Forensic science could deliver blow to crime, but ethical questions linger

We all leave something behind wherever we go, much of it unintentionally. This is more a biological notion than a romantic one. Watch enough American cop shows and you will know how a little bit of hair, skin, saliva, sweat or blood left at a crime scene all contain deoxyribonucleic acid – or DNA, as it is better known.

In US television dramas, forensic scientists are able to load the unique DNA profile recovered from a crime scene onto a system, checking it against a database for a match with a suspect. However, this scenario is not possible in South Africa, even though we have the second-highest murder rate in the world.

Why is this so? Primarily because South Africa does not have a large DNA database as current legislation has kept it in check at fewer than 130 000 profiles. Therefore, unlike the US and some 50 other countries, South Africa does not have an effective DNA data- base filled with a large pool of potential suspects that could provide the police with a clue as to who could have committed a crime.

Plans are now afoot for South Africa to create its own expanded DNA database. But the process has been time consuming as Parliament ruminates over the reach and content of such a database under the proposed Criminal Law (Forensic Procedures) Amendment Bill.

This legislation has also attracted the attention of commentators concerned about who will populate this database, and how the information in it will be used.

Public Push for DNA Database
The DNA Project, a nongovernmental organisation (NGO), is pushing hard for the establishment of an expanded national DNA database, as proposed by the Criminal Law Amendment Bill.

Its efforts enjoy the support of the South African Police Service Forensic Science Laboratory (SAPS FSL). In fact, SAPS national spokesperson Captain Dennis Adriao says an expanded DNA database will be “extremely useful” in the fight against crime.

The DNA Project was founded by Vanessa Lynch, a commercial attorney who left her job in 2005 to run the NGO. Her father was murdered during a robbery in 2004, making her realise the role DNA can play in criminal investigations.

Dr Carolyn Hancock serves as a director of The DNA Project. She has a PhD in genetics, and was a lecturer in this field for 15 years.

“I am passionate about the science of genetics, as well as South Africa. I would really like to ensure that this gorgeous country of ours becomes a safer place for us all to live in,” she explains with reference to her involvement with the project.

According to Hancock, a national DNA database, such as the one The DNA Project is lobbying for, is a database which would contain DNA profiles of all people arrested or convicted of an offence; profiles for elimination purposes, such as those of police officers; as well as DNA provided on a volunteer basis by, for example, parents providing the DNA of their children in case they go missing.

All these profiles are known as reference profiles.

The database would then also contain profiles from unknown people obtained at crime scenes, known as forensic profiles, which are matched against reference profiles, especially those of convicted offenders, to potentially obtain a list of suspects.

“The value of a DNA database lies in it providing leads in a case when the police do not have a suspect,” explains Hancock. “It does not necessarily prove guilt. It is also important to remember that it can show that someone is innocent of a crime.”

At least 50 countries have DNA databases, with the first started in the UK in 1995. Since then, there has been a 75% increase in the number of suspect-to-crime-scene matches in that country.

The US, most of the European Union, Australia, New Zealand, Canada, India and China all have databases, all of which are expanding rapidly.

The UK has the largest database in the world (per capita), whereas the US has the largest number of profiles. According to statistics supplied by Interpol, in 2008, the US database had around 6,4-million offender profiles collected from convicts, arrestees or suspects, and 242 000 forensic profiles from DNA collected at crime scenes.

“All countries which have a database have found it to be an invaluable criminal intelligence tool,” notes Hancock.

Nabbing Repeat Offenders
There are a few reasons a database – requiring a change in legislation – will be helpful in the investigative procedure, says Hancock.

South Africa has the highest incidence of rape in the world and also the second-highest murder rate – both of which are contact crimes where DNA evidence can often be found.

Besides these two dubious records, South Africa also has one of the highest rates of repeat offences in the world, says Hancock, which increases the value of a national DNA database.

“People commit multiple offences, often becoming more violent over time, and we need to apprehend them as soon as possible.”

Around 90% of rapists and 50% of armed robbers have a previous conviction of some kind, with criminals often convicted for their first offence between 16 and 19 years of age.

Take the example of a young man arrested at 18 for vehicle theft. He then graduates to armed robbery at a later age, leaving some of his DNA behind at the crime scene.

Were his DNA taken at age 18 for the vehicle charge, the database could point to him as a suspect in the robbery case.

However, as it stands today, with South Africa’s database containing largely unknown crime scene profiles, it is nearly impossible for the SAPS database to link DNA collected at a crime scene to any particular person.

Started in 1998, the current database remains small, with its expansion hindered by a lack of appropriate legislation – for example, legislation stating that the police must collect DNA at crime scenes and from suspects.

Under current legislation, it is even against the law to take DNA from a convicted offender.

“Also, to take DNA from an arrestee, a medical doctor has to draw a full vial of blood. Everywhere else in the world, the police collect DNA from suspects using a simple buccal, or cheek, swab – in other words, swabbing the inside of the mouth,” adds Hancock.

“You can imagine that doctors are not lining up at our police stations to draw blood, – so it simply doesn’t happen.”

In the end, the size of the database makes it fairly ineffective as a criminal intelligence tool, says Hancock.

“You need as many reference samples as possible to increase the chances of a match.”

She adds that the SAPS FSL has also received limited funding in the past and has had capacity issues, but that this set to change, as confirmed by Adriao.

Apart from DNA, other forensic resources are equally hard to come by.

The police only gained legal access to the departments of Home Affairs’ and Transport’s national fingerprint databases this year. And, although the SAPS has access, it is still working on making all the databases compatible, which means there are no automatic searches as yet.

Expanded Database?
But will we all be on an expanded database? The answer is no.

But who should then be included on a national DNA database? Where do we draw the line?

Hancock says the amendment to current legislation suggests that DNA be taken from all arrestees, as well as convicted offenders.

“It makes sense to start with those who are most likely to commit crime – those already arrested and convicted.

“It is possible that we may start by only putting people arrested for serious and violent crimes on the database – this still needs to be decided by Parliament.”

However, an issue of potential contention is the retention of profiles from people who have been acquitted.

If found not guilty of a crime, should someone’s DNA remain on a national database?

Hancock says the Criminal Law Amend-ment Bill, as it currently stands, allows for a retention framework for profiles of people who have been acquitted, but that this will depend on the severity of the offence they were accused of.

For example, if someone is arrested on suspicion of murder, the person’s DNA should be retained for longer than if such a person were arrested for drunk driving.

“People are often not convicted due to some technicality, so it makes sense to keep their profiles for a certain period – repeat offenders generally reoffend within a year or so,” argues Hancock.

“Besides, if people have no intention of committing an offence, then they have nothing to fear by having their profile on the database.”

Other criticism raised against a national DNA database ponders the issue that genetic material – essentially a person’s intellectual property – will be in someone else’s possession. To be more precise, it will belong to the State, or Big Brother.

After all, in theory, it is possible to sequence a person’s genetic make-up from a DNA sample, thereby obtaining information of a personal nature, such as the genetic diseases they are prone to.

However, Hancock does not foresee this to be a serious threat to the Amendment Bill.

“Once a profile has been obtained and loaded onto a database, the original DNA sample which contains the entire genome and, thus, potentially, information on all aspects of genetic make-up, will be destroyed.

“If a match ever comes up on a database then that person will just be asked to provide another sample for testing to confirm the results. This is the case overseas and I am certain this will also be the case in South Africa.

“Only the DNA profile is maintained on a database,” emphasises Hancock. “This is just a list of numbers that does not contain any personal information, as the numbers are derived from noncoding areas of the DNA, also called junk DNA. This alphanumeric profile contains no personal information.

“This also means the DNA profile itself has no commercial value. In other words, the police would not benefit from selling the information to insurance companies and so forth.”

Hancock adds that familial testing, which is allowed in some countries, will probably not be permitted in South Africa.

Familial testing is the testing of family members.

For example, when a crime is committed and the profile of the offender is run on a national database, there may not be a perfect match with any of the reference profiles on the database.

However, there may be cases where the evidence found at a crime scene strongly resembles a reference profile on the database.In other words, the offender profile and the reference profile could be similar, but not an exact match.

“This often happens with people who come from the same family, such as a father and son whose genetic make-up will be similar,” explains Hancock.

“In certain countries, the police will then follow that lead and actually start questioning family members of the person already on the database.

“The UK and the US have had much success with this and numerous cases have been solved.

“The problem is that, again, there are privacy issues. For example, what if a child is adopted and has never been told about this?”

What Next?
In the end, the goal of The DNA Project, as well as the Criminal Law Amendment Bill, is to expand the current database to include more profiles, especially more reference profiles.

As far as the legal process is concerned, the Parliamentary portfolio committee for police has just been on a study tour to Canada and the UK to see how their databases work.

“It looks as if the Criminal Law Amendment Bill will be redrafted,” says Hancock.

“One of the reasons for this is that the original amendment considered both finger- prints and DNA. However, the two sections were separated with the fingerprint part already passed as law.

“This is what allowed the SAPS access to the fingerprint databases of the departments of Home Affairs and Transport,” explains Hancock.

“The DNA section now needs to stand alone. Hopefully, the draft will be completed and considered by Parliament in the next few months.”

The proposed legislation will mean a massive increase in the number of samples that will need to be collected, analysed and stored by the SAPS.

This means the legislation will have to be supported by capacity building, says Hancock, either through the use of private laboratories, or by building and equipping more State laboratories.

There are only two SAPS labs that can perform DNA profiling on forensic samples in South Africa.

“With increased capacity at lab level, there will also be a demand for more skilled staff to test DNA, and this is where a postgraduate degree in forensic DNA analysis is vital.”

This honours degree has been developed by The DNA Project – in particular, Hancock – and it is offered at the universities of the Free State and Cape Town.

The development of the coursework was done in conjunction with the SAPS FSL, as well as a number of appropriately qualified academics from around the country.

Graduates are qualified to analyse forensic DNA samples at the FSL.

In the past, there was no specific training in this field at any tertiary institution in South Africa, or Africa, for that matter.

The FSL had to train all analysts at the lab, which meant that trained personnel were spending time on training, and not sample analysis, says Hancock.

“It was also very expensive for the FSL to train everyone. Also, once they were trained, they were often poached by the private sector offering better remuneration.”

Hancock envisages that the biggest capacity problem could occur at the crime scene itself.

The SAPS needs to train more people on the actual identification and collection of evidence at the scene – crime scene investigators – which is currently happening, she notes.

“There is also insufficient training at grassroots level on the need to protect and preserve – and not contaminate – a crime scene.”

The DNA Project has started an awareness campaign of its own aimed at educating all those who may be the first at a scene on how to preserve DNA as physical evidence.

“Evidence is only accepted in court if the chain of custody can be proved – in other words, exactly who had access to the evidence from the time it is identified and collected at the scene to when it is analysed at the lab,” says Hancock.

“Everyone who touches the evidence must be documented, as well as how and where it was collected, and how it was packaged, stored and transported.

“Evidence is accepted only if it is clear that it has not been tampered with by the time it arrives at the lab.”

People who collect DNA are usually crime scene investigators with specific training provided by the SAPS.

They are part of the local criminal record centre – the same people who are trained to collect fingerprints and other forensic evidence.

Once the DNA is collected, it then goes to the laboratory for testing.

Hancock emphasises that the FSL produces “very reliable results which are seldom contested in court”.

Powerful Physical Evidence
In the end, what it all boils down to is that “DNA is a very powerful form of physical evidence that can confirm that someone was at a crime scene”, argues Hancock.

She says it is difficult to provide an actual figure on how conviction rates have improved in countries with DNA databases, as DNA is only one form of evidence in a case. However, she believes its value addition has been proved conclusively.

“I recently spoke to someone from the Forensic Science Services, in the UK, and his answer to this was: ‘Ask any police officer what they would do without DNA. The answer would be that it is invaluable in providing intelligence information and helping in securing convictions. They cannot imagine conducting investigations without using DNA’.”

Hancock also argues that the knowledge that someone’s DNA profile is on a database “definitely acts as a deterrent”.

“One set of criminals overseas were given an option,” she notes, “either give us your DNA profile and get early parole, or stay for your entire sentence. They chose to stay as, of course, once their profiles are on a database, they can be linked to other crimes – both past and present.”

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LEGAL OPINION
DNA database can be justified, but beware the legal risks

No one will dispute that the collection of DNA samples is a serious invasion of the Constitutional and common law right to privacy and, to a much lesser extent, the right to bodily security and integrity, says Patrick Bracher, director at the law firm Norton Rose South Africa.

“It goes much further than the collection of personal information we are used to, namely fingerprinting and taking blood samples for testing alcohol consumption.

“A DNA sample contains detailed personal information regarding a person, which is clearly private information protected by the Bill of Rights,” says Bracher.

“Even parents have no absolute right to share their children’s private information.” An invasion of privacy should never be arbitrary, he adds.

The taking of a DNA sample may be arbitrary if it has no relevance to the crime being investigated.

“There is no justification for taking a DNA sample from someone who is arrested for failing to pay parking tickets,” says Bracher.

However, there are many crimes when the guilt or innocence of an accused may be established decisively by taking such a sample, he adds. “Rape cases are an obvious example.

There are also many others, including the question of whether someone was at the scene of a crime or not.” Bracher also believes it will be unconstitutional to arbitrarily take DNA samples from anyone who has a brush with the law.

A number of DNA databases around the world secure DNA samples from people who have been arrested, and are then not convicted. South Africa seeks the same in the database it hopes to develop through its proposed Criminal Law Amendment Bill.

However, to arbitrarily take DNA samples is to encourage arbitrariness in criminal investigations and arrests, irrespective of the nature of the crime or the evidence against [the accused], argues Bracher.

“In Canada, a court has to order the collection of DNA data, as a means of guarding against arbitrariness and abuse. The individual circumstances are taken into account.”

Bracher also argues that it is Constitutionally unjustifiable invasion to keep DNA samples if a person is never charged, or if he or she is acquitted.

“Samples should be destroyed immediately if charges are withdrawn without any further investigation being intended, or the accused is acquitted.”

However, Bracher does note that the period of retention of a DNA sample may be increased – for instance, if there is a history of sex crimes or serious violent behaviour – but again, then only on the order of a court.

He adds that there is “nothing arbitrary” about retaining samples indefinitely of convicted offenders from whom DNA samples were lawfully taken.

“It is always a matter of evidence whether the collection of samples and retention of profiles is justifiable,” he expands.

“For instance, if evidence were led that the crime of rape has become alarmingly widespread, and the only deterrent is the keeping of DNA profiles from the population at large, a court may be persuaded that there is justifiable invasion of privacy.

“If everyone’s profiles – and never samples – are kept under strict control, never to be used unless a court orders their use because of a real suspicion of a serious sexual of violent offence, that may be found to be justifiable.”

When deciding whether an invasion of a Constitutional right is reasonable and justifiable and, therefore, permissible, the courts draw a balance between the extent of the invasion and the importance of the purpose of the invasion, explains Bracher.

Another question is whether there are less restrictive means to achieve that purpose, such as through a court order.

• The Canadian DNA database is limited to the convicted, and then also those convicted of designated offences only. In the UK samples are taken from all individuals arrested and detained at a police station, whether the person is convicted or acquitted. The European Court of Human Rights ruled recently that retaining DNA profiles in the UK when someone was arrested, but not convicted, was a breach of the European Convention of Human Rights. The UK responded by noting that it would replace its blanket policy with a retention framework which would link the seriousness of the charge to the period a profile would remain in the system. The more serious the charge, the longer the profile would remain in the database.