Carole McCartney

LCN DNA: proof beyond reasonable doubt?

profiling has lead to successful criminal prosecutions, including in the Peter Falconio case in Australia and the murder of the Swedish foreign minister, Anna Lindh. However, the technique has serious limitations, and few jurisdictions have followed the United Kingdom in accepting it as evidence in court. The discrediting of the LCN DNA evidence in the Omagh trial, which led the UK police to temporarily suspend their use of the method, has prompted further questioning of this technique and some scientists are claiming that criminal convictions based upon LCN DNA will soon start troubling the appeal courts. A method for profiling LCN DNA — often referred to as ‘trace DNA’ or ‘touch DNA’ — was developed in 1997 to provide a DNA profile from forensic samples that are so small (<100 pg) they could have been left by a mere touch. This is achieved by increasing the number of PCR cycles from 28 to 34. From the outset, difficulties with the LCN DNA technique were reported, including concerns about the increased risks of contamination and transference1, about allelic drop-out and drop-in as well as artefacts. Such phenomena increase the chance of false positives: adventitious matches with innocent individuals. These limitations, and the time-consuming nature and costliness of the process, mean that few jurisdictions have followed the United Kingdom in using the technique. In the United States, it is used exclusively as a last resort to narrow a large pool of suspects, and can only be used as intelligence — that is, information to assist an investigation — rather than evidence at trial. This is partly because LCN DNA profiling has not been standardized, so different laboratories could produce differing results. In the recent Omagh trial, the prosecution relied upon LCN DNA to link Sean Hoey with a series of bombings in Northern Ireland. The defence, however, were able to demonstrate that the collection and storage of exhibits had not been undertaken with due diligence. Collection of crime-scene materials had been done without what would now be considered standard protective clothing, and there were many instances of confusion over who had collected, and what had been done to, the exhibits. The judge summarized the approach as “thoughtless and slapdash ... items were so widely and routinely handled with cavalier disregard for their integrity”, leading him to conclude “...I find that the DNA evidence ... cannot satisfy me either beyond a reasonable doubt or to any other acceptable standard.”2 More importantly, however, the judge went on to cast doubt over the reliability of the LCN DNA technique, commenting that he was concerned at the wide variance of expert opinion and pointing out that LCN DNA has only been adopted for evidential purposes in two other countries. Moreover, the lack of validation of the LCN DNA technique prevented calculations of the degree of reliability of the results; in the Omagh case the testing process had given differing results, demonstrating its potential to mislead.

Lowering the Drawbridges: Legal and Forensic Science Education for the 21st Century

Abstract Notwithstanding the significant investigatory and prosecutorial benefits of forensic science, the marriage of law and science has most often been represented as discordant: a marriage of “opposites” (Wonder 1989) thats “troubled” (Haack 2009). Yet most critics rely upon clichéd representations or “caricatures” (Roberts 2012) to demonstrate how science and law represent two cultures. When official concerns over the potentially deleterious coupling within the criminal justice system have reached a fevered pitch, the fallout has often been a chorus of disapproval addressed to forensic science, but also denigration of legal professionals for being unable or unwilling to forge a symbiotic relationship with forensic scientists. The National Research Councils 2009 National Academy of Sciences Report on forensic science heralds the latest call for greater collaboration between the law and science, particularly in higher education institutions (HEIs). To investigate the potential for interdisciplinary cooperation, a workshop was held in the UK, attended by academics and practitioners from scientific, policing, and legal backgrounds. The workshop marked the commencement of a project to facilitate building vital connections in the academy, enabling law and science academics to “lower their drawbridges.” This article outlines some of the discussion to elucidate areas of consensus, and where further dialogue is required before progress is possible, but aims to strike a note of optimism that the “cultural divide” should not be taken to be so wide as to be beyond the legal and forensic science academy to bridge.

Forensic data exchange: ensuring integrity

A growing chorus of forensic professionals believe that forensic science has undersold its potential contribution to crime reduction and has a more significant role to play in policing, with collation and analysis of forensic information used to inform policing tactics, operations or strategy. Domestic law enforcement agencies, as producers, consumers and purveyors of forensic information and intelligence, are also responding to political pressures to expand and accelerate their technological abilities to gather and disseminate forensic information and intelligence within expanding operational boundaries. For example, there are a number of agreements that promise the automated exchange of forensic data internationally, in particular fingerprints and DNA profiles, and many that share other law enforcement information via a variety of channels. However, there is yet to be any detailed consideration of the multifaceted issues raised by the production of forensic intelligence, and the impact of direct access and/or exchanges of forensic intelligence. While technologies are increasingly interoperable, traditional parameters restraining law enforcement information sharing are increasingly inadequate. The lack of oversight of the transnational flows of law enforcement information mean that current processes lack transparency and, consequently, citizens’ ability to know of, understand, and challenge exchanges of their data is almost non-existent. Yet the expectation is that the power to generate, gather, store and share forensic intelligence will be used with integrity. Integrity is essential for generalised trust among not just the direct consumers of forensic intelligence, but also the public. For the integrity of forensic intelligence to be maintained, critical attention must be paid not only to the viability of forensic intelligence production and sharing, but also to its legitimacy and acceptability.

The Supreme Court, Post-Conviction Disclosure, and ‘Fishing Expeditions’: R (Nunn) v Chief Constable of Suffolk Constabulary & Anor [2014] UKSC 37

In 2006, Kevin Nunn was convicted of the murder of Dawn Walker, his former girlfriend. Her burnt body was found by the River Lark on 4 February 2005. A witness, PD, claimed to have seen two men removing a heavy-looking object from the victim’s house, and identified Nunn as one of these men. Nunn argued that LM, another of the victim’s former boyfriends, was the true perpetrator. LM had previously described how to commit a ‘perfect’ murder to PD, a crime which bore notable similarities to Walker’s killing. However, LM had an alibi provided by his new girlfriend. Forensic analysis of the scene did not recover any physical evidence that linked to a suspect and while four sperm cells were found on the victim, these did not yield any DNA profiles. Further, the sperm could have been a result of secondary transfer from a towel or other means (Walker had recently used a male changing room at a sports centre). The sperm cells, however, were retained for possible further testing if technology were to advance. Nunn was refused leave to appeal his conviction in 2007 on the basis that there were no arguable grounds that could render the conviction unsafe. Nunn subsequently sought to make an application to the Criminal Cases Review Commission (CCRC). They approached a former Forensic Science