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New Zealand Law Students Journal |
Last Updated: 30 August 2012
TOWARDS A DNA DYSTOPIA? HUMAN RIGHTS CONCERNS UNDER THE
CRIMINAL INVESTIGATIONS (BODILY SAMPLES) AMENDMENT ACT 2009
DAVID
TURNER*
Introduction
It has been described as “critical in the fight against the escalating
rate of crime” in New
Zealand,[1] a move which will
“save more victims than probably any other single piece of
legislation”.[2] It has also
been called “an absolute prizewinner for how badly put together
legislation can be”[3] and
“much worse than it could or should
be”.[4] Even before it was
passed into law, the Criminal Investigations (Bodily Samples) Amendment Act 2009
(CIAA) managed to divide opinion
as few other law-and-order statutes have done.
The Act was passed into law on 28 October 2009 and received Royal Assent on 2
November
2009. Its first phase (see below) came into force on 6 September 2010.
Yet the important consequences of the amendment – its
impact on police
investigation and crime-fighting, its implications for the civil liberties and
privacy rights of New Zealand citizens,
its potential conflict with New
Zealand’s obligations under international law – are still yet to be
fully determined.
The Act makes significant changes to the DNA sampling and
profiling regime established under the original Criminal Investigations
(Bodily
Samples) Act 1995, altering the authority and procedure for the New Zealand
police to take DNA samples from criminal suspects
and store their genetic
profiles on the National DNA Database (NDD). The fear from some quarters is
that, whatever its touted benefits
for police, the expansion of New
Zealand’s DNA regime under the new legislation imports with it a
“host of ethical and
human rights concerns” which have not been
adequately addressed.[5]
1. Opposition to the Amendment
Even before it passed into law, the CIAA attracted considerable criticism
from opposition MPs and interested parties. Select Committee
submissions from
organisations such as the Human Rights Commission, the Privacy Commissioner and
Amnesty International, for example,
contended that the proposed extensions of
New Zealand’s DNA regime were “a step too
far”.[6] Perhaps the strongest
indictment, however, came from the government’s own Attorney-General, Hon
Christopher Finlayson MP, whose
report on the Act’s consistency with the
New Zealand Bill of Rights Act 1990 (NZBORA) pursuant to s 7 of the Act found
the
proposed legislation to be inconsistent with New Zealand’s human
rights protections.[7] In the face of
the lobby-group opposition and the Attorney-General’s reservations, the
Act was nonetheless passed by the House
with the support of a large
parliamentary majority – 108 votes in favour, and only 14
against.[8] Yet those 14 Green and
Māori Party MPs who opposed the legislation were consistently forceful in
their objections, and even
the Labour Party – which ultimately supported
the Act – raised reservations about the extension of the DNA collection
regime, observing that the amendment created “legislative changes that
take us outside the New Zealand Bill of Rights
Act”.[9]
2. Concerns of Political Expediency
Underlying many of the concerns about the CIAA can be discerned a fear that
the Act represents a mere “knee jerk” reaction
to perceived
law-enforcement issues rather than a principled approach to the expansion of
police powers. Law-and-order statutes are
notorious for pandering to popular
sentiment – the need for a government to be perceived as “tough on
crime” –
rather than rationally considering the best way to address
the problem of criminal offending. That suspicion is heightened by the
fact that
the CIAA legislation comprised part of the National government’s
“100 Days” Post-election Action Plan
of legislative
reform.[10] During the 2008
electoral campaign, the National Party had promised to “bolster the tool
kit of the police” in order
to take a harsher stance on law-and-order
issues, including an expansion of New Zealand’s DNA
regime.[11] The fact that the Act
was essential to upholding the Party’s electoral promises –
“another key plank in the Government’s
law and order package”
– played an undeniable role in motivating the Act’s expedited
passage.[12] The risk, therefore, is
that the civil liberties and privacy implications of the expanded DNA regime
were not properly considered
in the race to pass the legislation into law. The
risk is that with every successive extension of police powers in this area,
“we
become committed to them in turn, tak[ing] us progressively further
away from the alternative approaches that were equally possible
at an earlier
stage” – making it imperative that legal developments such as the
new Act be properly considered before
further action is
taken.[13]
3. Scope of Paper
The focus of this paper is thus to address what may not have been properly considered in the drive to push through the legislation: to assess whether the CIAA can achieve its stated aims in a manner proportionate with its potential incursions upon New Zealanders’ rights to privacy, autonomy and equality – complex issues of civil liberties and the relationship between the citizen and the State. As Māori Party MP Te Uroroa Flavell observed during the Bill’s First Reading in the House in February 2009, “the positive benefits of convicting serious offenders sit alongside a host of worrying issues that we cannot and must not ignore”.[14] The civil liberties issues are significant and worthy of thorough consideration – international experience indicates the perils of ignoring human rights in the effort to clamp down on criminal offending. Yet, this paper shall contend, the risks to the individual rights associated with new DNA regime are ultimately not as severe as some parties have depicted them to be. The new DNA regime has the potential to operate in a proportionate manner, consistent with New Zealand’s existing human rights and privacy legislation, as well as enhancing the ability of New Zealand police to track down and convict serious criminal offenders. To ensure that this occurs, however, the appropriate safeguards must be put in place, and the present lack of independent oversight of the DNA regime provides the greatest cause for concern. The National DNA Database is already a reality; what is important, in the words of a report by the UK Human Genetics Commission (HGC), is that we consider and enforce the appropriate “conditions of acceptability” for having a forensic DNA database.[15]
A. Background
1. DNA Matching and
Crime-Fighting – The Previous DNA Regime
The New Zealand DNA regime itself is nothing new – the original
Criminal Investigations Act, passed in 1995, established a regulatory
regime for
the collection and retention of DNA profiles by police which was apparently only
the second such regime to be established
in the
world.[16] The issue at stake today
is thus not the propriety of DNA collection itself, but how far the legislative
regime is gradually expanding,
at an increasing potential cost to New
Zealanders’ civil liberties. The expansion of power granted to police
under the new
amendment Act, the Attorney-General noted in his NZBORA compliance
report, “represents a substantial expansion of the current
scheme”.[17]
To
understand why that expanded power has generated concern in some quarters, one
must first understand how the existing DNA regime
works. DNA profiles derive
from two separate sources of samples, and it is the conjunction of these two
sources which gives DNA profiling
its
functionality.[18] Firstly,
crime-scene profiles are commonly derived from biological samples collected at
crime scenes, in the form of blood, hair,
semen, skin, saliva, or sweat traces
often invisible to the naked eye – as little trace material nowadays as a
nose smudge
left behind on a
window.[19] Secondly, DNA samples
known as “subject samples” can be obtained from individuals –
criminal suspects, volunteers,
convicted
offenders.[20] Matches between the
crime-scene profile and a subject profile – the numerical code derived
from a subject sample – can
determine if a subject was present at the
scene of a crime. Matches can thus help police narrow the focus of their
investigations,
and DNA matches are also frequently adduced in court as often
strongly probative evidence pointing to an individual’s guilt
(although a
fresh DNA sample must be taken from the accused to be adduced in court as
evidence).[21] The ability to
collect DNA subject samples, however, can be useful to the police not only in
respect of crimes currently under investigation.
Once a person’s DNA
profile is added onto the National DNA Database (NDD), it can be compared
against unknown DNA from unsolved
crime scenes (stored on another database, the
Crime Sample Database (CSD)).[22] A
subject DNA profile can also be compared against DNA samples from future crime
scenes when they are later entered onto the
CSD.[23] The ability to take and
compare DNA samples is thus of undoubted utility to police in conducting
investigations into criminal offending
both past and present – matching
NDD profiles against the CSD has already provided police with intelligence links
for more
than 13,000 cases, and reportedly results in about 90 identifications
between individuals and unsolved crimes every
month.[24]
2. Authority Required to Obtain Samples – Previous
Law
Thus both crime-scene samples and subject samples are necessary for DNA
profiling to be useful to the police, but the ease of obtaining
samples from the
two sources is far from equivalent. Taking a DNA sample from a crime scene
involves little legal or ethical difficulty
(although the practical difficulties
for forensic scientists may be considerable if DNA traces are small, mixed or
degraded).[25] Obtaining DNA samples
from subjects, on the other hand, is much more controversial. Prior to the
passage of the CIAA in November 2009, when requiring a subject sample for
a particular criminal investigation, police could obtain a suspect’s DNA
only with the consent of the individual involved or with judicial approval
through a suspect compulsion order or juvenile compulsion
order (the so-called
“Part 2 suspect
regime”).[26] The High Court
could issue such an order only if satisfied that police had “good cause to
suspect” that the suspect had
committed an indictable
offence.[27] The requirement of a
judicial warrant was designed to ensure a degree of independent oversight in
light of the fact that police were
intruding on a person’s privacy and
bodily autonomy before any charges had been laid or proven in court.
If,
on the other hand, police wished to take a suspect DNA sample not for the
purposes of a current investigation but for comparison
against unsolved
crime-scene samples, the requirements were even more stringent. Police had to
wait until the subject was not only
charged but convicted in court of a
“relevant offence” specified in a schedule to the Act before they
could issue a databank
compulsion notice compelling the convicted offender to
give a DNA sample.[28] A
“relevant offence”, generally, was an offence punishable by more
than seven years’ imprisonment, but also included
a number of lesser
offences supposedly indicating a propensity for more serious offending (or
offences for which offender DNA is
often left at the scene of the
crime).[29] Thus the only
circumstances in which police could obtain a DNA subject sample for entry onto
the DNA databank without consent or
judicial approval were narrowly restricted
by both the requirement that the subject be already convicted and the threshold
severity
of a “relevant offence”. Yet even those narrowly
circumscribed powers proved powerful in practice – leading to
the
acquisition of 100,000 DNA profiles (subject and crime-scene) by October
2009.[30]
3. Changes under the CIAA
The new CIAA expands the police powers to collect and store DNA by
making two fundamental changes to the DNA
regime:[31]
This expansion is set to take place in two distinct
stages. The first stage of implementation, Part 1 of the Amendment Act, is now
effective. Part 1 implements the first change listed above by inserting a
“new Part 2B” into the principal Act to complement
the existing
“Part 2 suspect regime”. The new “Part 2B regime”
– referred to by the Police Association
as the “arrestee
regime”[32] – allows
police, without prior judicial approval, to compel a DNA sample from every
person they merely intend to charge with one of the “relevant
offences” listed in the Act. This means that police can now compel a DNA
sample from
an individual even before he or she is charged with an offence, and
thus will lead to situations where police will compel a DNA sample
from someone
who is ultimately never charged or convicted. The Part 2B arrestee regime also
allows police to enter the profile derived
from a suspect’s DNA sample
onto a temporary databank (the new “Part 2B temporary databank”) for
matching against
the CSD as soon as charges are brought – unlike the old
regime, police need no longer wait until a conviction is entered before
undertaking this task.[33] The
second stage of implementation, Part 2 of the Amendment Act, is still to come
into force by a subsequent Order in Council, expected
to occur in late
2011.[34] Part 2 of the Amendment
Act relates to the second fundamental change listed above – when
implemented, it will do away with
the concept of a “relevant
offence” altogether, allowing police to take a DNA sample without prior
judicial approval
from anyone they intend to charge with any imprisonable
offence.
What becomes clear from the above is that the CIAA also blurs
the former distinction made between DNA samples taken for the purpose
of a
current criminal investigation and DNA samples taken to match against unsolved
crime-scene profiles on the CSD. Previously,
investigative samples taken under a
suspect compulsion order could be used only for the investigation of that
particular offence;
if the offender was subsequently convicted, a fresh DNA
sample had to be taken by police for the purpose of databank
comparison.[35] Under the new
“arrestee regime”, however, a DNA sample taken from a suspect in the
course of an investigation can be
transferred directly from the temporary DNA
databank onto the permanent National DNA Database if the offender is
subsequently convicted,
without the need for a fresh DNA sample to be
taken.[36] Unlike the United
Kingdom, however, which has implemented similar threshold standards for DNA
collection to the expanded New Zealand
regime, in our country the DNA samples of
people ultimately not convicted will be destroyed once charges against them are
dropped
or they are acquitted.[37]
Thus in this respect the expanded New Zealand regime can be distinguished from
the issues surrounding conviction and DNA retention
which has given rise to
legal and ethical objections in the UK – an issue that will be discussed
in more detail below.
The two-stage process was apparently not the
government’s first preference for implementation of the new regime, and
indeed
raised concerns for the police that it “potentially undermines and
frustrates the policy
intent”.[38] The staggered
implementation resulted from the recognition of the need to afford the Institute
of Environmental Science and Research
(ESR) time to adjust to the increased
workload, as well as adjusting for the significant costs involved in the new
regime in light
of New Zealand’s current fiscal
situation.[39] Tellingly, however,
Minister of Justice Hon Simon Power also recognised that the expansion
“raises issues that are worthy of
public debate”, and that staged
implementation provides an opportunity “to gather more robust information
about full
implementation” – perhaps an concession that even the
government is less than certain about the full ramifications of
its proposed
course of action.[40]
B. Proportionality And Public Safety: a Rights Balancing
Exercise
In order to analyse the potential impact of the CIAA upon individuals’
civil liberties and right to privacy, it is necessary
to ascertain the problems
which the new regime purports to address. In New Zealand, as in other Western
liberal societies, human
rights are never considered absolute, and must
invariably be subject to competing rights as well as the wider public interest,
a
balance between personal liberty and the overall common
good.[41] Of course, the NZBORA
itself recognises that rights may be subject “to such limits
prescribed by law as can be demonstrably justified in a free and
democratic
society”.[42] The promotion of
public safety can undoubtedly provide a justification for limiting human
rights – the protection of the public from criminal behaviour is one
of
the State’s primary obligations – but there is always a balance to
be struck along the spectrum of societal safety
and individual
rights.[43] The State must always
have good reason to gather sensitive personal information about its citizens,
particularly those who have not
yet been proven guilty of any
crime.[44] Although some civil
libertarians decry any measures to increase police powers of investigation as a
move towards a “genetic
surveillance
state”,[45] ultimately one
must decide whether the incursion into citizens’ rights to privacy,
autonomy and equality may be proportionally
justified by the interests of the
police and the greater good of protecting society through enhanced law
enforcement.[46]
The
public-safety justification for expanding the police powers for compelling DNA
samples was that the former regime did not allow
the police to obtain a
sufficient number of subject profiles to match against all outstanding
crime-scene profiles. By substantially
expanding the “pool” of
subject profiles held in the database, the likelihood is increased of finding a
match with an
unsolved (or future) crime-scene profile on the
CSD.[47] Simon Power, in introducing
the legislation, estimated that even the first stage of implementation would
result in an additional
218 convictions from 2010 to 2011, while full
implementation would result in approximately 445 extra
convictions.[48] Thus the
legislation aims to “contribute to increasing public safety and public
confidence in the justice system”; it
is, supporters say, an
“essential investigative tool” in policing, a “powerful tool
in the toolbox for police and
the justice
sector”.[49] The Act will, it
is hoped, result in “more victims vindicated” by removing repeat
low-level offenders from society before
their offending can escalate to more
serious criminal behaviour, and by removing serious offenders before they can
strike again.[50]
1. Need for Caution in Expansion
Yet notwithstanding the legitimate aim of the legislation, one must always be
careful not to create injustices as one attempts to
eliminate other injustices.
Just as “surveillance state” scaremongering contributes little to an
informed public debate,
neither should concerns about human rights intrusions be
derided and dismissed as a “Big Brother conspiracy
theory”.[51] To strike a
proportionate balance, the Act must advance its objective in “the most
effective, efficient and targeted way possible,
with the necessary
safeguards”.[52] Thus although
human rights are not inviolable, they should be affected to the least extent
necessary. An example where the appropriate
balance has not been struck –
one which may provide a salutary warning to New Zealand – is the UK
National DNA Database
(NDNAD). The European Court of Human Rights (ECtHR)
recently condemned the NDNAD in S and Marper v United
Kingdom[53], ruling that it
“fails to strike a fair balance between the competing public and private
interests”, and thus violates
the UK’s human rights obligations
under arts 8 and 14 of the European Convention of Human Rights to respect
private and family
life.[54]
Interestingly, although New Zealand’s DNA database is at present much
smaller as a percentage of population than the UK’s
(in the UK, over 5
million people – more than New Zealand’s entire population –
are on the National DNA Database)
its “hit rate” in identifying
criminal offenders is reportedly higher than the
UK’s.[55] This suggests that
New Zealand’s database is already operating relatively efficiently
compared to its larger overseas counterparts,
and that expansion of the NDD may
result in little increased
benefit.[56] Police must be careful
to ensure that the NDD expansion does not, as Lianne Dalziel noted, merely
“flood the system with a
lot of irrelevant data, which will not produce
anything of any
merit”.[57]
C. Privacy: the Nature of DNA And Informational
Privacy
The primary basis of objection to the expansion of New Zealand’s DNA
regime is that it represents an ever-greater intrusion
into New
Zealanders’ right to informational privacy – “the fact that
genetic information is on police records is a novel conjunction,
giving novel possibilities that must be treated as
such”.[58] Informational
privacy, which concerns the right to keep private information reasonably
regarded as intimate or sensitive, is generally
defended both as an abstract
value and because of the specific harms that can result from its violation. As
the Nuffield Council
on Bioethics observes, even if no specific harm results
from a breach of privacy, “the unauthorised use of such sensitive personal
information might be seen as undermining the inherent dignity of human
beings”.[59] The right to
privacy is also an important check on both the power of the State and the
private sector to intrude into the private
lives of
citizens.[60] A report of the House
of Lords Select Committee on the Constitution in 2009 expressed concern in
respect of the UK NDNAD that “the
huge rise in surveillance and data
collection by the State and other organisations risks undermining the
longstanding traditions
of privacy and individual freedom, which are vital for
democracy”.[61] Effectively,
the New Zealand Privacy Commissioner noted, the DNA database represents a
“state-run collection of intimately
personal
information”.[62] Particular
concerns arise in respect of biological samples because of the quantity and
quality of private information they contain.
However, if handled with the
appropriate oversight and safeguards, however, it is possible to minimise the
potential for this large
quantity of personal information to be misused or
abused.
1. DNA vs. Fingerprints
Supporters of DNA profiling frequently liken the procedure to a
“modern-day fingerprint” to try and make the idea more
publicly
palatable.[63] Fingerprinting has
been used by police since the 1800s to identify offenders at crime scenes, and
the intrusion into informational
privacy which fingerprinting entails has been
generally accepted in New Zealand and other Western countries as proportional
and appropriate.[64] Both
fingerprints and DNA possess three key characteristics – particularity,
variability and stability – that make them
highly effective as unique
markers of individual identity, able to distinguish an individual with near
certainty from the population
as a
whole.[65] The analogy between
fingerprinting and DNA profiling, however, is technically accurate but also
somewhat misleading. Although both
are used in effectively the same manner by
police, the comparison obscures the fact that a person’s DNA contains a
significant
amount of private information which a fingerprint does
not.[66] The Attorney-General
himself observed that “it has not been generally accepted that DNA samples
are equivalent to the taking
of
fingerprints”.[67] Advances in
genetic technology have meant that samples from very small bodily traces can now
be used to obtain DNA, meaning that
DNA profiling now “provides more
possibilities to obtain suspect identification evidence from crime scenes than
traditional
fingerprinting”.[68]
2. The Unique Nature of DNA: Genetic
Exceptionalism
The key issue for privacy advocates is that along with this identification
function, samples of DNA can also provide a wide amount
of additional
information about the individual to whom it belongs. An individual’s DNA,
it has been said, “is not the
same as many other more mundane pieces of
information we are obliged to divulge”; rather, it contains the
“very essence
of that
individual”.[69] Every sample
of a person’s DNA contains the entire genetic blueprint for that
person’s character, and can potentially
reveal information of
“profound personal significance to the individual” which ought to be
treated with a considerable
expectation of
privacy.[70] A person’s
DNA, the Human Genetics Commission has observed, is “personal to them
– it can be both identifying and
revealing – and its use by others
can constitute a harmful interference in their private
life”.[71] This idea –
that genetic information is uniquely different from other forms of personal
information – has been termed
“genetic
exceptionalism”.[72] Our
ability to “read” a person’s genetic blueprint is limited only
by our current level of technological capacity:
the more technology advances,
the more genome sequencing is allowing us to identify the function of particular
protein-coding genes
and their correlation with real-world phenotypic
characteristics.[73] This
“identity revealing” function of DNA could be used to determine a
person’s physical traits: their height,
physical build, hair and eye
colour, even their likely ethnic
background.[74] Even more
intimately, DNA can reveal a person’s genetic predisposition to certain
diseases and conditions – from lactose
intolerance to prostate cancer
– and thus their potential health and life expectancy in the future.
[75] Most controversially, scientists
have also posited that DNA analysis may indicate a genetic propensity or
susceptibility to certain
behavioural characteristics – intelligence,
risk-taking, extroversion/introversion, even
sexuality.[76] The more DNA samples
police have in their possession – especially from persons who
haven’t been convicted or even charged
with an offence – the greater
the risk of misuse of the exceptional nature of genetic information for
inappropriate and harmful
purposes.
3. Privacy Protections and DNA
As the Supreme Court of Canada recognised in R v
RC,[77] because, “unlike a
fingerprint, [DNA] is capable of revealing the most intimate details of a
person’s biological make
up”, the collection of DNA samples,
“absent a compelling public interest, would inherently constitute a grave
intrusion
of the subject’s right to personal and informational
privacy”.[78] New Zealand is
obliged at international law to protect the right to privacy by virtue of its
commitment to the International Covenant
on Civil and Political Rights (ICCPR).
The right to informational privacy is not explicitly recognised under the
NZBORA, although
s 21 (to be discussed below) establishes a more specific right
to maintain one’s private affairs from unreasonable search and
seizure.[79] Most generally,
informational privacy is protected in New Zealand by the “Information
Privacy Principles” of the Privacy
Act 1993, with which both the police
and the ESR are bound to comply.[80]
Although the principles are broadly drafted, they place general limits on what
the police can do with the DNA database – selling
the information to third
parties, for example, would clearly fall outside the scope of use “for a
lawful purpose connected
with a function or activity of the agency” under
Privacy Principle 1.[81] Privacy
Principles 10 and 11, which require that an agency shall not, except in
exceptional circumstances, use or disclose information
for any purpose other
than that for which it was collected, would also prohibit the police from using
the NDD to reveal particular
characteristics about an individual unless a
demonstrable link could be shown to the databank’s purpose in
investigating and
resolving criminal offences.
[82] The Act itself also provides
restrictions on what constitutes legitimate use of the DNA databank, prohibiting
a priori the possibility of police lawfully using the NDD for
non-operational purposes. Section 27 of the Act provides that information on
the
database can only be disclosed “for the purpose of forensic comparison in
the course of a criminal investigation by the
Police” or “for the
purpose of administering the DNA
databank”.[83]
4. Remedies and the Risk of Accidental Breach
But what if those controls on informational privacy are breached by police,
especially in the absence of any constitutional recognition
of a right to
informational privacy in the NZBORA? A number of remedies are potentially
available to aggrieved individuals. A complaint
can be made under the Privacy
Act to the Privacy Commissioner (or the Ombudsman), with a possible appeal to
the Human Rights Review
Tribunal (HRRT) at the discretion of the Director of
Human Rights Proceedings.[84] The
remedial powers of those bodies are significant too: the Privacy Commission can
refer the matter to the HRRT to make a declaration,
issue an order for specific
performance or restraint, or even award damages for “humiliation, loss of
dignity, and injury to
the feelings of the aggrieved individual” –
likely to be the kind of damage suffered by an individual whose privacy is
breached by misuse of the DNA databank, rather than direct pecuniary
loss.[85] Since the 2004 Court of
Appeal decision in Hosking v Runting, a breach of informational privacy
can also potentially sound in common law civil damages where a “reasonable
expectation of
privacy” and “highly offensive” publication can
be established.[86] Finally, the
Criminal Investigations (Bodily Samples) Act 1995 itself establishes a number of
criminal offences to protect against
the misuse of DNA samples, including
offences of gaining or attempting to gain access to a DNA databank, disclosing
any information
stored on the databank, or gaining or attempting to gain access
to or use a DNA sample.[87] One
concern, however, is that these remedies can really only apply ex post facto
– by which time the damage caused by a leak of an individual’s
private genetic information may already have been done.
The more samples
collected, the greater the risk of misuse of DNA occurring before the person
involved has a chance to become aware
of and prevent the breach of privacy.
Although one might generally trust the police to abide by their legal
obligations to use the
databank appropriately (as the Police Association points
out, perhaps the greatest safeguard is that “it is difficult to imagine
any credible scenario where police would have any interest in investigating (for
example) a suspect’s hereditary disorders”),
a greater risk is posed
by the increased likelihood of accidental breach of
privacy.[88] Even in the past few
years, instances have occurred in New Zealand of private information held by
government departments being inadvertently
released into the public domain, and
again the potential for accidental privacy breaches of the DNA databank is only
likely to increase
as the regime is systematically
expanded.[89]
5. DNA Profiles in Practice: Limited Risk of
Exposure
Many of the concerns about interference with informational privacy, however,
fail to recognise one significant point about the way
that the DNA profiling
regime operates: DNA profiling should not be confused with full genome
sequencing. A distinction has to be
made between the DNA sample taken
from a subject and the DNA profile that is extracted as a result, and in
this respect those who liken the DNA regime to the
“21st-century fingerprint” are perhaps more correct. When
the ESR uses a DNA sample to produce a DNA profile for storage on the database,
it uses only a very small portion of the individual’s total DNA –
approximately 0.001% of the entire
genome.[90] To distinguish a
person’s genetic identity, the ESR’s Identifiler testing system
examines only a very limited number
of sites (known as “loci”) on a
person’s DNA for the frequency of 15 markers known as “short tandem
repeats”,
and these sites do not contain any hereditary identifiers or
other information of an intimate
nature.[91] The regions of DNA which
show the greatest variability from person to person – and thus function
most effectively to identify
individual offenders – are the non-coding
sections of DNA which bear no relation to an individual’s phenotypic
makeup
(their appearance, medical predispositions,
etc).[92] The DNA profile stored on
the NDD consists of no more than a string of numbers used to identify and
distinguish the individual from
everyone else – effectively, therefore,
little more than a genetic
fingerprint.[93]
The
potential for damage to be done to an individual’s privacy by police abuse
or accidental disclosure, and accordingly the
risk as increasing numbers of DNA
profiles as are created, is thus relatively minimal – the limited
information stored makes
it difficult for profiles to reveal private or
sensitive information. The technical nature of the DNA profile, moreover, means
that
it “can be deciphered by only a small group of specialist
scientists”.[94] Apart from
linking a unique sequence of numbers to a named individual on the police
records, the most that can be deduced from a
DNA profile on the NDD is the sex
of the individual concerned.[95]
Whilst it is not completely inconceivable that this last feature could raise
embarrassment for transgender persons or perhaps those
with hereditary
sex-chromosome abnormalities such as Klinefelter’s syndrome (a condition
in which a person possesses an extra
male sex chromosome, XXY, which would show
up in their DNA profile), the risk to privacy in this respect is hardly
sufficient to
justify opposing the retention of DNA
profiles.[96] The only other aspect
of investigatory profiling which has raised cause for concern is familial
profiling – analysis of an
individual’s DNA profile can reveal the
existence, and even the degree, of a biological relationship between two subject
samples.[97] The practice, which has
apparently already been conducted in New Zealand, allows the police to use a
close but not identical match
between a crime-scene profile and a subject DNA
profile as a basis for investigating family members of the subject on the
assumption
that one of them may provide an identical
match.[98] Familial searching has
the potential to be highly intrusive – the revelation of previously
unknown or unsuspected biological
relationships (such as a paternity link) could
have, the HGC noted, “profound and destabilising consequences for the
individuals
involved”.[99]
Again, however, although it is theoretically possible that police could
inadvertently reveal a previously unknown genetic relationship,
the risk to
privacy is minimal provided police exercise appropriate discretion in making
their inquiries. As the Nuffield Council
on Bioethics observes, the public fear
of revealing such unknown family connection perhaps has more to do with the
sensitivity of
the issue than the true extent of the
risk.[100]
6. DNA Sample Retention
If DNA profiles only were retained, therefore, the limited nature of the
information available should allay many of the concerns people
possess about
police collecting and storing their DNA. DNA samples, however – the
biological material which allows access to an individual’s genetic
blueprint – can potentially risk
causing greater harm, such as the risk of
insurance companies obtaining genetic information to identify genetic
predisposition to
disease and deny insurance coverage on that basis, or
unethical research into behavioural genetics (such as the so-called study of
“criminogenics”).[101]
Where a sample is obtained under the new Part 2B arrestee regime, the bodily
sample must be destroyed “as soon as practicable
after a DNA profile is
obtained from it” – specified as two months after the sample was
taken if the person is not charged,
or straight away if the charges are
withdrawn or the person is
acquitted.[102] Privacy Principle
9, which says that an agency is “not to keep personal information for
longer than necessary” supports
the necessity of that
destruction.[103] However, an
individual’s informational privacy will continue to be at greatly
increased risk for as long as the DNA sample
is retained, and individuals must
ultimately rely upon the good faith of police and the Police Commissioner to
ensure that samples
will be destroyed by the appropriate deadline. In the UK, it
was estimated in a 2000 report that as many as 50,000 profiles may have
been
unlawfully retained when they should have been destroyed because no conviction
resulted.[104] The Privacy
Commissioner has raised concerns about one agency controlling both ends of the
system, from the investigation of crimes
scenes to the control of the
database.[105] Given that the
police are effectively the sole guardians of people’s private genetic
information, attention will need to be
paid to ensure that the police comply
with the proper use and sample destruction provisions contained in the Act. On
an individual
level, the Privacy Act at least allows citizens under
Informational Privacy Principle 6 to obtain confirmation of whether or not
the
police hold personal information about them, which would empower them to monitor
whether the police have properly destroyed their
DNA sample by the required
date. The Privacy Commissioner has also suggested that her audit function be
strengthened to allow her
to conduct specific audits of the databank’s
operation on a regular basis (at present this can only be done on request from
police themselves).[106] This
would be a highly prudent measure to ensure a further degree of independence of
oversight to uphold the Act’s obligations
on police to ensure sample
destruction is carried out properly and efficiently.
7. Privacy and Public Confidence
Finally, even though in actual fact the risk of abuse of people’s
private genetic information may be low given the limited information
retained in
a DNA profile and the strict requirements for the destruction of samples, one
final consideration in this respect is
simply the public perception. A stated
objective of the new CIAA is to “contribute to increasing ...
public confidence in the justice system”, but the new arrestee regime may
in fact
have the contrary effect – the Privacy Commissioner expressed
concern in her Select Committee submission that expansion of
the NDD may
jeopardise its value and utility by undermining the public trust in the police
and government.[107] The HGC notes
that regardless of the actual procedure involved, many people feel “in
some ineffable way” that their genetic
information is an intimate and
private matter with which the state should not
interfere.[108] If the public at
least believes that retention of their genetic information on a
government database infringes their right to privacy, this could have serious
practical
consequences for public support and cooperation, and thus for police
investigatory practice.[109] In an
attempt to shield their privacy by resisting police retention of their DNA,
citizens might conceivably become less co-operative
with police investigations,
and treat police and the government with increased suspicion and mistrust (a
particular concern in respect
of minority groups in New Zealand – see
below).[110] It is not unknown,
moreover, for individuals to attempt to guard their privacy by cheating the
system – the very first DNA
case in England, the Pitchfork case, resulted
in the true offender being initially eliminated from police investigations into
the
murder/rape of two 15-year-old girls because he successfully substituted
another man’s DNA blood sample in place of his
own.[111] As the UK Human Genetics
Commission notes, “the [DNA databanks], and the effective prosecution of
criminal justice more generally,
depend on the trust, confidence and support of
[private] citizens”, and care must to be taken to ensure that this public
trust
is not eroded by perceived police abuses of their expanded
powers.[112]
At base, most
objections to the expansion of DNA profiling under the privacy rubric are
founded on the idea that the government keeping
more information on file about
its citizens represents a greater intrusion by the State into the lives of
ordinary citizens. As noted
above, the idea of ‘genetic
exceptionalism’ causes many to mistrust the concept of a DNA databank
without considering
how it operates in practice. Because the genetic information
stored on the NDD is no more than a string of numbers allowing a person’s
unique identity to be determined (and none of their phenotypic characteristics
or genetic predispositions), arguments based on the
abstract right to protect
personal information from the State’s retention on a database are not
particularly apposite. More
concerning is the risk of abuse associated with the
collection and potential retention of bodily DNA samples, which allow access
to
a much wider range of personal and intimate information, and the risk for those
samples to be misused or leaked to third parties.
Provided, however, that
oversight is maintained by the Police Commissioner, the Privacy Commissioner,
and perhaps by private citizens
themselves under the Privacy Act to ensure that
samples are properly destroyed, the risks of such harms arising should not give
cause
for undue alarm.
D. Autonomy: the Right Against Unreasonable Search And
Seizure
The second key concern in respect of civil liberties intrusions under the new
CIAA regime is related to informational privacy, but
also distinct from it: an
issue one can classify under the broad category of autonomy, personal privacy,
or freedom from legal restraint.
It was this concern which provided the basis of
the Attorney-General’s ruling that the CIAA is inconsistent with the
NZBORA,
in particular the right against unreasonable search and seizure under s
21.[113] Section 21 of the NZBORA
says that “[e]veryone has the right to be secure against unreasonable
search or seizure, whether of
the person, property, or correspondence or
otherwise”. Concerns also arise about the potential for the NDD regime to
interfere
with the “due process” of criminal justice and the
presumption of innocence.
Some opponents have attacked the CIAA on the
grounds that the physical act of forcibly taking a DNA sample from a criminal
suspect
is “unreasonable” because such forcible sampling amounts to
the legal authorisation of a “gross assault”
on that
person.[114] This is technically
correct – in the absence of appropriate legal justification, the most
minor touching of another person
constitutes assault – but such an
alarmist claim distracts from the real concerns in this
area.[115] In fact, the procedure
for taking a DNA sample is now as simple as taking a buccal (i.e. mouth) swab
with a cotton swab known as
a Q-tip rubbed against the inner cheek – a
much less intrusive (and cheaper) means of sampling than the previous use of
blood
samples.[116] The sample can
be self-administered, takes only a matter of seconds and – according to
the Police Association at least –
“is far less invasive than
brushing one’s
teeth”.[117] The DNA sample
may still also be taken by fingerprick blood sample, but, since the person
concerned has the opportunity to elect
which method is used, the buccal swap is
likely to become the preferred option. Thus, although the procedure for taking
DNA samples
has been admitted to involve a “certain intrusiveness”,
it really amounts to little more than a minor physical
inconvenience.[118] Ultimately,
the worst “assault” that could occur is if police are required to
use force to hold a suspect down in order
to take a fingerprick sample (if the
suspect does refuse and reasonable force is required to take the sample, new s
48A(5) prescribes
that the sample taken must be a fingerprick sample). Police
are already authorised to use reasonable force when searching a suspect
who has
been taken into lawful custody and to take any money and property off them, for
example, and the collection of a DNA sample
represents no greater an intrusion
on bodily autonomy.[119] Moreover,
samples can only be taken by a “suitably qualified person”, a
further measure to ensure that the person taking
the sample does not overstep
the bounds of proper
procedure.[120] The real concerns
around the CIAA procedure are thus not so much with the potential for it to
countenance physical assault by police
in taking buccal samples, as with the
clear intrusion it represents on a person’s right to autonomy and freedom
for State interference
– particular as protected by s 21 of the NZBORA.
1. Reasonable Search/Demonstrable Justification
The intrusiveness of the procedural power conferred on police by the CIAA to
take samples from a person’s body clearly amounts
to a “search and
seizure of the person” for the purposes of s 21 of the
NZBORA.[121] As was recognised in
R v Jefferies, such a physical search of the person “is a restraint
on freedom and an affront to human
dignity”.[122]The question
is whether that search can be considered “reasonable”, under both s
21and the test of demonstrably justified
limitations under s 5 (although, of
course, s 4 of the NZBORA means that no provision of the CIAA will be affected
by inconsistency
with s 21. The potential might remain, however, for certain
provisions to be interpreted in an NZBORA-consistent way by the
courts).[123] To be considered
reasonable, as noted above, the intrusion must be justified by a sufficient
countervailing public
interest.[124] More specifically,
the right against unreasonable search and seizure means that two key principles
must be satisfied before a DNA
sample can be lawfully taken:
[125]
2. Conflict with NZBORA and Human Rights
Standards
The new arrestee regime removes the requirement of prior judicial approval by
the High Court, and thus appears to severely derogate
from the second principle
above in the absence of special circumstances. Such special circumstances, the
Attorney-General notes,
could include situations where there is a substantially
reduced expectation of privacy – such as convicted offenders already
in
prison, perhaps.[126] Yet the
police will now be able to take a DNA sample from any suspect without having to
seek prior judicial authority even in the
absence of extenuating “special
circumstances”.[127] This
appears to directly cut across existing NZBORA protections under s 21 and the
general principle that searches and seizures will
be conducted pursuant to
judicial warrant,[128] as well as
overseas jurisprudence (and may even go more deeply to the basic constitutional
principle of the rule of
law).[129] In the US, the EU and
Canada, the courts have said that a failure to include judicial oversight of the
power of physical compulsion
is a breach of their relevant human rights
standards, although those instruments give the courts power to invalidate
legislation
in a way that the NZBORA does not. In New Zealand this means that if
the CIAA confers a power of search and seizure without judicial
authorisation
then that power must ultimately stand, yet experience overseas still provides an
insight into how other countries perceive
the legality of similar regimes.
Moreover, the potential exists for litigation to be brought against New Zealand
at an international
level under the Optional Protocol to the ICCPR if an
individual believes our DNA regime violates New Zealand’s human rights
obligations. In Canada – from whose Charter of Rights and Freedoms many of
the provisions of the NZBORA such as s 21 are drawn – DNA databank
samples can only be taken from convicted serious offenders – it has been
held that
it is the fact of a person’s conviction which gives rise to a
public interest contrary to their ordinary expectation of privacy
and
autonomy.[130] DNA samples taken
from suspects can only be used for specific investigations, and their storage on
the database has been considered
inconsistent with the right against
unreasonable search and seizure under s 8 of the Canadian
Charter.[131]
Moreover,
the ability of police to collect bodily evidence from people legally considered
innocent, without approval of the courts
and on the basis of suspicion alone,
raises concerns about the proper process of justice and the presumption of
innocence. It is
a fundamental tenet of our criminal justice system that an
accused is legally innocent until proven guilty: the so-called “golden
thread” of the criminal law extending back to DPP v
Woolmington.[132] The
principle is now also enshrined in s 25(c) of the NZBORA, and s 22 also affirms
the liberty of the person and the right not to
be subject to arbitrary detention
(for the purpose of taking a bodily sample, for
example).[133] The new DNA regime
does not directly contradict the presumption of innocence (and, again, s 4 of
the NZBORA means that the statutory
power under the CIAA for police to detain
suspects for the purpose of taking bodily samples will operate despite any
rights inconsistency).
DNA evidence must obviously still be presented before a
judge and jury before a conviction can result. But it does raise concerns
about
the treatment of presumptively innocent suspects. Under the new regime, police
will also be able to extract a DNA profile from
a suspect’s bodily sample
and enter it onto the temporary DNA databank before the person is even convicted
– essentially
allowing the police to treat a suspect as a criminal
offender before a court has had a chance to make that determination and thus
placing them on a kind of “genetic
probation”.[134] “By
placing an individual’s profile on a central, national register of
criminal information”, the Privacy Commissioner
has observed, “that
individual is effectively deemed a
criminal”.[135] The power
for police to take DNA from anyone they “intend to charge” places a
considerable amount of subjective discretion
in the hands of the
police.[136] Where previously a
judge or JP was required to assess the evidence to an objective standard before
issuing an order for a DNA sample
to be taken, the standard has now become a
much more subjective one – “‘intends’ means just
something that
happens to be in the constable’s
mind”.[137] The mere
requirement of an intention to charge gives police legal cover to collect a DNA
sample even if a charge never results, provided
they can assert that there was
“good cause to suspect the person of committing a relevant offence”
and an intention at
some point to “bring proceedings against the person in
respect of that offence” – a vague and highly subjective
standard.[138] The determination
of a suspect’s criminality (after all, matching a DNA sample against the
CSD or crime-scene samples assumes
there is criminality to be discovered) should
not be devolved to the law enforcers themselves – as one member of the
National
Council of Women of New Zealand (NCWNZ) commented to Select Committee,
“police must see themselves as under the law, not deciders
without
judicial
guidance”.[139]
3. Potential for Police Abuse – “Fishing
Expeditions”
The conferral of such a powerful discretion on police is particularly
concerning given reports of the outcome of similar practice
overseas.
Allegations have been made against police in the UK that they have stopped or
arrested suspects on trumped-up charges purely
to obtain their DNA for the
database: as one retired UK police superintendent has publicly alleged,
“it is now the norm to
arrest offenders for everything if there is a power
to do so ... so that the DNA of the offender can be
obtained”.[140] The risk of
police going on speculative “fishing expeditions” is now also
present here given that police need only “suspect”
someone in order
to obtain a DNA sample from them, and need only bring charges against someone in
order to enter their DNA onto the
temporary
databank.[141] Police may also be
tempted to use the threat of charging an individual to coerce him or her into
giving over their DNA sample “voluntarily”.
The risk of bullying or
coercion may be especially acute where vulnerable people – youth,
minorities, the mentally impaired
– are
involved.[142] Individuals
subject to DNA profiling – particularly those who haven’t been
charged with any offence – should know
that that process has been subject
to the proper and impartial scrutiny which judicial oversight provides, and
should also have the
right to challenge that process to an independent body. On
the other hand, it should be noted that one crucial difference between
the new
CIAA arrestee regime in New Zealand and the current UK regime is that if a
person is not convicted, their DNA profile will
(at least in theory) be removed
from the temporary databank and the sample destroyed, reducing the value to
police of such “fishing
expeditions” to obtain DNA
profiles.[143]
4. A Need for Greater Oversight
The justification provided by the Act’s supporters for allowing the
police to take extra-judicial samples and enter them into
the databank before a
suspect is brought to court is that an individual may now be linked with other
unsolved crimes prior to conviction,
and they may thus be prosecuted for these
unsolved crimes alongside the original triggering
offence.[144] In addition, it is
suggested, the linking of an individual to other historic crimes may influence
the court’s perception of
the risk of his or her re-offending when it
comes to making bail
decisions.[145] These are
legitimate potential benefits, but they hardly justify the risk of police
abusing their power in the absence of any judicial
oversight when taking a DNA
sample. The Attorney-General observed in his NZBORA compliance report
that the lack of independent oversight was contrary to comparable DNA regimes in
New South Wales, Victoria, the
Australian federal DNA scheme, the United States,
Canada, Japan, Germany and the
Netherlands.[146] Only in the
United Kingdom, South Australia and Tasmania, he noted, were schemes comparable
to the New Zealand regime operating without
such
safeguards.[147] No special
circumstances could be discerned in New Zealand to justify bucking the
international trend in this respect or to render
such safeguards unnecessary:
“there appears to be a consensus in jurisdictions which provide for a
right against search and
seizure that DNA sampling regimes must be subject to
strict substantive and procedural
safeguards”.[148]
A
resolution to this serious concern would be easy to implement. Some parties,
such as the Privacy Commissioner, have pushed for the
establishment of an
independent statutory oversight committee with additional audit
powers.[149] Such an idea has
merit, and accords with practice in many overseas jurisdictions – the US
CODIS database, for instance, is
subject to an external advisory committee
including ethicists and a Supreme Court judge, while the UK system operates an
advisory
National DNA Database Ethics Group to provide independent ethical
advice on the DNA databank to the
government.[150] The simplest
method, however, would be to require police again to obtain a warrant before
they may exercise the power to compel a
DNA sample, as they still currently do
in almost every other case of search and seizure. Some have claimed requiring
police to seek
warrants from justices of the peace after-hours could create
large practical headaches and incur significant costs, yet police seem
to have
coped previously with the
requirement.[151] In fact, the
Police Annual Report for 2008/09 states that of all DNA samples provided during
the period, over 9,700 were obtained
voluntarily with consent, and only 221 were
obtained through suspect/juvenile compulsion orders – suggesting that the
burden
of seeking compulsion orders arises relatively infrequently in any
case.[152] In total, 80,902
suspect profiles on the NDD were provided by consent, compared with only 16,596
obtained through suspect compulsion
orders.[153] The relatively
modest financial cost involved in seeking judicial approval, finally, is
hardly a proportionate factor when weighed against the important
protections
which judicial oversight provides.
The strong need for judicial
oversight is also further increased under the new CIAA regime because of the
widened range of offences
for which police can now potentially compel a DNA
sample. Without some form of independent approval, the indiscriminate collection
of samples by police may jeopardise the effective operation of the system. By
expanding the range of relevant offences to all imprisonable offences, a
very large number of crimes are brought within the scope of the Part 2 sampling
regime, including many relatively
low-level offences which carry a maximum
sentence of imprisonment. Sentences importing a maximum sentence of 3
months’ imprisonment
include such relatively trivial offences as
littering, shoplifting, disorderly behaviour, seeking donations by false
pretence, possessing
a knife in a public place, associating with convicted
thieves, drink driving, and possession of cannabis (or even
BZP).[154] The risk that all
imprisonable offences would be caught under Part 2 was a particular concern of
the Privacy Commissioner –
“expansion of the databank to encompass
potentially trivial lawbreaking is... not
warranted”.[155] The only
tangible result might be, she suggested, “a loss of general public faith
in the integrity of police practices if samples
are taken for trivial (but
imprisonable)
offences”.[156] Any number
of ordinary New Zealanders present at a crime scene – many of whom
“might just have been in the wrong place
at the wrong time” –
may be compelled to produce DNA samples if police are not subject to higher
scrutiny.[157]
5. Undermining of the Act’s Rationale
In Europe, as the ECtHR observed in S and Marper, Austria, Belgium,
Finland, France, Germany, Hungary, Ireland, Italy, Luxembourg, the Netherlands,
Norway, Poland, Spain and Sweden
all restricted the collection of DNA samples
“to some specific circumstances and/or to serious
crimes”.[158] In Austria,
for instance, police may only collect DNA from suspects of “severe”
crimes, and in Hungary for crimes of
5 years’
imprisonment.[159] In New Zealand,
however, it will ultimately be at the discretion of the police to decide whether
a particular offence merits DNA
collection. It is not realistic to expect that
gross abuses of power by police will result, but granting such a wide discretion
does
risk police over-zealousness (not necessarily amongst all police,
but amongst some). If this occurs, the scheme will also have moved away from the
original justification for its operation
– which risks undermining the
“specific and sufficient basis” for the regime to be justified under
s 21 of the
NZBORA. When it was first designed, the DNA regime was designed to
operate on the basis of propensity – the idea, supported
by criminological
studies, is that people who were previously found guilty of a serious crime
present a higher than average likelihood
of being guilty of a current or future
crime under investigation.[160]
The category of relevant offences for which a DNA sample could be compelled were
serious, violent offences such as rape, murder and
serious assault for which
there was a high risk of recidivism, but also lesser offences such as burglary
– predicated on the
assumption that such “precursor” offences
indicated a high propensity for further and escalated
offending.[161] Such a rationale
does not hold up, however, when considering minor trivial offending, or in
regard to mere suspects who have yet
to be convicted of any offence at
all.
Granting the police licence to take samples from suspects for all
minor imprisonable offences without prior judicial authorisation
thus not only
goes against the principles of reasonable search and seizure, but risks
jeopardising the operational efficiency of
the database, its aim to identify
precursor offenders, and public confidence in the justice system. For these
reasons, both the Supreme
Court of Canada and the ECtHR have emphasised the need
for “clear, detailed rules” to provide “sufficient guarantees
against the risk of abuse and
arbitrariness”.[162] The
police, assisted by the Ministry of Justice, have also formulated Police
Operational Guidelines to inform the police in exercising
their discretion to
take a DNA sample and to prevent the arbitrary application of their new
power.[163] The Operational
Guidelines envisage restricting DNA sampling to situations where it is likely
the sample will reveal information
about a serious
crime.[164] The Attorney-General,
however, rightly considered that such internally-developed guidelines would not
provide “a sufficiently
clear or reliable substitute for statutory
safeguards”.[165] The
Privacy Commissioner too has been wary of placing operational controls in the
hands of the police themselves, saying that “in
my view it is
Parliament that should decide where the line is to be
drawn”.[166]
Moreover, judicial oversight is important not only to guard against
abuses of police procedure, but is also imperative for the police
to ensure that
the DNA evidence they adduce in court is sufficiently rigorous to be
admitted.[167] This will only
occur if the chain of custody – from crime-scene investigators to the ESR
to the NDD operators – can be
subject to a high degree of quality
assurance to rule out the possibility of abuse or
tampering.[168] The Police
Association itself has recognised that “any dispute about lawful authority
may jeopardise prosecutions, as well
as creating litigation
risks”.[169] If police
powers are abused or used arbitrarily in breach of s 21 of the NZBORA, then
defendants can seek compensation under the
NZBORA or seek to have the
improperly obtained evidence excluded at trial under s 30 of the Evidence Act
2006.[170] For the justice system
to operate effectively DNA evidence must be able to withstand such challenges.
6. The Risk of the Distortion of Justice
These issues are of particular importance given the powerful probative effect
DNA evidence can have in jury trials. As the Hon Justice
Kirby commented in a
2000 speech at the University of Technology, Sydney, “given the likely
devastating power of DNA evidence,
it becomes doubly important to ensure the
integrity of collection of samples and their transmission, storage, testing,
reportage
and preservation for the scrutiny of independent experts and,
ultimately if need be, by the
courts”.[171] DNA evidence
can be strongly incriminating evidence, and the powerful “scientific
aura” surrounding DNA testing can obscure
the reality that DNA evidence is
not foolproof.[172] Research on
juries in New South Wales has found that jurors have “high expectations
for the significance of DNA evidence”
and indeed that “[t]his may be
based more on popular culture rather than scientific understanding”
– the so-called
“CSI
effect”.[173] Another recent
Australian study, in fact, found that juries were 23 times more likely to
convict in homicide cases where DNA evidence
was
adduced.[174] The problem, as the
HGC observes, is that “DNA evidence shifts the balance of likelihood that
an individual is implicated if
their DNA corresponds to DNA taken from a crime
scene” – almost a de facto reversal of the presumption of
innocence, as suspects are given the burden of providing an alternative
explanation for how their DNA
ended up at a crime
scene.[175] Moreover, concern has
been raised about the potential for jury’s misunderstanding of
probabilities and the so-called “prosecutor’s
fallacy” to
distort the presumption of
innocence.[176]
Thus
because of the powerful probative effect of DNA evidence and the increasingly
reliance upon it, the need for oversight to ensure
that the evidence is robust
and reliable, and the need for caution in extending the DNA regime so broadly,
becomes all the more imperative.
Errors can and do still occur during DNA
testing – mix-ups between samples, contamination with other samples,
misinterpretations
drawn from partial or mixed DNA samples – which can
result in the misattribution of identity or other
error.[177] There also exists the
potential for abuse and manipulation by both corrupt police investigators and
forensically sophisticated
criminals.[178] It is not unknown
even in New Zealand for police to plant circumstantial evidence at a crime scene
or deliberately contaminate evidence
in order to secure a conviction, and this
has led to notorious miscarriages of justice such as in the Arthur Allen Thomas
case.[179] Naturally the police
have a vested interest in using the DNA database to solve crimes, and this
confluence of interest and power
creates the risk of both inadvertent error and
deliberate tampering in the drive to ensure convictions. Criminals too are aware
of
the increasing significance of DNA sampling in criminal investigations, and
the more technically literate criminals are likely to
find ways to get around or
subvert the DNA procedure and, as evidenced by the UK Pitchfork case, the
potential exists for “expert
criminals” to plant other
people’s DNA at a crime scene in order to frame someone else for an
offence.[180]
7. DNA and Autonomy: Conclusion
Thus while fears over the new CIAA regime authorising police
“assaults” by Q-Tip are largely unfounded, it is deeply regrettable
that judicial oversight
of DNA collection has been removed at the same time that
the regime has been expanded. This lack of independent oversight gives rise
to a
number of risks associated with the use and misuse of police discretion, the
reliability of DNA samples and the operational
efficacy of the
system.[181] Concerns surrounding
the effect of the regime’s expansion on the right against unreasonable
search and seizure, the presumption
of innocence and citizens’ autonomy
could be greatly allayed if the requirement for prior judicial approval were to
be reintroduced,
and statistics from past practice indicate that such a measure
would not be prohibitively expensive in terms of time or cost incurred.
Ultimately, as the Attorney-General noted, “intrusive search regimes
require express, external and prior safeguards”
in order to satisfy the
courts, targeted suspects and the public that they are operating fairly and
lawfully.[182] Anything less sets
a dangerous precedent in respect of State incursions into personal autonomy and
privacy, as expressly protected
by s 21 of the NZBORA, with no reasonable
justification.
E. Equality: Impact on Minorities and Young
Offenders
The final human rights issue which arises in respect of the new CIAA
regime concerns equality. Evidence from New Zealand and overseas research
indicates that the impact of DNA collection will not fall
proportionately on all
groups in society. The Human Rights Commission, in an oral submission to the
Justice and Electoral Select
Committee, observed that the new DNA regime
“increases the possibility of discrimination on the grounds of race and
family
status”.[183]
Proponents of the CIAA frequently cite the adage that no one who is
innocent of a crime has any need for concern about the police holding their DNA
profile
– the “nothing to hide, nothing to fear”
attitude– but what this ignores is the potential distress and stigma
that
being listed on the DNA database can
engender.[184] Inclusion on the
databank marks one as a person of interest to the police – one of the
first groups of people the police will
turn to as likely suspects every time a
crime is committed – and thus, as Dr Ruth McNally of the ESRC Centre
describes, creates
a distinct category of “pre-suspects”
automatically placed under suspicion whenever an offence is
committed.[185] Because in most
cases a person’s DNA will be held permanently on the NDD, that person is
effectively branded for life –
identified, as the HGC puts it, as in an
official, “intentional” relationship with
police.[186] An individual’s
ability to counter this social stigma may prove difficult – the suspicion
that there is often “no
smoke without fire” may be hard to
overcome.[187] This stigmatisation
effect may even prove counterproductive to the overall aims of the database by
encouraging offending amongst
those pre-judged and classified as offenders. The
effect is exacerbated under the new regime by the wide range of offences for
which
individuals can now be placed on the database: drawing the line for DNA
sampling at all imprisonable offences “effectively
labels as criminals
people charged with trivial
lawbreaking”.[188] The
average New Zealander, would not consider himself a criminal because he dropped
a piece of litter, but inclusion on the NDD for
such an offence would
effectively label him as
one.[189]
1. Diminished Rights and Rehabilitation
In respect of convicted serious offenders this concern is perhaps less of an
issue – a distinction is made with these offenders
because of the severity
of the offences they have committed. With serious offending, when one violates
the laws of the State and
a criminal conviction results, one abdicates
one’s unqualified entitlement to enjoy individual legal rights such as
privacy
– conviction is “accepted as justifying a greater level of
interference” with privacy
rights.[190] Thus the holding of a
convicted serious offender’s DNA profile on the NDD seems an analogous
intrusion on these “social
contract” grounds – individual
rights are only protected so long as the individual complies with the agreed
rules and
responsibilities of society. Under the new regime, however, as noted
above many people who have committed only minor offences nevertheless
subject to
a maximum sentence of imprisonment, as well as those who are merely
suspected and never charged or convicted, may now be targeted for inclusion
on
the NDD, and thus subject to the social stigma and diminished privacy rights of
having one’s genetic information kept on
file by the government. Moreover,
even in respect of convicted serious offenders, the ongoing intrusion into their
rights by retention
of their DNA post-imprisonment represents a continuing
social discrimination and interference with anonymity even after the offender
is
considered to have fulfilled his
punishment.[191] The ability to be
rehabilitated, as the Privacy Commissioner noted in her submission on the CIAA,
“is a key component of the
justice system and should not be lightly
discarded”.[192] The
Criminal Records (Clean Slate) Act 2004 regime, represents a move in this
direction by allowing a person’s record of conviction
to be removed for
certain minor offences after a “rehabilitation period” of 7
years.[193] The stated aim of that
legislation is to “limit the effect of an individual’s
convictions” to enable law-abiding
citizens to live free from the adverse
effects of historical criminal records. Yet the expansion of the DNA regime runs
counter to
this goal by permanently recording the details of convicted
offenders.[194]
2. Effect on Māori Biases
The stigma effect is of particular concern because of its potential to impact
disproportionately on certain ethnic and vulnerable
minority groups and thus
aggravate existing social
tensions.[195] The Māori
Party, for instance, has raised concerns that DNA sampling may unfairly target
Māori. Although the DNA regime
is in theory “colourblind”, by
giving the police discretion in choosing to compel DNA samples the DNA regime
risks aggravating
existing police biases or the “overscrutiny” of
Māori by police.[196]
Research into systematic biases in the criminal justice system has indicated
that Māori are indisputably overrepresented in
police arrests, charges and
convictions: a 2007 study by the Department of Corrections, in fact, found that
overrepresentation of
Māori in the criminal justice system was, in part,
one of the “unintended consequences of discretion”, reflective
of an
“institutional racism” and “biases” among the
police.[197] A 1993 New Zealand
study indicated that Māori are three times more likely to come into contact
with the police than non-Māori,
and police statistics show Māori are
more likely, for instance, to be arrested and convicted of cannabis offences
– one
of the new imprisonable offences for which police will soon be able
to compel a DNA sample.[198] The
more that Māori are targeted (unconsciously or otherwise) by the DNA
regime, the greater the risk that Māori will be
“labelled” and
stigmatised as criminal offenders. Ultimately the assumption that Māori are
more predisposed to being
arrested for criminal offending may become a reality
through police practice by reinforcing racial assumptions of their propensity
to
criminality.[199] If Māori
see themselves branded as criminal offenders on the databank, and police treat
them as pre-supposed suspects –
risking premature “tunnel
vision” in investigations – then increased rates of Māori
criminal offending risk
becoming a self-fulfilling
prophecy.[200]
This fear
is borne out by evidence from the UK, where there exists an undeniable
overrepresentation of black men on the NDNAD –
over 30% of all black males
have profiles on the NDNAD, compared with only 10% of white males and Asian
males.[201] The risk, the UK
Equalities and Human Rights Commission notes, is that such overrepresentation
“is creating an impression that
a single race group represents an
‘alien wedge’ of criminality” by stereotyping black men as
criminal suspects.[202] This has
the potential to result in a disproportionate number of arrests, charges and
convictions for members of certain ethnic groups
such as Māori, whereas
others who commit similarly serious crimes may not be convicted. It may also
serve to further alienate
Māori from the criminal justice system by
undermining their confidence in receiving fair and equal treatment. The
Māori
Party has expressed concerns that young Māori may fight back
against police if confronted for the taking of a DNA sample. Māori
Party MP
Rahui Katene suggests that “they [young Māori] already distrust the
police and [if] the police want to take a
swab, they’re not going to know
what is going on at
all”.[203] A recent report
by the UK Home Affairs Select Committee found that “it is hard to see how
[such an] outcome can be justified
on grounds of equity or public confidence in
the criminal justice
system”.[204]
On the
other hand, it should be borne in mind that DNA evidence also has the potential
to exonerate Māori offenders as well as
inculpate them. The US Innocence
Project, for example, reported that 70 per cent of those exonerated by DNA
testing in the US were
members of minority
groups.[205] DNA has the potential
to impact positively or negatively on ethnic groups such as Māori; how the
technology is used in practice
will determine whether it serves to counteract or
exacerbate existing systemic biases. The government’s response has been to
require police to include information in their annual report on the proportion
of DNA samples taken from ethnic minority
groups.[206]
3. Risk to Young Offenders: The Need to Maintain
Protections
Finally, the DNA regime also raises concerns in respect of young offenders.
New Zealand is a signatory to the UN Convention on the
Rights of the Child,
which recognises that children and young people are especially vulnerable and
require special treatment by legal
systems in a manner which “takes into
account the child's age and the desirability of promoting the child's
reintegration”
(they also have an additional right to privacy under art 16
of that instrument).[207] In light
of the above-mentioned concerns about stigmatisation and rehabilitation, young
offenders ought to be subject to especial
protections to protect their rights,
yet the Police Association was eager to expand the regime to fully encompass
youth offenders
as well. The Police Association submitted to Select Committee
that the limitations on the arrestee regime for youth offenders were
too narrow
“given known patterns of youth
offending”;[208] they wished
to remove the “arbitrary limitation” which restricts DNA sampling to
“serious” youth offenders.
The Police Association even opposed the
CIAA’s “clean slate” provision for the removal of youth DNA
profiles from
the databank after 4-7 years on the grounds that “this
arbitrary youth regime is
unnecessary”.[209] In fact,
however, research by the ESCR Genomics Network has indicated that low-level
offending behaviour is relatively common in
young people but rarely carried on
into adulthood, which means that “in most cases, indefinite or prolonged
retention of DNA
profiles obtained from young people is ... unlikely to have
much forensic utility in
future”.[210]
Fortunately,
however, the Justice and Electoral Select Committee made a number of amendments
in relation to the process for taking
a DNA sample from young persons, limiting
the range of offences for which a sample can be taken to the more serious
“relevant
offences” rather than all imprisonable offences and
providing for the same protections in respect of DNA sampling as young
persons
enjoy generally under New Zealand’s existing care and protection
legislation whilst in
custody.[211] This seems entirely
reasonable given the particular vulnerability of children and the need to
promote their rehabilitation before
their behaviour hardens into a repeat
pattern of offending.[212] The
Privacy Commissioner told Select Committee that the removal of minor
offenders’ information from the NDD after a suitable
period of time would
provide a “small but notable incentive towards law-abiding
behaviour”.[213] Children
and youth offenders should not be treated in the same fashion as adults given
the potential for the above human rights issues
to affect them more severely,
and thus any move to include them in the general adult DNA scheme should be
resisted. That the period
of retention be limited in relation to the age of the
suspected person was also one of the recommendations of the ECtHR in S and
Marper, , and already the UK has taken steps to remove the DNA of
children under the age of 10 (estimated at around 70 profiles) from the
NDNAD,
although an estimated 39,000 profiles from children and young people
remain.[214]
Conclusion
The new Criminal Investigations (Bodily Samples) Amendment Act regime has the
potential to assist police in the fight against serious
criminal offending.
Breakthroughs in DNA technology, even since the original DNA legislation was
passed in 1995, are astounding –
but also give cause for considered
reflection on the capacity for the technology to be misused or abused, or to
erode some of New
Zealand’s long-established human rights protections. On
the one hand, some of the alarmist fears raised by opponents of the
CIAA –
the risk of gross informational privacy violations, or the supposed
authorisation of physical “assaults”
by police – are
exaggerated. On the other hand, we must ensure that adequate protections remain
in place to oversee the lawful
and proper application of the legislation, and to
ensure that it operates in a way proportionate to the goals it seeks to achieve.
Police are granted considerable discretion under the new regime to target
suspects for DNA samples. As with any such discretionary
power –
particularly in the field of law and order– the greater the power granted
the more potential for that power to
be abused. Whether DNA profiling is used
to the benefit or detriment of New Zealand society depends on ensuring that the
police
utilise this powerful new tool in an appropriate and proportionate
manner. Any increase in police powers should be accompanied by
a corresponding
increase in oversight of that system to ensure that the potential for abuse and
harmful consequences is minimised.
Of the three key human rights issues
considered above, the impact on informational privacy rights is the least
concerning, even though
it is the issue that springs most readily to mind in the
public discourse. The system as it is designed to operate contains little
potential risk for the disclosure or misuse of private genetic information. DNA
profiles extracted from bodily samples are highly
technical and contain
negligible information of an intimate or personal nature. Effectively a DNA
profile operates in the same manner
as a fingerprint profile, using a small
number of unique markers in a given sample to distinguish an individual from the
population
as a whole, while discarding the broader range of private information
that a genetic sample can potentially reveal. Only if the sample
itself is
retained is the risk to informational privacy increased, and the legislative
regime is designed to ensure that sample destruction
takes place soon after the
DNA profile is extracted – largely addressing the concerns of the ECtHR in
S and Marper in respect of the unwarranted retention of DNA samples. The
only real concern is that, by placing the responsibility for ensuring
sample
destruction fully in the hands of the police themselves, the government is
effectively asking us to trust the police that
this will actually occur. It is
to be hoped, however, that the range of existing protections under the Privacy
Act and the Criminal
Investigations (Bodily Samples) Act 1995 itself will help
reassure the public that avenues of redress are available should the police
fail
to discharge their statutory obligation. Strengthening the ability of the
Privacy Commissioner to oversee and audit this process,
as she suggested in her
Select Committee submission, should be considered as a means of further
strengthening those contingency protections.
In respect of the
issue of equality, particular care must be taken to ensure that the impact of
the legislation does not fall disproportionately
on Māori and young people,
given the particular vulnerability of these groups in society. It is reassuring
therefore to see
that youth offenders will continue to be subject to a separate
regime in recognition of the need to protect vulnerable youth and
promote their
rehabilitation. The potential for the DNA regime to exacerbate existing systemic
biases against Māori –
resulting in their being subjected to
increased suspicion or persecution by police – is a real risk, but
ultimately the issue
of institutional racism runs much more deeply than DNA
profiling. DNA technology can work for or against Māori interests,
exonerating
as well as implicating Māori as criminal offenders, and which
way it goes in practice depends entirely on whether the police
are willing to
address any underlying systemic disparities in their treatment of
Māori offenders. In this respect, the requirement of ethnic statistics in
DNA profiling in the police annual
report is heartening recognition that an
issue does exist here which needs to be monitored.
1. The Outstanding Issue: The Continued Need for Judicial
Oversight
It is the broad human rights issue of autonomy and due process that gives the
greatest cause for reservation. In light of the considerable
expansion of police
powers that the CIAA represents, it is all the more important for
independent judicial oversight of the process to be maintained. As the HGC puts
it, our
responsibility is to provide the “practical conditions for its
ethical acceptability and responsible development in the
future”.[215] New Zealand
risks running against the international trend and our own Bill of Rights Act
legislation in discarding the role of the
judiciary in the DNA collection
process, and overseas examples like the UK provide a salutary example of the
consequences under international
law if a country is seen to overstep the
“margin of appreciation” in its international human rights
obligations. The
present lack of independent judicial oversight in our system
may not be looked kindly upon by the UN Human Rights Council.
The simple
addition of a requirement for police to seek prior judicial authorisation before
compelling a DNA sample in the absence
of consent would go a long way to
addressing these concerns. A system of judicial oversight has operated in
respect of the DNA regime
in the past, and continues to operate in respect of
police seeking search and seizure warrants generally, with little indication
that the system is overburdened or intolerably inefficient. Judicial oversight
is not only an important rights issue, but also ensures
that the DNA collection
process is sufficiently robust and reliable to allow the databank system to
function efficiently and to withstand
evidential challenges at trial. An
independent oversight committee of the DNA profiling regime, as operates in many
jurisdictions
overseas, is a further measure that should be given serious
consideration.
Without those protections, however, it remains to be seen
what consequences occur in practice, and how the police choose to use the
powerful new tool which has been given to them. Informational privacy concerns
may have been somewhat overstated, and equality issues
have at least been
recognised as an issue worthy of further investigation, but the question of
autonomy and oversight remains the
outstanding issue: the CIAA as it stands at
present may come to haunt the police and the government with unanticipated
challenges
at a domestic and even international level. It is to be hoped that
this issue is recognised and addressed before such an eventuality
comes to
pass.
[1] Hon Simon Power
“Parliament Passes DNA Law” (press release, 28 Oct
2009).
[2] (14 Oct 2009) 658
NZPD 7072-7073 (Chester
Borrows).
[3] (10 Feb 2009) 652
NZPD 1119 (Clayton Cosgrove).
[4]
(27 Oct 2009) 658 NZPD 7489 (Charles
Chauvel).
[5] (27 Oct 2009) 658
NZPD 7493 (Rahui Katene).
[6]
Privacy Commissioner “Supplementary Submission by the Privacy Commissioner
to the Justice and Electoral Committee, Criminal
Investigations (Bodily Samples)
Amendment Bill” at 4. Amnesty International, for instance, was also
concerned that insufficient reasons had been provided ‘to justify the
mandatory
collection of DNA on such a scale, and from people who are currently
innocent of a crime’. ‘No justificatory material’,
it noted,
had been provided ‘to support the view that this expansion of powers is
necessary in a democratic society’
– Amnesty International
“Submission to the Justice and Electoral Committee, Criminal
Investigations (Bodily Samples)
Amendment Bill” at 4-5.
[7] Attorney-General, Report under
the New Zealand Bill of Rights Act 1990 on the Criminal Investigations (Bodily
Samples) Amendment
Bill (2009) [Attorney-General’s
Report].
[8] (27 Oct 2009) 658 NZPD
7506.
[9] (10 Feb 2009) 652 NZPD
1123 (Lianne Dalziel).
[10]
Criminal Investigations (Bodily Samples) Amendment Bill 2009 (14-1) (explanatory
note) at 1.
[11] (10 Feb 2009)
652 NZPD 1117 (Simon
Power).
[12] (10 Feb 2009) 652
NZPD 1131 (Richard
Worth).
[13] Human Genetics
Commission Nothing to Hide, Nothing to Fear: Balancing Individual Rights and
the Public Interest in the Governance and Use of the National DNA
Database
(Nov 2009) at 21. Micahel Lynch and Ruth McNally have termed the phenomenon
“biolegality” whereby, they say, “developments
in biological
knowledge and technique are attuned to requirements and constraints in the
criminal justice system, while legal institutions
anticipate, enable and react
to those developments” – Michael Lynch and Ruth McNally DNA,
Biolegality and Changing Conceptions of Suspects (conference paper prepared
for the ESCR Genomics Forum, University of Edinburgh, Oct 2008) at
5.
[14] (10 Feb 2009) 652 NZPD
1130 (Te Uroroa Flavell).
[15]
Human Genetics Commission, above n 13, at
3.
[16] See (10 Feb 2009) 652
NZPD 1117; “ESR and DNA – A Partnership that Seeks the
Truth” Institute of Environmental Science and Research
<http://www.esr.cri.nz/competencies/forensicscience/dna/Pages/default.aspx>
.
The UK NDNAD, the first DNA database in the world, was also established in 1995
– see Select Committee on the Constitution,
House of Lords,
Surveillance: Citizens and the State (2nd Report of Session 2008-09, Vol
1, 6 Feb 2009) at 43.
[17]
Attorney-General’s Report, above n 7, at
2.
[18] Human Genetics
Commission, above n 13, at
26.
[19] “How Forensic
Scientists Use DNA” Institute of Environmental Science and Research
<http://www.esr.cri.nz/competencies/forensicscience/dna/Pages/forensicuseofDNA.aspx>
.
[20] Human Genetics Commission,
above n 13, at 26-27; Nuffield Council on Bioethics The Forensic Use of
Bioinformation: Ethical Issues (Sept 2007) at
9-10.
[21] See Criminal
Investigations (Bodily Samples) Act 1995, s
71A.
[22] “How the ESR Uses
DNA to Fight Crime” Institute of Environmental Science and Research
<http://www.esr.cri.nz/competencies/forensicscience/dna/Pages/fightingcrime.aspx>
.
[23]
The CSD is also matched against itself in order to identify any links between
unsolved cases – Ibid.
[24]
“The DNA Databank: A Crime-Solving Tool” Institute of Environmental
Science and Research
<http://www.esr.cri.nz/competencies/forensicscience/dna/Pages/DNADatabankasacrime-solvingtool.aspx>
.
[25]
Human Genetics Commission, above n 13, at 62; Nuffield Council on Bioethics,
above n 20, at 19.
[26] Criminal
Investigations (Bodily Samples) Amendment Bill 2009 (14-1) (explanatory note) at
14.
[27] See Criminal
Investigations (Bodily Samples) Act 1995, s
6.
[28] Ibid, ss 29 &
39.
[29] Criminal Investigations
(Bodily Samples) Amendment Bill 2009 (14-1) (explanatory note) at
15.
[30] Simon Power, above n 1,
at 2; Environmental Science and Research, above n 24. Of those, however, more
than 8,000 are outstanding
crime-scene profiles relating to unsolved crimes,
including 595 cases of sexual assault and 397 of homicide – Criminal
Investigations
(Bodily Samples) Amendment Bill 2009 (14-1) (Regulatory Impact
Statement) at 5.
[31] Simon
Power, above n 1, at 3.
[32] New
Zealand Police Association “Submission to the Justice and Electoral
Committee, Criminal Investigations (Bodily Samples)
Amendment Bill” at
2.
[33] See Criminal
Investigations (Bodily Samples) Act 1995, new s
24P.
[34] Criminal Investigations
(Bodily Samples) Amendment Bill 2009 (14-1) (explanatory note) at 2; (27 Oct
2009) 658 NZPD 7487 (Nathan
Guy).
[35]
Attorney-General’s Report, above n 7, at
3.
[36] Ibid at
3.
[37] See Criminal
Investigations (Bodily Samples) Act 1995, new s
60A.
[38] New Zealand Police
Association, above n 32, at
3.
[39] See (10 Feb 2009) 652
NZPD 1117 (Simon Power); Criminal Investigations (Bodily Samples) Amendment Bill
2009 (14-1) (explanatory note) at
1.
[40] (10 Feb 2009) 652 NZPD
1117 (Simon Power).
[41] Human
Genetics Commission, above n 13, at 47; Nuffield Council on Bioethics, above n
20, at 31-32.
[42] New Zealand
Bill of Rights Act 1990, s 5. The need to balance the public interest
proportionally against human rights is also required
by the UN Declaration on
the Human Genome and Human Rights, art 9 of which says that “in order to
protect human rights and
fundamental freedoms, limitations to the principles of
consent and confidentiality may only be prescribed by law, for compelling
reasons within the bounds of public international law and the international law
of human rights”. See also art 8(2) of the
European Convention on Human
Rights (ECHR), a similar qualifying provision for measures “necessary in a
democratic society”.
[43] Human Genetics Commission,
above n 13, at 9; Nuffield Council on Bioethics, above n 20, at xiii. In R v
Chief Constable of South Yorkshire Police, ex parte S & Marper [2004]
UKHL 39, [2004] 1 WLR 2196, for instance, Lord Steyn at [3] called the taking of
DNA samples “a reasonable and proportionate response to the scourge of
serious crime”.
[44] Human
Genetics Commission, above n 13, at
9.
[45] Privacy Commissioner,
above n 6, at 3; I Steward “New Law Used to Tackle 8000 Old Cases”
The Press (Christchurch, 29 Oct
2009).
[46]
Attorney-General’s Report, above n 7, at 4; Human Genetics Commission,
above n 13, at 29. One might observe that the maintenance
of a high degree of
public safety is a prerequisite for the enjoyment of other civil liberties
– an individual’s right
to privacy becomes a somewhat academic
consideration for the victim of a serial killer murdered because of failure by
the government
to protect its citizens from
harm.
[47] Criminal
Investigations (Bodily Samples) Amendment Bill 2009 (14-1) (explanatory note) at
2, 13, 15.
[48] (10 Feb 2009) 652
NZPD 1118 (Simon Power).
[49]
Criminal Investigations (Bodily Samples) Amendment Bill 2009 (14-1) (explanatory
note) at 2.
[50] (14 Oct 2009)
658 NZPD 7066 (Simon
Bridges).
[51] (27 Oct 2009) 658
NZPD 7490 (Chester Borrows).
[52]
(10 Feb 2009) 652 NZPD 1132 (Jacinda
Ardern).
[53] S and Marper v
The United Kingdom Applications nos. 30562/04 and 30566/04, 4 Dec 2008
(ECtHR) at [118]. The decision was described by UK Human Rights group Liberty
as
“one of the most strongly worded judgments that Liberty has ever seen from
the Court of Human Rights” – “DNA
Database ‘Breach of
Rights’” BBC News (4 Dec 2008)
<http://news.bbc.co.uk/2/hi/uk_news/7764069.stm>
.
[54] Ibid at [125]. See also
arts 8 and 14 of the European Convention on Human
Rights.
[55] Human Genetics
Commission, above n 13, at 4; (10 Feb 2009) 652 NZPD 1132 (Jacinda Ardern). The
UK’s NDNAD is currently the largest in the world per capita, but
the US CODIS database is actually the largest in respect of the absolute number
of samples – Select Committee on the Constitution,
House of Lords, above n
16, at 43.
[56] Likewise,
GeneWatch in the UK has observed that DNA detections in the UK have stabilised
at around 20,000 a year, despite increasing
numbers of profiles being added to
the database – Human Genetics Commission, above n 13, at
53.
[57] (10 Feb 2009) 652 NZPD
1124 (Lianne Dalziel). Analysis from the UK shows that from 2003-2009, while ten
times the number of subject profiles was added to the NDNAD compared
to
crime-scene profiles, the number of matches rose by only 14%, suggesting that
nine out of ten subject samples were redundant –
Human Genetics
Commission, above n 13, at
75.
[58] Human Genetics
Commission, above n 13, at 44. See also Barry Steinhardt “Privacy and
Forensic DNA Databanks” DNA and the Justice System: The Technology of
Justice (ed. David Lazer) (MIT Press, Cambridge Mass,
2004).
[59] Nuffield Council on
Bioethics, above n 20, at
33.
[60] Amnesty International,
above n 6, at 4. See also Viktor Mayer-Schönberger “Strands of
Privacy: DNA Databases, Informational
Privacy, and the OECD Guidelines”
DNA and the Justice System: The Technology of Justice (ed. David Lazer)
(MIT Press, Cambridge Mass,
2004).
[61] Henry Porter and Afua
Hirsch “The House of Lords Report: A Devastating Analysis” The
Guardian (London, 6 Feb 2009).
[62] Privacy Commissioner, above
n 6, at 4.
[63] Criminal
Investigations (Bodily Samples) Amendment Bill 2009 (14-1) (explanatory note) at
13.
[64] Human Genetics
Commission, above n 13, at 17-18; Nuffield Council on Bioethics, above n 20, at
39. A dedicated Fingerprint Branch
was first established at Scotland Yard in
London in 1901.
[65] Human
Genetics Commission, above n 13, at
16.
[66] Nuffield Council on
Bioethics, above n 20, at 8.
[67]
Attorney-General’s Report, above n 7, at 5. In fact, fingerprinting is
still the most commonly used method of identification,
and in one respect at
least fingerprint profiling is still more reliable as a marker of individual
identity than DNA, as fingerprints
are 100% unique where DNA is not, and
fingerprints can also distinguish between identical (monozygotic) twins where
DNA cannot. This
means, statistically, that DNA cannot distinguish between one
pair of individuals in every 250 births – Institute of Environmental
Science and Research, above n
19.
[68] Criminal Investigations
(Bodily Samples) Amendment Bill 2009 (14-1) (Regulatory Impact Statement) at
1.
[69] Human Genetics
Commission, above n 13, at
44.
[70] Human Genetics
Commission, above n 13, at
46.
[71] Ibid at
9.
[72] Australian Law Reform
Commission Essentially Yours: The Protection of Human Genetic Information in
Australia (Vol 1, 2003) at [3.41]; Nuffield Council on Bioethics, above n
20, at 29.
[73] The current rate
of technological advancement is startling too – the first human genome was
only fully sequenced in 2003, but
private companies are now offering individuals
the opportunity to have their genome presented to them on a flash drive for only
US$399
– “Top 10 Medical Breakthroughs 2008” Time
Magazine
<http://www.time.com/time/specials/2008/top10/article/0,30583,1855948_1863993_1864000,00.html>
.
[74]“Frequently
Asked Forensic DNA Questions” Institute of Environmental Science and
Research
<http://www.esr.cri.nz/competencies/forensicscience/dna/Pages/DNAfaq.aspx>
.
Scientists are presently working on identifying a gene sequence, known as the
MC1R gene, which codes in 84% of cases for red-headedness –
Nuffield Council on Bioethics, above n 20, at
21.
[75] Human Genetics
Commission, above n 13, at 46. Moreover, as the Economic and Social
Research Council (ESRC) Genomics Network has observed, the necessary privacy of
the information
is increased by the fact that much of this information may be
unknown even to the individual concerned – cited by Human Genetics
Commission, above n 13, at
46.
[76] Nuffield Council on
Bioethics, above n 20, at 87. The UK law reform organisation JUSTICE has
described DNA as ‘the most intimate
medical data an individual may
possess’ – JUSTICE “Keeping the Right People on the DNA
Database: Science and Public
Protection” (response to Home Office
Consultation, July 2009) at
2.
[77] R v RC 2005 SCC
61, [2005] 3 SCR 99.
[78] Ibid at
[27]; also cited by the European Court of Human Rights in S and Marper,
above n 55, at [54].
[79] Article
17 of the International Covenant on Civil and Political Rights says that
“[e]veryone has the right to
privacy”.
[80] Privacy Act
1993, s 6.
[81] Ibid. It would
also constitute a breach of art 4 of the Universal Declaration on the Human
Genome and Human Rights, that “the
human genome in its natural state shall
not give rise to financial
gains”.
[82]
Ibid.
[83] Criminal
Investigations (Bodily Samples) Act 1995, s
27(1)(a)&(c).
[84] Privacy
Act 1993, ss 67, 68, 82.
[85]
Ibid, ss 74, 77, s 88(1)(c). Again, this is required under the UN Declaration on
the Human Genome and Human Rights, art 8 of which
says that “every
individual shall have the right, according to international and national law, to
just reparation for any damage
sustained as a direct and determining result of
an intervention affecting his or her
genome”.
[86] Hosking v
Runting [2004] NZCA 34; [2005] 1 NZLR 1
(CA).
[87] Criminal
Investigations (Bodily Samples) Act 1995, s 77(2)(d). The CIAA now also provides
the same protection in respect of the new
Part 2B temporary databank (see s 28).
In the UK, a specific criminal offence of “DNA theft” was created in
2004 at the
recommendation of the Human Genetics Commission – see Human
Tissue Act 2004 (UK), s 45 – for taking or having an individual’s
biological sample with the intention to analyse their DNA without their consent.
In Australia, it is an offence to recklessly or
intentionally cause matching
that is not permitted – see Crimes Act 1914 (Cth), s
23YDAF.
[88] New Zealand Police
Association, above n 32, at
10.
[89] Consider, e.g., the
incident in Auckland in 2008 where a Department of Corrections folder entitled
“High Risk/High Profile
Offenders – Pending New Zealand Parole Board
Hearings” containing private information about serious criminal offenders,
including their post-release addresses and other personal information, was
discovered near a park bench in Auckland – Patrick
Gower “Police
Still Trying to Retrieve ‘Top Secret’ File” NZ Herald
(Auckland, 20 June 2008)
http://www.nzherald.co.nz/blogging/news/article.cfm?c_id=1501095&objectid=10517325.
[90]
(14 Oct 2009) 658 NZPD 7066 (Moana
Mackey).
[91] “Current DNA
Techniques” Institute of Environmental Science and Research
<http://www.esr.cri.nz/competencies/forensicscience/dna/Pages/currenttechniques.aspx>
Nuffield Council on Bioethics, above n 20, at
6.
[92] Human Genetics
Commission, above n 13, at 9,
27.
[93] The Human Genetics
Commission gives an example of what a person’s DNA profile would look like
when stored on a DNA databank,
to give an indication of how technical and
unrevealing it truly is – a typical profile looks something like this
(each discrete
number representing the number of short tandem repeats found at
each locus on the DNA): “X Y 18 27 38 38 10 58.2 21 28.2 13
23 10.2 19 11
19 2 5 14 23 11.2 21” – Ibid at
20.
[94] Nuffield Council on
Bioethics, above n 20, at xv; (10 Feb 2009) 652 NZPD 1118 (Simon
Power).
[95] Institute of
Environmental Science and Research, above n
74.
[96] Nuffield Council on
Bioethics, above n 20, at 19,
21.
[97] Human Genetics
Commission, above n 13, at
28.
[98] However, as with other
DNA profiles, the resulting evidence is not admissible in court without a
further DNA sample taken from the
offending relative – Criminal
Investigations (Bodily Samples) Act 1995, s 71. In the UK, statistics indicate
that over 100 familial searches were conducted
in 2006 alone – Nuffield
Council on Bioethics, above n 20, at
78.
[99] Human Genetics
Commission, above n 13, at 46. See also S & Marper v United Kingdom,
above n 55, at [75], which held that the ability to identify genetic
relationships between individuals ‘is in itself sufficient’
to
conclude that retention interferes with the right to private life under art 8 of
the European Convention.
[100]
Nuffield Council on Bioethics, above n 20, at
78.
[101] Ibid at 79, 82; Human
Genetics Commission, above n 13, at
81.
[102] See Criminal
Investigations (Bodily Samples) Act 1995, new s 60A. Those provisions are also
subject to s 61, however, which allow
an application to the High Court to extend
the 24-month retention period under Part 2 and the 2-month sample retention
period under
Part 2B. DNA profiles entered onto the temporary database
must also be removed if a conviction does not
result.
[103] Most European
jurisdictions require the destruction of samples following DNA profiling –
in Germany, for instance, the police
must show a likelihood that someone will
reoffend before a sample can be retained – and, following the ECtHR ruling
in S v Marper, the UK government has also proposed destroying biological
subject samples once the DNA profile has been obtained – Nuffield
Council
on Bioethics, above n 20, at 52, 100; Genewatch UK “Home Office Drags its
Feet on DNA Database Removals” (press
release, 7 May 2009). In Australia,
likewise, it is an offence to record or retain any identifying information about
a person obtained
from forensic material after the material is required to be
destroyed – see Crimes Act 1914 (Cth), s
23YDAG.
[104] Her
Majesty’s Inspector of Constabulary “Under the Microscope: Thematic
Inspectation Report on Scientific and Technical
Support” (2000) at
[2.23].
[105] Privacy
Commissioner “Submission by the Privacy Commissioner to the Justice and
Electoral Committee, Criminal Investigations
(Bodily Samples) Amendment
Bill” at 5-6. In Australia, the Commonwealth Attorney-General’s
Department has commented that
‘in essence, such a proposal means that the
decision when to destroy material is left entirely in the hands of the
police’
– cited by the Australian Law Reform Commission, above n 72,
at 1075.
[106] Ibid at 5. See
Privacy Act 1993, s 13(1)(b) in respect of the Commissioner’s powers to
audit the activities of an
agency.
[107] Criminal
Investigations (Bodily Samples) Amendment Bill 2009 (14-1) (explanatory note) at
2; Ibid at 3.
[108] Human
Genetics Commission, above n 13, at 47. A study conducted by the HGC showed that
52% of people surveyed did not trust the police
to keep their DNA profile
information private – Human Genetics Commission, above n 13, at
89.
[109] Ibid at
93.
[110] Ibid at
56.
[111] See R v Pitchfork
& Kelly [2009] EWCA Crim 963; C Walker and I Cram “DNA Profiling
and Police Powers” Criminal Law Review (July 1990) at 478-93, 480.
The deception was only discovered when a woman overheard a colleague, Ian Kelly,
boasting that he had
substituted his DNA for Pitchfork’s –
“Forensic Cases: Colin Pitchfork, First Exoneration Through DNA”
Explore
Forensics
<http://www.exploreforensics.co.uk/forenisc-cases-colin-pitchfork-first-exoneration-through-dna.html>
.
[112]
Human Genetics Commission, above n 13, at
10.
[113]
Attorney-General’s Report, above n 7. Similarly, Privacy Principle 4,
concerning the “Manner of Collection of Personal
Information”, says
that personal information shall not be collected by an agency by means that
“are unfair” or
“intrude to an unreasonable extent upon the
personal affairs of the individual concerned” – Privacy Act 1993, s
6.
[114] See, e.g., (27 Oct
2009) 658 NZPD 7496 (Metiria Turei); Walker & Cram, above n 111, at
493.
[115] See Crimes Act 1961,
s 2.
[116] See Criminal
Investigations (Bodily Samples) Act 1995, new s 48A. In the UK, the use of
buccal swabs was re-classified in 1994 as
a “non-intimate” means of
sample taking under the Criminal Justice and Public Order Act 1994 – Human
Genetics Commission,
above n 13, at
30.
[117] New Zealand Police
Association, above n 32, at 10.
[118] (14 Oct 2009) 658 NZPD
7066 (Simon Bridges). New sections 24M and 24N also require oral and written
information to be given to a person from whom a bodily sample is
to be taken, in
order to ensure that the suspect is fully informed of the reasons and procedure
for taking a bodily sample, which
accords with Privacy Principle 3 of the
Privacy Act requiring that individuals be informed, among other things, of the
fact that
the information is being collected, the purpose for which it is being
collected, the law under which collection is so authorised
and the agency
collecting the information – see Privacy Act 1993, s
6.
[119] See Policing Act 2008,
s 37(3). Moreover, the Police Annual Report 2008/09 indicates that during that
period, on only one occasion
did reasonable force have to be used to compel
compliance with a suspect compulsion order – New Zealand Police
Association
Police Annual Report 2008/09 (30 June 2009)
<http://www.police.govt.nz/sites/default/files/resources/2009-Annual-Report-Full-Version_e-version1.1.pdf>
.
[120]
See Criminal Investigations (Bodily Samples) Act 1995, s 49A(1); and s 2(1) for
the definition of a “suitably qualified person”.
Interestingly,
however, s 79 of the Act provides an indemnity for people taking samples –
no proceedings can lie against a
person in respect of the taking of a
fingerprick sample by force, except on grounds of negligence.
[121] In R v SAB 2003
SCC 60, [2003] 2 SCR 678, the Supreme Court of Canada held that the seizure of a
blood sample for DNA analysis was a seizure for the purposes of s 8 of the
Charter of Rights and
Freedoms.
[122] R v Jeffries
[1994] 1 NZLR 290 at
300.
[123]
Attorney-General’s Report, above n 7, at 6. There remains an unresolved
debate about whether the test for reasonableness needs
to be conducted twice
under both s 21 and s 5 of the NZBORA in such circumstances. Entry into that
particular debate is beyond the
scope of this paper, and so the two issues will
be treated herein as
synonymous.
[124] Andrew Butler
& Petra Butler The New Zealand Bill of Rights Act: A Commentary
(LexisNexis NZ, Wellington, 2005) at
566.
[125] See, for example,
the discussion in R v Grayson & Taylor [1997] 1 NZLR
399.
[126]
Attorney-General’s Report, above n 7, at
4.
[127] In fact, prior
judicial authorisation has not been a necessity since 2003, when the Labour
government’s Criminal Investigations
(Bodily Samples) Amendment Act 2003
removed that requirement, but this has become a much more concerning issue in
light of the police’s
new power to take samples from mere suspects, and
for a broader range of
offences.
[128] See s 198 of
the Summary Proceedings Act 1957. Exceptions to this principle do exist,
however, such as under s 18 of the Misuse of
Drugs Act 1975.
[129] See Law Commission
Search and Surveillance Powers (NZLC R97, 2007) at 41,
43.
[130] R v Rodgers
2006 SCC 15, [2006] 1 SCR 554 at [36]-[44]; Attorney-General’s
Report, above n 7, at 6.
[131]
R v SAB 2003 SCC 60, [2003] 2 SCR 678 at
[50].
[132] DPP v
Woolmington [1935] AC 462 (HL) at 481 per Viscount Sankey
LC.
[133] The presumption of
innocence is also now recognised internationally under art 111 of the Universal
Declaration of Human
Rights.
[134] Human Genetics
Commission, above n 7, at 98. The Nuffield Council on Bioethics has described
the net effect of including a greater
proportion of individuals on the databank
as “shift[ing] the relationship between the individual and the state
insofar as it
treats all individuals as potential offenders rather than as
citizens of good will and benign intent” – cited by the
Human
Genetics Commission at 48.
[135] Privacy Commissioner,
above n 6, at 4.
[136]
Editorial “Vague DNA Bill is a Law Unto Itself” Manawatu
Standard (Palmerston North, 29 Oct
2009).
[137] (10 Feb 2009) 652
NZPD 1125 (Keith Locke).
[138]
See Criminal Investigations (Bodily Samples) Act 1995, new s
24J.
[139] National Council of
Women of New Zealand “Submission to Justice and Electoral Select Committee
on the Criminal Investigations
(Bodily Samples) Amendment Bill” at
2.
[140] The UK Association of
Chief Police Officers (ACPO), however, has dismissed the claim as “plainly
wrong” – “Police
Arrests ‘Made to Get DNA’”
BBC News (24 Nov 2009)
<http://newsvote.bbc.co.uk/mpapps/pagetools/print/news.bbc.co.uk/2/hi/uk_news/8375567.stm>
Human Genetics Commission, above n 13, at
21-22.
[141] On a practical
level, the new regime may expose the police to numerous complaints by discharged
suspects challenging that the police
ever possessed an intention to charge them
with an offence, as noted by the Manawatu Standard, above n
136.
[142] National Council of
Women of New Zealand, above n 141, at
2.
[143] New Zealand Police
Association, above n 32, at
11.
[144] Criminal
Investigations (Bodily Samples) Amendment Bill (14-1) (explanatory note) at
15-16.
[145] Ibid at
16.
[146]
Attorney-General’s Report, above n 7, at 2. Australia has such oversight
of its National Criminal Investigation DNA Database
(NCIDD), incidentally, even
though there is no Commonwealth constitutional protection of the right against
unreasonable search and
seizure as in New Zealand.
[147] Ibid at 2. The UK
regime, moreover, with which our government is increasingly aligning itself, has
been described as “effectively
an ‘outlier’ in international
terms”, and is currently undergoing review following the ECtHR’s
highly critical
ruling in 2008 – Privacy Commissioner, above n 6, at
6.
[148] Ibid at 2,
6-7.
[149] Privacy
Commissioner, above n 105, at 5; see Summary Proceedings Act 1957, s 198
– the test for search warrants is “reasonable grounds for
believing” that an offence has been committed or is intended
to be
committed.
[150] Australian Law
Reform Commission, above n 74, at 1088; Human Genetics Commission, above n 13,
at 6-8.
[151] See, e.g., (27
Oct 2009) 658 NZPD 7486 (Nathan
Guy).
[152] Police Annual
Report, 2008/09, above n 124, at 76. Of course, this might also show that police
obtaining DNA samples in the absence
of both judicial oversight and consent will
be relatively uncommon, but the point of principle is nonetheless
important.
[153] Ibid at
77.
[154] See Crimes Act 1961,
s 219; Summary Offences Act 1981, ss 3, 6, 13A, 15, 27; Land Transport Act 1998,
s 56; Misuse of Drugs Act 1975,
s 7(2). In the UK, the list of “recordable
offences” contains even more trivial offences, such as “failing to
give
advanced notice of a procession”, “taxi touting”, and
“persistent begging” – Nuffield Council
on Bioethics, above n
20, at xiv, 10.
[155] Privacy
Commissioner, above n 6, at
3.
[156]
Ibid.
[157] (27 Oct 2009) 658
NZPD 7498 (Metiria
Turei).
[158] S & Marper
v United Kingdom, above n 55, at
[46].
[159] Nuffield Council on
Bioethics, above n 20, at
52.
[160] Institute of
Environmental Science and Research, above n 24; see, e.g., Michael Townsley,
Chloe Smith & Ken Pease “First
Impressions Count: Serious Detections
Arising from Criminal Justice Samples” Genomics, Society and Policy
(Vol. 2, No. 1, 2006) at 28-40, whose research into “criminal
careers” highlights the “significant link” between
those
providing a DNA sample and further offending – 80% of whom went on to
commit offences different from the initial offence
for which their DNA was taken
(at 29-30).
[161] About 80%, in
fact, of reported links between the NDD and the CSD have come from burglaries
– Institute of Environmental Science
and Research, above n
24.
[162] S & Marper v
United Kingdom, above n 55, at
[99].
[163] (27 Oct 2009) 658
NZPD 7487 (Nathan Guy).
[164]
Cited by the Privacy Commissioner, above n 6, at
5.
[165]
Attorney-General’s Report, above n 7, at
3.
[166] Privacy Commissioner,
above n 6, at 5 (original
emphasis).
[167] It should be
noted, however, that s 71 of the Criminal Investigations (Bodily Samples) Act
1995 continues to provide that a DNA profile
derived under Part 2 or the new
Part 2B arrestee regime is not itself admissible in criminal proceedings, which
means a fresh DNA
sample must still be taken to adduce as evidence in
court.
[168] (14 Oct 2009) 658
NZPD 7067 (Moana Mackey).
[169]
New Zealand Police Association, above n 32, at
4.
[170] See, e.g., Simpson
v Attorney-General (Baigent’s Case) [1994] 3 NZLR 667 (CA); R v
Shaheed [2002] 2 NZLR 377
(CA).
[171] Hon Justice Michael
Kirby “DNA Evidence: Proceed with Care” (speech given at Seminar on
Science and Digital/Cyber Crime,
University of Technology Sydney, 16 March
2000). Kirby J served as a member of the Ethics Committee of the Human Genome
Organisation
(HUGO) from
1995-2005.
[172] Human Genetics
Commission, above n 7, at
28.
[173] Mark Findlay and
Julia Grix “Challenging Forensic Evidence? Observations on the Use of DNA
in Certain Criminal Trials”
Current Issues in Criminal Justice
(Vol. 14, 2003) at 269-82, 274; Michael Lynch, Simon A Cole, Ruth McNally &
Kathleen Jordan, Truth Machine: The Contentious History of DNA
Fingerprinting (University of Chicago Press, Chicago, 2008) at
x.
[174] Michael Briody
“The Effects of DNA Evidence on Homicide Cases in Court”
Australia and New Zealand Journal of Criminology (Vol. 37, No.2, 2004) at
231-52, 242. Conversely, studies have also observed a reluctance among modern
juries to convict in the absence
of DNA evidence against the accused. DNA
evidence, Lynch et al say, has effectively become “... reified as a
machinery of truth for determining guilt and innocence.” – Lynch,
Cole, McNally & Jordan, above n 173, at
346.
[175] Human Genetics
Commission, above n 13, at
28-29.
[176] Australian Law
Reform Commission, above n 74, at 1097. Studies on the “prosecutor’s
fallacy” have observed that
juries tend to assume that statistical odds of
“1 in a million” that the DNA match has not correctly identified the
offender
indicates a “1 in a million” chance that the accused is not
guilty of the offence. Such a conclusion is clearly not logically
defensible,
but increased reliance on DNA evidence makes such distortions of juries’
reasoning increasingly likely to occur
– Nuffield Council on Bioethics,
above n 20, at 70. See R v Keir [2002] NSWCCA 30 for an example where the
prosecutor’s fallacy was held to have led to a miscarriage at
trial.
[177] Nuffield Council
on Bioethics, above n 20, at xiii, 22-23; Australian Law Reform Commission,
above n 74, at 1092-3. A study conducted
by the California Association of Crime
Laboratory Directors (CACLD) found a 1 per cent error rate in DNA testing in the
laboratories
it reviewed – cited by the Committee on DNA Technology in
Forensic Science, National Research Council (US) DNA Technology in Forensic
Science (1992),
<http://www.nap.edu/catalog.php?record_id=1866>
.
Indeed, even in New Zealand a DNA profile obtained from an assault victim in the
South Island matched the profiles from two
separate homicide scenes in the North
Island, and although police were satisfied that the assault victim had not been
present at
either homicide scene and was not the offender, an independent
inquiry could not account for the false positive results – cited
by the
Australian Law Reform Commission, above n 74, at
1094.
[178] Nuffield Council on
Bioethics, above n 20, at
22.
[179] See Greg Newbold
Crime in New Zealand (Dunmore Press, Palmerston North, 2000) at
241-243.
[180] Walker &
Cram, above n 116; Human Genetics Commission, above n 13, at 94. This also
constitutes an offence under s 77(2)(b) of
the Act punishable by up to 3
years’ imprisonment to “knowingly provide[] false information with
the intent that it should
be stored on a DNA profile
databank”).
[181] The
Labour opposition sought to introduce an amendment to provide for judicial
oversight during the Committee of the Whole House
stage, but the amendment was
defeated – see 2009 JHR 531 (Criminal Investigations (Bodily Samples)
Amendment Bill).
[182]
Attorney-General’s Report, above n 7, at
7.
[183] “HRC and Privacy
Concerned About Increased Police DNA Sampling” Guide2.co.nz: Politics (May
14 2009)
<http://www.guide2.co.nz/politics/news/hrc-and-privacy-concerned-about-increased-police-dna-sampling/11/7855>
.
[184]
See, e.g., (10 Feb 2009) 652 NZPD 1128 (David Garrett) and 1131 (Richard Worth);
(14 Oct 2009) 658 NZPD 7502 (Simon Bridges). The Nuffield Council also suggests
that the “nothing to hide, nothing to fear” argument also cannot be
used
per se to justify the regime because the starting point must still
be the presumption of innocence – Nuffield Council on Bioethics,
above n
20, at 34. Similarly, the Privacy Commissioner observes that “some might
say that people with nothing to hide have
nothing to fear – I would turn
that round. If a person has done nothing serious wrong, then the Police
don’t need his
or her DNA” – Privacy Commissioner, above n 6,
at 7.
[185] Cited by the Human
Genetics Commission, above n 13, at
48.
[186] Ibid at 48. The
applicants in S & Marper complained of just such a stigmatisation
effect – see S & Marper v United Kingdom, above n 55, at
[21]-[22], [122]. In the Court of Appeal hearing, Waller LJ observed that
“persons who have been acquitted
and have their samples taken can
justifiably say this stigmatises or discriminates against me – I am part
of a pool of acquitted
persons presumed to be innocent, but I am treated as
though I was not” – see R v Chief Constable of South Yorkshire
Police/Secretary of State for the Home Department (ex parte S & Marper)
[2002] EWCA Civ 1275, [2002] 1 WLR 3223 at [66] per Waller LJ.
[187] Human Genetics
Commission, above n 13, at
48.
[188] Privacy Commissioner,
above n 6, at 4.
[189] Ibid at
7.
[190] Human Genetics
Commission, above n 13, at 33; Nuffield Council on Bioethics, above n 20, at
44.
[191] Nuffield Council on
Bioethics, above n 20, at
29.
[192] Privacy Commissioner,
above n 6, at 6.
[193] Criminal
Records (Clean Slate) Act 2004, ss 7 &
14.
[194] Ibid, s
3.
[195] Human Genetics
Commission, above n 13, at
51.
[196] See (10 Feb 2009) 652
NZPD 1129 (Te Ururoa Flavell); (27 Oct 2009) 658 NZPD 7495 (Rahui Katene). The
use of DNA profiling on Māori subjects calls for a particular sensitivity
by police because many Māori see
the taking of bodily samples as a
“breach of their spiritual belief systems and therefore as a moral and
cultural offence”.
Māori, as well as many Pacific Island groups,
consider bodily samples – even hair and fingernails – to be tapu.
Their sacredness arises from the Māori belief in the sanctity and respect
for life, and that because every part of a person’s
body contains their
life force – or wairua – it can even be used to cause harm to that
person under the process of mākutu.
This cultural sensitivity is also
reflected in the aversion amongst Māori to the practice of familial and
ethnic profiling.
Whakapapa – ancestry and geneological connections
– are considered to be particularly sacred taonga in Māori culture
– see W Hemara Tikanga Māori, Mātauranga Māori &
Bioethics: A Literature Review (report for the Toi te Taiao, NZ Bioethics
Council, Aug 2006) at 31-32. As long ago as 1993, the Indigenous People’s
Council
on Biocolonialism was established to oppose such bioprospecting or
“biopiracy”, such as research into the supposed Māori
‘warrior gene’ several years
ago.
[197] Department of
Corrections Policy, Strategy and Research Group Overrepresentation of
Māori in the Criminal Justice System: An Exploratory Report (Sept 2007)
at 7.
[198] DM Fergusson, LJ Horwood
& MT Lynskey “Ethnicity and Bias in Police Contact Statistics”
Australian and New Zealand Journal of Criminology (Vol. 26, No. 3, 1993)
at 202-203; Ibid at 14.
[199]
Nuffield Council on Bioethics, above n 20, at
20.
[200] Ibid at
81.
[201] Cited by the Human
Genetics Commission, above n 13, at
53.
[202] Ibid at 54. In
London, 55% of the total number of innocent people on the NDNAD (i.e. those
suspected but never convicted) are black
or Asian, even though they constitute
only 29% of the London population – Nuffield Council on Bioethics, above n
20, at 56.
[203] Greer McDonald
“DNA Bill Raises Maori Party Concerns’ Dominion Post
(Wellington, 29 Oct 2009) at 1. It should be borne in mind, however, that
the vast majority of DNA samples were taken by consent rather
than force –
see Police Annual Report 2008/09, above n
124.
[204] Home Affairs Select
Committee, UK House of Commons Young Black People and the Criminal Justice
System (Second Report of Session 2006-2007, Vol. 1, June 2007) at 15.
[205] “Facts on
Post-Conviction DNA Exonerations” The Innocence Project,
<http://www.innocenceproject.org/Content/351.php>
.
[206]
See Criminal Investigations (Bodily Samples) Act 1995, s
76.
[207] See United Nations
Convention on the Rights of the Child, arts 16,
40.
[208] New Zealand Police
Association, above n 32, at
2.
[209] Ibid at
8.
[210] Cited by the Human
Genetics Commission, above n 13, at
51.
[211] See Criminal
Investigations (Bodily Samples) Act 1995, s 24K, and Children, Young Persons and
Their Families Act 1989.
[212]
See Children, Young Persons, and Their Families Act 1989, s 208 on the
principles of youth justice, which provides that proceedings
should not be
instituted against a child or young person if there is an alternative means of
dealing with the matter “unless
the public interest requires
otherwise”.
[213]
Privacy Commissioner, above n 6, at 4.
[214] UK Home Secretary
“Protecting Rights, Protecting Society” (speech to the Intellect
Trade Association, 16 Dec 2008); S & Marper v United Kingdom, above n
55, at [124] – “the court further considers that the retention of
the unconvicted persons’ data may be
especially harmful in the case of
minors such as the first applicant, given their special situation and the
importance of their development
and integration in
society”.
[215] Human
Genetics Commission, above n 13, at 104.
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