Sasha Borissenko: Taking a deep dive into DNA legal framework in NZ

OPINION:

The legislative regime for DNA sample collection and profiling for criminal justice purposes dates back to 1995. The Criminal Investigations (Bodily Samples) Act regulates DNA collection from known individuals, and establishes the national DNA databank.

But more than 20 years later, the Law Commission has released an issues paper that says thanks to technological advancements, the legislative framework is no longer fit for purpose.

For context – in light of significant amendments to the legislation in 2003 and 2009, the Government called on the commission to review the Criminal Investigations Act in 2016. The commission issued an issues paper in 2018, and since then tested its proposals with officials and experts.

DNA profile history

For those who are scientifically challenged – myself included – a DNA profile is a unique series of numbers that can be generated by looking at a biological sample. If the sample found at a crime scene matches a DNA profile of a person, it is likely the same individual was responsible for both samples.

DNA profiling was first used in the UK case of Pitchfork in 1986. The case involved the rape and murder of two 15-year-old girls, three years apart. Police organised mass screening of local males in 1987 and discovered Colin Pitchfork bribed another person to provide a blood sample on his behalf. He later confessed and pleaded guilty to the crimes – exonerating the person originally arrested. The UK established the world’s first DNA profile databank in 1995, and NZ shortly followed.

DNA profile databanks have expanded in the last 20 years where it appears there are now 64 countries that have operational DNA databanks. Countries first collected and retained DNA profiles from convicted sexual and violent offenders, which has since extended to include less serious offending.

An extreme example is Kuwait, which passed a law in 2015 requiring all citizens to provide samples for a national databank. This law was successfully challenged in the country’s Constitutional Court, where it was ruled unconstitutional.

New Zealand established a databank in 1996, and the collection criteria expanded in 2003 and 2009. The 2009 changes lowered the threshold so that police could obtain adult samples if they intended to charge a person with an imprisonable offence. There has never been any court oversight to the exercise of these powers. The then Attorney-General reported that the 2009 changes were inconsistent with the unreasonable search and seizure laws pursuant to the Bill of Rights Act.

The Attorney-General’s report highlighted the 2008 case from the EU Court of Human Rights. In S & Marper v UK, it was held that aspects of the UK’s databank regime violated the right to a private life and family life as protected by the EU Convention on Human Rights. The move led to major law reform. Nevertheless, NZ decided to go ahead with the 2009 amendments, which were moved through Parliament as part of the Government’s post-election 100-day reform programme.

The commission's recommendations

Back to last week’s report – the commission revealed gaps in the law, namely insufficient independent oversight and a failure to recognise human rights values, tikanga Māori and the Treaty of Waitangi. In terms of underlying themes, the commission found the purpose of the act to be unclear and the structure confusing; there are public misconceptions about DNA and its effectiveness; and the science is continually developing, which is being responded to internationally.

In lieu of the current framework, the commission has recommended a new, comprehensive regime to control how DNA is obtained, used, and retained for criminal investigations.

In a nutshell, the commission wants to: improve protections for adults whom police seek to obtain DNA by consent or on arrest; require a court order to obtain DNA from young suspects or those who lack capacity; regulate the use of DNA where the legislation is silent or fragmented – this includes elimination sampling, mass screening, familial searching, and genetic genealogy searching; establish a single DNA databank that has clear rules around how DNA profiles can be used; restrict the retention of youth offenders’ DNA profiles; create an independent mechanism for the assessment of new technology and analysis; and improve oversight by increasing the role of the judiciary, and to establish a new DNA Oversight Committee (with mandatory Māori representation). External auditing would be subject to the Independent police Conduct Authority.

According to lead commissioner and former Otago University Laws 101 lecturer Donna Buckingham, the recommendations seek to reduce the impact of collection and use of DNA on people’s privacy, and to address the disproportionate impact of the current regime on Māori.

Where to from here

Where to from here? New Minister of Justice, Kris Faafoi has thanked the Law Commission and all involved for their work, and said the report will shortly be tabled in Parliament. He said: “The Government will now consider the report’s 193 recommendations and I look forward to studying them in more detail”.

The Law Society has also come out in support of the commission’s recommendations, saying the use of DNA in criminal investigations has outstripped the statutory scheme. Law Society spokesman Steve Bonnar QC said changes to the Act in addition to advances in science and technology, “have resulted in a system that does not provide consistent or thorough safeguards”.

Naughty lawyers

In other news, the NZ Lawyers and Conveyancers Disciplinary Tribunal has ordered the striking off of Andrew Neill Simpson from the roll of barristers and solicitors of the High Court. He was convicted of 13 charges of money laundering relating to a criminal drug operation in the High Court, and was sentenced to two years and nine months in prison.

In the tribunal’s decision, it stated: “We find that Mr Simpson must be struck off in order to protect the reputation of the profession and in order to maintain public confidence in the integrity of the profession”.

Meanwhile, the High Court has dismissed Rodney James Hooker’s appeal against a tribunal decision, which suspended him from practice for three months.

The tribunal found Hooker guilty of misconduct relating to the mistreatment of client funds. After an employment dispute, which was settled at mediation, the employer mistakenly made an additional payment to Hooker’s client as part of the settlement. The extra payment was applied predominantly to legal fees. The High Court also ordered Hooker to pay the Lawyers Standards Committee’s full costs of $63,675.80.

If you’ve got any tips, legal tidbits, or appointments that might be of interest, please email Sasha – on [email protected]

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