Mon | Aug 21, 2017

DNA samples: Retention and Constitutional rights

Published:Monday | May 18, 2015 | 5:00 AM

On May 13, 2015, the UK Supreme Court delivered a judgment in the case of Gaughran (Appellant) v Chief Constable of the Police Service of Northern Ireland (Respondent) (Northern Ireland) [2015] UKSC 29. The case provides an example of the type of issue our courts may well encounter when the DNA Evidence Act becomes law.

Gaughran was arrested for driving with excess alcohol on October 14, 2008. He pleaded guilty on November 5, 2008, and was fined and disqualified from driving for 12 months.

At the time of Gaughran's arrest, the police lawfully obtained fingerprints, a photograph and non-intimate DNA sample by buccal swab. Under the laws of Northern Ireland, the police can retain DNA samples and profiles for an indefinite period after they have fulfilled the purpose for which they were taken, although they can only be used for specified purposes. An act which will soon come into effect will require the police to destroy DNA samples as soon as a DNA profile is taken, or within 6 months after taking the sample. However, under the present law, the samples and profiles can be retained indefinitely.

Two months after pleading guilty, Gaughran argued that the retention of the photograph, sample and fingerprints were unlawful. He requested that they wither, be destroyed or returned to him and, when that request was denied, he applied for judicial review. The Divisional Court and the Court of Appeal refused his application, so he appealed to the UK Supreme Court.

The parties agreed that two questions would be asked on appeal:

Whether the retention of the fingerprints, photograph, DNA sample, and DNA profile disclose an interference with the appellant's right to respect for his private life within the meaning of article 8(1) of the European Convention on Human Rights ("ECHR"), the appellant having been convicted of a recordable offence?

If so, is that interference justified under article 8(2)?

Article 8 states that, "1. Everyone has the right to respect for his private and family life, his home and his correspondence. 2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals or for the protection of the rights and freedoms of others."

With a majority of 4:1, the Supreme Court dismissed Gaughran's appeal and found that "The benefits to the public of retaining the DNA profiles of those who are convicted are potentially very considerable and outweigh the infringement of the right of the person". It was also found that, "the biometric data contributes to law enforcement and the investigation of offences in relation to both future and historic offences", and noted that the information may even assist in establishing that an individual did not commit an offence.

While I am not suggesting that the provisions of the local DNA Evidence Bill are the same as those that were examined by the UK Supreme Court in Gaughran's case, all necessary steps ought to be taken to ensure that Jamaica does not enact legislation that paves a path to the Constitutional Court.

• Please send questions and comments to lawsofeve@gmail.com or lifestyle@gleanerjm.com.