Northumbria University Centre for Forensic Science

Regulating the Uses of Forensic Genetics

Contributors: Robin Williams, Victor Toom

The increasing State uses of forensic DNA profiling and databasing is generally thought to have improved the effectiveness of criminal investigations in many jurisdictions. However, it has also raised profound normative questions for democratic societies, especially those concerning the legitimacy of privacy intrusions that arise from DNA sample collection, retention and a range of possible analyses of such samples and utilization of forensic genetic knowledge in police enquiries.

The overall aim of the work carried out by Williams and Toom has been to mitigate the widely held assumption that forensic DNA technologies automatically ‘produce’ truth by careful empirical investigations of these technologies. Williams has been especially concerned with the effects of innovations in DNA profiling on criminal investigations, and how understandings of these effects have informed both claims-making and policy-making in criminal justice. Toom’s work has focused on various (national) governance models that support forensic DNA databasing and on the development of new forensic DNA technologies, especially those that of DNA Phenotyping and Familial Searching. A shared interest of Williams and Toom regards the internationalization of policing and transnational exchange of forensic bioinformation [1-3].

Williams and Johnson have impacted on several significant deliberations on the governance of DNA Profiling and Databasing in England & Wales. Their analyses of the social and ethical issues raised by the changing legislative framework for profile and sample retention in England & Wales (in the Criminal Justice and Police Act 2001 and the Criminal Justice Act 2003) included strong criticism of much of the claims-making which had underpinned the expansion of the National DNA Database through those legislative changes [4].

Based on this piece of work, Williams was invited onto a NCOB Working Group on ‘The Forensic Use of Bioinformation: Ethical Issues’. The 2007 report was explicitly cited – and commended – by the European Court of Human Rights in the text of its judgement against the UK Government in the Case Of ‘S & Marper’ [5], which decision required the UK Government to revise its legislation on the retention of samples and profiles taken from those who were not convicted of a criminal offence. The new ‘Protection of Freedoms Bill’ which is currently making its way through Parliament now embodies those changes.

Toom’s published studies have impacted on Dutch policy deliberations regarding legal provisions for DNA familial searching. Members of the Dutch Parliament cited Toom’s work and followed suggestion to make investigating judges an obligatory point of passage for authorising familial searching in criminal investigations [6]. Toom has also been involved in exchanges with leading forensic biologists regarding the use of external visible characteristics in criminal investigation [1].

References

[1] A. M’charek, V. Toom & B. Prainsack. “Bracketing off populations does not advance ethical reflection on EVCs.” Forensic Science International: Genetics 6: e16-e17. (2012).
[2] B. Prainsack & V. Toom. “The Prüm regime: Situated dis/empowerment in transnational DNA profile exchange.” British Journal of Criminology 50: 1117-1135. (2010).
[3] C.I. McCartney, T.J. Wilson & R. Williams. “Transnational Exchange of Forensic Bioinformation: Viability, Legitimacy and Acceptability” European Journal of Criminal Policy & Research. (2011).
[4] R. Williams & P. Johnson. Genetic Policing: The Use of DNA in Criminal Investigations, Willey Publishing. (2008) .
[5] European Court of Human Rights. Judgement in the Case of ‘S’ and Marper Versus the United Kingdom, http://www.bailii.org/eu/cases/ECHR/2008/1581.html. (2008).
[6] V. Toom & A. M’charek. ‘Van individuele verdenking naar verdachte families en populaties: het wegen van nieuwe forensische DNA-technieken [From individual suspicion to suspect families and population: assessing new forensic DNA technologies]’, Nederlands Juristenblad, 86(3): 142-148. (2011).