Legal Scoop | How will the DNA evidence affect the average Jamaican

A polarising bill for many years, the DNA Evidence Act (the act) managed to gain the necessary assents in the Houses of Parliament last year and came into operation on March 1 of this year.

How will the act affect the average Jamaican thought? This week, I will attempt to answer the foregoing question in demystified terms.

WHAT THE ACT DOES NOT ALLOW

The average citizen interacts with the police because of road traffic violations or when making complaints to the police for one reason or the other.

Will the operation of the act now enable the police to demand one's DNA in these situations? It should be noted that the coming into operation of the act will not entitle the police to demand anyone's DNA solely because:

n of a simple road traffic violation;

n they go to bail someone;

n they are the complainant in a crime;

n they live in a particular community or associate with a known individual.

The word 'solely' is highlighted because if there are other factors coupled with the ones listed above, those may justify the police demanding and acquiring a DNA sample. Below, we will look at some of the factors which entitle the police to acquire a DNA sample under the act:

WHAT THE ACT DOES ALLOW

The principal bases on which the police will be able to demand and acquire DNA samples are very nicely summarised at Section 4 of the act and are as follows:

n For forensic testing from persons suspected or convicted of criminal offences.

n To generate a DNA profile to be entered into National DNA Register.

n For elimination purposes (that is, to eliminate certain persons as being the perpetrators of a crime).

n To generate DNA profiles for missing persons, unknown deceased persons or just merely unknown persons.

SAMPLE-TAKING PROCEDURES

The process of taking a sample from any person 'fitting the bill' differs, depending on whether the sample to be taken is an 'intimate' or 'non-intimate'.

An intimate sample refers to:

(a) a sample of:

i. blood

ii. urine

iii. semen

iv. tissue fluid obtained by breaking the skin; or

v. pubic hair.

(b) a swab or sample taken from any part of a person's genital or bodily orifice other than the mouth

(c) dental material: or

(d) foetus or products of conception

A non-intimate sample, on the other hand, refers to:

(a) a sample of:

i. saliva

ii. hair, other than pubic hair

iii. a nail; or

iv. any material found under a nail;

(b) a buccal swab (that is, from the mouth);

(c) a skin impression;

(d) a swab or sample taken from any part of a person's body other than a part from which a swab or sample would classify as an intimate sample.

The major difference in the taking of intimate or non-intimate sample is that in the taking of a non-intimate sample, if 'informed consent' is not given voluntarily, or given, but subsequently withdrawn, then reasonable force may be used to take the sample.

However, if the sample being taken is intimate and consent is not obtained, an order has to be obtained from the court before reasonable force can be used.

INFORMED CONSENT

In a nutshell, informed consent means that prior to the taking of DNA samples, consent must first be sought, not necessarily obtained, as follows:

a) If the person involved is an adult, in writing.

b) If the person involved is a 'protected person', in writing from a parent, guardian or adult relative, or via court order.

c) In the case of a child (other than a protected person) who is over 16 years of age, in writing or via court order; in the case of a child under 16 years, in writing from a parent, guardian, adult or via court order.

REASONABLE FORCE

The big nugget of this legislation is that reasonable force may be used to obtain a DNA sample. How, though, is reasonable force defined?

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.

It should be noted, however, that subsection 2 does not apply to children under 12 years. Further, the use of force must first be approved by an authorising officer.

The definition section of the act sets out who can be an authorising officer in the various penal, military or forensic organisations that may be interested in taking a DNA sample.

Therefore, 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.

CONCLUSION

This legislation is an important arsenal in the cache of crime-fighting weaponry and is welcomed. Nevertheless, it is important that the various institutions empowered to use reasonable force move with dispatch to educate and demonstrate to their members how to take DNA samples with the least amount of force.

Jamaican police have been known to use excessive force on far too many occasions to just pass this legislation with no more.

It would be very unfortunate if a legislation, which could otherwise be very helpful to our crime fighting efforts, was to come under fire because of a lack of awareness of what reasonable force means.

The legislation is now in force, the sensitisation must start immediately, no one should die in the process of the police using 'reasonable force' to take a DNA sample.

- Shena Stubbs is an attorney-at-law and legal commentator. Send feedback to: Email: shena.stubbs@gleanerjm.com Twitter:@shenastubbs