A Broken Angel: Alicia O'Reilly cold case. Video / Mike Scott
The Privacy Commissioner has asked police to pause future use of a controversial DNA tool being trialled to solve two cold-case murders until there is legislative reform.
The Herald earlier revealed police were trialling a genetic investigative tool for two of the country’s most high-profile cold cases - themurder of Alicia O’Reilly in 1980, dubbed Operation Sturbridge, and Operation Dallington, the inquiry into the murder of Mellory Manning in 2008.
Law enforcement agencies overseas have had success comparing the DNA of unidentified suspects with genetic profiles uploaded to popular genealogy websites, most famously leading the FBI to catch the so-called “Golden State Killer”.
Forensic Investigative Genetic Genealogy (FIGG) combines DNA testing with genealogical research to analyse genetic relationships between individuals who share very small amounts of inherited DNA with the crime scene DNA sample using genealogy databases and publicly available records and is being used internationally to help solve cold cases and identify human remains.
To meet New Zealand conditions, the Institute of Environmental Science Research (ESR) ensured that all physical sample testing was completed in New Zealand and extractions of the digital genetic code would be provided to a third-party international service provider. This meant no physical DNA material would leave the country.
In an email to then Justice Minister Ginny Andersen on September 5, the Privacy Commissioner Michael Webster outlined his concerns about the trial.
Nancye O'Reilly with a portrait of her youngest daughter Alicia. Photo / Alan Gibson
A review by the Law Commission, published in November 2020, found the Criminal Investigations (Bodily Samples) Act was “no longer fit for purpose” and made 193 recommendations for change.
Given the significant privacy concerns around turning users of ancestry websites into unwitting “genetic informants” against their relatives, the Law Commission said any new legislation needed appropriate safeguards for police to use genetic genealogy. To date, no progress has been made on changing the law.
Webster said he was “supportive” of safe use of emerging techniques to assist police investigations if it was “justified and proportionate”.
However, he had concerns about the use of FIGG without an “appropriate legislative framework in place”.
“In my view, the best course of action would be to pause the use of FIGG beyond this trial until there is legislative reform in this area. Genetic data is highly sensitive personal information, not only for individuals, but also for their whānau.
“FIGG can be useful to create investigative leads; however, it is a technique that raises a number of ethical and privacy issues.”
Webster said he had previously discussed with police that any trial should be aligned as much as possible with the recommendations in the Law Commission’s report.
Mellory Manning was murdered in 2008.
“I would be very concerned if this trial were to lead to use of FIGG generally before appropriate legislative safeguards are put in place,” he said.
“I am conscious of the precedent-setting effect of the trial and the risk of extending the use of FIGG against the Law Commission’s recommendations and the advice of my office.”
In a briefing to Andersen about the commissioner’s concerns, police wrote that while the Government had agreed that a new act was required, this would require “considerable work” and its priority had yet to be confirmed.
Privacy Commissioner Michael Webster.
“Legislative reform is often a lengthy process and police considers that there is a balance to be struck between using new and emerging techniques to aid with serious crime resolution and waiting for legislative reform processes to be undertaken.”
An evaluation at the end of the trial would be undertaken to assess the effectiveness of the pilot for future police investigations.
“Police will continue to engage at a senior level with [the commissioner’s] office to ensure that, where possible, concerns can be addressed or allayed while also balancing the rights and needs of the families of those who have strong interests in seeing these cold cases resolved.”
Police Minister Mark Mitchell told the Herald police should look at the viability of any investigative tool that could assist them to solve crimes, identify offenders and support victims.
Sam Sherwood is a Christchurch-based reporter who covers crime. He is a senior journalist who joined the Herald in 2022, and has worked as a journalist for 10 years.
Jared Savage is an award-winning journalist who covers crime and justice issues, with a particular interest in organised crime. He joined the Herald in 2006, and is the author of Gangland and Gangster’s Paradise.
