Court strikes down appeals for constitutional breaches in DNA cases

TWO MEN, one of whom had his DNA samples forcibly taken from him when a policeman handcuffed him after he was arrested, have lost their claim in the Full Court to get declarations for alleged constitutional breaches under the DNA Evidence Act.

“In a democratic society, what happened to the men is a deep intrusion of their constitutional rights,” says attorney-at-law Norman Godfrey, who is representing the men.

Godfrey disclosed yesterday that the men were appealing the ruling of the Full Court, which refused this month to grant the declarations they were seeking.

The cases involved Bronton Johnson and Jaleel Twain Forbes, whose cases were filed individually but were heard together because they involved the constitutionality of provisions under the DNA Evidence Act.

Johnson was charged with rape in 2012 and appeared before the Manchester Parish Court until he was granted bail in September 2012. Johnson’s case was transferred to the Manchester Circuit Court in April 2018, where he was again offered bail.

In February 2020, the prosecution made an application under the DNA Act for samples to be taken from Johnson after he refused to consent to a DNA sample being taken. The judge granted the application, remanded Johnson in custody for the sample to be taken and then return to court for his bail to be restored. Johnson was granted a stay of the order pending the outcome of his claim in the Supreme Court.

Forbes, at the request of the police, attended the Spalding Police Station in Clarendon on February 9, 2022, to give a witness statement regarding the death of Ryan Roberts. When he refused to give the statement, Constable Nixen Lewis arrested him and remanded him in custody as a suspect in Roberts’ murder.

On February 10, 2022, a habeas corpus application was granted in the Manchester Parish Court that Forbes be placed before the court the next day, and if he was not charged by then, he would be released.

Constable Lewis conducted a question-and-answer interview with Forbes on February 10, 2022. Forbes alleged that when he refused to give a DNA sample, Constable Lewis handcuffed him to a bench and forcibly held him down from behind for buccal swabs to be taken from him. He was released from police custody after the swabs were taken.

He sought several declarations, one of which was that certain sections of the DNA Evidence Act contravened his constitutional rights and that of other Jamaicans when swabs were forcibly taken from him on February 10, 2022.

Johnson and Forbes were seeking declarations that several sections of the DNA Evidence Act were in breach of the Constitution and should be declared null and void and struck down.

INCONTROVERTIBLE

Johnson contended that the court order granted by the judge “breaches or is likely to breach” his fundamental right to freedom guaranteed under the Constitution as well as the right to presumption of innocence guaranteed under the Constitution.

Godfrey submitted that it was incontrovertible that the impugned provisions of Sections 5, 8, 15, 20, 21, 23, and 25 of the DNA Evidence Act violated the claimants’ constitutional rights to life, liberty, and security.

He argued that the court order in Johnson’s case, and the forcible taking of the sample in Forbes’ case were actions relating to the collection of personal data that were in breach of their privacy rights. He said that those sections of the act should be struck down.

Attorneys-at-law representing the defendants, who were the DPP, Constable Lewis, and the attorney general, had argued that the claimants did not prove that the State had breached their constitutional rights.

The court, comprising Justice Sonya Wint-Blair, Justice Simone Wolfe-Reece, and Justice Tara Carr, found that the sample pursuant to the act in Forbes’ case was lawful and Forbes did not show that the police officer had acted maliciously or without reasonable and probable cause.

“Having considered a fair balancing of the rights of the Claimants and the State, the Court concludes that the relevant sections of the DNA Act are proportional to the legitimate aim of the State on conducting criminal investigations in aid of prosecuting those who allegedly have committed criminal offences in an efficient manner. In doing so, the breach of the Claimants’ right to privacy is demonstrably justified in a free and democratic society. The claimants are therefore not entitled to the constitutional declarations sought,” the court ruled.

The court said that there was no evidence from Forbes to support a finding that the actions of the police officers amounted to inhumane or degrading treatment or that he suffered mental or physical injury.

Johnson claimed that under Section 21 of the DNA Act he would suffer inhumane and degrading treatment, but the court disagreed.

“The claimants are therefore not entitled to the declarations sought,” the court said.

No order as to costs was made as the court held that there was no evidence that the claimants acted unreasonably in making the application or in the conduct of the application.

Prosecutors Dwayne Green and Katrina Watson represented the DPP and were instructed by the DPP.

The attorney general and Constable Lewis were represented by attorneys-at-law Faith Hall, Jeffrey Foreman, and Stephen McCreath, instructed by the Director of State Proceedings.

editorial@gleanerjm.com