match was available) from 50,000 ‘offender-to-scene’ matches reported by the FSS (FSS 2004: 12). The proportion of matches resulting in a successful detection has not risen dramatically, rising from 37 per cent in 1999/2000 to 42 per cent in 2002/03, although in 2000/01, the total had been 48 per cent (Williams et al. 2004: 59). The Home Office estimates that 20 per cent of the DNA detections result in a custodial sentence, preventing a further 7.8 crimes being committed (though it is not clear how these rates are calculated) (ACPO 2003: 9). The limitations of such statistics are exacerbated by the poor uniformity of data; highly variable return rates between different forces; and ‘the variable role played by DNA matches in the detection process’ (Williams et al. 2004: 60). Impacting further on the efficiency of DNA-based investigation, there remains a significant problem in crime scene DNA recovery. In the United Kingdom, only 5 per cent of examined crime scenes result in a successful DNA sample being loaded onto the NDNAD, and only 17 per cent of crime scenes are examined, meaning that just 0.85 per cent of all recorded crime produces a DNA sample that can be tested (NDNAD 2003/04: 23): ‘These stark improvements …, are balanced by the fact that we still load DNA from relatively few crime scenes’ (Smith 2004: 14). There is also a wide variation between police forces, in how many samples are sent for analysis, and how many crime scenes result in DNA samples (ACPO 2003: 18). In addition, the Home Office continues to report ‘matches’ not being followed up by investigators, or individuals are not pursued for further crimes and are simply dealt with for the crime for which they were arrested and not all crimes which they may have committed, lowering potential detection rates (Home Office 2004b: 104). The Police Standards Unit is addressing the significant 28 Forensic Science Service, Press Release, 2004, available online at: www.forensic.gov.uk. National DNA Database Annual Report 2003–04, p. 21, available online at: www.fss.gov.uk. 30 Caroline Flint, Ministerial written answers, 3 November 2004, Hansard, Col. 289W. 29 182 THE DNA EXPANSION PROGRAMME AND CRIMINAL INVESTIGATION number of ‘load failures’: samples taken from arrestees not making it onto the NDNAD, problems similar to those previously identified by HMIC when reporting on the ‘black hole’ into which much scientific evidence was deemed to be disappearing (HMIC 2002). Objective assessment of the ‘success’ or otherwise of the DNA Expansion Programme on the basis of crime detection rates is therefore near impossible. Even some police officers concede that perhaps the ability of DNA to solve the crime problem has been overstated: DNA and fingerprints gives us the ability to shortcut the investigation, particularly a DNA match on the database …. It’s impacted upon the public’s thinking though, they expect too much from it. DNA isn’t always helpful—a lot of the time it doesn’t take us anywhere. People tend to think that DNA is the solution to everything and it isn’t. And there are a lot of crime scenes where you will never find DNA. It’s only useful then if you can get DNA and it actually means something. (Senior police scientific manager) While others concede, ‘it is now generally acknowledged that the projected outputs for the DNA Expansion Programme were overly ambitious’ (Coleman 2004: 9). Yet the huge financial commitment to the DNA Expansion Programme demands critical attention is paid not only to ensuring that public financial investment is reaping significant rewards, but also that potential encroachments upon civil liberties are justified, and whether the ‘tremendous opportunities for use and abuse’ are being sufficiently utilized, and protected against (Townsley and Laycock 2004: 3). Brevity dictates that this paper will consider only the potential risks occurring in the police station or during the course of criminal investigations, and not the far wider implications of NDNAD security, forensic standards and a host of other potential governance, integrity and regulation concerns accompanying the use of forensic DNA evidence (see Kellie 2001; McCartney 2004; Roberts and Taylor 2005 for some issues). DNA evidence and detection Police investigations have been characterized as ‘case constructions’: ‘… a process … in which, once a clear suspect has been identified, the objective of the inquiry becomes the one-sided collection (and sometimes “manufacture”) of evidence to support the police version of what happened’ (Field and Thomas 1994: 74). While Walker theorizes as to the constructed nature of ‘truth’ during investigations, as well as ‘guilt’ (Walker 1999), the case construction literature emphasizes the critical importance of police goals ‘which lead the police to interpret events in particular ways, to neglect certain lines of enquiry, and to suppress specific items of information’ (Redmayne 2001: 13). The ‘objectivity’ and ‘neutrality’ of forensic science could eradicate such practices, but even the selection of items for forensic analysis during an investigation is usually part of building a case against suspect(s), i.e. not trying to find a suspect but getting proof against the suspect they already have (Roberts 1994). Others suggest that ‘the hope that science may provide an antidote to the police construction of criminality, especially through interrogation, seems forlorn’ (Walker and Stockdale 1999: 148), not least because of the fact that the great majority of criminal investigations involve little or no physical trace evidence (Steer 1980: 71). Forensic scientists’ abilities to assist in criminal investigations are clearly circumscribed by the skills used in the collection of evidence from the crime scene: 183 MCCARTNEY Forensic scientists do not make physical evidence ‘objective’ simply by subjecting it to analysis in the laboratory. If bias has been employed in selecting evidence in the field or in deciding which evidence should be examined or reported, or both, no amount of scientific testing can correct for this prejudice. (Lucas 1989: 721) The DNA Expansion Programme and the Forensic Integration Strategy both seek to alter investigative practices to utilize new technologies, there being a powerful motivation in that the closing down of other avenues of investigation now necessitates resort to science and technology: … through a range of changes in the criminal justice system; disclosure; the way that suspects are dealt with; even the way that policing has developed, some of the more traditional ways of investigating crime and identifying suspects have fallen away … Therefore there is a greater reliance on this technology to identify the offenders. You are not going to get admissions these days, the use of informants is not as effective as it was, even societal factors such as the public not relating to the police as they once did … as other things have fallen away, forensic evidence is what is left. (Senior police officer) Forensic science is then perhaps utilized as a means to circumvent public cooperation: ‘… there are huge pockets of the community where there is a huge distrust of the police and they won’t help so DNA can overcome that’ (Policy reformer). However, DNA cannot overcome a lack of public cooperation fully, as will be seen, DNA cannot substantiate a charge alone and further evidence is still required for a successful prosecution. Training of constables as well as senior officers has been highlighted as an essential requirement of developing the effectiveness of forensic science in investigations. Problems were referred to by analogy by one senior scientific manager: Over the last few years, if an identification had been made using either fingerprints or DNA, it tended to be allocated to just whichever bobby went to the original crime. So, in effect, you’ve got this Rolls Royce piece of evidence and you’re giving it to the junior mechanic. (Senior police scientific manager) There may also be difficulties arising where police have a poor understanding of what DNA can prove: ‘The police can be blinded by their own science and believe it will save them from investigating a case properly. Even some senior police don’t understand what DNA can actually prove, that just having a DNA match won’t prove a case’ (Political campaigner). Such problems belie a poor understanding of DNA, that a ‘match’ is meaningless without proper interpretation and contextualization: The interpretation of the DNA is more important than the result itself. There can be all sorts of reasons for a DNA profile appearing somewhere—we have to look at all the possibilities …. Because it is so powerful, it can’t discriminate between minor contact and major contact. You have to be able to interpret the DNA result. (Policy reformer) Yet, it has been stated that it is ‘quite natural’ for a senior police officer to have limited or little knowledge of forensics, as many senior officers are rarely involved in serious criminal investigations, or may not have engaged in frontline duties for some years (Coleman 2004: 9). But, the impact of such ignorance is significant, with appreciation of the effectiveness of spending on forensics not properly understood or communicated to less senior officers (Coleman 2004: 9). Potential problems encountered when insufficiently trained officers attempt to rely upon forensic evidence include the continuation of a thorough investigation after a ‘hit’: 184 THE DNA EXPANSION PROGRAMME AND CRIMINAL INVESTIGATION There tends to be a reliance on forensic evidence in terms of once you have it, other avenues aren’t followed up. You need to guard against a ‘silver bullet’ mentality: we have a DNA match, case closed. DNA is sometimes conceptually difficult for police to grasp …. Rather than look for the cigarette end, for which someone may come up with a plausible explanation, you need to look for the DNA associated with the commissioning of the offence, so you need to get the forensic knowledge right … forensic knowledge levels in the police service are fairly low—you need to have safety nets, to make sure that people act properly on the information they’ve got. Police officers can rest on their laurels if they get a forensic hit and they need to not be complacent. Anecdotally, they will put it to the offender and hope to get an admission out of it. (Senior police scientific manager) Abbreviated or skewed investigations are then a potential risk, with the temptation for police to use DNA to prove a case or supplement a lack of evidence: The police can be over-reliant on the DNA, if they find a match, they think, right let’s investigate this, rather than investigating all the evidence. It can skew the investigation …. There is a temptation probably to just run to court with a DNA match and save time and bother carrying on an investigation, they could just rely on their DNA match because that will carry a lot of weight with the jury. There is a danger then that DNA could be used to supplement weak cases, because juries are convinced by it, so DNA could be used as a crutch to hold up weak cases. Investigations can be distorted, it shouldn’t be a case of who was there, but what happened when they were there. (Political campaigner) Police officers themselves admit that there can be dangers: You can slip into this lazy approach that ‘we’ve got DNA we needn’t bother doing the rest of the work’. What it does though is gives you a concrete line of inquiry, which still needs corroborating with other evidence. There’s a lot of good old fashioned detective work also needed. (Senior police officer) Erroneous police conclusions at early stages of an investigation can lead to wrongful prosecutions and convictions, demanding police investigations be subject to scrutiny, for this is where ‘the roots of miscarriages of justice are to be found’ (Zuckerman 1992: 324). Increasing faith is placed in forensic science to fulfil a supporting or ‘verification’ role in investigations; however, forensic science may serve to hide from critical gaze detection practices, where forensic evidence has been afforded ‘apparent credibility, leaving the process of detection, evidence gathering and investigation hidden. The canopy of science obscures the primitive analytic tools that persist. These technological advances, even those enhancing information processing, have little altered police effectiveness’ (Manning 2001: 84). Misunderstanding the strength of evidence and what can be actually be determined by a DNA match may lead to missed opportunities to detect offenders effectively and swiftly and possibly to the collapse of cases from poor preparation: Will the police remember that good detective work, the kind that cannot be accomplished by a telephone call to the … DNA databank, is still a requirement for a successful identification? Will they remember that no forensic evidence is any good unless it is recovered from the crime scene, sometimes by sifting for hours through apparently meaningless debris? (Baird 1992: 75) A ‘lazy approach’ is a particular concern, as the statement from the FSS regarding potential DNA evidence is a one-page report with only initial results and basic information, stating that there has been a preliminary match, produced quickly so as to be used 185 MCCARTNEY at interview. Only if a suspect does not indicate a wish to plead guilty will the FSS go on to do full testing procedures and produce a full statement for trial (Bramley 2004: 20). In addition, there are important considerations when accepting DNA ‘matches’, for match statistics are ‘misleading in some crucial respects’ (Saul 2001: 93). Simple matches denote the presence of someone at a crime scene at some point in time. In effect, particularly at scenes that may be public areas, ‘a match may not mean very much’ (Saul 2001: 93). As the ACPO guidelines state, it is crucial to obtain additional evidence (ACPO 2003: 36). Home Office Circular 58/2004, which amends s. 23 of HOC 16/95, states that suspects can be charged upon the basis of DNA matches as a result of speculative searches of the NDNAD only ‘so long as there is further supporting evidence’. In addition, the danger of ‘tunnel vision’ should be protected against by s. 23 of the Criminal Procedure and Investigations Act 1996, which states that ‘where a criminal investigation is conducted all reasonable steps are taken for the purposes of the investigation and, in particular, all reasonable lines of inquiry are pursued’. DNA evidence and deterrence The DNA Expansion Programme is part of the government’s bid to ‘close the justice gap’, ensuring more offenders are prosecuted. Supporters of the programme also suggest, however, that criminals ‘may be deterred from offending upon release’ (Hudson 1997: 127), while as seen, Lord Brown supports the enlargement of the NDNAD to deter ‘from future crime those whose profiles are already on the database’. The Human Genetics Commission has stated that while aware of a potential deterrent effect, there was also evidence of changes in criminal behaviour—‘countermeasures’— to avoid leaving DNA evidence (Human Genetics Commission 2002: 149). When offenders are ‘forensically aware’, this may influence criminal behaviour: … when the suspect is arrested they will probably know that they have been arrested on the basis of a [forensic] ‘hit’. There are high levels of forensic awareness, the offenders clearly know the power of this technology. They change their MO to avoid leaving DNA or fingerprints …. Stolen cars are now more often burnt out to try and make sure they don’t leave any clues. (Senior police scientific manager) Research into criminal careers also highlights a potential flaw in the belief that the larger the NDNAD, the more ‘useful’ a deterrent or an investigative tool it will become. In reality, because of the ‘churn’ of the offending population (whereby many offenders on the NDNAD will already have ceased offending while many who have just commenced their ‘criminal career’ will not appear on the NDNAD for some time), the ‘useful life’ of a profile on the NDNAD is only as long as the offender’s criminal career, which are typically short, thus highlighting ‘the need to remain realistic over the shortness of time for which most of those contributing criminal justice samples will remain relevant for crime detection purposes’ (Leary and Pease 2002: 3). Leary and Pease end their article by stressing that ‘a match is not a conviction’, using an analogy presented to them by an expert, who described DNA as: … ‘a fresh filling placed between two slices of stale bread’. By this was meant that while the science may be good, police operations and training (the first stale slice) and the vicissitudes of prosecution and conviction (the second stale slice) limit the quality of the whole sandwich experience. (Leary and Pease 2002: 8) 186 THE DNA EXPANSION PROGRAMME AND CRIMINAL INVESTIGATION Such research directly contradicts Lord Brown cited earlier, who claimed that the benefits of enlarging the database were ‘manifest’. Rather, to reap the greatest benefit from the huge sums expended on the DNA Expansion Programme, there needs to be proper focus upon maximizing its effectiveness, whilst at the same time protecting against possible undesirable consequences and making sure that incursions into civil liberties are justified. Ethical disclosure of DNA evidence Previous reports have indicated that ‘the availability of forensic evidence appears to result in a high proportion of guilty pleas’ (HMIC 2002: 5), implying that DNA matches can be used tactically by police investigators, not just to evidence a case at court, but to prevent a case going to trial. The use of DNA evidence as a ‘lever’ in the police station requires research, particularly when s. 62(10) of PACE enables the drawing of adverse inferences at trial from a refusal to consent to sampling (although the use of this may now be limited by the expansion of police powers meaning that consent is rarely required). This should include further consideration of issues concerning the ethical use of DNA evidence; the protections afforded suspects; the rights of suspects not to assist the police in their investigations; and the role of legal advice when facing DNA evidence (anecdotal evidence suggests that most lawyers will advise clients to plead guilty when informed that there is a DNA match, without further investigation into the actual strength or reliability of that evidence). Prior wrongful convictions involving forensic evidence should warn of relying upon ‘science’ too readily and uncritically (see Walker 1999). Further, an argument for non-consensual sampling most often relied upon is that there are no valid reasons for an innocent suspect not to provide a DNA sample. However, this has been contested; indeed, there may be several reasons for innocent noncompliance (Gans 2001: 173) (as is accepted when serving police officers refuse to submit a sample to the Police Elimination DNA Database). There is potential for the police to use sample requests as an investigatory tool, with the strength of such ‘obvious to suspects, as well as investigators, perhaps to the point of generating additional evidence of consciousness of guilt’ (Gans 2001: 174). When faced with a sample request, there must be a choice made between two adverse consequences: giving the sample or revealing a fear of giving the sample, forcing the individual into a coerced position which, in itself, can generate self-incrimination in the absence of pre-existing suspicion (Gans 2001: 178). Indeed, suspects are under pressure to comply, making the sampling compelled self-incrimination, and risking losing traditional limits of investigative compulsion (Gans 2001; see also Easton 1991). Pre-interview disclosure of scientific evidence has been singled out as raising problems for investigators, as a scientist explained: ‘… the biggest improvement that could be made with scientific evidence is actually nothing to do with science—it’s to do with pre-interview disclosure’ (Forensic scientist). The police need to ensure that scientific evidence is not unnecessarily disclosed to suspects, thereby permitting suspects the opportunity to provide an innocent explanation for the evidence: You can have this marvellous piece of evidence, … and before they get interviewed, the suspect knows what it is and where it is, and so they can arrive at an ‘explanation’ for the interview, and so losing the 187 MCCARTNEY use of the evidence …. It’s the trick of the thing—they need sufficient information to know what they are answering to, but not enough to concoct a story to explain away the scientific evidence. Bobbies have been telling legal advisors everything so your work is wasted. About 30% of scientific evidence can be wasted in this way as they [suspects] can claim legitimate access …. But if you simply tell the legal advisor that you have scientific evidence, but don’t tell them what it is or where it is, then they have to think. (Senior police scientific manager) More worryingly, perhaps, some police had seemed to positively advocate keeping forensic evidence details from the suspect, at least until forced to disclose it pre-trial: There’s a risk of giving too much away during the interview stage. Tactically what you want is the suspect to give you an account of their involvement without the issue of DNA coming into it. The skill in the interview is to get the suspect to give an account without giving anything away. We have had problems with police being harried by solicitors and giving away the DNA evidence and then them advising their clients to explain it away. At some stage during the interview you would probably disclose it, although not always. It will always be disclosed before trial but if you don’t need to disclose it at interview then you don’t. (Senior police officer) ACPO have published guidelines for police officers on how to handle DNA evidence during interviews with suspects. This states that interviewers will ‘prefer’ to hear a suspect’s account before they disclose details of evidence, although the guidance states that it is ‘in the interests of all parties concerned for some information to be disclosed to the suspect and their solicitor before or at the beginning of the interview’ (ACPO 2003: 40). However, ACPO warn against ‘premature disclosure’, which may ‘provide the suspect with an opportunity to fabricate an explanation to support a claim of lawful access or to give a false account to explain the reasons why the evidence exists’ (ACPO 2003: 41). They advise that the suspect should establish their position without the disclosure of DNA evidence, though a suspect must know why they are being interviewed, while innocent suspects have no reason to fear non-disclosure, and, indeed, may benefit from providing a full account ‘uncontaminated’ by knowledge of the evidence. Guilty suspects, meanwhile, ‘should not be given the opportunity to fabricate a defence or an alibi around the police evidence’ (ACPO 2003: 42). Officers are reminded that there is no legal obligation to disclose information preinterview and they are to decide how much information to disclose at interview stage, the CPS then deciding what documents to disclose to the defence. However, if a legal representative asks if there is DNA evidence, the interviewer is not permitted to lie or deliberately mislead. ACPO concludes the guidance by reminding officers: Police must use the introduction of DNA evidence in an ethical manner. Officers should not attempt to mislead legal advisers or suspects by implying that the suspect has left DNA at a scene or on recovered items when they have not. This would be unfair to the suspect and highly likely to be deemed unlawful. The court would rule evidence gained by such deception inadmissible. (ACPO 2003: 42) Conclusion: The DNA Expansion Programme—Realities and Risks DNA profiling, like fingerprinting, has been portrayed and accepted as certain and error-free, which has ‘profoundly influenced the degree of trust invested in it, compared with other forms of criminological evidence’ (Lynch 2003: 93). Yet, the very real possibility of mistake (see Bramley 2004), mis-targeting and misinterpretation, or the 188 THE DNA EXPANSION PROGRAMME AND CRIMINAL INVESTIGATION potential for negative impacts upon police investigative practice, demand that further critical attention be paid to DNA and other forensic technologies (see also Saks and Koehler 2005). Forensic DNA technology has multiple uses in the fight against crime, and ongoing research looks to expand its usefulness further in the future. While the typical application of DNA technology in criminal investigations is most often unproblematic, there needs to be continued vigilance over the direction and implications of research and future uses. The permitting of non-consensual sampling in a wide range of situations, with samples retained indefinitely, raises many issues. It may be argued that the case for extending the numbers of individuals from whom samples may be taken, i.e. from those committing minor offences or simply being arrested, has yet to be made. The sampling regime ‘may be considered a disproportionate interference with an individual’s rights’ (Steventon 1995: 418) and the powers to take samples from suspects for trivial offences ‘rather too wide’ (Redmayne 1998: 444). Similarly, the retention of samples also has critics who believe that retention is ‘an unjustifiable infringement on an individual’s privacy’ (Steventon 1995: 417; see also LIBERTY 2002; McCartney 2003; Roberts and Taylor 2005; Williams et al. 2004). To justify any potential infringements of rights, the impact of DNA technologies upon criminal detections is in need of further appraisal and debate. As Ericson and Shearing (1986: 133) explain, the utilization of science in the criminal process has particular dangers, as it promises: … special powers of construing the truth which reduce complexity to statements of authoritative certainty. It also offers the procedural characteristics of being universal, general, uniform, and neutral. It gives the police a general warrant of the type, ‘Because we are doing things the scientific way, we are doing them the right way and you have no legitimate grounds for criticism’. This is not to deny the power of forensic identification technologies to assist in the detection of criminals, but there is a risk that faith in forensic science has been too easily used to shore up falling confidence in police investigative competence without questioning the fallibility and shortcomings of applying the technique. There are a number of reasons for scepticism about the power of forensic science to eliminate wrongful convictions, critical ones focusing on quality and integrity: … standards are paramount. Forensic evidence and intelligence will only continue to be of use, and command public confidence, if it is gathered, analysed and disseminated with the highest standards of integrity: standards that need to be internationally accepted and universally adopted. (Coleman 2004: 10) The training and proper utilization of Crime Scene Examiners are essential, and scrimping on exhibit collection and analysis negatively affects the quality of forensic evidence (Audit Commission 1993). In addition, police data collection and returns must be improved if benefits accrued from expanding DNA use are to be evidenced. Efforts to retain public confidence and ensure cooperation in criminal investigations must also be emphasized. With DNA only able to be used in addition to other evidence, it is essential to have police that can investigate crimes utilizing more ‘traditional’ methods, and continue to command public cooperation. Additionally, economic considerations must impact upon when scientific expertise is utilized with pragmatism playing a role, fiscal priorities being formed within institutional norms. Indeed, ‘unless the forensic science budget is treated for practical purposes as unlimited, there is a 189 MCCARTNEY clear potential for periodic budgetary crises with knock-on effects on patterns of forensic science usage’ (Tilley and Ford 1996: 20). The limitations of the NDNAD pointed to by Leary and Pease (2002) illustrate that the belief that the bigger the database, the more crimes will be solved, could be flawed, and there is no ‘optimum’ size for the database; indeed, it will have to continue to grow at a significant rate, with all the attendant costs involved. There is then required a public consensus that the expenditure on DNA continues to be demand priority and that the significant sums spent on DNA technology, testing and retention of samples could not be more effectively spent elsewhere within policing or other public body budgets. Yet, perhaps more important than efficiency and effectiveness concerns, convictions of innocent men and women which continue to be overturned by the appeal courts demonstrate that forensic evidence must be handled and utilized with great assiduity and integrity. The management and organization of forensic science by the police need astute supervision and constant regulation to prevent abuse and mistake. The potential for the administration of justice to proceed free of the blight of wrongful conviction is undoubtedly brought a step closer by reliance upon scientific techniques of identification rather than traditional eye-witness identification and witnesses recollection. Retained DNA samples may exonerate the wrongly convicted—a power which has saved the lives of many innocent inmates on death rows around the United States.31 As such, ‘the Forensic Science Service clearly has an intermittent but vital role to play in protecting the innocent, as well as strengthening the case against those who commit offences’ (Ramsay 1987: 20). As the technology becomes more innocuous (i.e. fingerprints taken by holding hand on a screen and ‘buccal’ swabs—a simple cotton bud in the cheek), obvious objections based upon the use of physical force or torture and excessive physical interference with people’s body integrity have disappeared, and principled objection to the procedures have failed to prevent the extension of police powers. Indeed, ‘it could be argued that the criminal justice system as we know it is being appropriated by the very technologies designed to assist its pursuit’ (Kellie 2001: 174). 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