What’s in the DNA ACT; A Practical Assessment of the Remit of the DNA Evidence Act of Jamaica 2016 AND Issues of Admissibility in Criminal Law OBJECT OF THE PAPER: the purpose of this paper is to focus on the themes, which may be of interest to the criminal practitioner. These issues are situated within a general overview of the Act but without delving into any depth outside the given sphere. Mention of the desirability and constitutionality of some aspects of the Act will be interwoven with the other issues to form a minor part of the discussion. Particular focus will be placed on issues relating to the admissibility of DNA evidence in criminal proceedings that the Act addresses. INTRODUCTION The DNA Evidence Act 2016, 1 was enacted on the 17th of February 2016 and commenced shortly thereafter on 1st March 2016. 2 The short period between the enactment and the commencement is certainly surprising. Before the commencement was possible there would have been a lot of preparatory work to be undertaken. The work existed not only in the creation of guidelines/regulations 3 governing its use, but also the prescribed forms required to streamline its operation. There was and is a continuing need to ensure that the forensic laboratory as well as the police are in a position to address the increased volume of work that is to be undertaken. There is also the requirement for training and dissemination of guidelines for the ‘relevant persons’, who have been given power to carry out different aspects of its mandate as well as the education of the citizenry. Jamaica is not alone in the endeavor to create DNA laws and a databank. In fact Jamaica’s foray in the enactment of DNA laws and the establishment of a databank can be probably described as late. Countries such as the UK, USA and many of the members of the European Union, have long established or at least recognized an obligation to create DNA laws and a DNA databank. Similar to the acts of the other countries mentioned, the Act allows the police to take advantage of the developments in forensic science as it impacts on detection and prosecution of criminal offences and the corresponding effect on public safety. Some of the benefits no doubt expected are: positive impact on
Considering the length and compendious nature of the Act a contents section would have been welcome. 2 See Jamaica Gazette Supplement Wednesday February 26, 2016. 3 See Jamaica Gazette Supplement Vol CXL, Fri March 31, 2017, No 23A, ‘DNA Evidence Form Regulations. 1
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crime detection by increasing detection rates, achieving efficiencies in the conduct of investigations, better use of police resources, decrease court time due to early guilty pleas where the DNA evidence is available and, the making of cold hits. 4 It may possibly deter persons whose profiles are already on the database from reoffending. Within the remit of the Act lie the creation, consolidation and maintenance of a forensic databank called the ‘National DNA Register’. The purpose of the databank is to store, process and retain data from bodily samples. The bodily samples would have been taken for purposes of investigation, identification, and intelligence gathering. The DNA Evidence Act applies to offences allegedly committed before, on or after the commencement date of the Act. 5 The Act provides two options in relation to what is to be done with the sample and the data obtained from it; either they are destroyed or they are retained in accordance with the regime laid down by the Act. The DNA Act contains 72 sections and is quite comprehensive in the sphere of its influence. In essence the Act; • Creates a statutory regime for the taking of bodily samples ‘for use as evidence in criminal investigations and proceedings’ • Provides for the establishment of a DNA database, ‘National DNA register’, for the specific use of the police as an intelligence source for criminal investigations • Provides that the database can also be used to find missing persons and identify unknown persons • Provides for the taking of samples for the purposes of the DNA database system • Provides for the establishment, management and oversight of the system • Regulates the taking of samples from volunteers in connection with the investigation of offences • Provides for the retention and destruction of samples In essence the Act either appears to have conflated two important regimes; the taking and retaining of samples for evidentiary purposes that is to prove or disprove a person’s involvement in the crime for which they have been arrested and the taking and retaining of samples for DNA database system. The potential access to the bodily sample before charge, allows the DNA to
Where a stain is matched with a profile of a person on the database who is not already a suspect and the identification of missing persons, seriously ill persons or deceased persons. 5 See section 3(1) 4
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provide for both inculpation and exculpation. 6 The two regimes overlap each other and there is no clear line of distinction. The lines of demarcation used in the Act rest not so much in what the sample is used for but more so from whom it is obtained. The regime regulates the obtaining of forensic samples for a restricted number of purposes, and in the event of a refusal, in some circumstances, to forcibly take the sample. The use of force is permissible for non-intimate samples without a court order. Force by virtue of a court order may be used to obtain either intimate or non-intimate samples which otherwise would not have been likely to be obtained. The Act does not directly regulate the collection, use or destruction of forensic material found at a crime scene. The principal purposes of the Act are stated under section 4. SECTION 4 a) Taking of samples from persons suspected of criminal offences for forensic testing [for investigative purposes] b) Taking of samples of persons convicted of criminal offences for forensic testing [for intelligence purposes] 7 c) The taking of samples from convicts or suspects of certain criminal offences for the generating of profiles for the investigative division of the DNA Bank d) Regulating of the taking of samples from volunteers for the investigation of probable offences e) Taking of samples for elimination and probability of being entered into the register f) Taking of samples to identify missing or unknown (deceased) persons g) Establishment, operation and maintenance of the Data Bank by the Forensic Institute h) Retention or the destruction of samples and the profiles generated from the Data Bank SECTION 8: The database is divided into two named divisions, the investigation and the identification divisions. Each division serves a different purpose. However the same information may be loaded onto more than one division. The investigation division is geared toward investigating suspected crimes. Meaning the purpose of the data being entered into this division is to
Are the regulations going to make provision for being offered bail before charge like the UK or. 7 Writer has inserted ‘for investigative purposes categories a and b. They are the only category where the act does not specifically enumerate the purpose, however that appears to be the purpose. 6
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prove or disprove an alleged suspect’s involvement in the crime being investigated. The identification division is for the purpose of identifying persons that are unknown, be they dead or alive and to assist in finding persons who are missing. Though only two divisions are stated in the Act, the Minister is given power to create any further division deemed necessary by order published in the Gazette. This paper is focused on the investigation division. The investigation division is divided into a number of component parts called indices. The indices and their functions are listed for ease of reference. INVESTIGATION DIVISION OF DNA REGISTER • indices of DNA profiles • information used to identify persons to whom profiles belong • registrable particularseg. non-/intimate to samples used generate dna profiles • the Act is retrospective so the provisions cover samples taken earlier but not destroyed
INDICES Reference Index- dna profiles generated from known persons before and after the coming into effect of the Act
Crime Scene Index – dna profiles generated from samples taken from ‘crime scenes’- term defined in act Suspected Person Index- dna profiles generated from suspects of relevant offences Convicted Person Index- dna profiles from persons convicted of relevant offences Volunteer Index- dna profiles from consenting persons in relation to a specific offence(s) being investigated Elimination Index –dna profiles from persons present at crime scene but not suspects [police, crime scene examiners etc] Satistical Index- dna profiles from all the other categories plus those taken under eg. agreements between countries
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Any other Index – power given to Minister to create other indices by order published in Gazette (8(2)(h) PURPOSE OF SEARCHES AND THE NATURE OF SEARCHES ALLOWED Section 6 purports to list the purpose and nature of searches for which the National DNA Register is to be used and is worth reproducing here. The National DNA Register shall be used for purposes relating to; Forensic investigations- primarily (but not limited to) in the investigation and prosecution of relevant offences Human identification Administration of justice Facilitation of a review of an alleged miscarriage of justice (matters on appeal?) Compilation of statistics Enable Custodian to carry out his functions Any other purpose specified by the minister by publishing in the Gazette Section 6 despite the enumeration of factors, is quite wide in its allowance for searches. Between forensic investigations, administration of justice and the minister’s ability to expand the categories, very little if any escapes its probe. This takes on even greater significance when we look at the equally wide width of the defined ‘permitted searches’ under section 12. Section 12 permitted search - The purpose of this section appears to be to assist in circumscribing the use to which DNA profiles generated under the Act can be used. However arguably the section seems wide enough to allow for almost all types of searches and comparisons to be made. Under Sections 12(3) profiles can be compared with all the profiles in the indices in the investigation division and by virtue of section 12(4), profiles can be compared with every profile in the entire DNA Registry/Databank. Section 12(5) goes further to note that for the purpose of intelligence gathering all profiles can be crosschecked. However it interposes between this exception and its use, the court’s authority. Without qualifying what are the ‘court proceedings’ in which the results can be used, it notes that the court, using the test ‘that the usage must only be in situations where the probative value outweighs the prejudicial effect’, must decide if the use is permissible or not. The matter is taken even further in 12(7), which makes wider provisions for searches in that a profile, though not in any of the divisions of the Register can be compared with a profile from the Register. The provision does not delineate the circumstances in which this can be done.
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It is submitted that the real limitation, is not so much in the restricting the permissible searches but more in the entrusting of the search process to a limited known and defined set of persons. 8 Breach of section 12 inter alia, is punishable under section 51. The provision of section 51 addresses the issue of a 3rd party accessing the database, misuse by authorized party or the database being made the subject of discovery orders in non-criminal matters. 9 The three sections, 6, 12, and 51 it appears are intended to work together to protect the system from abuse from inside or outside. In reality 6 and 12 are so generously defined themselves that they inherently limit the protection they offer.
DNA SAMPLES TAKEN FOR INVESTIGATORY AND INTELLIGENCE PURPOSES Investigatory purpose- refers to DNA samples taken during investigations to prove or disprove a person’s involvement in a crime. Whereas intelligence purpose is in relation to samples/profiles already stored in the Registry being compared to crime scene samples. DNA taken for investigatory purpose/ taking of bodily samples for forensic purposes from persons suspected of relevant criminal offences
Taken with consent of suspect in writing, upon the authority of authorized officer after informing suspect of purpose of sample, his consent is necessary and must be given in presence of lawyer/JP Precondition to sample-Officer must reasonably believe suspect
No provision for ultimate refusal to give sample; Officer must also explain- what the effect of the refusal by suspect of such consent could be No provision for the court to support the inference of guilt from unreasonable refusals
There are also stated circumstances in which information on different indices may be compared with information from other indices. For eg. Profiles in the elimination index should be compared only in the circumstances allowed under the act 9 although the latter seems possible under the terms of the Act. 8
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involved AND sample will tend to confirm or disprove belief
DNA taken for DNA databank purpose ‘ samples taken as ‘intelligence resource’ Suspects are exonerated where their profiles are already on the database but they do not match a crime scene stain
DNA profiles from the samples taken of both known and unknown individuals, as well as crime scene stains are stored and are used to facilitate speculative comparisons between the different sets of profiles
Production of matches between crime scene stains (serial offender) AND/Or Between crime scene stains and individuals (possible suspect) Thereby producing investigative leads
HOW DOES AN INVESTIGATORY OR INTELLIGENCE PROFILE BECOME UPLOADED TO THE DATABASE?
RESOURCE
The five categories stipulated under the Act for a profile to lawfully uploaded on the database are profiles generated from samples taken where a person is; 10 •
arrested for a relevant offence 11
•
charged for a relevant offence summoned for a relevant offence already an offender in relation to a relevant offence a volunteer in the investigation of a relevant offence
SECTION 2 – Defines what is a ‘relevant offence’. All the named categories have in common what is called a ‘relevant offence’. A relevant offence is the
It would appear that samples taken for elimination may also be stored. However the paper is not considering this aspect. 11 Then what becomes the status of the arrested suspect while awaiting the results of the dna test? Is he in custody? Is there going to be a situation with bail being granted before charge like in the UK? Or does this category consider only the convenience of the state to get the dna sample before the inevitable charge is laid? 10
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determinant as to the gravity and nature of the offence. 12 Therefore if the offence is not a ‘relevant offence’ there is no obligation to take a sample. Any suspect or convict must meet the ‘relevant offence’ threshold before a sample gets taken and the resultant profile uploaded to the investigation division of the bank. That is they must be convicted or suspected of a relevant offence. A relevant Offence “ Is an offence punishable by a term of imprisonment’. This is really a wide categorization. Without imposing its own minimum term of imprisonment the Act is of wide application with perhaps only a handful of statutory summary offences falling outside its reach. The term ‘suspect’ itself is also widely defined in section 2. ‘Suspect’ covers 3 different categories of persons; a person arrested; a person charged or a person summoned in relation to a relevant offence. Both defined terms ‘relevant offence’ and ‘suspect in effect are quite generously defined to bring an impressive number of persons within the application of the Act.
THE REGIMES IN RELATION TO TAKING OF SAMPLES:
PERSONS DETAINED SECTIONS 14,15 -21 Specific rules are created for the taking of samples from discrete categories of persons. The categorization is structured on whether the person is in detention, but also whether the sample is intimate or non-intimate. It lays down rules of general and specific application in relation to preconditions that must be met before requesting and taking of the samples from adults, children, protected persons etc. There is an involved regime of protection especially offered to children under sixteen and protected persons. [See table at end of paper] REGIME FOR INTIMATE
REGIME FOR NONINTIMATE dental material Saliva, buccal swab pubic hair non-pubic hair Blood, urine, semen, a nail tissue fluid obtained by material found under breaking the skin; nail skin impression
COMMON FEATURES Taking authorized by ‘detention officer holding necessary belief that the sample ‘has evidential value’
This is the attempt to comply with ‘the restriction factor’ noted in the opinion in Marper, infra, regarding the need for database law to not indiscriminately make ALL offences subject to collection of DNA samples, see infra. 12
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swab/ wash/sample from genitals or any other bodily orifice except the mouth; foetus or products of conception 13
swab/wash/sample taken from any place other than that from which an intimate swab/ wash/ sample taken
Suspect informed reason for the taking of sample Suspect informed may be given in evidence
Requires written consent; in absence of consent must get court order and then can be taken with reasonable force Must be taken by qualified person
Requires written consent however in absence, can be taken with reasonable force without court order
No provision made for suspect to refuse and instead a possibility of an inference being drawn against him Giving of consent must be witnessed by Justice OR of the Peace Attorney at law representing person
Taken officer
by
detention
VOLUNTEERS- VICTIMS, WITNESSES AND THOSE INVITED TO VOLUNTEER FOR ELIMINATION Section 27 Part V – Volunteer- any one who does not fall under any of the other discrete categories under the Act may be a volunteer. A volunteer is a person over 16, or the parents of a child, guardian of a protected person, who volunteers to give a sample under the Act. Therefore a volunteer, may be inter alia, the presumed victim of the offence. The taking, use, retention or destruction of samples and profiles obtained from victims is delineated under the Act. The victim must give informed consent in writing before the sample can be taken. The consent given circumscribes the remit for which the sample is given and therefore should be used. The officer is also required to inform the volunteer inter alia, that the purpose of the sample is for the investigation of the relevant offence to which it is being taken. 14 Correspondingly, a volunteer can also withdraw his/her consent to give a sample without necessarily having any adverse inference being drawn against him. The withdrawal, like the consent must also be in writing. The adverse inference that may be drawn is, the officer where applicable uses the refusal as basis for forming a reasonable suspicion that the volunteer is involved in the committal of the offence.
See interpretation section ‘intimate sample- the definition is not exhaustive and uses the language of ‘includes any of the following..’ 14 It is expected that the consent form for signing will reflect inter alia all the information requirement in subsection 27(3) 13
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It is not clear what is the true import of 27 (d), that the sample and profile may be destroyed or retained in keeping with the general provisions for retention and destruction in the Act. The sample that was given solely for the purpose of investigation, it appears, may be used more widely than the victim intended. It must be further borne in mind that the ability to withdraw consent is irrevocable after the sample is taken. Further it would appear that Part X of the Act, dealing with the mandatory or upon application, removal and destruction of sample/profile, is limited to a group of persons, in which volunteers would not necessarily fall. The state at the time of consent informs the volunteer that the profile will be uploaded to the DNA register and a search conducted in relation to the specific offence. By virtue of 27(3)(d) the state is also required to inform the volunteer of its retention/destruction policy. The volunteer if he really wants to give the sample for the limited purpose of investigating the crime effectively has no choice. The fact that the profile may be retained on the database, beyond the specific investigation is a concern. It seems that section 27 acts as a back door method, motivated by practical convenience of the state, ‘under the pretext of consent’ of populating the database. It does so by creating the potential to permanently retain the sample/profiles of persons who had consented to the giving of samples/profile in limited circumstances. A criticism of a similar provision in UK 15 , which also results in a possibly permanent retention of volunteers’ sample/profile, can also aptly apply to the Jamaican provision. “The lack of evidence on the efficacy of keeping volunteer samples, and the potential risks and impact upon privacy, lead to questions of necessity and proportionality and the benefits of keeping such bio information ‘just in case’. There should be special consideration when a minor gives the consent, with an appropriate adult countersigning the form. There is a particularly strong case that the minor should be able to revoke the earlier consent upon reaching adulthood. Such considerations also pertain to mentally impaired adults.” 16
Section 29 Part VI -OFFENDERS AND FORMER OFFENDERS Offenders and former offenders, though treated with in the same section do have different regimes accorded to them. The difference in the regime could be readily justified based on the differences in their status.
The volunteer at the time of consent should be told profile generated maybe retained or destroyed under the Act. However the consent is irrevocable. 16 http://nuffieldbioethics.org/wp-content/uploads/Bioinformation-Chapter-4Criminal-investigation.pdf 15
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OFFENDER: An offender may fit into a number of different categories of person. The categories are, persons who have been convicted of a relevant offences and;
At the time the Act came into effect the offender is serving a sentence or on a temporary release or on suspended sentence Whether convicted before or after the Act, the offender is not sentenced until after the Act commences The offender to who either of the first two conditions apply And who on or after the Act came into force is subject to Part VII of the Sexual Offences Act
The samples are to be taken before the expiry of the relevant sentences, in the prison or outside as the case requires and force in keeping with section 33 maybe used to procure the sample. Juveniles serving detention in centres also fall within the ambit of these provisions. Section 31 Part VI –Former Offenders – The scheme in relation to former offenders is more measured than that for offenders. Convicted persons may be requested to give a sample where, based on the view of an authorized officer, having a sample from the person is in the interest of protecting the society And having the sample is something desired by the police in the investigation of offences. Where the former offender accedes to the request then the provisions under sections 20 and 21 become applicable. The catch in relation to the former offender is that in the face of his refusal a court order may nonetheless be sought. However the police has a high threshold to meet in securing the order as set out in 31(6). There are no provisions in the Act regarding the informing of persons of a right to be present at the hearing/to oppose the application etc [perhaps it is to be addressed in the regulations]. On the other hand section 31(9) however an offence punishable by imprisonment where a former offender fails to obey the order of the court to give the sample. ABOLITION OF THE COMMON LAW PROCEDURE WHEN THE ACT TAKES EFFECT Section 18 – Taking of Samples from Persons in detention ‘Subject to this Act, a detention officer shall not, after commencement date, take a sample, or cause a sample to be taken, for forensic testing from a person who is detained for a relevant offence other than in accordance with this part’ This provision has abolished the common law as it relates to either the taking of a sample or causing one to be taken from a person ‘detained for a relevant
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offence’. If detainee under the Act is being used to refer to any person 17 the subject of a sample taking exercise, then every person concerned in the giving of a sample is covered by this provision. The section obviously does not have retrospective effect and all voluntary samples given before the commencement of the act are not affected. The stance of creating one homogeneous method by which samples are to be taken has merit even though it eradicates the possibility of resort to the relatively simpler procedure under the common law. However the operation of the common law and the Act simultaneously would likely result in further issues pertaining to admissibility. 18
GENERAL COLLECTION OF DNA SECTION 61 – CODIFICATION OF COMMON LAW POWER TO COLLECT DNA FROM ANY OTHER SOURCE AVAILABLE [INCLUDING THOSE FOR WHICH A WARRANT IS NECESSARY] This section makes it clear that the collection of DNA goes beyond the body of a person. A detention officer 19 is able to search ‘any place’ in the hope of recovering DNA material. Once there is reasonable belief that the person had contact with the items, a detention officer may seek to collect DNA from such items. The admissibility of dna from ‘any place’ had always existed at common law. 20 However the police did not necessarily have access to same.There section 62 dealing with a warrant, becomes relevant. The power exists whether or not the items belong to the person or even form part of the ‘crime scene’. The State can, in the procedure of arresting and taking suspect into custody, obtain clothing or items from suspect and send them for testing. The State could also obtain DNA from items used and ‘abandoned’ without it being seen as breaching any particular right of the detainee; eg the coffee cup, toothbrush, hair brush etc, the examples we usually see in the movies, without a warrant. 21
SECTION 62 - DNA WARRANT
Excluded from the definition of detainee are perhaps ‘volunteers and persons for elimination’. 18 See DPP v Michael Boyce IE CCA 143. 19 The term ‘detention officer’ is broadly defined in the interpretation section. 20 Adair v McGarry, 1933 JC 72 Lord Justice general Clyde at p 78 21 However see sections 61 and 62 of the Act dealing with the obtaining of DNA samples from clothing personal belongings even if a warrant is required to obtain these items 17
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A Justice of Peace is empowered to issue a warrant for the recovery from ‘any place’ of material believed to contain DNA. As can be seen, the power of search by the police, is circumscribed by the legislators interposing the Justice of Peace between the police and the right to privacy. Before the power is exercised the Justice of Peace himself is required to be objectively satisfied that the following pre-conditions to the issuance of the warrant are met; He receives information on oath The information leads him to believe that reasonable grounds exist to; Believe that in a particular specified place DNA material exists The DNA material may be relevant in proving a relevant offence Or Has been acquired by a person for, or in the commission of an offence OR Acquired as a result of the commission of the offence
SECTION 44 -ACCESS TO SAMPLES AND PROFILES BY THE DEFENDANT ‘Where there is or will be sufficient amount of a sample 22 for DNA analysis to be carried out by the Custodian but also by or on behalf of the person from whom a sample was taken or is to be taken, the qualified person shall, upon the directions of the Court (made pursuant to a request by the person or his legal representative) make available to a qualified person engaged at a forensic science laboratory as soon as practicable, a part of the sample that was taken sufficient for DNA analysis.’ The section seems reasonable in what it aims to achieve and the balancing exercise that must be carried out to do so. It certainly could not command the handing over of samples where there was not enough or only enough in the first place. However it is left to the Custodian and his staff acting in the interest of justice to ensure that a refusal does not become the standard response but rather, the sufficiency of the sample, as the section dictates, will be the true consideration. The section creates a request as a precondition for the handing over of samples to the defence. It would be a potential waste of resources including time, to hand over samples in the absence of any request from the defence for such a facility that they do not need. However the second limb of this request is that it has to be sanctioned by the Court. It is not clear why a court order should
See definition of sample in interpretation section of act. It covers every possible type under the Act. 22
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be necessary to accomplish a request that it is submitted, is clearly in the interest of justice to fulfill. The issue of the timeliness of the handover has reasonable flexibility. It operates so that the timing of the request is the point from which the reasonableness of the time span taken to hand it over is judged. So the person concerned could make the request at any time before, during or after the trial process. Where the request made is in relation to the person’s own DNA sample and that request is made before the sample is taken under the Act, then a question of sufficiency should not arise. Further under section 66 dealing with the creating of Regulations, the Minister may make regulations dealing with (g) communication or request for profiles and information and (k) the fees and other charges payable in respect of any service provided under the Act. DNA evidence has become a powerful tool in exonerating persons wrongly convicted of criminal offences. Where DNA testing excludes the convicted offender as the source of a DNA sample found at the crime scene, sufficient doubt of guilt may be established to overturn the conviction. For example, in a sexual assault case involving one offender whose DNA sample is found on or in the body of the victim, DNA testing that excludes the person convicted of the offence as the source of the DNA would provide substantial doubt as to guilt. It is submitted that persons already convicted may increasingly requests dna testing where applicable. A person might seek to access the original crime scene sample for analysis to overturn his or her conviction where: • the person was convicted before DNA technology became available; • more sophisticated DNA technology subsequently has become available; • the prosecution omitted to test and analyse, or to introduce as DNA evidence at trial 23, a sample found at the crime scene for the purpose of the trial; or • the defence failed to question the nature, quality, probity or presentation of the DNA evidence at trial. The issue of access to the DNA profiles from analysed samples already on the system would be addressed at common law as well as the statutory underpinnings of the Act. Apart from the general rights to disclosure 24 that the
See Christopher Murray v Regina, 2012 JMCA Crim 20 ‘exonerating dna in buggery case’. 24 R v Ward The defence has a right to disclosure of all material that tend to weaken the prosecution’s case, strengthen the defence’s case, open a line of enquiry in either of these directions, Plus all material matters which affect the scientific case relied on by the prosecution, that is, whether such matters strengthen or weaken the prosecution case or assist the defence case. 23
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defence has at common law, Section 6 of the Act lists one of its purposes as that of the ‘administration of justice’ as well as the further purpose under section 6(d) of ‘Facilitation of a review of an alleged miscarriage of justice’. If an initial request for access to a crime scene sample/profiles is unsuccessful, a prisoner could seek access to the sample/profile through a court order. 25 Where the prisoner has lodged an appeal against conviction, the court may order production of the crime scene sample/profile in relation to those proceedings. 26 SHARING OF DNA DATA SECTION 11(2)f ii- Another issue addressed by the Act and which will certainly arise in the future, is the international obligation to share data obtained and retained by virtue of the Act. The European Union by virtue of the Prum Council decision 27 obliges its members to not only set up a similar database, incorporating also a fingerprinting provision, but further to share that data with members in the union. Jamaica recognizes this obligation under above quoted section. However it is foreseeable that Jamaica in service of ‘new’ obligations, will be required to provide this information outside of the scope perhaps in contemplation at the time the Act was legislated. 28
TRANSITIONAL PROVISIONS – VALIDATING THE SAMPLES AND PROFILES GENERATED UNDER THE COMMON LAW SECTION 71 – PART XIV The section creates a deeming provision that deems the samples, profiles, and registrable particulars, taken under the common law, before the Act came into effect, as having been taken according to the new law. It goes on to state that such samples/profiles/registrables particulars, including those of victims[now known as volunteers] may be retained and included in the National Register. The second feature of the section is that the said sample/profiles/registrable particulars maybe used in accordance with the Act. It would appear that ‘used’ here may be meant to include destruction/retention of the said information
See section 11(f) 3. See Australian article 27 Council Decision 2008/615/JHA and Implementing Council Decision 2008/JHA 28 http://www.nzherald.co.nz/nz/news/article.cfm?c_id=1&objectid=11126185, see similar agreement between USA and New Zealand and https://www.theguardian.com/uk/2013/jun/05/dna-genetic-data-shared-medicalresearch sharing of medical anonymised dna data apparently to combat illness among institutions across the world. 25 26
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according to the Act. However it is submitted that that definition does not pass to what would be the normal understanding of the meaning of the word ‘use’. When this view is correct then the question of removal and destruction may be left up to the practice that existed before the Act. What of the persons whose samples/profiles qualify to be destroyed under the Act? SECTION 47 -50-PART IX -Destruction of Samples and Destruction and Removal of DNA Profiles from National DNA Register Part IX details the retention and destruction scheme in respect of both the forensic samples and the DNA profiles entered on the database along with the registrable particulars attached to the profile. In the schema, profiles may be held for perpetuity unless a condition under sections 47-50 for destruction is fulfilled. The scheme for destruction is only in relation to samples taken from suspects. 29 Section 47-. The first tier addresses criminal proceedings that have been instituted and were unsuccessful and places an obligation on the State to destroy the information within 3 months. In this first tier the onus is on the State, both to destroy the information And to inform the owner of the destruction. The latter may not be as timely as the former. Where proceedings for a relevant offence have been instituted and; Person is acquitted Charge against the person is dismissed Person’s conviction on appeal is quashed and a verdict of acquittal entered Section 47(2) provides that at the instances of the DPP, Commissioner of Police or the Indecom Commissioner the court may, despite one of the conditions mentioned at 47(1) in the interest of justice, extend the period of retention beyond the three-month window. The factors, which the court ‘shall’ have, regard to are not listed. 30 There is no set period given for which the extension can be made. It is for the court based on the submissions of the parties to determine an appropriate time based on the each set of circumstances. Section 48 - The second tier addresses where no criminal proceedings have been instituted and 8 years has elapsed since the taking of the sample/generating of the profile. The onus is then placed on the owner of the material to make the application before the court, which may be contested. Where successfully contested, the court will impose a timeline, to be decided on the facts of each particular case, on the power of retention. The hearing maybe inter partes where a party chooses to oppose the application. In any
This may very well raise issues for the other parties concerned for whom there is no scheme for destruction. 30 Even though in the following section 48, dealing with the similar issue the court is mandated to use a set list of factors. 29
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event an onus is placed on the state to inform the affected party of the application for further retention. The Act is silent on this point, and this silence leaves open the facility to the State to oppose destruction even after the further time instituted by the court order has elapsed. It would contemplate then that multiple applications may be made by both parties in relation to further retention or destruction. It would appear that from 47(7), that even though section 47 speaks to the removal of and destruction of sample/profile etc. In reality while the sample is destroyed what is really done is to anonymize the information as it relates to the profile and the anonymized profile, may remain a permanent part of the bank. In S and Marper v United Kindom 31, the ECHR grappled with a number of related issues that would also arise under the Jamaican Act. S and Marper two separate persons, joined together in a common application for the destruction of their dna sample and records taken by the police. S’ sample was taken as a minor in connection with a suspected robbery attempt for which he was acquitted and Marper in connection with an incident of domestic violence which was withdrawn. The court found that the taking, use and retention of dna for the purposes of the Act was an interference with the private and family rights of the applicant. However, the scheme was in accordance with the law, pursued a legitimate aim and was necessary in a democratic society. They further held the scheme then in UK to be flawed because of the unabridged right of retention. That cannot be said of the Jamaica’s retention laws as the provisions provide for destruction where suspects are concerned. Therefore, along with other authorities, it would appear that barring some other factor, Jamaica’s provisions on the ground of retention, in relation to failed prosecutions, may withstand constitutional scrutiny. 32” PROVISIONS FOR DESTRUCTION AND RETENTION AND EXCEPTIONS TO THOSE PROVISIONS SECTIONS 47-50 The section provides exceptions for this requirement in certain circumstances. Case of Maryland v King from the Supreme Court of the United States is a case in which King was arrested in 2009 for an assault. As part of the booking procedure his DNA was taken and this linked him to an unsolved 2003 rape on the database. He appealed all the way to the Supreme Court on the basis that the dna test constituted an illegal search in violation of the fourth Amendment. In 2013 in a majority judgment the court held that the DNA test did not breach the 4th amendment and was a ‘fairly non-invasive legitimate booking
[2008] ECHR 1581 cf see the discussion regarding retention of samples and profiles from volunteers etc 31 32
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procedure. The criticism of this decision inter alia as echoed in the minority judgment is that dna taking is not necessary as a booking procedure as it is totally different from the taking of a picture or fingerprints which help in identifying the suspect. The dna results, which are not available until many times months after, do not assist in identification of the accused for the purpose of booking him, but is rather a search illegally carried out of his person to gain evidence against the will of the accused to place in the data bank.
PART II ISSUES OF EVIDENTIAL ADMISSIBILITY IN CRIMINAL TRIALS The Act is silent pertaining to the admissibility of samples taken and profiles created under the Act but in breach of its provisions. 33 In the absence of any special rules created by the Act, the common law governing admissibility in the face of the breach of statutory provisions would continue to operate. It is submitted that the court has discretion whether to admit the evidence. Cases have shown that the [relatively new] view of the court is to move away from a focus on whether the provision is mandatory or discretionary and instead to focus on the effect of the breach. See DPP v William Penn 2008 UKPC29, Leslie Tiwari v The State, PCA No 76 of 2001, R v Maitland. 34 AT TRIAL: EXCLUSIONARY RULE AT COMMON LAW GOVERNING THE ADMISSIBILITY OF EVIDENCE OBTAINED IN BREACH OF STATUTORY PROVISION DNA evidence is a form of expert opinion evidence. Opinion evidence is admissible if it is wholly or substantially based on a person’s specialized knowledge, which in turn is based on the witness’ training, study or experience. DNA evidence that is relevant to a fact in issue is admissible in criminal proceedings unless it is barred under an exclusionary rule, or by judicial discretion. 35 The court’s discretion is exercised only in relation to the prosecution to exclude otherwise admissible evidence where the prejudicial effect outweighs its
For example Part 1D of the Crimes Act of Australia provides, inter alia, that evidence obtained from a forensic procedure is inadmissible even if there has been a breach of, or failure to comply with, the provisions of Part 1D in relation to the forensic procedure or in relation to recording or use of information on the DNA database system. 34 These are cases dealing with breaches in committal proceedings/preliminary enquiries. It is submitted that the approach is nevertheless applicable 35 See Australian document 33
18
probative value. 36 Further if the court believes after weighing all the relevant factors that the admission would be unfair against the defendant, it will exclude the evidence. The test is therefor wider than the prejudicial effect/probative value test and instead focuses on the overall fairness of the trial. 37 This discretion to admit or exclude would include evidence improperly or unlawfully obtained. Further the taking of a DNA sample is seen as a search and an (allowed) breach of the person’s constitutional right to privacy. Where evidence is obtained on foot of a conscious and deliberate breach of a person’s constitutional right, the evidence is at risk of exclusion. However as Mohammed v State 53 WIR 444, analyzing Herman King v R [1969] 1 AC 304 confirmed that there is no prima facie rule for exclusion or inclusion. 38 Rather the trial judge should exercise his discretion by conducting a balancing exercise in weighing the interest of the individual against the interest of the community. The court in doing this would bear in mind the nature of the constitutional guarantee and the nature of the breach. The argument for exclusion may arise from more than one bases. It may be in relation to the taking of the sample or the breach in the statutory procedure in obtaining the sample for eg. no notice of consent in writing even though crown alleges it was given; consent not being taken in the presence of the correct persons or it may be in relation to how the sample was treated with by the lab or a failure to follow correct chain of custody procedure. 39 The Act makes repeated provisions for the taking of samples where there is an insufficiency in the first sample or it was not properly labeled. [See sections 26- person detained for relevant offence] 40 Does this mean there is no allowance for retaking under other circumstances?
Apart from the regime already set out in the statute, schedule II created by section 67 of the Act, outlines a requirement for privacy, professionalism and a minimalizing of the use of force [in taking of non-pubic hair samples]. Section 4 further makes an additional requirement for videotaping and where that is not possible the presence of a JP for the taking of samples in accordance with sections 25, 31, 33, 36, 37, 39.
R v Lobban [1995] 2 All ER 602. R v Sang [1980] AC 402 as explained in Barnes etal (1989) 37 WIR 330 and Steve Grant v R PCA No 30 of 2005 38 See also, The People DPP) v Kenny [1990] 2I.R. 110. 39 infra 40 See retaking of samples re volunteers section 28; sc 35 former offender under 31; section 38 for elimination purposes, section 43 persons for identification division 36 37
19
It is submitted that the insertion of the requirement for a recording process (audio/visual);or the requirement for third person, provides for an independent account of the process of the taking of the sample, above and beyond the statutory schema provided for in the act in relation to the taking of samples. This creates a double protection system at the sample taking stage of the process. Because of the highly probative nature of DNA evidence, it is believed that a judge is more likely to allow the evidence to be tendered. Of course if the judge does allow the evidence he must tell the jury of the breach or failure to comply with the legislation and give whatever warning about the evidence that is appropriate in the circumstances. SECTION 49(2) - INADMISSIBILITY OF SAMPLE/PROFILE THAT SHOULD HAVE BEEN DESTROYED ‘Where a sample or DNA profile that is to be destroyed in accordance with this Act or removed from the National DNA Register is not destroyed or removed, the sample or DNA profile shall not be admissible against the person from whom the sample was taken’ The effect of this provision it may be argued is to exclude, regardless of its probative effect, the DNA sample/profile that should have been destroyed if it were being sought to tender that sample/profile against the person from whom it was obtained. It would appear that the section is conclusive of the issue and leaves no ‘interest of justice’ discretion to the remit of the judge. However the proscription bar is limited in its scope in a number of ways.
The bar is limited only to that particular sample and the profile it generated.
The bar operates only in favour of the person the sample was taken from. It does not bar the evidence in relation to his co-accused if any, OR any other person.
The bar is one affecting only the admissibility of that sample/profile as evidence. There is no bar to using the information to ground an investigation against the person from whom the sample/profile was taken. 41
The courts have always underlined that there is a distinction to be made between the rules governing the legality of evidence obtained to provide
41
See the judgment in AG’s Reference, Lord Hobhouse of Woodborough infra. 20
reasonable grounds for arrest and the rules governing the admissibility of evidence at trial. 42 Certainly the crown would not be seeking to tender the inadmissible evidence but the fresh DNA sample/profile evidence that they would be allowed to take from a suspect under the Act. If the assumed aim of the section were to be realized, the legislation would have to go two steps further. First it would have to make illegal the use of the sample not only as evidence but also its use in the investigative process. Secondly, it would then have to further remove the judge’s discretion at common law to admit evidence illegally obtained. That, it is submitted, has not been achieved. It is submitted that, the discussion in Attorney General’s Reference No. 3 of 1999 (2000) HL 43, in which there were also two concurring opinions with that of the majority and which further addressed the similar case of Weir, is likely to inform the approach the Court will take in the interpretation of this section. The court held in relation to wording similar to that in section 49, that its express words does not prohibit the use in evidence of information derived from a sample that should which have been destroyed.” 44 The issue that the court posed was “ where a sample of DNA is lawfully taken from an accused in respect of offence A (of which offence the accused is subsequently acquitted), and information derived from the sample suggests that the accused is guilty of offence B, does a Judge have a discretion to permit a prosecution to proceed against the accused for offence B, notwithstanding the terms of 64(3B) of the Police and Criminal Evidence Act?” The House of Lords in disagreeing with the Court of Appeal answered the question in the positive. And this is while bearing in mind that 64(3B) is more restrictive than the Jamaican provision. It barred not only the admissibility of the sample against the accused but also the use of the sample in investigations against the accused. The court noted that despite the language the section had not removed the discretion of the judge to determine admissibility in relation to evidence ‘illegally obtained’. It is further stated “ it must be borne in mind that respect for the privacy of the defendants is not the only value at stake. The purpose of the criminal law is to permit everyone to go about their daily lives without fear of harm to
Infra. There is a difference between the Jamaica’s provision and that in the UK in that there is no accompanying provision dealing generally with the fact that DNA subject to destruction should not be used for the purpose of investigations. However the absence makes the applicability of the rationale stronger. 44 See judgment of Lord Hutton. 42 43
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person or property. And it is in the interests of everyone that serious crime should be effectively investigated and prosecuted. There must be fairness to all sides. In a criminal case this requires the court to consider a triangulation of interests. It involves taking into account the position of the accused, the victim and his or her family, and the public. In my view the austere interpretation which the Court of Appeal adopted is not only in conflict with the plain words of the statute but also produces results which are contrary to good sense. A consideration of the public interest reinforces the interpretation I have adopted.” It is submitted that any other interpretation of the provision could operate to enable defendants who are guilty to walk free, as well as commit other offences without the worry that their samples/profiles were already on the database. Despite the decision in AG’s Reference, parliament in the UK decided to reverse the provision authorizing the destruction and removal of samples and fingerprints to remove the problem. 45 Jamaica’s compromise position would appear to be the provision allowing the relevant authorities to apply to the court to retain those samples that should be destroyed according the ‘acquittal trigger’, but reasonable grounds as extrapolated in the Act, exist to nonetheless retain them. It is submitted that despite this compromise position the situation on the facts of AG’s Reference could still occur. DPP (Walsh) v CASH 46 – No onus on prosecution to prove lawfulness of a [fingerprint profile on database], where the profile is relied on to create reasonable grounds of arrest; Result: Even if DNA profile was wrongly entered or kept on the database, that fact would not affect the lawfulness of a subsequent arrest based on a match between that profile and a crime scene profile, or the admissibility of evidence obtained thereafter. 47 Another interesting view on the issue of admissibility is provided from a case called Cash from Ireland. The accused had been arrested as a suspect in a burglary matter. Prints were lifted from the crime scene, which matched prints belonging to him on the reference index. This match provided the singular basis that led to his arrest. The prints should or should not have been destroyed. In the absence of clear evidence of illegality in relation to their retention, the defence argued that there was an onus on the prosecution to prove the lawful retention of the prints on the database.
45
Section 64(1A) of PACE, as substituted by section 82 of the 2001 Act, authorises the
retention of such fingerprints and samples. 46
2010 1 I.R. 609 Colm O’ Brian ‘An overview From a Criminal Perspective Ireland’s DNA Database System Act 2014’ pg 24. See DPP v McDonnell [2014] IEHC 36, 31/1/14
47
22
The court held that legality of the retention was a matter to be addressed as an admissibility issue during trial if it arose. The court reiterated the distinction between the investigative stage in proceedings and the admissibility stage at trial. It outlined the distinction between evidence relied on by the police to form reasonable suspicion leading to an arrest and evidence the crown wishes to tender at trial. It said further that at the arrest stage the police have no duty to prove that material that was relied upon to exercise a statutory power of arrest must have been lawfully obtained or obtained without breach of constitutional rights. ‘To the extent that any impropriety had occurred in retaining the prints the arresting member had no involvement or indeed knowledge. There was therefore no nexus between the supposed illegality and the actions of the arresting member.’ 48 “the lawfulness of an arrest and the admissibility of evidence at trial are different matters which will normally be considered in distinct contexts. Infringement of any of the basic rules regarding the first may give rise to challenges to the lawfulness of the detention extending potentially to the jurisdiction of the court at trial.” 49
THE CHAIN OF CUSTODY EVIDENCE The Act outlines what it calls post collection procedure to be followed after samples have been collected. Step 1. As soon as reasonably practicable after collection the sample is to be packaged. There is no set limitation on what constitutes a container for packaging; tube, envelope, bag or other receptacle. Step 2- the container must have three characteristics to be valid- it must have a unique identification number; must be able to be sealed and the seal should not affect the integrity of the sample itself. Step 3- the seal if it is opened or attempts are made to open it, the result should be visible on the seal. Step 4- if not handed immediately to Custodian then it should be preserved, stored and further sealed and labeled [where necessary] Step 5- it should be handed over to the Custodian in keeping with the rules/policy laid down by the custodian.
Colm O’ Brian ‘An overview From a Criminal Perspective Ireland’s DNA Database System Act 2014’ pg 22. 48
49
Fennelly J, p634
23
Step 6 – when it gets to the Custodian, only a forensic officer [not defined under the Act] is permitted to open the package Step 7- the forensic officer now has the responsibility to ensure DNA material being the container and any other material remains labeled, stored and is coded. This should be done using appropriate containers as required by the work rules laid down by the Custodian. It is in the interest of the party seeking to rely on the evidence that the handling and chain of custody is not broken. 50 There is no time frame given for the turning over of the samples and DNA material to the lab. There is also no statutory time frame within which the DNA samples/material should be subjected to testing. However there is a time frame of seven 7 days ideally 51 imposed in which the lab having analysed the sample should present the documents/certificates in relation to their analysis.
SECTION 65 - CERTIFICATE OF ADMISSIBILITY The Act makes provision for a ‘DNA evidentiary certificate’ satisfying the criteria laid down in the section 65 to be admissible, as prima facie proof of its contents. The certificate must be signed by one of the three categories of person stated in the act; an authorizing officer(interpretation section), Custodian (interpretation section), a forensic analyst (not defined). At 65(2) however, is retained the option for either party or the court to require the authorizing officer who signed the certificate, to attend court and to give evidence at any stage of the proceedings. This requirement is subject to an application to the Court by the parties and will only be granted where the court considers it ‘necessary in the interest of Justice to do so.’ The court, when it exercises its own motion, is also subject to the same test. My first instinct is that this is a sensible provision for two reasons; it makes the certificate prima facie proof, which is important especially when often, counsel is not challenging the handling of the sample and generating of the profile by the lab. Secondly it limits the number of persons who need to come to court to just the person who signed off on the certificate ‘the authorizing officer’, and not the entire staff that often amputates the ability of the lab to carry out its hub responsibilities. Time spent in lengthening of trials, amongst other resources, can be better utilized. UNLAWFUL USE OF FORCE AS A GROUND AGAINST ADMISSIBILITY
cf Grazette v Queen, [2009 CCJ, 2 AJ. said provision speaks to a longer time as the Custodian ‘may by order, published in the Gazette, allow’; and it shall certainly be published. 50 51
24
The police are empowered to use force to obtain a sample in instances with or without a court order in stances where there is no consent. 52 For the reasons discussed above, where evidence is found to have been obtained unlawfully, in this instance by the use of excessive force, it can be seen that it could operate to preclude the admission of evidence. It is well imagined that despite the unfairness to the victims, the court may well decide that fairness to the accused, despite the cogency of the evidence, demand that the case against accused be dismissed. The result is not a punishment to the police, but it is to the people to whom greater justice was to be offered by the enactment of the statute. The only guidance given in the Act is that reasonable force is to be used. However police have argued that they have used reasonable force in cases that have lead to death or serious injury to person. Therefore what will happen when the person is intent upon resisting. It is hoped that before the police’s conduct in the use of unlawful force takes a life or result in serious injury, there will there be guidelines as to the most effective strategy to be employed to reduce risk of injury. Further the unlawful use of force relates not only the causing of injury but may also relate to unnecessary embarrassment and/or distress caused to the person. 53 ADVANCE NOTICE BY DEFENCE OF EXPERT EVIDENCE? The crown is the only party required to give full disclosure. The crown is obliged to share all scientific data in keeping with the test laid down in Ward. The defence, on the other hand, despite the frequency with which this type of evidence may now be employed, has no corresponding obligation to share scientific data even when the crown share samples with it. If court were to follow the common law route of Gibson v Attorney-General [2010] 76 WIR, 137 from the CCJ, in imposing a partial obligation on the defence to serve expert evidence, this does not get far based on the twolimbed restrictions. Gibson is authority that the defence is to serve expert evidence reports only where the State has paid for the report AND the defence is intending to rely on it. To increase the efficacy of this rule, the Jamaican courts would have to widen it beyond its present structure. Meaning, the only requirement for service should be that the defence intends to lead expert evidence. However, this is arguable the job of legislators and not that of the courts.
McAneny v Kearney [1966] Qd R 306. Lindley v Rutter 1980 3 WLR 660. Divisional court further held that to remove the defendant’s brassiere, an ordinary item of clothing served no other purpose than to degrade her. 52 53
25
A further point is, that based on section 65 and the fact of the three different persons who are allowed to sign a certificate, it would appear that the defence could attempt to tender a similar dna certificate, though not served earlier, by virtue of 65(c). To say that the crown could apply under 65 (2) to have the analyst called is not to appreciate the sort of inefficiency that an absence of a provision for disclosure on the part of the defence, introduces across a wider scale. The courts, in all of which backlogs exist, would need more time to deal with each matter. Where a provision for defence disclosure existed, the role of case management would serve to highlight the points of dispute between the experts. Disputes and their extent could be known before the commencement of trial. Advance notice has the potential to reduce backlogs, by simplifying hearings, reduce/narrow disputes over forensic evidence, especially in light of the fact that with the introduction of Committal Proceedings, it is less likely that the issue would have earlier come to light. Lastly it makes the arena of justice fairer. The population has more confidence in acquittals or convictions and must not await ‘justice’ at the appeal stage where the public’s involvement in the matter is minimized. As it stands the crown, separate and apart from not being served the report, may not even be aware that the defence is going to call the expert witness until he steps into witness box. In the civil arena, thankfully by virtue of the CPR, which makes intensive rules governing calling of experts and the need for disclosure from all the parties, this issue does not arise. However the inequality in the treatment of the same type of evidence based on the area in which it is being tried, without more, underscores the unsatisfactory nature of the criminal law as it stands. By virtue of the Police and Criminal Evidence Act- PACE 1984 provision is made for Crown Court Rules amended in 1987 to require both the prosecution and defence to give notice of intention to call expert evidence (Rule 3.1) An exception to the rule relating to the safety of witnesses is contained in Rule 4.
PART III CONSTITUTIONAL CONSIDERATIONS The debate about the desirability of the database is with the passing of the Act somewhat moot. Nonetheless, any legislation creating a databank must seek to balance the legitimate aim of effectively fighting crime and honoring the privacy rights of citizens.
26
The courts have taken the debate beyond the legitimacy of the ‘mandatory’ taking of the sample. It is submitted the extent of the intrusion is still in issue. With the generous width of the provisions for the taking of samples of numerous persons including, ultimately innocent persons, all of whom will be subject to DNA testing. A combination of the definition of ‘relevant offence’ and ‘suspected person’ makes that possible. The beneficial effect of solving more crimes has given way to the encroachment on the privacy of the guilty and innocent alike. However in the face of the persuasive authorities from other jurisdictions with similar provisions, the person who seeks to challenge them will have an uphill if not impossible task. 54 In relation to DNA effectiveness in crime fighting, the UK, which arguably has the second largest database in the world, reported a match rate of 61% for crime scene samples uploaded. 55 Privacy and family rights concerns, separate from the constitutionality of the mandatory taking of the samples, present a more nuanced picture, which, it is submitted is still largely untested. There is a two-limbed concern; revelation of information beyond that necessary for investigation of the crime and retention of data, especially permanently. Both it is argued lead to an unwarranted interference with a person’s privacy rights. The concern with the use that may be put to DNA taken and the profile generated from it, is a real concern. The concern has merit especially when one considers the continuous advancement in science. This concern must also extend to data that may not be extractable now, but in the future. A biological sample such as blood is the key to genetic information, which could provide personal information such as susceptibility to diseases or ill health. The view from other countries, as well as Jamaica, is that the profile extracted from the sample addresses a limited amount of personal information and houses only a miniscule amount of non-coding DNA, which reveals no more than the gender and identity of the person. 56 In the interpretation section of the Act, DNA material and DNA profile are defined to include the claim that the profile is in relation to the non-coding part of the DNA. ‘Non-coding DNA’ is also defined as follows;‘in relation to a person, means the chromosome regions of the person’s DNA that are not known to provide for any functional properties of the person.’ However one cannot dismiss that the blood/sample with coding and non-coding DNA is in the hands of the State and the possibility to extract even more is a real one.
Maryland v King, Supreme Court of the United States June 3rd, 2013. 55 https://www.nanalyze.com/2016/04/codis-the-worlds-largest-dna-database/. Even though the UK maybe second behind the USA, it has the greatest population coverage. The database covers almost 8%of its population while the UK covers almost 5%. 56 See definition of ‘dna profile’ in the interpretation section of the Act. 54
27
The second and connected concern is in relation to the housing, storage and retention of the data. 57 There is a right to privacy under the constitution and the taking of a sample is seen as an encroachment on that right. How so? Taking a sample is seen as a legal search. One’s body is viewed as one’s property and one is entitled to protect its bounds from invasion; in the same way that wiretapping is illegal or a search of one’s house without the necessary authority. In the Jamaican context, where not many are convinced that the Jamaican government has any system in place or can provide any system that rigorously guards against hacking or the inside infiltration into the security and protection of their personal data, 58 the power given under the Act for permanent retention is worrying. The issues put in stark relief the pervasive unease shared by citizens with relation to what type, how much, and for how long should the State be permitted to access dna data. Example: “A present ongoing investigation in the UK serves as a pertinent example. For over ten years it would appear, a government approved provider of forensic testing services, Randox limited, a company that met the certification process of quality assurance, had on its staff a number of what are being called ‘rogue scientists’. The rogue scientists, who, due to disenchantment/disenfranchisement had been falsifying/tampering with the results of forensics tests they were employed to perform. Randox received over 80,000 files per year to test hair, blood and saliva samples for the presence of drugs and alcohol. One of the things they are being accused of doing is adding alcohol to tests to receive a positive result. The suspicion came about when an anomaly in the results of tests led management to called in the police. In what is being called a ‘quality failure’ that has led to a gross miscarriage of justice, it is believed that many persons have wrongly been convicted of drunk/driving offences, lost their licences, families have been torn apart, adoptions denied and even a number of murder matters have now been put on hold as the results being relied on stemmed from this lab. It is believed that this is going to lead to thousands of appeals, hundreds of cases being thrown out and the justice system left in disrepute. A number of persons have already been charged with perverting the course of justice.” The issue of the outsourcing of forensic science service is being blamed for the Randox incident in the UK. Rightly or wrongly so, it should be noted that
http://www.alrc.gov.au/sites/default/files/pdfs/publications/ALRC96_vol2.pdf. See the two volume compendious report from Australia looking in depth at comprehensive issues dealing with dna . 58 https://www.pressreader.com/uk/the-mail-onsunday/20170219/281728384280267 See story regarding thousand of profiles in the UK that rogue scientist have altered bringing present justice system into a state of chaos. 57
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Jamaica makes provision for a similar outsourcing as the UK. See section 60 of the Act. The Randox case is no doubt an exceptional circumstance, which despite its exceptional nature could occur here. Such an offence would be captured under section 51(f) of the Act “knowingly falsifying a DNA profile’. The punishment is under section 57 of the Act; a person is ‘liable on summary conviction in the Parish Court to a fine not exceeding one million dollars or in default of payment of the fine, to a term of imprisonment for a term not exceeding 6 months. 59 When one looks at the extent of the effect of the Randox case, it is clear that the punishment, both fine and imprisonment, is trivial compared to the relative ‘devastation’ that such interference can cause.
BREACH OF PRIVACY, FREEDOM FROM SEARCH, RIGHT TO SILENCE? Which constitutional right is impinged by the taking of a bodily sample from an accused person by force? Is the taking of a blood/bodily sample to be equated to the giving of a statement against interest in criminal matters, which impinges on the right to silence? In
Saunders –v- United Kingdom [1997] 23 EHRR 313 the Court of Human Rights considered the nature of the right not to incriminate oneself in a criminal offence. It distinguished the right not to incriminate oneself, from the ‘right’ to use material obtained from the accused through use of compulsory powers. “The right not to incriminate oneself is primarily concerned, however, with respecting the will of an accused person to remain silent. As commonly understood in the legal systems of the Contracting Parties to the Convention, and elsewhere, it does not extend to the use in criminal proceedings of material which may be obtained from the accused through the use of compulsory powers but which has an existence independent of the will of the suspect such as, inter alia, documents acquired pursuant to a warrant, breath, blood and urine samples and bodily tissues for the purposes of DNA testing.” This point was further considered by the court of criminal appeal in Ireland in Michael Boyce V R. 60 In Boyce the court addressed the issue ‘whether in law the judge was incorrect in refusing to allow the jury to hear evidence as to whether a caution was given before the taking of the blood sample to be considered by the jury, where the appellant was alleging that though he gave the blood voluntarily, he was not cautioned and the judge had held a ‘voire
59 60
There is a much higher punishment in the Supreme Court. See infra 29
dire to determine admissibility and had found that the caution had been administered.’ In holding that the trial judge’s decision was correct, the court noted, “the Court adopts the distinction made by the Court of Human Rights and by the U.S. Supreme Court 61 in concluding that the trial judge was correct in distinguishing between self-incriminating evidence of an accused, orally or in writing, and the ruling which he made in relation to the admissibility of the taking of the blood sample and the evidence relating to its analysis. The decision on admissibility was, as a matter of law, exclusively a matter for the trial judge. The findings of facts which he made in the course of his ruling were inextricably and exclusively related to that question of law. The reliability of the forensic analysis depended on the evidence of the expert witnesses. Accordingly, he was correct in not permitting the jury to revisit the issue determined by him in connection with the admissibility of the evidence, namely, whether the caution in question was administered.”
In relation to the privilege against self-incrimination it was noted: “On the other hand, both federal and state courts have usually held that it offers no protection against compulsion to submit to fingerprinting, photographing, or measurements, to write or speak for identification, to appear in court, to stand, to assume a stance, to walk, or to make a particular gesture. The distinction which has emerged, often expressed in different ways, is that the privilege is a bar against compelling "communications" or "testimony", but that compulsion which makes a suspect or accused the source of "real or physical evidence" does not violate it.” “Not even a shadow of testimonial compulsion upon or enforced communication by the accused was involved either in the extraction or in the chemical analysis [of the blood]. Petitioner's testimonial capacities were in no way implicated; indeed, his participation, except as a donor, was irrelevant to the results of the test, which depend on chemical analysis and on that alone. Since the blood test evidence, although an incriminating product of compulsion, was neither petitioner's testimony nor evidence relating to some communicative act or writing by the petitioner, it was not inadmissible on privilege grounds.”
PERMISSIBLE USE OF REASONABLE FORCE
61
Schmerber v California 384 US 757
30
In a country besieged with problems attenuated by allegations of extra judicial killings, police brutality, and such the like, it is not quite clear why the legislators took the route of route of ‘application of force’ as opposed to ‘allowance of an adverse inference to be drawn’. Other countries have chosen the latter more humane route. 62 This philosophy behind allowing an inference to be drawn better exemplifies an attempt to reconcile the competing interests of the need for the police to have adequate enforcement powers and the rights of the people. The taking of the sample and the profile generated represent already an encroachment on bodily integrity and right to privacy, even when it is consensual, it is difficult to see how a further application of force could help to swing things back in balance. Force is already permissible at different stages of the investigative process; to arrest, to search, to enter onto private property and now to take bodily samples. We await the certain claims of brutality in the taking of the samples that will be made. The provision for audio/video taping or the presence of JP, the latter which will be the more frequently used method, is unlikely to prevent allegations and substantiation of abuse of this power. Where the police are found to be guilty of such conduct and where it results in evidence being excluded, the loss will be felt not only by the state but by the citizenry in general and the victims in particular.
In CUSTODY
Requireme nt for consent (sc20)
62
Intimate Sample
Non-Intimate Sample
Informed consent maybe given, but if not given or withdrawn, Order from court shall be sought
Informed consent may be given but if not given, or withdrawn, reasonable force may be used to obtain sample
Police and Criminal Evidence Act 1984 sc 68. 31
Not IN CUSTOD Y Nonintimate Sample Informed consent may be given but if not given, or withdraw n, reasonabl e force may be used to obtain sample
Intimate Sample Informed consent maybe given, but if not given or withdraw n, Order from court shall be sought
Failing to give voluntary sample
Person must be told failure to give sample may lead to application of court order Oder may lead to reasonable force being used ( sc25)
Person must be told that failure to give sample may lead to reasonable force being used to take it [sc21]
Presence of 3rd party at taking of sample from Child/Prot ected Person (sc22)
Parent guardian adult relative, JP required to be present (in absence of exception)
Parent guardian adult relative, JP required to be present (in absence of exception)
Applicabilit y of common law to taking of sample (sc 18) Preconditio ns for samples (19) and (20)
Sample can only Sample can only be taken in be taken in accordance with accordance with act act
B4 seeking consent explain; nature of offence presence of authorization and basis on which it was gotten; ii. taking is authorized and consent in writing to take it has been given. Absence or withdrawal of
B4 seeking consent explain; nature of offence presence of authorization and basis on which it was gotten; Request written consent OR explain that despite lack of consent authority given for taking
32
Person must be told that failure to give sample may lead to reasonabl e force being used to take it [sc21] Parent guardian adult relative, JP required to be present (in absence of exception )
Person must be told failure to give sample may lead to applicatio n of court order
Parent guardian adult relative, JP required to be present (in absence of exception )
consent requires court order State of Suspects mind of involvement in authorized offence; Believe sample person will confirm or disproves involvement
and why it is being taken Suspects involvement in offence Believe sample will confirm or disprove involvement; The results may be given in evidence 63
Who can Qualified person take [of same sex where samples practicable] as defined in interpretation section (24) Who is a Anyone at detainee detention center for sample purposes
Detention officer as defined in interpretation section
Place of Any place where a detention person can be lawfully deprived of his liberty
Authorisin g Officer Police Sargeant Custodian Indecom Designate etc Reasonabl e Force (sc25)
Any of five groups of persons listed in interpretation section
Force can be used to take and prevent loss
Detention officer as defined in interpret ation section
Detention officer as defined in interpret ation section
Anyone at Anyone detention center at for sample detention purpose center for sample purpose Any place where a Any place person can be where a lawfully deprived person of his liberty can be lawfully deprived of his liberty Any of five groups Any of of persons listed five in interpretation groups of section persons listed in interpret ation section Force can be used to take and prevent loss
Anyone at detention center for sample purpose Any place where a person can be lawfully deprived of his liberty Any of five groups of persons listed in interpret ation section
Not quite certain why the 3rd factor figures into the authorization in for nonintimate sample but not for intimate sample.
63
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.May result in use multiple officers cannot be used on child under 12 detainee to be fully informed before step taken Convicted person Person to whom VII Sexual offences Act applies(sc 29) No distinction made between intimate and nonintimate Test for the court in making order for taking sample Registrable particulars
destruction or destruction or contamination of contamination of sample sample
Taken before completes term of imprisonment/det ention; reasonable force can be used Prior information must be provided No provision as to request for consent
Taken before completes term of imprisonment/det ention; reasonable force can be used Prior information must be provided No provision as to request for consent
Means name, description, age, sex, dental records or photograph of, or document relating to, the person and any other particulars that may be relevant or useful in the
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identification that person
of
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