Author: Helen Wallace

The DNA Technology (Use and Application) Regulation Bill, 2018 (DNA Bill) has been introduced in the Parliament this week, with a view to creating a national DNA database for use by the police in solving crimes and identifying missing persons.

Issues with the DNA Bill:

• Complexity of DNA examination – using DNA effectively during criminal investigations requires proper crime scene examination, trained and reliable policing, a trusted chain of custody of samples, reliable analysis, and proper use of expert evidence in court. Non-effective handling of data can lead to problems like mismatch/planting of evidence or false implication. Therefore to ensure no mistake occurs in the process, the requirement for laboratory accreditation in the Bill should include quality assurance for crime scene examination. There is an need for an independent forensic science regulator to ensure oversight of both laboratory quality assurance and crime scene examination. Elimination database for the examiners/laboratory workers is also required so as to ensure that contamination of evidence during the process of collection can be checked.International evidence shows that the success of a DNA database is driven primarily by the number of crime scene DNA profiles loaded on to it, not by the number of DNA profiles from individuals, so proper crime scene analysis should be the top priority.
• DNA Regulatory Board – The DNA Bill proposes a DNA Regulatory Board which is too powerful and less transparent/accountable. An independent ethics committee should be set up to check the conflict-of-interest of the members of the DNA Regulatory Board whose findings must be available to the public.
• Privacy concerns – The DNA Regulatory Board is responsible for the privacy of the data collected and this too must be ensured by means of an independent regulator in the light of the recent right to privacy judgement. The DNA Bill, in addition, also needs to introduce the need to restrict DNA profiling so that it uses only non-coding DNA, a commonly used international standard for one, which prevents the use of parts of the DNA which code for personal characteristics, including medical conditions. Also, any international sharing of DNA profiles should also be covered by a privacy or data protection law, and meet international human rights standards.
• Destruction of DNA Sample – the Bill includes provisions for the destruction of DNA samples and removal of innocent people’s DNA profiles from the database. However, the removal of innocent people’s records is not automatic, and some samples will be retained by the police. Detailed rules must be framed for such retention of data.
• Separation of data collected for civil and criminal uses: Data being collected for criminal cases must be strictly separated from being collected to be used for civil uses (e.g. finding the missing relative of the person) so that people who volunteer their DNA to help find their missing relatives are not treated as suspects for criminal offences.
• Deletion of provisions allowing the use of these databases for civil cases (e.g.for example to test paternity) – To maintain trust in the system, people should not be concerned that non-paternity might be revealed if they offer to assist a criminal investigation, or are accused (perhaps falsely) of a crime.
• Volunteers and consent of the DNA data provider – Volunteers must be fully informed about future storage and uses of their genetic information before they give consent. Also, detailed provisions must be made with respect to the collection of data without the consent of the accused (in case of serious offences).
• Cost – The cost of maintaining a DNA database in the DNA Bill seems to be underestimated. The financial memorandum to the Bill estimates that there will be a one-off cost of Rs. 20 crore to set up the database, with annual costs of Rs. 5 crore to maintain it. This is completely unrealistic: for comparison, the U.K. National DNA database cost £3.7 million (around 33 crore rupees) to run in 2015-16.

Read the full article at The Hindu.