Magnus Linklater
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Circumstantial evidence, observed Sherlock Holmes, “is a very tricky thing. It may seem to point straight to one thing, but if you shift your own point of view a little, you may find it pointing in an equally uncompromising manner to something entirely different.”
I’m willing to bet that Holmes would have been just as cautious about the use and misuse of DNA testing. The more we learn about a technique that was once hailed as the panacea of criminal investigation, the more we realise how far it is from infallibility. As Holmes might have said: “There is nothing more deceptive than a single piece of evidence upon which an entire case is said to rest.”
This doubt alone should be reason enough to steer clear of moves to store the DNA of all crime suspects, however minor, or even to include the entire population, on a national database. Ethics, civil liberties, the threat of a police state – all of these are powerful arguments against it. Ultimately, however, what tilts the balance are the questions that surround the reliability of DNA itself. We know very little of the forensic evidence in the McCann case, but what seems clear enough is that the DNA samples gathered from the apartment and the hire car used by Gerry and Kate McCann are not, of themselves, sufficiently convincing to launch a prosecution. Given the obvious suspicions of the Portuguese police, one can only deduce that, had the DNA links stood up, the McCanns would already be on their way back to face further questioning.
The value of that evidence may be no better than the DNA analysis that failed so spectacularly last week in the World’s End murder trial. It was the heart and soul of the state prosecution case, advanced after months of expert analysis, yet thrown out after only two weeks by a High Court judge who ruled that the case was not strong enough to go before a jury.
The brutal murder, 30 years ago in Edinburgh, of two 17-year-old girls – Christine Eadie and Helen Scott – was resurrected for two reasons that, when brought together, make a powerful case for action, but do not necessarily further the interests of justice. The families of both girls understandably wanted the killer or killers to be found, tried and convicted. The police believed that advances in forensic science might give them the evidence they lacked 30 years ago.
They had a suspect, Angus Sinclair, already serving time for another murder, and they had at their disposal the results of some brilliant laboratory tests, which brought Sinclair tantalisingly close to the scene of the murder.
It was perhaps this brilliance that was their undoing. The forensic team borrowed the highly sophisticated technique of “ancestral” DNA testing – used recently by London detectives to identify the origins of a small African boy’s torso found in the Thames – to trace Sinclair’s genetic “fingerprint” in a semen stain left on Helen Scott’s coat. They discovered elements of DNA in the foam mouldings used by Sinclair’s brother-in-law to redecorate a flat. Their investigation brought forward an irresistible case to demonstrate that there had been sexual contact between both men and the two girls.
The DNA evidence fell apart, however, when it came to proving that, as well as having sex with the girls, Sinclair had murdered them.
Both had been strangled, and the ligatures used to kill them were tested, using an ultra-sensitive low-copy DNA profiling technique. The results of this test were described in a forensic report as “moderately strong evidence” of what might have been expected if Sinclair had been involved in tying the knots. But before it could even be put to the judge, the prosecuting counsel withdrew it. By that stage it had become clear from the judge’s comments that the case would not stand up, that evidence of abduction, rape and murder was not strong enough.
The decision has inevitably caused controversy, but when, last week, the chief prosecutor – Scotland’s Lord Advocate – came before the Scottish Parliament to explain in the grimmest of detail why the case had nevertheless been launched, she admitted that the DNA evidence amounted only to “low probability”.
Neither “moderately strong” or “low probability” sounds like cast-iron testimony. And if that difference of opinion can apply to a high-profile murder case, where experts have pored over the evidence for many months, how much more likely it is that overworked and overstretched police will get it wrong when it comes to more common cases of rape, robbery and criminal assault.
Because of this fatal imprecision, it would be wrong to continue including the DNA profile of every suspect, whether eventually found innocent or guilty, on a national database, as happens now in England, Wales and Northern Ireland. This week, the Nuffield Council on Bioethics said that it was unacceptable for police to store records taken from suspects who are later acquitted or never charged. That way, it concluded, innocent people could come under suspicion, without any great benefit to criminal justice. Downing Street, by contrast, believes that not only should the present system be maintained, it should be extended to include people suspected of minor crimes such as traffic offences and dropping litter. The gap between that and a DNA database that carries the genetic records of every citizen in the land is becoming steadily narrower.
DNA has been of huge value in solving a wide range of violent crimes, providing unexpected solutions to past mysteries and bringing comfort to the families of victims who yearn for justice. It is not, however, as reliable as we would like to believe, and it remains just one weapon in the armoury of detection rather than the magic solution to every unsolved case.
Magnus Linklater's journalistic career spans 40 years, taking him from editor of Londoner's Diary at the Evening Standard to editor of Spectrum and the Colour Magazine at The Sunday Times and editor of The Scotsman. He joined The Times in 1994 and writes a weekly column on Wednesdays. He was chairman of the Scottish Arts Council from 1996 to 2001, and often writes on Scottish issues
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Suspect that one of the long-term casualties of the McCann case will be the public's unquestioning confidence in the reliability of DNA evidence.
"Nobody expects the Portuguese Inquisition. Our main weapon is fear. Fear and surprise. Our two ..."
There you go, guys. Now pick up the ball and run with it.
Andrew Milner, Yokohama, Kanagawa
Unfortunately for Zac, fingerprints and DNA are not remotely comparable. Fingerprints may be partial or blurred, but no one has two prints on one finger. But there is plenty of evidence from the USA that some people may have more than one DNA type, and hence may test negative when actually guilty. Very little is known about this phenomenon. It has only so far been found in a few cases of children who are not by DNA tests their own mothers offspring. This may be extremely common and may acount for some of the high proportion of children who appear to have been fathered by a man not their mother's partner.
False positives must be rarer, but still do ocur, especially when the DNA of the victim is no longer available (as in the case of missing persons) but has to be reconstructed using that of close relatives.
alexandria, Sheffield, UK
This article is certainly highly persuasive, leading us to believe that DNA indeed is perhaps not as accurate as we are led to believe, and it raises two key issues. Firstly, a distinction must be made between the precision of DNA testing per se, and its potential to solve a case. The technique is undoubtedly very important for recording data, which later can be used as evidence material, but its effectiveness in a trial may be compromised. âModerately accurateâ is, therefore, very accurate as far as testing is concerned, but nevertheless less so when it stands up in court. If the testing itself is
âmoderately accurateâ, or even less precise, then it should not be relied upon under any circumstances. There are many factors that make the testing far less efficient in the first place, partial or incomplete samples being most common. If DNA evidence was all that prosecutors could rely upon, where would we be today? Thank goodness for footprints, forced entries and shattered windows.
Marcin Roth, London , UK
But, my dear Sir, Holmes did not say those things you say he said. Arthur Conan Doyle said them. And he (Dr Conan Doyle) had the singular misfortune of being born much too early in the game and so had no opportunity to consult Drs Watson (no relation) and Crick. After years of pushing DNA fingerprinting as the best thing to happen to the science of evidence since Holmes' magnifying glass, and (to my knowledge) sending at least one man to the chair, now we are told it was all hulla-baloo. Why, because a beautiful blonde, blue-eyed British girl goes mysteriously missing in foreign lands?
Sarbo, Calcutta, India
"Given the obvious suspicions of the Portuguese police, one can only deduce that, had the DNA links stood up, the McCanns would already be on their way back to face further questioning."
You don't know anything about Portuguese criminal procedure, do you?
Isabel PS, Brussels, Belgium
i dont think the scientists, nor the inspectors thought that dna evidence would solve every case - it is indeed only a weapon in an armoury. but it shows misunderstanding to call the technique unreliable. unless, like a fool you will 'rely'on it to solve your case by its mere existance. the technique is reliable - if a persons dna links them to a scene, the link is solid. it is non falsifiable. the public will rely upon it as rationally as they see fit
Ewan, Aberdeen,
Your premise that DNA is not reliable - is just plain wrong. There are obvious cases in which it may not be used, but overall it it completely reliable - and virtually perfect !!!
A criminal database of DNA will and has solved many crimes, and also cleared many suspects !!!
It is simply wonderful !!!!!
Dick Raddatz, Northridge, USA / California
The solution to the problem of DNA being 'far from foolproof' evidence is not to refuse to record the DNA of suspects accused of minor offences (which is an illogical step which would lead to hundreds of murderers, rapists and other serious offenders going undetected who otherwise could have been caught), but for judges and juries to exercise more prudence in basing convictions on it and to improve the reliability of the science of DNA testing.
Andy, Oxted,
DNA should be, and is, used in conjunction with other forms of evidence such as statements as to where the defendant was at the time, witness statements for both the defence and the prosecution, circumstances of the case and possible motives. People often forget that DNA is also be used to prevent people from being wrongfully convicted or implicated in a crime. For example, if you are accused of a crime you did not commit, you can often use DNA evidence to strengthen your defence that you were not the perpetrator.
Karl Chads, London, UK
It is not hard to imagine that the police will develop a strong interest in arresting (if not prosecuting) people for a whole string of trivial offences if they are encouraged or able to expand a national DNA database by so doing. Never mind potential miscarriages of justice, this would lead to misuse of police resources, at the very least.
Simon Richards, Brussels,
Those wishing to maintain, or even expand on, the current DNA database are guilty of refusing to accept their own ignorance. That they are ignorant is possibly excusable: to pretend that they are not is quite inexcusable.
Terry Dell, Weybridge, UK
There is some severely flawed logic here. The fact that a partial fingerprint is not sufficient to convict a defendent does not detract from the effectiveness of fingerprinting in general.
Likewise the fact that you cannot base an entire case on a partial DNA sample does not detract from the utility of DNA testing or a DNA database in general.
Zac Smith, London,
Consider this. In 2020 an elderly female neighbour suffers a minor fall outside your house. As a result, you assist her, invite here into your house for a cup of tea and later carry her shopping home and put it away for her.
Two days later she is murdered in her home. You then spend 3 days in custody being interrogated. Suffer a stigma that is never totally eradicated and why? Your DNA was found in the neighbours home and is on the national database due to a speeding ticket in 2008.
Plod has decided the crime is solved and all that is required is a sweated confession.
chris, Dudley,