Alarm sounded over collection of prisoners’ DNA

The Government could soon resume a programme under which it collects and stores DNA samples from prisoners to strengthen its crime-fighting capacity.

Zavia Mayne, state minister in the Ministry of National Security, pointed out that the programme was rolled out before the pandemic.

“Pursuant to the law – as contained in the DNA Evidence Act – the sampling of all convicts was happening prior to COVID. The onset of COVID would have slowed, stopped that process. That is something that has not yet resumed,” he told The Sunday Gleaner.

At the time of the interview, Mayne was not able to say how many samples had been collected and stored in the database so far or whether convicts were voluntarily providing samples or if reasonable force was being used as provided for under the law. He has promised to provide more details on the programme in short order.

The DNA Evidence Act was passed in late 2015 after being piloted by then National Security Minister Peter Bunting.

It was pitched as being critical to the country’s crime fight as it provided for the compulsory extraction of DNA samples from suspects and convicted persons; outlined the protocol for collecting, retaining and preserving the samples; as well as guidelines for the retention or destruction of DNA profiles.

PIVOTAL TO BOOSTING INVESTIGATION CAPACITY

The activation of the National DNA Register was being eyed as pivotal to boosting the forensic investigation capacity of the police force.

But attorney-at-law Bert Samuels believes that Section 29 of the act, which allows for the collection of DNA samples by force, may not stand up to constitutional scrutiny.

“It is troubling if what we are hearing is true that they intend to forcibly take blood samples from inmates … . Now the invasiveness of forceful extraction of body fluids, including blood, is an invasion of your privacy and I do not think prisoners lose that right to privacy unless it is in pursuit of a crime that’s being investigated, and even in those circumstances, because of the presumption of innocence, you need not give any sample to the police,” said Samuels.

“Do we trust the State that it can keep data on us in such a way that it is not taken and used in a mischievous way? For example, DNA found on a crime scene is conclusive evidence that you were there. That’s the danger of DNA. It is so accurate that its misuse can lead to abuse,” the senior attorney said.

Although Mayne said that no official has been authorised to announce a resumption of the programme at this time, sources close to the prison system told The Sunday Gleaner that inmates at one local prison were recently advised that DNA samples would be taken from them.

Samuels said that an appellant has also communicated to his legal team that he was advised that prison authorities would also be taking his blood sample.

According to the senior attorney, appellants should be dealt with as a special category of inmates.

“When a person has appealed, he’s not treated as an inmate. He’s treated as an appellant because common sense tells you if he wins his appeal, then that’s the end of the matter. Now, are they going to go as far as taking the blood samples of appellants? ... Do you lose your rights when you’re an appellant when it is not certain that you will be imprisoned?” he asked.

Unlike Samuels, constitutional attorney Dr Lloyd Barnett does not believe the collection of DNA samples breach an inmate’s constitutional right to privacy.

ESTABLISHED PRACTICE

“It’s a long established practice to take personal data from persons who have been convicted of a criminal charge, which is practised in most democratic countries,” Barnett told The Sunday Gleaner.

“There is a limitation on right to privacy of persons serving sentences. On conviction, fingerprints have always been taken. This is an extension of that traditional approach so it would be very difficult to say that it is one that is not demonstrably justified in a democratic society,” he added.

Barnett also believes that the provision for the use of reasonable force to obtain samples can stand up to the scrutiny.

“ ... If there is a legal power to take the sample, then it couldn’t be frustrated by the person who is refusing to comply,” he argued.

Dr Judith Mowatt, head of the Institute of Forensic Science and Legal Medicine, confirmed that the samples collected from convicts are stored and analysed at the state entity.

“It is quite secured,” she said of the database, adding that it does not only include samples from the correctional system.

In April 2018, tenets of the DNA Evidence Act were tested in the the Supreme Court, which ruled in favour of the State in the case brought by Lenworth Howitt, a then accused who withdrew his initial consent to provide a non-intimate DNA sample.

Justice David Foster ruled that there was no requirement for a court order to obtain a non-intimate sample from a non-consenting adult who is not a protected person.

He also noted that sections of the law contemplated that a sample is obtained from a person in detention, but the accused was then on bail.

“What I am, therefore, prepared to do, is to remand the accused for only as long as necessary to enable the requisite detention and authorising officers, if they deem appropriate, to take the required steps in accordance with Sections 15, 20 and 25 in relation to notification, and authorisation if necessary, to obtain the desired non-intimate sample,” said Foster, adding that he was staying the effect of the ruling as the accused man indicated his intention to appeal.

In April 2019, the Department of Correctional Services (DCS) revealed that DNA sampling was taking place at all adult correctional centres.

“DNA samples have been collected from 26 inmates so far,” it said of the progress at the Richmond Farm Adult Correctional Centre, adding that it was being witnessed by a justice of the peace.

“The collection of DNA sample is done in alphabetical order; however, inmates who are soon to be released are placed at the top of the list,” the DCS said on its website.

tyrone.reid@gleanerjm.com

Edited excerpts on DNA Evidence Act from Supreme Court ruling

Section 15 (1) (a) provides that in taking a non-intimate sample, informed consent may be given. If it isn’t or if it is given then withdrawn, reasonable force may be used to obtain the sample. A non-intimate sample means a sample of saliva; hair, other than pubic hair; a nail; and any material found under a nail. It also means a buccal swab; a skin impression; and a swab, washing or sample taken from any part of a person’s body other than a part from which it would be deemed an intimate sample.

Under Section 15 (1) (b), informed consent is required for the taking of an intimate sample. Otherwise, a court order is required. An intimate sample includes a sample of blood; urine; semen; tissue fluids obtained by breaking the skin; or pubic hair. It also includes a swab; washing or sample taken from any part of a person’s genital or bodily orifice other than the mouth; dental material; or foetus, or products of conception.

Where consent for a non-intimate sample is withheld or withdrawn, a detention officer shall inform a person that the sample may be taken by the use of reasonable force. In such a circumstance, one or more detention officers may use such force as is reasonably necessary to enable the sample to be taken, or to prevent the loss, destruction, or contamination of the sample.

Use of reasonable force should be authorised by an authorising officer. The authorising officer shall not give an authorisation unless he has reasonable grounds: (a) for suspecting the involvement of the person from whom the sample is to be taken in the commission of an offence punishable by a term of imprisonment in respect to which he is detained; (b) for believing that the sample will tend to confirm or disprove the involvement of that person in the committal of the relevant offence; and (c) that the results of the forensic testing of the sample may be given in evidence in any proceedings.

Section 25 (3) prohibits the use of force to obtain a sample from a child under the age of 12.