Criminal Investigations (Bodily Samples) Amendment Bill

Transcription

1 Samples) Amendment Bill Government Bill As reported from the Law and Order Committee Recommendation Commentary The Law and Order Committee has examined the Criminal Investigations (Bodily Samples) Amendment Bill and recommends that it be passed with the amendments shown. Introduction The Samples) Amendment Bill is a Government bill introduced to update the Criminal Investigations (Blood Samples) Act This commentary addresses the major issues we focused on, and outlines the main amendments we recommend. Background Current law The Act came into force on 12 August 1996 and introduced a comprehensive code governing the taking of blood samples for the purpose of DNA testing in the investigation of crime. It prescribes the powers and procedures for the taking of blood samples, setting out two discrete regimes, one for persons suspected of committing certain criminal offences (Part II suspect regime), and another for persons convicted of specific offences (Part III databank regime)

2 2 Samples) Amendment Commentary The Part II suspect compulsion regime allows blood samples to be obtained from persons suspected of committing an offence, as specified in the Schedule of the Act 1. The Part II suspect consent regime allows blood samples to be obtained from persons suspected of committing any indictable offence. While in practice many people provide blood samples by consent (a suspect consent sample), if consent is refused the New Zealand Police may apply to the court for a suspect compulsion order. The Part III databank regime differs in that while any person over the age of 17 may be requested to provide a blood sample (a databank consent sample), he or she may only be compelled to give a blood sample (databank compulsion sample) following conviction for a relevant Schedule offence (a relevant offence). This is done through the Police applying to the court for a databank compulsion order. The Act also authorises the Police to establish and maintain a database of DNA profiles (the databank) to increase the efficiency of the investigation of offences by enabling the Police to match crime scene samples with DNA profiles stored on the databank. A DNA profile derived from a sample taken under Part II may only be stored on the databank following a person s conviction for a relevant offence, but all profiles derived from samples taken under Part III by consent or compulsion may be stored on the databank. Developments in DNA science since the 1990s In the mid 1990s, when the Act was being developed, the Institute of Environmental Science and Research (the ESR) advised that only DNA derived from blood samples provided sufficient accuracy and reliability to be used for the purposes of matching crime scene samples to DNA profiles on the databank. Since then, developments in the scientific methods of analysis have meant that the ESR now considers buccal samples to be a reliable means of providing a DNA sample. A buccal sample is obtained by taking a mouth swab from a person. The swab does not need to go fully inside the mouth, the best place being between the gum and lips. The process typically takes about ten to 20 seconds. There are several advantages in DNA being 1 Offences relevant to Part II of the Act are listed in Part A of the Schedule, and those relevant to Part III are listed in Part A and Part B. (NB: Part B contains all offences listed in Part A, with the addition of burglary and entering with intent)

3 Commentary Samples) Amendment 3 taken by mouth swab as another form of sampling technique, including cost factors and the fact that the method of taking a buccal sample is generally considered to be less invasive than taking a blood sample. Limited ability to use buccal sampling under the Act While advancements in the reliability and quality of DNA profiles obtained from mouth swabs have led the Police to be able to charge suspects on the basis of mouth swabs obtained by consent, currently buccal samples cannot be taken by compulsion. Moreover, the Act does not authorise the placing of DNA profiles obtained from buccal samples on the databank. Purpose of the bill The bill seeks to strike a balance between extending the use of DNA as a valuable crime-fighting tool, and the recognition and protection of fundamental personal rights. The aim is to extend the potential pool of DNA profiles to significantly increase the chances of apprehending the perpetrators of serious offences. The main areas of reform in the bill: allow DNA samples to be collected by mouth swab allow DNA samples to be taken from persons suspected of committing burglary or entering with intent provide for compulsory DNA testing of inmates detained under a sentence of imprisonment, in custody for a relevant offence for which they were convicted prior to the commencement of the Act repeal the current requirement for a compulsion order hearing before a Judge prior to a databank compulsion sample being taken from a person convicted of a relevant offence extend the range of material that may be used as a basis to compel a suspect to provide a DNA sample. Other aspects of the bill include simplifying and modifying certain procedures or repealing specified requirements to reduce costs, improve efficiency or for administrative ease.

4 4 Samples) Amendment Commentary Matters raised in submissions We received 11 submissions on the bill. Most submissions were generally supportive of the bill, but sought changes to some aspects. Many questioned whether the bill strikes an appropriate balance in recognising and protecting fundamental personal rights, and whether adequate safeguards have been included. Concerns fell into three broad categories. The retrospective element of the bill (making those inmates convicted prior to the commencement of the Act liable to provide a databank compulsion sample) was generally considered to be inappropriate and contrary to accepted law-making practice. Also, the proposed extension of DNA testing to burglary suspects was criticised as representing an unjustifiable attack on individual rights and liberties. Finally, there was concern that the abolition of the requirement for a judicial hearing prior to a databank compulsion sample being taken would remove an existing safeguard preventing potential injustices. We spent some time considering these issues. These are discussed in pages five to 18 of the commentary. By contrast the New Zealand Police Association (the Police Association) and the Sensible Sentencing Trust submit that the bill could go further by increasing the number of relevant offences. In particular, the Police Association suggests the bill should enable DNA samples to be taken on arrest, regardless of the offence committed. While recognising the importance of preserving fundamental rights and civil liberties, we recommend a number of substantial amendments in line with the Police Association s submission. These are discussed on page six of the commentary. Significant extension to the list of relevant offences recommended In order to maximise the potential for DNA to be a crime-fighting tool we recommend a substantial increase to the list of relevant offences in respect of which the Act will apply, to include additional sexual and violent offences, and a significant number of other serious offences. The extension to the Schedule is provided for in clause 5(8) of the bill, which re-defines a relevant offence, and clause 39, which substitutes the current Schedule for a new one. We spent some time considering this issue, as we were conscious of the concerns of many submitters regarding potential infringements of individual rights and freedoms.

5 Commentary Samples) Amendment 5 Suspected burglary and entering with intent to be included in the Schedule Currently the offences of burglary and entering with intent are only relevant offences for the application of Part III databank procedures. The bill provides for the application of Part II procedures to these offences, and we endorse this approach. Evidence suggests many burglars go on to later commit serious violent offences such as assaults and sexual violation, so it follows that having convicted burglars DNA profiles recorded is of assistance in solving serious sexual crimes. Currently, burglary and entering with intent are offences for which a blood sample may be taken upon conviction. A sample may not be taken from a person suspected of those crimes. This is because when the Act was being drafted burglary was not considered one of the serious violent or sexual crimes that justified application of the Part II suspect regime. However, this currently presents a law enforcement difficulty for the Police. While a large number of burglars leave DNA material at the scene that can be matched to the DNA profiles on the databank, as the fact of a match cannot be used as a basis for applying for a suspect compulsion order in respect of burglary (as burglary is not an offence to which Part II currently applies), unless the person provides a suspect consent sample he or she may avoid conviction. 2 It is hoped that making both burglary and entering with intent a relevant offence for Part II of the Act will rectify this situation. Additional offences to be included in the Schedule We recommend that a significant number of additional serious offences be included in the Schedule to enable a wider utilisation of DNA for crime-fighting purposes. 3 The offences proposed for inclusion are in keeping with the three criteria applied to the Schedule when the Act was developed (that relevant offences should be serious, violent, indictable, or offences where it is most likely an offender will leave DNA at the scene). As such, we recommend that certain offences relating to the endangering of human life (either directly or indirectly) be included, being both serious offences and 2 As a general principle, evidence of a previous conviction is not admissible in criminal proceedings. There is no basis for departing from that general principle in relation to DNA evidence. Should the fact of a databank match be made available to the jury, this may indicate a person has a prior criminal conviction. 3 See Appendix B.

6 6 Samples) Amendment Commentary crimes that give rise to the prospect of DNA being left at the crime scene. It is also appropriate, in our view, that the Schedule be rationalised to include those offences that fall within the definition of a qualifying sexual or violent offence (as used in section 87(5) of the Sentencing Act 2002) that are not already included. Further, and consistent with this approach, we recommend the inclusion of all offences punishable by a penalty of at least seven years imprisonment, and three other offences below the seven-year threshold. We consider this proposed extension is a rational and proportionate one that will significantly improve the ability of the Police to investigate and resolve crimes. As introduced the bill extends the Schedule to include attempts to commit a relevant offence. For consistency purposes we recommend an amendment to further extend the Schedule to include conspiracy to commit a relevant offence. In cases where DNA may be found in the investigation of a conspiracy this will allow the Police to seek a Part II suspect compulsion order or to obtain a databank sample, following conviction, under Part III. We note that an attempt or conspiracy to commit an offence is not recognised as being as serious as an offence that is actually committed. However, our view is that those who intend to commit an offence are often just as culpable as those who succeed, and should therefore be liable to provide a bodily sample, which is either a blood or a buccal sample (a DNA sample), for DNA profiling. DNA sampling of all offenders on arrest not recommended The committee was advised by the Office of the Clerk that extending DNA sampling to all persons on arrest, as was the major recommendation in both the Police Association and the Sensible Sentencing Trust submissions, was outside the scope of the bill. Some of us are of the opinion DNA sampling should be more widely employed, and are in principle in favour of extending sampling to persons on arrest. The Government members note the Act was drafted with clear guidelines to extend the Police s ability to obtain and use DNA samples while infringing on fundamental rights and freedoms to the minimum extent necessary. The submissions of the Police Association and the Sensible Sentencing Trust (to establish mandatory DNA sampling for persons who have been charged for any offence, but for whom no guilt has been established), represents a fundamental departure from the original intent of the bill. It would effectively

7 Commentary Samples) Amendment 7 make the existing Part II suspect regime and Part III databank regime obsolete and require a comprehensive rewrite of the Act and bill as introduced. Furthermore, it would have serious civil liberties implications. We note that a similar proposal mooted by Canada (which has a framework governing the use of DNA in criminal investigations similar to New Zealand s) in 1998, was rejected as it was concluded that such a proposal would be inconsistent with the Canadian Charter of Rights and Freedoms (the Canadian Charter). 4 It is likely that such a significant amendment as this would raise significant New Zealand Bill of Rights Act 1990 implications that would require close scrutiny, particularly given the New Zealand Bill of Rights Act 1990 is modelled on the Canadian Charter. Offences punishable by three years imprisonment not to be included in the Schedule Similarly, a suggested extension of DNA sampling to all offences punishable by a maximum of three years imprisonment (a secondary recommendation of the Police Association) is, in the opinion of Government members, insufficiently targeted. Generally these offences are not of a sufficiently serious nature to warrant such an intrusion on personal liberties and, as already discussed, we consider a seven-year threshold is more suitable. Inappropriate to include some offences suggested by submitters Government members do not recommend certain other offences be added to the Schedule, as suggested by the Police Association, as some are inappropriate. In particular, we spent some time considering whether peeping and peering, a minor non-imprisonable offence with a maximum penalty of a $500 fine, should be included, as some of us are concerned that those convicted of peeping and peering may go on to commit more serious offences of a sexual nature. However, Government members consider this of itself does not justify the 4 Justice officials in Canada expressed the view that the courts have recognised a significant difference between (fingerprinting and DNA sampling). Fingerprinting does not constitute a search; the taking of bodily sample does. The Federal Government also appointed three eminent independent jurists to consider whether taking DNA samples from persons at the time of arrest or charge without prior judicial authorisation would be constitutional. All three jurists, the Canadian Department of Justice, independent counsel, representatives from provincial governments and the Canadian Bar Association reached the conclusion it would be unconstitutional and that such a proposal would not survive Charter scrutiny.

8 8 Samples) Amendment Commentary offence being included in the Schedule. Our principal concern was to establish whether, as is the case with burglary, a demonstrable link has been established showing that persons involved in such crime graduate to committing more serious sexual offences. We note the Ministry of Justice and the Police, who were our joint advisers on the bill, found no compelling evidence to suggest that such a connection exists in the case of peeping and peering to support its inclusion in the Schedule. Figures provided by the Ministry of Justice show that of those inmates who were incarcerated for committing a violent or sexual offence and who were released from prison between 1995 and 1998, only a maximum of two percent had previously been convicted of peeping and peering into a dwellinghouse. (By contrast, 45 percent of violent offenders and 25 percent of sexual offenders in that group had a prior conviction for burglary). Addressing civil liberties concerns We received seven submissions from groups or individuals with civil liberties concerns. We consider that some of their concerns are misconceived, in that while the bill may widen the net of those liable to be compelled to give samples, this is in the context of significant self-limiting factors. Privilege against self-incrimination retained The Human Rights Commission and the Office of the Commissioner for Children contend that the bill erodes the privilege against selfincrimination. We disagree. We note that the right not to be compelled to be a witness or to confess to guilt as set out in section 25(d) of the Bill of Rights Act does not incorporate the right to resist lawful investigative powers to obtain incriminating evidence. Significantly, the Attorney-General did not make a section 7 report on the introduction of this bill indicating there is no issue of noncompliance with the Bill of Rights Act. Databank information may only be disclosed for certain purposes We note the concerns of the Human Rights Commission and the Office of the Commissioner for Children that an extension of the Schedule may have wider implications with respect to the storage and use of DNA profiles. We agree that databank records should not

9 Commentary Samples) Amendment 9 be used for any purpose other than criminal investigation. We are satisfied that the authorisation for disclosing information contained on the databank is for law enforcement purposes. The grounds for releasing this information are: for the purpose of forensic comparison in the course of a criminal investigation by the Police for the purpose of making the information available, in accordance with the Privacy Act 1993, to the person to whom the information relates for the purpose of administering the databank. These grounds are supplemented by legitimate law enforcement and privacy grounds for releasing the information, as set out in sections 27(2), (3) and (4) of the Act. The bill does not amend this section nor does it authorise making databank information, which is stored on the databank at the ESR, available to private organisations. Retrospective taking of DNA samples from inmates convicted prior to the Act coming into force recommended Compulsory DNA sampling of persons convicted of a relevant offence prior to 15 August 1996 (when the Act came into force) is currently prohibited under section 4(2) of the Act. Clause 7 of the bill amends this section. It applies Part III of the Act to persons who are in prison on the date of commencement of the amending Act in relation to a conviction for a relevant offence for which they were convicted before the Act came into force. This will allow databank compulsion samples to be taken from inmates whose convictions were entered before the commencement of the Act. Importantly, this will only apply to convicted persons still in prison on the date of commencement, detained under a sentence of imprisonment in relation to that conviction. The intention is that this extension will provide the Police with the necessary tools to attempt to solve historical cases, as it is recognised that some inmates convicted prior to the Act s commencement may be responsible for the commission of earlier unsolved crimes. In addition, having such serious offenders DNA profiles on the databank will allow identification of those persons, who otherwise would not have their profiles recorded, should they commit further serious crimes on release from prison. We endorse clause 7 in the bill but recommend a number of minor amendments.

10 10 Samples) Amendment Commentary Retrospective application to be limited and appropriate While some of us are of the view that the bill could go further and apply retrospectively to all new offences to be added to the Schedule, we note that many submitters object to the bill having any retrospective application at all, on the basis that it is unfair that a person not be able to determine in advance the legality of their actions and the potential punishment for those actions. It is generally accepted that any application of the law that imposes conditions of conviction that did not exist in law at the time of the conviction offends against the principle that the criminal law should not apply retrospectively. However, this rule generally relates to the creation of new offences or a change in the nature or severity of sanctions. In this instance, we note the view of the Human Rights Commission that the retrospective element of the legislation is limited, and appropriate. The bill applies the same criteria for persons convicted after the Act commenced as it does for persons who are still inmates and who were convicted prior to the Act s commencement. That is, it does not retrospectively change either the nature of the offence or the level of punishment imposed for that offence, but simply changes the law enforcement powers that are a circumstance of the conviction. On a term of imprisonment being imposed following conviction, a person necessarily suffers a loss of liberty and is required to become subject to additional State intervention. Providing a DNA sample is one incidence of this. However, the minimal intrusion involved in the process of taking a mouth swab does not, in our opinion, constitute an unreasonable intrusion on individual liberty. Furthermore, as the profile stored on the databank will be used against that person only in the event of a further offence, it is difficult to see how the offender is being unfairly prejudiced. We disagree with the New Zealand and Auckland Council for Civil Liberties that applying the retrospective element of the bill to inmates only would be particularly unjust. We consider that it would be problematic to extend any such policy further and believe that those released from prison and at liberty in the community should not be subject to such compulsory State powers. The New Zealand Law Society submits that this could be seen as unjustly impacting on those in prison, and not on those who committed a similar offence but were released a few days before the commencement of the bill. However, this is a general issue in that when any new law is implemented, whether prospectively or retrospectively, and a date specified for the imposition of a particular incidence of conviction, the

11 Commentary Samples) Amendment 11 application of new powers must inevitably discriminate between those convicted prior to, or after, that date. Attempts, conspiracies and all new relevant offences to be excluded from retrospective application In the interests of keeping the retrospective element of the bill to a minimum, we recommend that clause 7, new section 4(3), be included in the bill. This section excludes attempts from the retrospective application. This is because an attempt to commit a relevant offence will not become a relevant offence until the commencement of the bill. Therefore, it would be unfair if those convicted of an attempt prior to 12 August 1996 are required to give a databank compulsion sample while those convicted after that date, up to the commencement of the bill, would not be subject to the same requirement. To further minimise the application of retrospectivity this section also provides for all new relevant offences (including attempts and conspiracies) to be excluded from retrospective application. Six-month deadline for taking a sample repealed for certain inmates We endorse amendments to sections 39(4) and 39C(3) in clause 21 that repeal the six-month deadline the Police currently have for taking a databank compulsion sample from inmates convicted of a relevant offence after the commencement of this Act. This is because inmates convicted prior to the commencement of the Act will be compelled under the bill to give a DNA sample regardless of the six-month deadline, as all of them would have been in prison for nearly seven years (a period substantially longer than the six-month deadline). The amendment aims to rectify an anomaly whereby persons in prison convicted after the commencement of the Act would not be compelled to give a DNA sample (if the six-month deadline had passed), while others imprisoned prior to the Act s commencement would all be compelled to give DNA samples. However, we recommend the six-month time constraint continue to apply to persons not in prison, as we are of the view that persons at liberty in the community should not be subject to compulsory State intervention after a specified period. Inmates profiles to be added to the databank It is estimated that, pursuant to the proposed new inmate provisions in the bill (the ability to obtain samples from inmates convicted prior

12 12 Samples) Amendment Commentary to the commencement of the Act and the abolition of the six-month rule), approximately 418 inmates DNA profiles will be added to the databank. This represents a potential 8.5 percent increase in the number of DNA profiles, gained by databank compulsion order, held on the databank. 5 Currently, the databank holds a total of approximately 28,864 profiles, of which about 24,000 samples (around 75 percent) were provided voluntarily and 4,893 (approximately 25 percent) pursuant to a Part III databank compulsion order. 6 Compulsion order hearings before a judge to be repealed Clause 21 repeals sections 39 to 44 of the Act, that provide that where a person has been convicted of a relevant offence, and the conviction has not been quashed, a databank compulsion order authorising the taking of a DNA sample must be made by the Judge. Our view is that this requirement is not a sensible use of judicial resources, as the process is essentially an administrative, not a judicial, function. As such, we endorse clause 21 of the bill, subject to the following amendments. Changes to the form and content of the databank compulsion notice We recommend a number of amendments to new sections 39A and 39B, as inserted by clause 21, which govern the form and content of the databank compulsion notice for both adults and young persons. Significantly, we recommend the addition of information advising the person to whom a databank compulsion notice is given of the offence in relation to which it is issued and what the DNA sample will be used for. It ensures the person is clearly informed that information obtained from the DNA sample will be stored on the databank and may be used by the Police in the investigation of criminal offences. 5 As at 6 December 2002, figures calculated by the Department of Corrections indicate that there is an estimated 280 inmates convicted of a relevant offence prior to 12 August 1996, who have an aggregate sentence length of greater than five years, currently in prison. Police estimate approximately 138 additional inmates, convicted since August 1996, who may not have had a DNA profile placed on the databank, will be included on the databank with the abolition of the six-month period for obtaining DNA samples following conviction. 6 Figures provided by the ESR on 10 December 2002.

13 Commentary Samples) Amendment 13 Clarification of the date for the taking of the DNA sample Clause 21, new section 39C(2) and (3) prescribe various restrictions on the dates that may be specified in the databank compulsion notice, depending on whether or not the person is detained under a sentence of imprisonment at the time the notice is served. This is needed as the person must be given sufficient time to determine whether he or she wishes to challenge the grounds upon which the notice was issued, seek a databank compulsion notice hearing and legal advice. The bill sets out two different time periods applying to different persons depending on whether they have an appeal pending. This is confusing. To simplify this provision we recommend new sections 39C and 41(2)(d) be amended to provide that where a databank compulsion notice is served, at least 15 days must be given from the date of service to the date specified in the notice for the taking of the sample. Only commissioned police officers may issue a databank compulsion notice Government members recommend no change to clause 21, new section 39(1), which specifies that only a commissioned police officer may issue a databank compulsion notice. 7 The Police Association submit that in practice this would be difficult to administer, and suggest that for practical purposes Sergeants, who can currently apply to the court for a databank compulsion order, be able to issue the notice. However, moving from a regime whereby the Police may apply to a court seeking judicial authorisation for the taking of a compulsory DNA sample to one where the Police exercise the power to take a DNA sample without judicial scrutiny represents a significant shift that calls for a high level of Police scrutiny to ensure the grounds for issuing a notice have been established. Government members consider that specifying only a commissioned officer is authorised to take this step adds an extra level of accountability to the regime in the absence of judicial oversight. 7 As at June 2002 there were 214 members of police within this category, which includes The Commissioner, Deputy Commissioners, Assistant Commissioners, Superintendents and Inspectors. It does not include Senior Sergeants, Sergeants or Constables.

14 14 Samples) Amendment Commentary Hearings purposely sought on unmeritorious grounds precluded by the bill We recommend new section 43A be added to clause 21 to address a potential loophole in the bill. The intent of new section 43A is to allow, under certain circumstances, DNA samples to be taken from persons later than six months from the date of their conviction, or after the person s release from prison. The amendment is necessary as the bill as introduced allows persons to seek a hearing on unmeritorious grounds solely to ensure a DNA sample could not be taken within statutory time periods. This is most likely to arise with respect to the application of the retrospective powers to those longterm inmates convicted prior to the commencement of the Act, but still in prison when the bill comes into force. The Police may be able to serve the databank compulsion notice on these inmates only a few weeks prior to their release. Certain inmates nearing the end of their sentence may apply for a hearing and, on their release from prison, no longer be required to provide a DNA sample, even if the court determined the request for a hearing was totally without merit. New section 43A closes this loophole to ensure that such persons are still liable to give a DNA sample. Further to this amendment, and in accordance with existing provisions in the Act, we also recommend the inclusion of new subsections (3) to (5) in new section 44A to allow for the eventuality that the sample has for some reason failed to give a readable DNA profile. This allows a further databank compulsion notice to be issued even if the latest dates for taking a DNA sample under the Act have already passed. Police to be notified of time and place of databank compulsion hearing We recommend clause 21, new section 41B(2) be amended by adding a new subsection requiring court registrars to advise the Police of the time and place for the databank compulsion hearing. This is a minor technical amendment in recognition of the responsibility of the Police, under new section 41B, to file a notice of hearing on request from a person in relation to whom a databank compulsion notice has been issued. Attendance for the taking of a DNA sample Clause 22, which repeals sections 45 to 47 of the Act and substitutes new sections 45AA to 47, sets out the requirements for a person s

15 Commentary Samples) Amendment 15 attendance for the taking of a DNA sample. We recommend a number of minor amendments to these sections. Taking a DNA sample from a person in custody New section 46, as inserted by clause 22, clarifies the procedure for the taking of a DNA sample from a person in custody. 8 We propose a minor amendment to this provision to ensure that the nature of the custodial detention is correctly referred to. As introduced, section 46 contains references to the person having custody of a person required to give a DNA sample pursuant to a databank compulsion order. However, in the case of a person in, or on leave from, a hospital under section 46 of the Mental Health (Compulsory Assessment and Treatment) Act 1992, or following an application under section 45(2) of the Act, it may not be strictly correct to refer to the person being in the custody of the mental health authorities. We therefore recommend the addition of the words or responsibility for in subsections (2) and (4), to rectify the terminology and ensure that all those sought to be in the bill are included by the provisions. Taking a DNA sample from home detainees New section 46A (clause 22) allows a home detainee and the Police to agree to vary the place or date for the taking of a DNA sample. 9 We recommend the addition of proposed new subsections (3A) and (3B) in new section 24A (clause 17) to limit the ability of a home detainee to agree to a variation of the place for the taking of the DNA sample. This will ensure that the primary place for taking the DNA sample should always be the person s place of detention. Consequentially, we also recommend the addition of new section 24B(2) to ensure the parents of home detainees under 17 years of age are advised if there is a change of date on which the DNA sample is to be taken. In all cases these amendments are accommodated in the databank compulsion notices by the addition of new sections 39A(3) and (4), 39C(1A) and 39D(2) and amendments to section 39B(2) in clause 21. In instances where a home detainee has to have a DNA sample taken at a place other than their place of residence due to health reasons, further amendments provide for the Department of Corrections to be advised of this. 8 Custody of the Police, the Chief Executive of the department responsible for the administration of the Children, Young Persons, and Their Families Act 1989, the Superintendent of a penal institution, or in the custody of a hospital under the Mental Health (Compulsory Assessment and Treatment) Act This is done with the approval of the supervising probation officer.

16 16 Samples) Amendment Commentary Procedures for taking a DNA sample Only suitably qualified persons can take blood samples Currently the Act prescribes that when a blood sample is taken it must be taken by a medical practitioner or a registered nurse. This presents a resourcing issue. Clause 24 addresses this problem by amending section 49 of the Act to allow any suitably qualified person to take a blood sample. A suitably qualified person in relation to taking a blood sample is: a medical practitioner a registered nurse a medical technologist with a degree in medical laboratory science a person trained in phlebotomy in accordance with the national standard for training phlebotomists adopted by the Association of Community Laboratories Incorporated. 10 Buccal samples may be taken by the person giving the sample or by a suitably qualified person We spent some time considering the issue of who should be authorised to take a buccal sample, and in what circumstances. The bill provides that a person may choose to give a buccal sample rather than a blood sample. 11 New section 49A in clause 25 relates to the persons authorised to take buccal samples. It provides for a person over 17 years to take the mouth swab him or herself (under supervision of a trained member of the Police) or, in the case of a compulsion sample, the person may choose to have it taken by a medical practitioner or a suitably qualified person. 12 We recommend amendments to a number of provisions in the bill to give effect to the following changes. First, to simplify procedures, reduce costs, and prevent unnecessary delays (as currently a doctor may not always be available) we recommend an amendment removing the ability for a person to choose the type of medical professional 10 A phlebotomist is a person who, through training or experience, is competent to draw blood. 11 If the person has not determined a preference for the type of bodily sample they are to provide, a member of the Police may make the choice under clause 23(6). 12 A suitably qualified person in relation to taking a buccal sample is a medical practitioner or any person defined as a suitably qualified person in relation to taking a blood sample who has been trained in the criteria for taking buccal samples determined by the approving agency.

17 Commentary Samples) Amendment 17 who will take their buccal sample. We consider that no expertise, safeguards, or protections will be lost in allowing any suitably qualified person to take a buccal sample. Second, as the procedure for taking a mouth swab is simple and straightforward we consider it desirable a young person be given the option of electing to take their own buccal sample. Accordingly, we recommend that the bill provide for young persons to be able to take their own buccal sample. However, given that young persons are a particularly vulnerable group in society, as an extra safeguard we recommend that they also be able to choose to have the sample taken by a suitably qualified person. Thirdly, as the bill currently provides that an adult giving a buccal sample by consent (under a suspect or databank request) must take the sample him or herself, we recommend the bill provide for any suitably qualified person to take the sample where the person giving the sample is unable to do so because of a disability or an injury. Mouth swabs may not be taken by the Police While the procedure for taking a mouth swab is demonstrably quick and simple, Government members disagree with the Police Association s recommendation that the bill allow buccal samples to be taken by a member of the Police. In such cases where a person does not take the sample him or herself it is more appropriate that an independent and professional person be present for the procedure. The presence of a neutral and professional person would ensure procedures are properly adhered to, and would be less likely to be subject to complaints (justified or unjustified) than a police officer. Prison officers authorised to assist the Police in using reasonable force to obtain a DNA sample We recommend an amendment to clause 29(2) inserting new subsection (2A) into section 54 of the Act. This allows prison officers to assist the Police in using reasonable force to allow a suitably qualified person to obtain a DNA sample from an inmate. Currently only the Police have the power to assist a doctor to obtain a DNA sample by the use of reasonable force. The Police frequently have to travel to prisons some distance from the main centers in order to obtain a DNA sample. While generally inmates will provide a sample without resistance, occasionally there are instances where the Police require assistance to give effect to a databank compulsion order. The

18 18 Samples) Amendment Commentary Police and prison officers are trained in the use of reasonable force in appropriate circumstances. Consequentially, we recommend the insertion of new clause 36B to ensure that the indemnity provision under section 79 of the Act is extended to prison officers acting in accordance with the proposed new section 2A in clause 29. Limits placed on those who can be present when a DNA sample is taken Clause 26 as introduced allows the person giving a DNA sample to elect a number of specified people to be present when the DNA sample is taken. If the person is taking the DNA sample him or herself, he or she is entitled to have a lawyer and one other person of their choosing present. When the person is not taking their own sample they are also allowed to have a medical practitioner or suitably qualified person present in addition to such person taking the sample. As discussed previously in this commentary, we recommend that bodily samples be permitted to be taken by any suitably qualified person who is available. The effect of that recommendation is that medical practitioners will become suitably qualified persons. To further simplify the operation of the Act we recommend an amendment to clause 26 to allow a person the right to have only a lawyer or one other person of their choice to be present. Our view is that allowing the presence of several additional persons when giving a sample is unnecessary, as it is seldom exercised in practice, and offers no practical protections. It serves only to delay the taking of a DNA sample. However, taking into account the importance of maintaining protections and safeguards for vulnerable persons in society, we agree that it is necessary to retain the current entitlement that a person under 17 years of age may additionally have a parent, or other person having care of that person, present. Further, we recommend the insertion of a new clause 28A and other consequential amendments to ensure that when a person under 17 elects to take their own buccal sample to provide a consent sample an independent adult must be present for the young person s confirmation that he or she wishes to take their own sample and for the taking of the sample. Investigating officer may be present when DNA sample taken To minimise the possibility or suggestion that a DNA sample may be interfered with, the current law prohibits any member of the Police who was involved in the investigation of the offence in

19 Commentary Samples) Amendment 19 respect of which the DNA sample is to be taken, from being present when a suspect consent or suspect compulsion sample is taken. Clause 28 of the bill amends the Act to allow investigating officers to be present when an adult suspect provides a consensual buccal sample (in such cases the person will usually take the sample him or herself). We agree with this provision and see no reason to object to investigating officers also being present when a compulsion sample is taken (where consent is not an issue). As such we recommend amendments to allow, in all circumstances, (consent or compulsion procedures, Part II or Part III, adult or juvenile procedures, blood or buccal samples) an investigating police officer to be present when the DNA sample is being taken. Delivery of second DNA sample to be as soon as practicable The Act currently requires that when a fingerprick or venous DNA sample is taken from a person in custody the person supervising the taking of the DNA sample must deliver the second part of that sample forthwith to a person nominated by the person the DNA sample is taken from. A second sample is taken on the agreement of the person giving the sample. It allows that person to have the DNA sample independently tested and for it to be held in safe-keeping by a trusted person. It also avoids any suggestion that the DNA sample has been tampered with. Clause 30, new section 56A, amends the Act to extend those procedures, with a couple of modifications, to DNA buccal samples. However, we agree with the Police Association s submission that the requirement to immediately deliver a second DNA sample is administratively onerous. We recommend an amendment to clause 30 and the insertion of new clauses 29A and 29B to allow for the delivery of the second sample as soon as is practicable. Bill allows DNA material genetically traceable to the offender to be used to apply for a suspect compulsion order We endorse clauses 13, 15 and 31 of the bill that extend the material that the Police may use to seek a suspect compulsion order to include material genetically traceable to the offender. This is pertinent in cases of sexual assault resulting in pregnancy, as the DNA profile obtained from foetal matter could then be used as a basis to seek a Part II suspect compulsion order.

20 20 Samples) Amendment Commentary No legal obligation to provide foetal matter In expressing this view, we were concerned that the rights of the individual be respected, particularly given the sensitive circumstances surrounding such cases. However, we are confident that the bill places no legal obligation on any person to provide foetal matter to the Police. The bill deals with obtaining compulsion DNA samples from suspects or convicted persons only. In requesting a sample from a person the Police advise that in all cases they would be sensitive to the trauma the victim had endured, and that a woman capable of giving consent refusing to allow foetal matter to be made available would generally have her wishes respected. Consultation on this issue was undertaken with Te Puni Kokiri, the Ministry of Pacific Island Affairs and the Ministry of Health. While observations were made about the variations of custom and protocol between iwi and regions, none of these agencies had any particular concerns that could not be met by adequate and sensitive communication, and by respecting the woman s wishes and, where appropriate, the family s wishes. No other amendments recommended in respect of youth justice issues We agree with the concerns of some submitters that the rights of young persons should not be infringed upon. However, we do not recommend any amendments to the bill in this respect, other than those relating to young persons being able to take their own samples. There are already certain procedural safeguards under the Act that recognise children and young persons as being a particularly vulnerable group in society. None of these requirements has been removed under the bill. Youth Law submit an amendment should be made to extend the protection of the relevant provisions, from persons under the age of 17 to those under 18, in order to comply with the United Nations Convention on the Rights of the Child. However, it would be inappropriate to use this legislation to re-categorise juveniles as young people under 18, as the new definition would be wholly inconsistent with the definition of a young person used in the Children, Young Persons, and Their Families Act The Government has agreed that the Ministry of Social Development will conduct a review of the upper age limit of the Children, Young Persons, and Their Families Act. We note that if this review results in a raise on the age limit of a

21 Commentary Samples) Amendment 21 young person in a comprehensive manner across the statute book then effect will be given to the Youth Law submission in this way. We also disagree with Youth Law s submission that the bill provide for a person under 17 to receive independent legal advice before a valid consent for a DNA sample can be given. We consider this is unnecessary, and would involve increased costs and delays. Safeguards already exist for young persons in both the Part II suspect regime and the Part III databank regime. Under section 32 of the Act, there is no ability to obtain a databank consent sample from a person under 17 years of age. While the Police do have the authority to seek a suspect consent sample from any person of or over 14 years of age, if either the young person or the parent refuse consent, a DNA sample may not be taken. As regards compulsion samples, under the Act and the bill murder and manslaughter are the only offences for which a child can be criminally liable, so a compulsory sample could be obtained on conviction in these cases. Where there is a suspect or databank compulsion order legal representation must be made available to a person upon whom a juvenile notice is served before the proceedings. We consider these safeguards to be adequate. Further, we recommend no change to the bill to arrange for the removal of DNA records of young people after a period of time has elapsed (and no further suspicion of offending or actual offending has occurred), as submitted by the Office of the Commissioner for Children. This would completely undermine the purpose and effectiveness of the databank as an investigative tool. If these records were deleted, no DNA evidence of a crime committed at a later date could be matched to a permanent record on the databank, and used as a basis for obtaining a Part II suspect compulsion order. Furthermore, such an amendment would, to some extent, compound the application of compulsory State powers on individuals, as if the evidence were deleted the Police may be called upon to obtain a DNA sample from a person on multiple occasions in connection with other crimes. DNA samples and contamination Several submitters had concerns regarding possible contamination of DNA samples and the potential this has to lead to wrongful

22 22 Samples) Amendment Commentary verdicts. Our enquiries revealed that the greatest potential for contamination exists at either the crime scene itself, or at the processing stage in the laboratory. ESR has minimised the potential for contamination We are confident that the ESR has minimised the potential for contamination at the processing stage in the laboratory. During a site visit we were able to witness first hand how DNA samples are stored, tested and processed. While it is clear that there is always a chance of human error, we are satisfied that the processes put in place by ESR are sound and that all possible steps are being taken to ensure the chance of a DNA sample being contaminated is minimised. Procedural and operational safeguards include: a specific workspace for each task in the testing and sampling process separate non-amplified and amplified DNA areas (the inner core being maintained under negative air pressure to contain amplified material) control and maintenance of differential air pressures throughout the facility to allow the changes in air pressure to draw extraneous DNA particles away a heavy duty airtight ceiling and interlocked motor driven door a single pass air-conditioning system which ultra filters the air before returning it outside the facility, eliminating biological contaminants from being returned to the outside environment DNA samples being fully self-contained before going into the instrument room the lobbies/air locks to the instrument room being flooded with ultra violet light at the end of each day to denature any extraneous DNA particles and biological contaminants. Amendments to reduce the potential for contamination at the crime scene are outside the scope of the bill The other possibility of contamination of the DNA sample is at the crime scene, when being collected by the ESR scientist or the investigating police officer. While we are satisfied that the ESR staff