Criminal Investigations (Bodily Samples) Amendment Bill Government Bill Explanatory Note General policy statement This Bill represents one part of the initiatives promoted by this Government in its commitment to reduce crime. The Bill arose, in part, as a component of this Government's comprehensive burglary package. The package forms an integral part of the Plan to Cut Crime set out in the Labour Party Manifesto. The Bill will also assist this Government's commitment to reduce burglary and violent crime (including sexual violence), which was outlined as part of the Crime Reduction Strategy in 2001. The Bill is designed to strike an appropriate balance between extending the use of DNA as a valuable investigative tool in the fight against crime, and the recognition and protection of fundamental personal rights. The non-consensual taking of bodily samples from suspects and for DNA profile databank purposes encroaches on fundamental personal rights. However, there are pressing, substantial, and highly compelling societal interests in obtaining DNA samples. Those interests include effective crime control, protecting the innocent, and discovering the truth. The Bill will extend the police's ability to obtain and use DNA samples while infringing on fundamental rights and freedoms to the minimum extent necessary to meet the Bill's objectives. The amendments in this Bill will extend and clarify the application of the Criminal Investigations (Blood Samples) Act 1995 "(the principal Act") in respect of taking DNA samples from those who consent to giving samples, from suspects, and from persons convicted of certain specified offences. The Bill will also allow for more effective and wider use of DNA profiling, which is now recognised as an essential investigative tool. Other proposed amendments are designed to ensure greater compliance with orders and notices made under the principal Act and will clarify and simplify certain procedural requirements relating to taking samples and arresting persons who fail to comply with the prescribed statutory obligations. The main changes to the principal Act--- o allow buccal (mouth) swabs to be taken, as an alternative to taking blood samples, as a DNA sampling technique to obtain DNA profiles by consent, from suspects, and for the purpose of storing DNA profiles on the databank: o ensure that the same procedural safeguards that exist in respect of blood samples sought and obtained under the principal Act apply in respect of buccal samples taken under the Bill: o allow compulsory DNA testing of all inmates in prison on the date the amending legislation comes into force if they were convicted of relevant schedule offence prior to the commencement of the principal Act in 1996: o repeal the current 6-month limitation for obtaining a sample from a person convicted of a schedule offence who is serving a term of imprisonment in respect of that offence: file:///s /BILLS/PDF/20022211.txt (1 of 53) [30/05/2002 14:02:16]
o repeal the current requirement for compulsion order hearings before a Judge prior to a databank sample being taken following conviction of a schedule offence. This procedure will be replaced with the issuing of police notices that compel people convicted of such offences to give a bodily sample. However, the Bill will allow the convicted person to request a hearing before a Judge if it is alleged that the statutory pre-conditions for taking a sample do not exist: o extend the range of material that can be used as a basis to compel a suspect to provide a DNA sample to material (including foetal material) that the Judge is satisfied is reasonably believed to be genetically traceable to the person who committed the offence: o allow DNA samples to be taken, by consent or by court compulsion order, from persons suspected of committing burglary or entering with intent: o allow DNA samples to be taken from persons suspected of, or convicted of, attempting to commit any of the relevant schedule offences: o allow a person who is subject to a compulsion order or databank compulsion notice and the police to vary, by consent, the date and place specified in the order to a different place or a different date, or a different place and date, as long as the date on which the DNA sample is taken is on a date prior to that specified in the order: o simplify and make more effective the arrest warrant power in cases where the person subject to the compulsion order or notice fails to appear on the specified day or where there are reasonable grounds to believe that the person will not appear on that date: o extend the range of persons who may take blood samples under the existing law and buccal samples under the proposed law: o specify in transitional provisions that any process commenced under the principal Act prior to the commencement of this Bill be completed under the law as it currently exists. Clause by clause analysis Clause 1 is the Title clause. The Title of the Bill is the Criminal Investigations (Bodily Samples) Amendment Act 2002. The Bill amends the Criminal Investigations (Blood Samples) Act 1995 "(the principal Act"). Clause 2 is the commencement clause. It provides that except for section 9, which inserts new section 4B into the principal Act, the Bill will come into force on a date to be appointed by Order in Council. There are several reasons for the majority of the Bill commencing by Order in Council. One reason is to allow time to amend regulations made under the principal Act. The Criminal Investigations (Blood Samples) Regulations 1996 prescribe procedural details relating to the taking of bodily samples, including the forms and notices issued under the principal Act. Commencement by Order in Council also allows time for training persons who will be taking and dealing with buccal samples, including the training of members of the police who will be supervising the taking of buccal samples. Commencement by Order in Council also allows the agency that is approved by the Minister under new section 4B to develop appropriate training criteria for persons taking, supervising the taking of, and dealing with buccal samples. Clause 9 commences on the day after Royal assent, which allows time for the agency approved by the Minister, under new section 4B, to develop training criteria and for people to be trained in taking, supervising the taking of, file:///s /BILLS/PDF/20022211.txt (2 of 53) [30/05/2002 14:02:16]
and dealing with buccal samples before the remainder of the Bill comes into force. Part 1 Amendments to principal Act Clause 3 amends the Long Title of the principal Act. Clause 4 amends the name of the principal Act. After the commencement of the Bill, the principal Act will be called the Criminal Investigations (Bodily Samples) Act 1995. Clause 5 amends section 2(1) of the principal Act, which is the interpretation section. The following definitions are repealed or amended for the following reasons: o the existing definition of blood sample or sample is repealed and a new definition substituted because the generic term sample now applies to bodily samples, which include buccal as well as blood samples: o the definition of compulsion order is amended and the definition of databank compulsion order has been repealed. This is because databank compulsion orders will no longer be made under the principal Act once this Bill comes into force: o the definition of relevant offence has been removed and replaced with a new definition. The new definition includes attempts to commit any of the offences listed in the Schedule of the principal Act. The following new definitions are added to the principal Act: o the term approved agency is defined. An approved agency is the agency approved by Ministerial notice to determine the training criteria for persons taking, supervising the taking of, or dealing with buccal samples: o the term bodily sample or sample is defined to include blood and buccal samples: o the term databank compulsion notice is defined as a notice issued under new section 39; and includes a databank compulsion notice that has been modified by a Judge under new section 42, new section 43, or new section 47: o the term databank compulsion notice hearing is defined as a hearing requested under new section 41: o the term detained under a sentence of imprisonment has the meaning given to it in new section 4A: o the term home detention is given the same meaning as in section 4(1) of the Sentencing Act 2002: o the term Part III order is defined as an order made by a Judge requiring a person to give a bodily sample pursuant to a databank compulsion notice: o the term suitably qualified person is defined. A person is suitably qualified to take a blood sample if he or she is a nurse, medical technologist, or phlebotomist. A person is suitably qualified to take a buccal sample if he or she is a person who may take a blood sample and he or she has been trained in accordance with the training criteria for taking buccal samples determined by the approving agency. (A medical practitioner may also take a file:///s /BILLS/PDF/20022211.txt (3 of 53) [30/05/2002 14:02:16]
blood or buccal sample. A person may also take his or her own buccal sample under new section 49A(1) under the supervision of a trained member of the police.) Clause 6 provides that the principal Act is amended in the manner indicated in the Schedule. The Schedule amends terminology in the principal Act in accordance with the introduction of buccal samples as a method of taking a sample under the principal Act. The large majority of amendments replace references to blood sample with references to bodily sample. Clause 7 amends section 4 of the principal Act, which is the application provision. The amendments relate to the application of Part III of the principal Act. The effect of the amendments is that Part III of the principal Act will no longer apply only to convictions entered after the commencement of the principal Act, but will also apply, in certain circumstances, to convictions entered before the commencement of the principal Act. Part III will apply to--- o convictions entered after the commencement of the principal Act (after 12 August 1996): o convictions entered before the commencement of the principal Act (before 12 August 1996) if the convicted person is detained under a sentence of imprisonment (as that term is defined in new section 4A) in relation to that conviction on the date this Bill comes into force. New section 4(3) provides that Part III does not apply to attempts to commit offences listed in the Schedule if the conviction for that attempt is entered before the commencement of this Bill. The reason for this restriction is that an attempt to commit a relevant offence is not defined as a relevant offence until the commencement of this Bill. Attempts to commit relevant offences are made relevant offences under new paragraph (b) of the new definition of relevant offence. Clause 8 inserts a new section 4A into the principal Act, which defines when a person is detained under a sentence of imprisonment. It is necessary to define this term in detail in order to clarify how the new databank compulsion notice regime will apply to certain persons. Whether or not a person is detained under a sentence of imprisonment for a relevant offence affects--- o whether a bodily sample may be taken from a person who had a conviction entered before the commencement of the principal Act under new section 4(2): o when a databank compulsion notice must be served under new section 39: o the date that must be specified in the notice as the date on which the person must attend to give a bodily sample under new section 39C. Clause 9 inserts a new section 4B into the principal Act, which sets out the Ministerial notice procedure for approving--- o an agency to determine the training criteria for persons taking, supervising the taking of, or dealing with buccal samples: o a device for taking, or other means of providing, buccal samples. The notice-making power is consistent with the principles identified in the Regulations Review Committee's report on deemed regulations. The matters to be approved by Ministerial notice are limited to relatively detailed technical matters that affect a limited group of people, and do not involve criminal sanctions. The matters may need amendment as new techniques for taking buccal samples are developed. The notice relating to devices and techniques for file:///s /BILLS/PDF/20022211.txt (4 of 53) [30/05/2002 14:02:16]
taking buccal samples is analogous to the Ministerial notice procedure for approving breath screening devices under the Land Transport Act 1998. The approval of an agency by Ministerial notice is similar to the Ministerial notice approval process for approved laboratories and approved analysts under the Land Transport Act 1998. Both types of notices made under new section 4B are to be published in the Statutory Regulations series and are deemed to be regulations under the Acts and Regulations Publications Act 1989 and the Regulations (Disallowance) Act 1989. Clause 10 amends section 7 of the principal Act, which relates to the form and content of suspect request notices. A suspect request notice is a notice issued by the police seeking a suspect's consent to the taking of a bodily sample in order to confirm or disprove the suspect's involvement in the commission of an indictable offence. Clause 10 has the effect of requiring new particulars to be included in the notice. The new particulars relate to taking and dealing with buccal samples under new sections 49A and 56A, and to who may be present when a buccal sample is taken. Clause 11 amends section 8(2)(c) of the principal Act, which relates to the form and content of suspect request notices for persons under the age of 17 years. The effect of the amendment is that new particulars are included in the suspect request notice. Clause 11 also inserts a new section 8(2)(d), which sets out modifications and substituted particulars that differ from those in a standard suspect request notice in relation to a person under the age of 17 years. Clause 12 makes a minor drafting amendment to section 9(3)(b)(i) of the principal Act to ensure consistency in terminology with section 8(2)(a) of the principal Act. Clause 13 repeals section 16(1)(b) of the principal Act. Section 16 of the principal Act relates to the issuing of a suspect compulsion order by a Judge. A High Court Judge must be satisfied of the matters set out in section 16(1) before he or she makes a suspect compulsion order. New section 16(1)(b) sets out various matters of which a Judge must be satisfied that relate to material that is connected with the commission of an offence. Currently, under section 16(1)(b), a Judge needs to be satisfied that "material reasonably believed to be from the body of a person who committed the offence has been found". New section 16(1)(b) broadens this to "material reasonably believed to be from, or genetically traceable to, the body of the person who committed the offence has been found or is available". The words "genetically traceable" have been included to cover a situation where a sexual violation results in a pregnancy. In the case of R v T (CA302/98), the Court of Appeal commented, after considering an affidavit from a forensic scientist, that, in relation to foetal material of 19 to 20 weeks' gestation, "it seems to be accepted that by this stage anything that could possibly be described as original material from the father was not present. There was only material the origin of which can be genetically traced to him". The word "available" has been included in new section 16(1)(b) to ensure that the section covers a situation where material is not found, but is available to the police. Currently, section 16(1)(b) lists 3 situations when the Judge may be satisfied that material reasonably believed to be from the person who committed the offence has been found. New section 16(1)(b)(i) to (v) replace the 3 existing situations with 5 new situations, which are a combination of old and new situations. The 5 situations where material reasonably believed to be from, or genetically traceable to, the body of a person who committed the offence has file:///s /BILLS/PDF/20022211.txt (5 of 53) [30/05/2002 14:02:16]
been found or is available are--- o at the scene of the offence (a situation in existing section 16(1)(b)(i)): o on the victim of the offence (a situation in existing section 16(1)(b)(ii)): o from within the body or from anything coming from within the body of the victim of the offence that is reasonably believed to be associated with, of having resulted from, the commission of the offence (a new situation introduced to ensure that foetal material is covered by the provision): o on anything reasonably believed to have been worn or carried by the victim when the offence was committed (a situation in existing section 16(1)(b)(ii)): o on any person or thing reasonably believed to have been associated with the commission of the offence (a situation in existing section 16(1)(b)(iii)). Clause 14 inserts new section 17A into the principal Act, which relates to a Judge specifying the type of bodily sample that is to be taken if a further suspect compulsion order is made in respect of a person in relation to whom a previous suspect compulsion order has already been made. New section 17A requires a Judge to take the view of the police and the respondent into account before deciding which type of bodily sample is to be taken. Clause 15 amends section 23(1)(d) of the principal Act. Section 23 of the principal Act relates to the making of a juvenile compulsion order by a Judge. Section 23(1)(d) is amended in the same manner and for the same reasons as section 16(1)(b) is amended by clause 13. Clause 16 amends section 24 of the principal Act, which relates to the form and content of compulsion orders. Section 24(2) and (3) are repealed and a new section 24(2) substituted to take into account the new conditions that will be imposed on compulsion orders under new section 24A. Section 24(4) is amended to deal with changes in the principal Act relating to the introduction of buccal samples as a method by which a bodily sample may be taken under the principal Act. Clause 17 inserts new section 24A into the principal Act, which relates to conditions in compulsion orders. New section 24A(1) essentially restates repealed section 24(3), which relates to the imposition of a condition that delays the taking of a bodily sample until the person from whom it is to be taken has had an independent medical practitioner certify that the taking of the sample will not cause serious harm to the person's health. Under new section 24A(2), unless there are good reasons why not, an order must contain the condition that a person may attend to give a bodily sample at a different place, or an earlier date, or a different place and an earlier date than that specified in the order if the police and the respondent agree to a variation of that kind. However, if the Judge believes there are good reasons why the person must attend to give the sample at the place, on the date, or at the place and on the date specified in the order, he or she may impose, under new section 24A(3), a condition that restricts the police and the respondent from agreeing to vary the order. New section 24A(4) clarifies, for the avoidance of doubt, that a condition relating to the restriction on taking a sample until a medical practitioner has indicated that the sample can be taken without causing serious harm to the person's health overrides any other condition imposed under new section 24A. Clause 17 also inserts new section 24B into the principal Act, which relates file:///s /BILLS/PDF/20022211.txt (6 of 53) [30/05/2002 14:02:16]
to the notification of a parent or person having care of a person under 17 years if the police suggest a variation to the place or date, or place and date, specified in a juvenile compulsion order.clause 18 amends section 27(4)(a) of the principal Act, which relates to access to, and disclosure of, information on the DNA profile databank. Section 27(4)(a) is amended by including reference to the issuing of a databank compulsion notice. Clause 19 amends section 29(a)(ii) of the principal Act, which relates to the authority to take a bodily sample for a DNA profile databank. Section 29(a)(ii) is amended by removing the reference to a databank compulsion order and replacing it with a reference to a databank compulsion notice. Clause 20 amends section 31 of the principal Act, which relates to the form and content of databank request notices. A databank request notice requests consent to the taking of a bodily sample for the DNA profile databank. Clause 20 has the effect of requiring new particulars to be contained in the notice, which relate to taking and dealing with a buccal sample under new sections 49A and 56A, and to who may be present when a buccal sample is taken. Clause 21 repeals sections 39 to 44 of the principal Act and substitutes new sections 39 to 44B. Existing sections 39 to 44 deal with obtaining bodily samples for a DNA profile databank by databank compulsion order. The effect of repealing sections 39 to 44 is that judicially made databank compulsion orders will no longer exist under the principal Act. The involvement of Judges in the process of making databank compulsion orders is seen as administrative in nature because the clearly prescribed grounds on which an order must be made leave no discretion to refuse an order if those grounds are satisfied. New section 39 provides for the issuing and service of a databank compulsion notice requiring a person who has been convicted of a relevant offence to which Part III applies to give a bodily sample. New section 39(2) describes how a notice is to be served on a person to whom it relates and, if the person to whom it relates is under the age of 17 years, how reasonable steps are to be taken to serve the notice on his or her parent or person having care of that person. New section 39(2)(c) places an obligation on a member of the police who is serving a notice to explain the contents of it to the person on whom it is served in a manner and in a language they are likely to understand. New section 39(3) sets out the timing of service of a databank compulsion notice if a person is not detained under a sentence of imprisonment at the time that the notice is issued. In that situation, the notice--- o must be served as soon as reasonably practicable after the person's conviction is entered: o must be served on a date that allows a date for the taking of the sample that is in accordance with the date in new section 39C(2)(b) to be specified in the notice: o need not be served before the person is sentenced. New section 39(4) sets out the timing of the service of a databank compulsion notice if a person is detained under a sentence of imprisonment at the time the notice is issued. In that situation, the notice must be served on a date that allows a date for the taking of the sample that is in accordance with the dates set out in new section 39C(3)(b) to be specified in the notice. New section 39(4) means that a person who is detained under a sentence of imprisonment may have a notice served on him or her after the commencement of this Bill even if, before the commencement of this Bill, a databank compulsion file:///s /BILLS/PDF/20022211.txt (7 of 53) [30/05/2002 14:02:16]
order could not have been made in relation to him or her (because, under existing section 39(3)(b), 6 months had passed since his or her conviction for the offence was entered). New section 39A sets out the form and content of a databank compulsion notice. New section 39B provides for additional and substituted particulars that are required to be included in a databank compulsion notice issued in relation to a person under the age of 17 years. New section 39C requires a date and place for the taking of a bodily sample under a databank compulsion notice to be specified in the notice by the member of the police who issues it. New section 39C(2) and (3) prescribes restrictions on the dates that may be specified on the notice, depending on whether or not the person is detained under a sentence of imprisonment (as that term is defined in new section 4A) at the time the notice is served. Time periods include a minium time period between the service of the notice and the taking of the sample. The minimum time period gives the person in relation to whom the notice is served time to seek legal advice and to consider whether or not to request a databank compulsion notice hearing. There are also maximum time periods within which the sample must be taken, which differ depending on whether or not the person is detained under a sentence of imprisonment for the relevant offence in relation to which the notice is issued. New section 39D requires a member of the police who suggests a variation to the place or date, or place and date, specified in a databank compulsion notice issued in relation to a person under the age of 17 years to notify a parent or other person having care of the person in relation to whom the notice is issued of the suggested variation. New section 40 means that a databank compulsion notice is of no effect if the person in relation to whom the databank compulsion notice is issued has his or her conviction for a relevant offence in relation to which the notice is issued quashed. Under new section 40(2), the police must advise a person whose sentence has been quashed that--- o o o the notice is of no effect: that the person is no longer required to give a bodily sample: that the notice may be disregarded. New sections 41 to 41C relate to databank compulsion notice hearings. A databank compulsion notice hearing may only be requested on the grounds set out in new section 41(2). These are--- o that the offence in relation to which the databank compulsion notice has been issued is not a relevant offence or the conviction in relation to which the notice is issued is not a conviction to which Part III applies: o that the conviction for the relevant offence in relation to which the notice has been issued has been quashed: o that all 3 methods available for the taking of a bodily sample are likely to cause serious harm to the person's health: o that the date specified in the notice as the date on which the person to whom the notice relates is to attend to give a bodily sample is a date that is not within the specified statutory time frames: o that the person or, if applicable, the parent has not been adequately file:///s /BILLS/PDF/20022211.txt (8 of 53) [30/05/2002 14:02:16]
served. New section 41A sets out the form of a databank compulsion notice hearing request and the effect of a request. The effect of a request is that a bodily sample must not be taken unless a Judge makes a Part III order requiring the sample to be taken in accordance with a databank compulsion notice. New section 41B places certain obligations on the police and the registrar of the court if a request is made for a databank compulsion notice hearing. If a member of the police receives a request for a hearing from a person in relation to whom a databank compulsion notice has been issued, the member of the police must file a notice of hearing in the prescribed form and in the appropriate court. The registrar must, on the receipt of such a request, advise certain specified persons of the time and the place of the hearing. New section 41C(1) specifies who may appear at a databank compulsion notice hearing. In the case of a person under the age of 17 years, there are certain persons who may be present at the hearing in addition to those who may be present at the hearing of a person over the age of 17 years, as set out in new section 41C(2). New sections 42 and 43 relate to Part III orders and other orders that may be made by a Judge at a databank compulsion notice hearing. Under new section 42(1), if a Judge is satisfied that a databank compulsion notice was issued in relation to an offence that was not a relevant offence or a conviction to which Part III does not apply, or that the conviction for the relevant offence has been quashed, the Judge must make an order that the databank compulsion notice is of no effect. Under new section 42(2), if a person has requested a hearing on the basis that the taking of a sample by any of the 3 available methods will cause serious harm to his or her health, the Judge must--- o make an order that the notice is of no effect (in a situation where no method currently available will be safe for that person); or o make an order that the sample be taken subject to the condition that an approved medical practitioner must first certify that the taking of the sample will not cause serious harm to the health of the person (in a situation where a person's current medical condition means that the taking of the sample is not safe at that time, but there may be a later time when it is safe). Under new section 42(3) and (4), if a Judge is satisfied that the date specified in the order is not a date on which a sample can be lawfully taken under the Act, the Judge must make a Part III order requiring the sample to be taken pursuant to the notice, but subject to a new date specified by the Judge. New section 42(5) allows a Judge to make any order that he or she considers appropriate if there has not been adequate service. New section 42(6) provides that, if a Judge is not satisfied that any of the grounds in new section 41(2) have been proved, he or she must make a Part III order requiring a bodily sample to be taken pursuant to the databank compulsion notice. New section 43 provides that a Judge can impose conditions on a databank compulsion notice under a Part III order, including a condition that the sample be taken on a different date or at a different place or both. New section 44 provides that a further databank compulsion notice must not be issued unless a Judge of the appropriate court has given leave for another to be issued. file:///s /BILLS/PDF/20022211.txt (9 of 53) [30/05/2002 14:02:16]
Under new section 44A, a Judge must be satisfied of certain matters before granting leave to issue a further databank compulsion notice. Under new section 44B, the Judge must specify the method for taking a sample pursuant to a further databank compulsion notice. Clause 22 repeals sections 45 to 47 of the principal Act, and substitutes new sections 45AA to 47. These new sections deal with a person's attendance for the taking of a blood sample. New section 45AA deals with when a sample is taken and provides that a bodily sample is to be taken by the date specified in a compulsion order or a databank compulsion notice unless a warrant has been issued after that date under new section 45 or unless the original date has been varied by a Judge under new section 42, new section 43, or new section 47. New section 45AA(2) provides that, if an agreement is reached between the police and the person to whom the order or notice relates to take a sample on a date earlier than that specified in a compulsion order or databank compulsion notice, but for any reason that person does not attend to give the sample on the agreed date, the sample may still be taken on the date specified in the order or any other date agreed to by the parties that is before the date specified in the order. The effect is that the date specified in a compulsion order or databank compulsion notice is the final date on which the sample can be taken, subject to a judicial warrant or variation. New section 45 relates to the issuing of a warrant to arrest and detain a person in relation to whom a compulsion order has been made or a databank compulsion notice has been issued. New section 45 allows a warrant to be issued to arrest and detain a person who it is believed is about to abscond or has absconded. Before a Judge can issue a warrant to arrest and detain a person, he or she must be satisfied of certain matters set out in new section 45(4) to (6). New section 45A relates to the form and effect of a warrant for arrest and detention issued under new section 45. The key points about the form and effect of a warrant are that--- o a warrant expires immediately after the sample is taken: o a warrant authorises the arrest and detention of the person to whom it relates for as long as reasonably necessary, but in no case longer than 24 hours: o a sample must be taken pursuant to the notice or order in relation to which it is issued, other than the date specified in the notice or order (this allows the police to exercise the warrant at any time): o the power to arrest and detain a person pursuant to a warrant may be exercised on 1 occasion only. New section 46 deals with the same matter as existing section 46, which is the attendance of a person in custody to give a bodily sample. New section 46 clarifies the procedure for the attendance of a person in the custody of the police, in the custody of the chief executive of the department for the time being responsible for the administration of the Children, Young Persons, and Their Families Act 1989, in the custody of a superintendent of a penal institution, and in a hospital under the Mental Health (Compulsory Assessment and Treatment) Act 1992. New section 46(4) provides that a person detained in custody still has the ability to agree to vary a date or place, or place and date, in a compulsion file:///s /BILLS/PDF/20022211.txt (10 of 53) [30/05/2002 14:02:16]
order or databank compulsion notice, but that any agreement reached is of no effect unless it has been approved by the person having custody of the person. The covering of expenses provision remains similar to that in existing section 46. New section 46A relates to a home detainee's attendance to give a bodily sample. A home detainee may agree with the police to vary the place or date, or the place and date, where a bodily sample is to be taken, but an agreement of that kind is of no effect unless it is approved by the probation officer supervising the home detainee. New section 47 deals with more or less the same matters as those in existing section 47, but now also deals with judicial variation of places and dates within the context of databank compulsion notices. New sections 47(1) and 47(3) are similar to existing sections 47(1) and (3), but take into account databank compulsion notices. New section 47(2) clarifies the meaning of appropriate court in the context of compulsion orders and databank compulsion notices. New section 47(4) to (6) deals with what may be varied by a Judge and what effect that has on existing conditions imposed on the relevant compulsion order or databank compulsion notice. Clause 23 amends section 48 of the principal Act, which relates to the method by which a bodily sample may be taken. The large majority of amendments to section 48 are consequential to the introduction of the new databank compulsion notice regime. New section 48(3A) has been included to ensure that a person's chosen method for the taking of a sample is subject to a direction given by a Judge regarding what type of sample must be taken under new section 17A or new section 44B. New section 48(5) has the effect that a member of the police may choose the method for the taking of a bodily sample if the person from whom the sample is to be taken has been given a reasonable opportunity to choose a method but has indicated that they have no preference. Clause 24 amends section 49 of the principal Act, which relates to the persons who are authorised to take blood samples. Due to the introduction of the newly defined term suitably qualified person, the reference to registered nurse has been omitted. Clause 25 amends the principal Act by inserting a new section 49A. New section 49A relates to the persons who are authorised to take buccal samples. New section 49A(1) provides that a person over the age of 17 years who is the subject of a compulsion order or databank compulsion notice may take his or her own buccal sample under the supervision of a member of the police, or have the sample taken by a medical practitioner or suitably qualified person. New section 49A(2) provides that, if the sample is to be taken from a person over the age of 17 years under a suspect request or a databank request, the sample must be taken by the person from whom the sample is to be taken himself or herself under the supervision of a member of the police. New section 49A(3) provides that, if a buccal sample is being taken from a person under the age of 17 years pursuant to any order or notice, it must be taken by a medical practitioner or, if the person from whom the sample is to be taken agrees, a suitably qualified person. Clause 26 amends section 50 of the principal Act, which relates to who the person from whom the sample is to be taken is entitled to have present during the taking of the sample. New section 50(1) provides that, if a medical practitioner or suitably qualified person takes a sample from any person, the person from whom the sample is to be taken is entitled to have present a medical practitioner or suitably qualified person, a lawyer, and 1 other person (each of his or her own choice). In the case of a person under the age of 17 years, the person may also have present a parent or other person having care of the person. New section 50(1A) file:///s /BILLS/PDF/20022211.txt (11 of 53) [30/05/2002 14:02:16]
differs from new section 50(1) because it has the effect that, if the person takes the sample himself or herself, he or she is not entitled to have a medical practitioner or suitably qualified person present. New section 50(4) and (5) provides that a person's entitlement to have other people present during the taking of a bodily sample is not affected by the person not choosing the type of sample to be taken. A person is not entitled to choose a method for taking a sample in a situation where a member of the police makes the choice under new section 48(3), a finger prick sample is taken under section 54(2), or a Judge determines the type of sample that is to be taken under new sections 17A or 44B. Clause 27 amends section 51(a) of the principal Act, which relates to certain people not being compelled to take a bodily sample. A reference to the new term suitably qualified person is substituted for the existing reference to a registered nurse. Clause 28 amends section 52 of the principal Act, which relates to who may be present during the taking of a bodily sample. New section 52(2) to (3) sets out situations when any member of the police involved in the investigation of an offence in relation to which a bodily sample is to be taken is not entitled to be present during the taking of that sample. These are--- o when a blood sample is taken pursuant to a suspect request, or the sample is taken subject to a suspect compulsion order or a juvenile compulsion order: o when a buccal sample is taken from a person under the age of 17 years: o when a buccal sample is taken from a person pursuant to a suspect compulsion order or a juvenile compulsion order. Clause 29 amends section 54 of the principal Act, which relates to the procedures for the taking of bodily samples pursuant to a compulsion order. New section 54(1) has the effect that a member of the police must give a person from whom a sample is to be taken an opportunity to elect what type of sample he or she wishes to be taken, unless the Judge has specified this under new section 17A or new section 44B. Under new section 54(1)(b), a member of the police must also inform the person that a medical practitioner may take a fingerprick sample with the police using reasonable force to assist. Clause 30 amends the principal Act by inserting a new section 56A, which relates to how buccal samples are to be dealt with. New section 56A requires that a person taking a sample or, if a person takes his or her own sample, the person supervising the taking of a buccal sample must deal with a buccal sample in a certain way. The procedure mirrors, with modifications, the procedure set out in section 55 of the principal Act for dealing with a venous sample. Clause 31 amends section 57(a) of the principal Act, which relates to the provision of part of a sample of material found at the scene being provided to the person charged. Section 57(a) is amended so that the material referred to is the same as the material referred to in new sections 16(1)(b) and 23(1)(d). Clause 32 amends section 62(4)(a) of the principal Act, which relates to the disposal of bodily samples and identifying information obtained under Part III. The amendment includes a reference to new databank compulsion notices that replaces a reference to databank compulsion orders. Clause 33 amends section 67 of the principal Act by repealing subsection file:///s /BILLS/PDF/20022211.txt (12 of 53) [30/05/2002 14:02:16]
(2). Section 67(2) is no longer necessary, because databank compulsion orders will not exist after the commencement of this Bill. Clause 34 amends section 75 of the principal Act, which relates to fees and expenses of lay advocates. The amendment removes reference to databank compulsion order provisions that no longer exist, and replaces them with references to relevant provisions relating to databank compulsion notice hearings. Clause 35 amends section 76 of the principal Act, which relates to information that the police must include in their annual report. The information required is extended to include--- o the number of occasions on which a buccal sample has been taken with the person's consent: o the number of buccal samples taken as a result of a compulsion order: o the number of databank compulsion notice hearings that are requested and the number of Part III orders, or orders that the notice is of no effect, made as a result: o the number of occasions that a DNA profile obtained pursuant to a Part II procedure has been used as evidence in a trial and the number of convictions entered as a result of those trials: o the number of occasions on which a DNA profile obtained pursuant to a Part III procedure has been used in support of a Part II application for a suspect compulsion order and the number of suspect compulsion orders granted as a result. Clause 36 amends section 77(1)(b) of the principal Act, which relates to offences, by including a reference to the new databank compulsion notices and omitting a reference to databank compulsion orders. Clause 37 repeals section 82 of the principal Act, which relates to an amendment made to the Summary Proceedings Act 1957 that is spent. Clause 38 inserts new transitional and savings provisions into the principal Act in order to provide for the changes that have been made to the principal Act, and to provide for how procedures commenced before this Bill comes into effect will continue after it is in force. Any suspect or databank request made before the commencement of this Bill comes into force is dealt with under the principal Act (without amendment) until the sample is taken in accordance with that request. Similarly, a suspect compulsion order, juvenile compulsion order, or databank compulsion order applied for before this Bill comes into force is to be dealt with under the principal Act as if this Bill had not come into force. Under new section 83(2), leave may be sought to apply for a further databank compulsion order after this Bill comes into force in relation to a databank compulsion order made before this Bill comes into force, and that application must be dealt with as if this Bill had not come into force. However, a further suspect compulsion order or juvenile compulsion order must be dealt with under the principal Act as amended by this Bill. New section 84 saves anything done under the principal Act before this Bill comes into force. Clause 39 amends the principal Act by omitting headings from the Schedule of the principal Act so that there are no longer 2 Parts to the Schedule. The effect of this is that the offences of burglary and entering with intent are file:///s /BILLS/PDF/20022211.txt (13 of 53) [30/05/2002 14:02:16]
now included as specified offences in the Schedule for the purposes of Part II of the Act. Part 2 Amendments to Summary Proceedings Act 1957 Clause 40 amends the First Schedule of the Summary Proceedings Act so that it refers to the new name of the principal Act. Regulatory impact and compliance cost statement Statement of the problem and need for action Developments in technology now mean that a reliable DNA profile can be obtained from a buccal (mouth) swab. It is desirable to employ the least invasive method available when affecting persons' rights. The buccal swab can be taken by the person themselves, so therefore provides a desirable alternative for those who have concerns about needles and giving blood samples. It is important that the technique now be recognised in statute so that its use can be maximised and the procedural protections, as set out for blood, can also be applied. While the principal Act allows the police to place samples obtained from convicted burglars on the databank, it does not allow the police to obtain a sample from a person suspected of burglary. The police have now found that a significant number of burglars leave material at crime scenes, and consider that in order to maximise the potential of the regime it is important that the offence of burglary also apply to the suspect regime. The potential of the regime will be additionally enhanced by applying the regime to the offence of entering with intent and attempts to commit relevant offences. The principal Act allows persons convicted of a relevant offence after the commencement of the Act in 1996 to have a DNA sample taken by compulsion for databank purposes. However, criminals still in prison today who were convicted for such offences prior to the principal Act coming into force are exempt from the requirement to give such a sample. Given that unsolved crimes may have been committed by such persons, the principal Act is to be extended to require such persons to provide a sample while in prison. This represents a limited retrospective application of the law, but does not impinge on those persons convicted prior to the principal Act coming into force who are at liberty in the community. Certain procedures under the principal Act require clarification, streamlining, or simplification. A new Part III databank compulsion regime is required to ensure judicial resources are better utilised under the principal Act. The databank regime will benefit from the introduction of a police notice regime which will strike an appropriate balance between preserving the rights of those required to give samples following conviction, but not unnecessarily requiring judicial hearings. Amendments are required to the arrest warrant powers to clarify when these powers may be exercised and to allow persons subject to the compulsion powers under the Act more flexibility to give samples on dates suitable to both themselves and the police. The principal Act requires amendment to allow a wider range of material to be available as a basis to obtain a suspect compulsion order, for DNA comparative purposes. Currently, material such as foetal matter, which could confirm the involvement of a suspect in the commission of a rape, cannot be used as a basis to obtain a suspect compulsion order. This is because that material does not come directly from the suspect. This opportunity should be taken to ensure where such material is available it can be used for suspect file:///s /BILLS/PDF/20022211.txt (14 of 53) [30/05/2002 14:02:16]
compulsion order purposes. Other technical amendments are required to improve and better utilise the existing statutory framework for obtaining DNA samples by consent or from those convicted of or suspected of committing relevant schedule of offences. Statement of the public policy objective The policy objectives are to--- o maximise the use of DNA as a valuable law enforcement investigative tool, having regard to the recognition and protection of fundamental personal rights: o improve resolution rates for burglary, attempts to commit relevant offences and to assist in the resolution of previously unsolved crimes and relevant schedule offences committed after the commencement of the Bill, thereby improving community safety: o provide a more effective and efficient technique and procedure for taking samples which will be less invasive and intimidating for any person being compelled to provide a sample or providing a sample by consent: o clarify certain provisions and maximise the effectiveness of the Act by introducing simplified procedures for obtaining databank compulsion samples and arrest warrants and making other miscellaneous technical improvements, while retaining appropriate checks and balances: o ensure that judicial oversight under the principal Act is limited to those cases requiring Judges' time and legal expertise. Statement of options for achieving the desired objectives Given that the principal Act is a code for taking DNA samples for investigative and databank purposes, an amending Act is the only feasible option for implementing the policy. The nature of the policy is such that it will also impact on the rights of the individual and affect current obligations and procedures set out in the principal Act, therefore legislative change is the only option to achieve the stated objectives. Benefits Statement of the net benefit of this proposal A number of benefits are associated with the policies implemented by the Bill. These include--- o a less invasive and more cost-effective technique for obtaining bodily samples: o simplified and more efficient procedures for obtaining bodily samples: o being in the public interest in the fight against crime by providing the potential for a greater number of crimes to be solved: o a greater number of DNA profiles on the DNA databank. Costs file:///s /BILLS/PDF/20022211.txt (15 of 53) [30/05/2002 14:02:16]