DNA taken by force

What should have been one of the happiest days for ex-inmate Orville Campbell morphed into a nightmare.

With a broad smile and a cheerful heart, he was finally a free man after spending 11 years and three months at the St Catherine Adult Correctional Centre for illegal possession of firearm and wounding with intent.

As he prepared to see the last of the prison walls and go home to his family last month, Campbell was told that he needed to give a DNA sample, but he refused. What followed next left him traumatised.

The 47-year-old Westmoreland farmer, who just celebrated his birthday on Wednesday, said he was ganged by a group of correctional officers, who forcibly held him down, squeezed his throat and mouth and forced a swab into his mouth to take his DNA sample.

Claimed to be distressed and nursing emotional and physical injuries from the experience, Campbell is now seeking legal advice to take action against the State.

Empowered by the DNA Evidence Act, the Government had started a programme in which DNA samples were collected from convicts.

The act, touted as critical to the country’s crime-fighting efforts, was passed in late 2015 after being piloted by then-National Security Minister Peter Bunting.

It provides for the compulsory extraction of DNA samples, intimate and non-intimate, from convicted offenders and voluntary extraction from detainees. Under Section 25, “one or more detention officers may use such force as is reasonably necessary to enable the sample to be taken” if the prisoner refuses.

However, human rights advocates and defence attorneys have long cautioned against such provisions of the act that may be in breach of the constitutional rights of individuals.

Campbell is contending that he was violated and his rights were breached.

According to the ex-inmate, on the day of his release on March 14, he got up early and went to the reception area, as the prison superintendent had approved an early release for him because of the long journey he had to travel home to western Jamaica.

While being processed for release, Campbell said he was told they needed to take a DNA sample from him, but he refused to sign the consent form. He said he was forced to wait until a justice of the peace arrived to witness the signing of the consent form, but the wait got even longer when he refused.

Campbell said he was even told at one point that he was the one holding up his release.

He said some time after 11:30 a.m., he was cornered by a group of correctional officers, numbering about 10. One of the officers asked what was happening and he explained the situation.

The ex-inmate said the officer told him “You affi go dweet” and that “if yuh nuh waa dweet we know how fi tek it”.

“That is when dem gang me. Some hold me head, some hold me hand and me started to rassel and during the rassling, dem push me into a corner,” Campbell shared with The Sunday Gleaner last week.

“During the rassling, it happen dat one of them come behind me, put him hand behind me and lock me throat, another one hold my head so I could not rock my head and den anada one use his hand and lock my nostril. So, it was when dem lock me nostril and I was catching for breath … that’s the time when one push the swab in my mouth.”

He continued, “I eventually even bite on it and they squeeze me jaw forcing me to open my mouth to release the thing and dat is wen dem pull it out. When dem let me out dem say ‘how you a gwaan like u badman’ me say ‘well, unuh affi go talk to me lawyer’.”

He claimed that one of the officers video recorded the incident.

Following the alleged ordeal, the ex-offender said he was forced to seek medical attention four days later and was given a prescription for the pain in his neck. A copy of a medical report seen by The Sunday Gleaner listed tenderness to the anterior neck, swelling to the tongue and puncture wounds, as being among Campbell’s injuries.

Campbell said he reported the alleged incident at the Spanish Town Police Station immediately after he was released and was advised to file a report with the Independent Commission of Investigations (INDECOM). However, he said he was unable to reach them by phone.

The Sunday Gleaner was also shown a receipt of the report that Campbell got from the police.

INDECOM’s boss, Hugh Faulkner, said it was the first his office was getting a report of this nature when The Sunday Gleaner brought it to his attention last week.

Advising Campbell to visit the office to give a comprehensive statement, Faulkner promised to launch a probe into the complaint.

“There are ways and means that you can get saliva without doing it that way, unless you get the consent of the person. But to grab the person and squeeze the throat would be an assault occasioning bodily harm,” Faulkner said of the reported incident.

The dna evidence act

During the COVID-19 pandemic, the collecting of DNA samples from prisoners was put on hold.

There was no response to Sunday Gleaner queries from the Commissioner of Corrections, Lieutenant Colonel Gary Rowe, and the communications arm of the Department Of Correctional Services on when the programme had resumed, and if they were aware of the alleged incident involving Campbell.

Another inmate who was released late last year told The Sunday Gleaner that she was asked to give a sample when she was being released but had earlier provided the department with one.

The DNA Evidence Act outlines the protocol for collecting, retaining and preserving the samples and guidelines for the retention or destruction of DNA profiles.

Section 15 (1) (a) says 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.

However, the use of reasonable force should be authorised by an authorising officer. The authorising officer shall not give an authorisation unless he has reasonable grounds, including 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.

Campbell is contending that he was never sensitised about the act and the mandatory collection of his DNA sample, and strongly believes that the requirement breaches his human rights.

Further, he said he was informed by an officer two weeks before his release that he should provide a sample but that he consulted a lawyer and was told that it was not mandatory.

“I believe it’s a violation of my human rights and so I am calling on the Government to make a public clarification so persons can understand the real essence of the act and how it should be executed,” he said.

Breach of constitutional rights

Attorney-at-law Bert Samuels argued that Section 25 of the act, which allows for the collection of DNA samples by force, may not stand up to constitutional scrutiny. He said it may be deemed very invasive and if there is resistance, one has to be assaulted before the fluid is given.

“I don’t understand how you can legitimise the holding down of a citizen, which is an assault, to take body fluid from them. So you are getting the body fluid by way of criminal conduct,” Samuels told The Sunday Gleaner last week.

“It has always been thought by some attorneys that the involuntary surrender of body fluids is a breach of the constitutional rights of the citizen. There have been attempts to have legislation to force persons during investigations to give up their body fluids.”

He continued, “I think the equivalent of this is to force someone to confess to a crime. The law presumes voluntary conduct on the part of an accused rather than extracting it by force. So what is the difference between to punish a man, hold him down and have him confess, and hold him down and take samples from his mouth?”

The attorney said it is important to take note of the Supreme Court case with the National Identification System (NIDS), which revealed that an element of any forceful extraction of body fluid may collide with the constitutional rights to privacy.

Samuels also noted that, “There is the potential mischief that can come where the State, in the wrong hands, can take your body fluid and plant it on a crime scene and said DNA is said to prove your guilt.”

Jamaicans for Justice (JFJ) Executive Director Mickel Jackson said there has always been a concern about how the “reasonable force” aspect of the DNA Evidence Act is enforced.

“The issue for us is how that reasonable force is exercised if an accused refuses, where it does not equate to possible physical abuse. In this regard, one of our recommendations is for Part IV and other sections of the act, where the use of force to gain non-intimate DNA is addressed, to be limited to being done via cameras rather than the possibility of being witnessed by justices of peace or authorised persons,” Jackson told The Sunday Gleaner.

In this regard, Jackson is urging the Government to allocate more resources towards procuring cameras for penal facilities, as they protect both the accused and those in the justice system.

“Until we get there, we believe that only a justice of the peace or the accused’s attorney should be used as a witness rather than an authorised officer, which, as defined by the act, may include any senior officer within the place of detention,” she said.

“Managing crime and ensuring our collective constitutional rights are safeguarded must be balanced. The Constitution protects citizens against unreasonable searches, including that of the person. The balance of reasonableness weighs the use of modern scientific techniques in the criminal justice system with that of our fundamental rights and freedoms, including the right to privacy and the right not to self-incriminate.”

CONCERNED ABOUT STATE HAVING DNA

Campbell is also raising concerns about the State’s ability to properly safeguard DNA samples and the relevance of the consent form.

“I am not clear as to why a consent form is required to sign in the presence of a JP if the law says it is mandatory,” noted the ex-inmate.

“And notwithstanding the myriad of corruption being executed by the authorities and the frequent execution of injustices being delivered on Jamaican citizens, I am not convinced that our DNA will be kept in such a way that it will be use in a conventional manner.”

Campbell said he could understand the need for the State to take his DNA if he had another criminal matter pending and it was needed to prove his guilt or innocence, but “My body fluids are my private property and for the State to forcibly take it from me is an invasion of that privacy. If it is appropriate for any lawsuit, I will be pursuing that route”.

He continued, “It was very horrible, terrible situation. Even though I was elated to be released, the entire stress over me was like ‘what is this?’ I believe that was supposed to be the most elated moment for me but it turned out to be like a nightmare.

“Even though when I was out, I was happy to be with family and friends, there was this feeling hanging over me. I feel as if I was abused physically and mentally.”

tanesha.mundle@gleanerjm.com

Aftercare support programme needed – ex-inmate

Orville Campbell, who was released from prison last month is urging the Government to place greater focus on the rehabilitation and reintegration of ex-convicts.

Describing himself as a rehabilitated ex-inmate, he bemoaned the lack of aftercare support programmes.

He shared that when he was released last month, he was informed about a rehabilitation grant and was given a letter to take to the probation office in his parish. However, Campbell, who had planned on starting a chicken-rearing business, said he has been waiting for over a month since submitting the letter and the invoice for the chicken and feed.

He questioned what would have been his fate if he was not blessed with the strong support of family and friends.

Campbell is also appealing to the Government to address the inhumane and unhealthy conditions inmates face in the prisons.

“The condition there is not healthy, because three men in one cell. You have a single cell there that one person is in but most have three men and one cell is approximately nine feet and the width is six feet, so you share that for three inmates,” he said.

“You don’t have any bathroom facilities inside the cells, so after 7 after 8 in the night, let’s say you want to defecate, you have nowhere to go and you can’t call an officer to say you want to defecate because him naa go fly you cell fi you go defecate. Some will tell you say ‘look here, the same place you eat, the same place you sleep, the same place you defecate’.”

DNA EVIDENCE ACT

Section 25 subsection 2 provides that one or more detention officers may use such force as is reasonably necessary to enable a DNA sample to be taken or to prevent loss, destruction or contamination of the sample.

The use of reasonable force should be authorised by an authorising officer. The authorising officer shall not give an authorisation unless he has reasonable grounds including 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.

Authority must be obtained only from those persons empowered by statute and an authorising officer must also be present while the sample is being taken.