Bodily Samples Bill

6 April 2009 Justice and Electoral Select Committee Parliament House WELLINGTON Attention: Committee Secretariat By email Submission of YouthLaw Tino Rangatiratanga Taitamariki on Investigations (Bodily Samples) Bill Criminal Introduction 1. YouthLaw Tino Rangatiratanga Taitamariki („YouthLaw‟) is a community law centre vested under the Legal Services Act 2000. We provide a free, national legal service for children and young people aged below 25 years. 2. Our service includes the provision of free legal advice and advocacy, law-related education and outreach work, development and publication of legal resources (including books, flick-cards and a website) and law reform and policy work. The Criminal Investigations (Bodily Samples) Amendment Bill 3. The Criminal Investigations (Bodily Samples) Amendment Bill constitutes a significant extension of the power of the state to obtain bodily samples and DNA profiles from an individual and to retain that information. In essence, the Bill allows police to collect DNA from the bodily samples of persons whom they „intend to charge‟ with an offence and to store that DNA on a database, where it 1 will remain indefinitely or until the person has been acquitted or the charges are withdrawn. If necessary, reasonable force can be used to obtain the bodily sample. 4. The Bill provides no avenue for independent judicial oversight or determination in any stage of the procedure, from the procurement of the bodily sample through to the storage of the rendered DNA profile on the police DNA databank. Young people aged from 14 to 16 are also subject to the Bill, albeit with some differential thresholds and limitation periods for storage of their DNA. The rationale for the Bill is that a DNA profile is analogous to a “modern-day fingerprint”, and as such should be obtained and utilized by police alongside the fingerprint for law enforcement purposes. 5. 6. However, the Bill has major implications for civil liberties in New Zealand. It is notable that in his report to the House under section 7 of the New Zealand Bill of Rights Act 1990 (NZBORA) the Attorney-General has concluded that the Bill appears to be inconsistent with the right against unreasonable search and seizure affirmed by section 21 of the NZBORA. 7. In addition, the Attorney-General‟s report has noted the Bill‟s lack of constraint around police practice and procedure, stating “I do not consider that the proposal that Police develop internal guidelines for the exercise of these powers or the possibility of these powers will be interpreted restrictively by the courts provide a sufficiently clear or reliable substitute for statutory safeguards”. 8. We share these general concerns. The Bill constitutes a fundamental divergence from the current thresholds and procedure, shifting from a judicially administered system targeted at moderate to serious offenders to a system administered wholly by the police and designed to capture the vast majority of persons subject to police apprehension. 2 9. In addition, we are concerned that the Bill appears inconsistent with the principles underpinning our youth justice system. Collection of Bodily Samples 10. Clause 7 of the Bill inserts a new Part 2B, which sets out the framework for the collection, storage, disclosure and use of DNA profiles obtained from a person by police. 11. Section 24J sets out the parameters under which a police officer will collect a bodily sample from a person aged 17 or older. It provides that a police officer will collect a bodily sample from: (a) any person arrested in respect of a „relevant offence‟ [s 24J(1)(a)] (b) any person who the constable has good cause to suspect has committed a relevant offence and intend to bring proceedings against in respect of that offence [s 24J(1)(b)] 12. This is a departure from the current system which requires the police to apply to the Court for a compulsion order regarding a suspect whom the police have good cause to suspect has committed an indictable offence and who has refused to provide a bodily sample upon request. 13. We submit that the current Court process for determining whether a person must provide police with a bodily sample should be retained. We consider that it is much more desirable to have this process determined by the judiciary, who are constitutionally separate from the executive and thus provide independent modes of procedure and determination. The importance of such independence is underscored when the procedure in question regards an intrusion on an individual‟s fundamental civil right. 3 14. Accordingly, we are concerned by proposed s24J(1)(b), which would allow the police to compulsorily acquire a bodily sample from a person based on a constable‟s suspicion that the person has committed and offence and a consequential intention to bring proceedings. A police officer‟s „suspicion‟ and „intention to bring proceedings‟ is not a sufficiently robust basis to justify seizing a bodily sample from a person without consent. They are, by definition, subjective and nebulous grounds and liable to be applied inconsistently or inappropriately. 15. The Bill also lowers the relevant offence threshold significantly. The current Act sets the threshold for relevant offences at indictable offences in the case of suspects, offences which carry a 7 year imprisonment sentence or more and those specified offences set out in the Schedule. The Bill, however, provides that upon implementation of Part 2 of the Bill, all imprisonable offences will qualify as a “triggering offence” sufficient to allow the police to obtain a bodily sample from an individual upon arrest or intention to bring proceedings. The broad definition includes a number of more „minor‟ offences that would ordinarily be dealt with by police diversion if committed by a first –time offender. This is distinct in its purpose from the current Act, which is focused on persons who are suspected of, or have, offended at the more serious end of the criminal law scale. Collection of bodily samples from young people 16. Section 24K of the Bill allows for police to obtain bodily samples from young people aged 14-16 on the same grounds as set out in s24J, but for the following: (a) The offence carries a maximum imprisonment term of 7 years imprisonment or more (s24K(2)(a)), or (b) The young person has had 1 or more previous convictions or been subject to alternative resolution (such as diversion) or been subject to a Family Group Conference in respect of a previous offence (s24K(2)(b)). 4 17. As in the current Act, a young person must have an independent adult of their choosing during the collection procedure under proposed Part 2B. If the young person fails to choose, the police may appoint an independent person, with the proviso that the person is not a police employee. The police may specify, by way of written notice, another time and location for the collection of the bodily sample, if the young person‟s nominated person is not available at the apprehension or arrest. 18. The Bill also implements a “clean slate” approach of sorts to young people who do not re-offend, providing that young people subject to Youth Court a s283 Youth Court sentence or non-custodial District Court sentence must have their DNA profile removed from the database after 7 years, or 4 years in the case of young people subject to a s282 Youth Court or s106 District Court discharge. 19. Notwithstanding this, we are concerned that the Bill does not appear to be entirely consistent in its purpose with the youth justice principles under ss208(a) and (h) of the Children, Young Persons and their Families Act 1989; namely that criminal proceedings should not be instituted against a young person if there is an alternative means for dealing with the matter and that the young person is entitled to special protections during a criminal investigation or proceeding. 20. The Bill instead would impose a compulsory criminal justice proceeding upon young people through the collection and storage of their DNA upon apprehension or arrest. This rests uncomfortably upon the framework of the youth justice system which is diversionary in nature and designed to steer young people away from criminalization. 21. This is illustrated by proposed s24K(2)(b) which seeks to incorporate young people who have previously been dealt with by alternative resolution/diversion or Family Group Conference. These processes are without prejudice and therefore 5 should not be included as qualifying criteria for obtaining bodily samples and DNA from young people. 22. In addition, the Bill appears more detrimental in its application to young people, than adults, in respect of diversion or discharge. Under Clause 21 of the Bill, identifying information taken from a bodily sample must be destroyed if the person is acquitted or charges withdrawn, or where after 2 months, charges have not been lodged. This would appear to apply to persons subject to a discharge without conviction, which by virtue of s106 of the Sentencing Act 2002 is deemed an acquittal, and police diversion, which requires police to withdraw charges once diversion conditions have been completed. 23. However, the Bill explicitly provides that the DNA profiles of young people who have been subject to a Youth Court s282 discharge or a s106 District Court discharge, will be retained subject to the limitation periods referred to in paragraph 18 above. This appears to mean that young people who have been discharged do not have the same rights as adults regarding destruction of their DNA databank file. Not only is this discriminatory, it is difficult to reconcile against the statutory youth justice principles referenced above. 24. We also consider that the Bill‟s removal of judicial determination in favour of the police is inconsistent with the special protections that our domestic youth justice laws and international juvenile justice principles contain. In our view, such special protections should go beyond the mere presence of an independent adult during the procurement of a bodily sample and extend to independent judicial oversight. 25. In support, we refer to the UN Convention on the Rights of the Child (UNCROC), ratified by the New Zealand Government in 1993, which guarantees the right of all under 18 year olds to have juvenile justice matters determined by an 6 independent, impartial judicial authority1. We also refer again to s208(h) of the CYPF Act, which recognizes the vulnerability of children and young people subject to criminal investigations and their entitlement to special protection. 26. Young people will be particularly vulnerable to the potential misuse of the proposed police powers under the Bill. It is therefore imperative that there is an independent, judicial process for determining whether it is permissible for the police to obtain a bodily sample from a young person. Summary 27. In summary we submit that the Bill goes too far in its extension of police powers to obtain and store bodily samples from individuals, in particular the proposed power of police to obtain a bodily sample prior to any formal proceedings taking place. Whilst DNA profiling technology is of undoubted benefit to police and by association the general public in investigating crime, the implications for civil liberties are such that its use should still be subject to robust checks and balances. 28. We therefore submit that judicial approval of all police applications to obtain bodily samples, as is currently the case, should be retained. We consider that this is particularly important in the case of young people. We also consider that the offence thresholds should be targeted at the more serious end of the criminal offence scale, as is currently the case, and should not be opened up to encapsulate the range of offences Part 2 of the Bill intends. Writer‟s contact details: John Hancock Senior Solicitor YouthLaw PO Box 7657, Wellesley Street Auckland Ph 09 306 7596 Fax 09 307 5243 Email: john@youthlaw.co.nz 1 Article 40.2(b)(iii) and (v) 7