State to take DNA of non-convicted persons
If you are locked up for a criminal matter, chances are that DNA material taken from you will be retained in the Government's database, even if you have been found not guilty or if there is no prosecution of the case.
Although the DNA bill, which is currently before the House of Representatives, provides that the destruction of DNA should take place no later than three months after charges have been dismissed, there is a claw-back provision for sample material taken from some persons to be kept in the interest of national security.
"The non-routine retention of a sample where a person has been acquitted or there has been no prosecution of the case is a deliberate policy," National Security Minister Peter Bunting said in opening the debate on the bill in the House of Representatives last week.
The clause proposes that a sample of DNA profile should not be destroyed if a court, on the application of the director of public prosecutions, the commissioner of police or the commissioner of the Independent Commission of Investigations, is satisfied that it is in the interest of justice to require that the sample remain in the possession of the State.
"That is going to be seriously challenged in the court," said attorney-at-law Hugh Wildman, adding that "it is in breach of the separation-of-powers doctrine".
He argued that any attempt by the State to keep DNA samples of persons who have been acquitted will be a violation of the person's constitutional rights.
According to Wildman, the foundation of the bill, which allows for the taking of DNA sample from a person who has been detained. He said that the executive is playing judicial functions, something which is frowned upon by the Constitution.
"You can only take anything of that material when the court orders it and retains it if the person is convicted," Wildman told The Gleaner. "They are missing the boat."
Attorney-at-law Peter Champagnie, the man charged with the responsibility of reviewing the bill by the Jamaican Bar Association, said that the provision for the keeping of DNA profiles of persons found not guilty, or if there is no prosecution of the case, appears to be inconsistent with the Fingerprint Act.
"It is dangerous because it is subject to abuse," said Champagnie while adding it could lead to ills such as the planting of evidence.
The DNA bill states that where proceedings have not been instituted against a person from whom a sample was taken for a DNA profile within eight years from the date of the sample taken, the person may apply to the court for an order for the sample or DNA profile to be destroyed.
The court, in deciding whether to order the destruction, must give the DPP, the police commissioner or the commissioner of the INDECOM the right to be heard.
"This is part and parcel of striking a balance between upholding the rights of an individual who has been acquitted or where prosecution has been discontinued or not initiated while at the same time ensuring that law enforcement continues to have the capability to protect the public and bring criminals to justice," Bunting said.
The provision for the retention of DNA samples is similar to that which obtains under the Fingerprint Act, the only difference being that the DNA bill is proposing that samples for persons against whom the State has not initiated prosecution can be retained in the database.
Wildman, however, notes that unlike fingerprints, which are taken when ordered by the court, the power to take DNA is coming from the political executive.
"Those samples would have been taken without judicial sanction," Wildman said.
The DNA bill provides for the taking of non-intimate sample such as saliva, hair or buccal swab by a detention officer with or without consent of the accused. The court's order for a sample is only required for the taking of intimate samples such as blood, urine, semen or pubic hair from a suspect.
Bunting has argued that the bill seeks to balance individual rights with the interest of justice. Stating that the provision for the retention of DNA material is on sound legal grounds, the minister pointed to a case decided on by the Supreme Court of the UK in Gaughran v Chief Constable of the Police Service of Northern Ireland.
The UK Supreme Court held that the indefinite retention of the DNA profiles of convicted adults does not violate Article 8 of the European Convention on Human Rights. It said that the retention would be for the purpose of detection and prevention of crime and to assist in the identification of future offenders.
Bunting argued that Article 8 of the European Convention on Human Rights is similar to the Charter of Rights in the Jamaican Constitution, which provides for right to privacy. He noted that the Constitution provides for the justifiable interference of a right if it is demonstrably justified in a free and democratic society.
"Based on the decision of UK Supreme Court in the Gaughran case, which is of persuasive authority, it is our position that the retention of DNA material would fall within the derogation provision of Section 13 (2), that is, that the retention of such material, though it may represent an intrusion in a person's private life, albeit in a very limited way, is demonstrably justified in a free and democratic society," the minister said.
Director of Public Prosecutions Paula Llewellyn said that any concerns that are being aired now are merely academic and argued that the non-routine retention of a sample where a person has been acquitted, or there has been no prosecution of the case, may only be done in rare cases.
"Although the accused may be acquitted from this particular charge, whether by virtue of a technicality or because the prosecution was unable to satisfy the tribunal of proof beyond a reasonable doubt in respect of culpability of the accused, I would think that as an investigative tool ...," she said in support of the clause to retain the DNA material.
"If it is that the particular individual may have a particular antecedence, for example they operate in a particular area and there are other allegations of similar offences such as sexual offences having been committed, it could be used to assist with the investigative process, as well as it could be used to exclude the particular individual," Llewellyn added.
She argued also that Jamaicans need not become alarmed because the nature of the justice system will mean that the entity seeking to have the sample retained in the database will have to advance a strong case.
"The prosecution and the investigating authorities would have to swim like salmon upstream to justify as a matter of law and facts and also making sure that the court is satisfied that there is no constitutional infringement," Llewellyn added. "It will not be done willy-nilly, it probably is going to be done in rare circumstances; and if it is going to be done, the prosecution and investigative authorities would have to have very cogent arguments."
The DNA bill provides for the DNA material to be properly collected and labelled, and places a requirement for a DNA profile in relation to the sample to be collected and stored in the National DNA Register.
Persons serving time in a correctional institution, or a young inmate being held at a juvenile correctional centre, and those who have been temporarily released will have their DNA samples taken, a profile developed and stored in the convicted persons' index of the register.
The DNA profile of a former offender may be kept in the register if it is deemed to be in the interest of protection of society and is desirable for assisting the police in the investigation of offences.