DNA Law under the microscope
For more than 20 years, DNA forensic science has been an important tool in solving crime in New Zealand and around the world.
In this country, it has been instrumental in resolving many high profile homicides, not to mention a raft of other serious offences and cold cases. A landmark case was the murder of Maureen McKinnel in Arrowtown on or about Boxing Day 1987. The 38-year-old was strangled in her home, her body later being discovered on the banks of the Arrow River. Around 500 people were investigated but no one could be linked to the crime with any certainty.
However, it soon became apparent that Ms McKinnel had scratched her attacker, as traces of his skin and blood were found under her fingernails. A DNA sample was taken and, fourteen years later, it led to her killer, Jarrod Mangles, who had been arrested in Nelson on a disorderly behaviour charge. While in custody, he gave a voluntary DNA sample to the DNA databank, which matched the sample found under Ms McKinnel's nails. Mangles, who was 15 years old when he killed her, was later sentenced to life imprisonment.
Since then, there have been major advances in DNA forensic science, prompting (in part) a recently-announced review of the legislation governing the police's collection, retention and use of DNA in criminal investigations.
The Criminal Investigations (Bodily Samples) Act 1995 (CIBS Act), which also regulates the DNA databank, is in line for a major overhaul.
New Zealand was an early adopter of DNA forensic technology, becoming only the second country worldwide after the United Kingdom to develop such a crime-fighting tool.
The New Zealand databank, which is run by the Institute of Environmental Science and Research (ESR) on behalf of the police, contains computerised DNA profiles from blood samples taken voluntarily or by force from around 160,000 people. It also has about 34,000 DNA profiles from case samples taken from crime scenes, which are kept in freezers at ESR's Auckland facility.
Matching them has solved about 24,000 cases, with about 100 new profiles from individuals' blood and saliva samples being added to the databank each week, as well as ten to 20 new case samples from crime scenes.
Today, New Zealand leads the world in DNA matching, with nearly 70 per cent of all unsolved cases loaded on the case sample database successfully linked to individuals, and 30 per cent linked to another crime.
Since it was introduced in 1995, there have been two significant amendments to this country's DNA legislation, largely giving police more powers to take samples from people charged with serious crimes.
This has rung alarm bells in academic circles, prompting law lecturers Dr Nessa Lynch of Victoria University and Dr Liz Campbell of Edinburgh University to write a book reviewing the law governing DNA collection and retention in New Zealand.
Published last year, it came to the conclusion that the present legislation not only gives too much licence to the police, but that there is also insufficient oversight of the DNA databank.
"The transition from judicial to police power has removed transparency around compulsory DNA collection from suspects," Dr Lynch said at the time of the book’s publication.
“Police used to have to apply for a judicial compulsion – now they have the power to take samples and use reasonable force from certain suspects.
“The Government in England and Wales is rolling back established powers – they have decided that their collection and retention powers are out of proportion to the public interest.
“We recommend that our Government carry out a review to determine whether the line has been drawn too broadly in terms of police power.”
Dr Lynch also pointed out there was no independent oversight of New Zealand’s DNA databank.
“Do they destroy samples when they are supposed to, and store them as they are supposed to? Other jurisdictions have independent committees that oversee this.
“There’s a huge amount of private information stored there, and there are legislative rules, but we don't know whether they are being complied with – we just have to trust them,” she says.
So it is unsurprising that she welcomes the current review of DNA legislation, which is being undertaken by the Law Commission at the behest of the Minister of Justice.
“The terms of reference of the review are comprehensive,” Dr Lynch told Law News.
“The main issue is the oversight of the fairly wide police power to take samples compulsorily from individuals who have not been convicted or for which a charging document has not yet been filed.
“The 2009 amendments to the CIBS Act represent a fundamental shift in the power to collect and retain DNA from suspects and provide a very wide discretion to police.”
Dr Lynch says the police themselves recognise, through their operational guidelines, that evidence-based decision-making requires samples only to be taken in relation to suspects with particular criminogenic factors present and in relation to more serious offending.
But while this guidance is reasonable and sensible, the operational guidelines have no force in law.
“Consideration should be given to establishing legislative requirements to ensure that DNA sampling is required in more serious cases with a clear public interest and link to public safety. This could include inserting statutory conditions modeled on the current Police Operation Guidelines.”
Dr Lynch also reiterated her concerns about the retention of DNA samples and whether statutory disposal periods are adhered to.
“The statutory duty to ensure disposal currently rests with the Commissioner of Police. Consideration should be given to a statutory requirement for independent oversight of the process.”
That the police do not always get it right with DNA collection became apparent last year, when the High Court ordered the police to pay a woman convicted of selling drugs $2,500 for unlawfully taking a DNA sample from her.
After being given the option of voluntarily giving a DNA sample through a mouth swab or being arrested and having the sample taken involuntarily, she agreed to give it. But she later complained that the sample had been improperly collected because she had been convicted of a summary offence and not an indictable one. She also complained that the unnecessary collection was a violation of her right to freedom from improper search and seizure under the New Zealand Bill of Rights Act 1990.
After making its way through a number of different channels, including the Office of the Privacy Commissioner, the woman's complaint eventually reached the High Court, which found in her favour.
Another person with concerns about DNA sampling is his Honour Judge Arthur Tompkins of the Hamilton District Court.
In 2013, Judge Tompkins (who is an honorary member of Interpol’s DNA monitoring expert group) called for a public debate on the use of familial DNA testing. His Honour told the Sunday Star-Times the method involves crime scene samples being compared to the national DNA databank to search for relatives of an offender.
“The effect of it is to increase the footprint of the database without Parliament having legislated for that increased footprint.”
Judge Tompkins, who is a member of the Law Commission's DNA review panel, told Law News he still stands by his comments in the Sunday Star-Times.
Critics of familial DNA testing say it raises serious privacy and ethical issues and has the potential to subject entire families to life-long genetic surveillance.
“It means that you have to worry about not only what you're doing, but also what your brother and uncle and father and children do – people become involved in a police investigation solely on the basis of the genetic link,” his Honour says.
The procedure could also cause conflict within families, revealing previously unknown relationships.
Judge Tompkins told the newspaper that different jurisdictions treated the technology differently, being banned in Canada and parts of the United States, but used without restriction in the United Kingdom.
“It's a debate we haven't had and should have. It shouldn't be something that comes in by default.” Judge Tompkins said the High Court had ruled the practice lawful, but “there probably should be a debate about it before it becomes too widespread”.
“It should be something where our Parliament says ‘yes, this is how we’re going to approach this issue.’”
For their part, police say the technique is only used for serious crimes such as rape and murder, and only as a last resort when all other lines of inquiry have been exhausted.
Dr Wayne Mapp, the lead Commissioner in charge of the Law Commission's DNA review, told Law News it was always intended by the Government that there would be a review of the CIBS Act after changes were made to the legislation in 2009.
“The review is timely given that the science has moved on considerably since the legislation was first enacted in 1995, and therefore it is appropriate to look at whether the Act is still fit for purpose in light of the changes in DNA analysis.
“For instance, it is now possible to analyse a crime scene DNA sample to get an indication of the likely phenotype of a suspect, i.e. hair, eye and skin colour. It will also be possible in a few years’ time to cheaply reproduce an individual’s whole genome sequence from a DNA sample.
“This is not to say that these techniques will necessarily be used in New Zealand, but the science will be at that point.”
In view of this, Dr Mapp says a considered response to these technologies must be made as, along with the potential benefits in criminal investigations and law enforcement, there will be privacy and human rights implications with so much information.
“It also raises issues for Māori, given that they are over-represented in New Zealand's DNA database and because there are issues of tikanga in relation to collection of DNA and how collected information is used.
“We will therefore be addressing these issues as part of our review to ensure the Act gives appropriate recognition to both law enforcement values, human rights (including the right to privacy), and to Māori interests.”
Dr Mapp says another important consideration is to ensure that the CIBS Act (or any replacement Act) is well designed and easier to use than the current one, which is very complex.
The review process itself will see the Law Commission engaging with interested parties in both the public and private sectors, as well as consulting with the public at large. It will also establish an officials group and an expert advisory group to provide technical expertise and advice representing a range of perspectives.
The Commission plans to produce an issues paper in mid-2017 and, following a formal consultation process, to publish its final report in August 2018 – so watch this space!