The government may soon resume a program under which it collects and stores DNA samples from prisoners to boost its crime-fighting capacity.
Zavia Mayne, Minister of State at the Department of National Security, pointed out that the program was rolled out before the pandemic.
“As per the law – as contained in the DNA Evidence Act – the sampling of all convicts was taking place before COVID. The appearance of COVID would have slowed down, stopped this process. It’s something that hasn’t picked up yet,” he said. The Sunday Gleaner.
At the time of the interview, Mayne was unable to say how many samples had been collected and stored in the database so far or if convicts were voluntarily providing samples or if reasonable force was used as provided by law. He promised to provide more details on the program shortly.
The DNA Evidence Act was passed in late 2015 after being spearheaded by then-National Security Minister Peter Bunting.
It was touted as essential to the fight against crime in the country as it provided for the compulsory extraction of DNA samples from suspects and convicted persons; describes the protocol for collecting, storing and storing samples; as well as guidelines for the retention or destruction of DNA profiles.
CRITICAL ELEMENT OF INVESTIGATIVE CAPACITY BUILDING
The activation of the national DNA registry was considered essential to strengthen the forensic investigative capacity of the police force.
But attorney Bert Samuels believes Section 29 of the law, which allows DNA samples to be taken by force, may not withstand constitutional scrutiny.
“It is disturbing if what we are hearing is true that they intend to forcibly take blood samples from detainees…. Now the invasiveness of the forced extraction of bodily fluids including blood is an invasion of your privacy and I don’t think prisoners lose that right to privacy unless they’re prosecuting a crime under investigation, and even then, because of the presumption of innocence, you don’t need to give a sample to the police,” Samuels said.
“Do we trust the state that it can keep data about us in a way that it is not taken and used maliciously? For example, DNA found at a crime scene is conclusive evidence that you were there. This is the danger of DNA. It is so specific that its misuse can lead to abuse,” the lead attorney said.
Although Mayne said no official has been cleared to announce a resumption of the program at this time, sources close to the prison system said The Sunday Gleaner that inmates at a local prison were recently told that DNA samples would be taken from them.
Samuels said a caller also informed his legal team that he had been informed that prison authorities would also take his blood sample.
According to lead counsel, the appellants should be treated as a special class of inmates.
“When a person appeals, they are not treated as a prisoner. He’s treated like a caller because common sense tells you that if he wins his appeal, then that’s the end of the matter. Now, are they going to go so far as to take the callers’ blood samples? … Do you lose your rights when you are a caller when it is not certain that you will be imprisoned? He asked.
Unlike Samuels, constitutional attorney Dr. Lloyd Barnett does not believe that collecting DNA samples violates an inmate’s constitutional right to privacy.
“It’s a long-established practice to take personal data from people who have been convicted of a criminal charge, which is done in most democratic countries,” Barnett said. The Sunday Gleaner.
“There is a limitation on the right to privacy of people serving a sentence. Upon conviction, fingerprints were always taken. It is an extension of that traditional approach, so it would be very difficult to say that it is an approach that is not demonstrably justified in a democratic society,” he added.
Barnett also thinks the provision for the use of reasonable force to obtain samples can stand up to scrutiny.
“…If there is a legal power to take the sample, then it cannot be thwarted by the person who refuses to comply,” he argued.
Dr Judith Mowatt, head of the Institute of Forensic Science and Forensic Medicine, confirmed that samples taken from convicts are stored and analyzed at the state entity.
“It’s pretty secure,” she said of the database, adding that it doesn’t just include samples from the correctional system.
In April 2018, the principles of the DNA Evidence Act were tested by the Supreme Court, which ruled in favor of the state in the case brought by Lenworth Howitt, then a defendant who withdrew his initial consent to provide a non-intimate DNA sample.
Judge David Foster ruled that a court order was not required 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 provided for a sample to be taken from a detained person, but the accused was then released on bail.
“What I am therefore prepared to do is to detain the accused only for such time as is necessary to enable the required detention and clearance officers, if they deem it appropriate, to take the action required in accordance to Articles 15, 20 and 25 with respect to notification, and authorization if necessary, to obtain the desired non-intimate sample,” Foster said, adding that he was suspending the effect of the decision because the accused had indicated his intention to appeal.
In April 2019, the Department of Corrections (DCS) disclosed that DNA sampling was taking place at all adult correctional centers.
“So far, DNA samples have been taken from 26 inmates,” he said of the progress at Richmond Farm Adult Correctional Center, adding that a justice of the peace witnessed it. .
“The collection of DNA samples is done in alphabetical order; however, inmates soon to be released are placed at the top of the list,” DCS said on its website.
Edited excerpts from the DNA Evidence Act of the Supreme Court decision
Section 15(1)(a) provides that by taking a non-intimate sample, informed consent may be given. If not, or if given and then removed, reasonable force may be used to obtain the sample. A non-intimate sample means a saliva sample; hair other than pubic hair; a nail; and any material found under a nail. It also means a mouth swab; a skin print; and a swab, wash or sample taken from any part of a person’s body other than a part from which it would be considered 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 blood sample; urine; sperm; tissue fluids obtained by breaking the skin; or pubic hair. It also includes a swab; washing or sample taken from any part of the genital or bodily orifice of a person other than the mouth; dental equipment; or fetus, or products of conception.
When consent to a non-intimate sample is withheld or withdrawn, a detention officer must inform the person that the sample may be taken using reasonable force. In such a circumstance, one or more Detaining Officers may use such force as is reasonably necessary to permit the Sample to be taken or to prevent the loss, destruction or contamination of the Sample.
The use of reasonable force must be authorized by an authorizing officer. The authorizing officer shall only issue an authorization if he has reasonable grounds: a) to suspect that the person from whom the sample is to be taken has participated in the commission of an offense punishable by imprisonment for which he is detained; (b) to believe that the sample will tend to confirm or refute the implication of this person in the commission of the offense in question; and (c) that the results of forensic analysis of the Sample may be presented as evidence in any proceeding.
Section 25(3) prohibits the use of force to take a sample from a child under 12 years of age.