DNA Bill

[ ] April 2009 Justice and Electoral Select Committee Parliament House WELLINGTON Attention: Committee Secretariat Submission of YouthLaw Tino Rangatiratanga Taitamariki on Investigations (Bodily Samples) Bill Criminal Introduction 1. YouthLaw Tino Rangatiratanga Taitamariki 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. Our Position on the 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 1 „intend to charge‟ with an imprisonable offence and to store that DNA on a database, where it will remain indefinitely or until the person has been acquitted or the charges are withdrawn.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 2 by the police and designed to capture the vast majority of persons subject to police apprehension. 9. In addition, we are concerned that the Bill does not sit comfortably alongside current law and policy such as the police diversion scheme for first time, minor offenders and the Criminal Records (Clean Slate) Act 2004 nor does it appear consistent 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 massive 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 3 constitutionally separate from the executive and thus provide independent modes of procedure and determination, as it involves a prima facie intrusion on an individual‟s right to freedom under the NZBORA from unreasonable search and seizure. 14. In addition, we are concerned that proposed s24J(1)(b) allows 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. Collection of bodily samples from young people 15. asd 16. asd 17. Adult punishment for adult crimes 18. As stated in the Explanatory Note, Bill‟s central principle is the concept of “adult punishment for adult crimes”. We consider that this is a fundamentally flawed concept. Firstly, it is self-evident that children are not adults. Secondly, against 4 the context of this truism, the concept of “adult punishment for adult crimes” is contrary to the orthodox position in the field of psychology. 19. In R v Slade & Ors1 the Court of Appeal cited in its judgment the following report by a registered psychologist on the developmental characteristics of young people: “It is widely accepted that adolescents do not possess either the same developmental level of cognitive or psychological maturity as adults (Steinberg & Scott, 2003). Adolescents have difficulty regulating their moods, impulses and behaviours (Spear, 2001). Immediate and concrete rewards, along with the reward of peer approval, weigh more heavily in their decisions and hence they are less likely than adults to think through the consequences of their actions. Adolescents‟ decision-making capacities are immature and their autonomy constrained. Their ability to make good decisions is mitigated by stressful, unstructured settings and the influence of others. They are more vulnerable than adults to the influence of coercive circumstances such as provocation, duress and threat and are more likely to make riskier decisions when in groups. Adolescents‟ desire for peer approval, and fear of rejection, affects their choices even without clear coercion (Moffitt, 1993). Also, because adolescents are more impulsive than adults, it may take less of a threat to provoke an aggressive response from an adolescent.” 2 20. The Court went on to state: The policy implications in the criminal justice sphere are relatively obvious. The first concern is to actually prevent the problem of delinquency manifesting itself as violent criminal activity in the decidedly “at risk” period; then to address the root causes of that offending in an individual. Other policy implications lie largely outside the criminal justice system, in such things as the provision of greater educational and job training opportunities; possibly an expansion of the public sector to provide services to the less well off; in one way or another promoting the inclusion of all citizens in society; and doing what can be done to encourage cultural ideals which increase the focus on community and respect for others. 21. The Bill is clearly inconsistent with the above findings. In its attempt to hold children to the same level of accountability for their actions as adults, it ignores widely-accepted scientific evidence as to their psychological and cognitive 1 2 [2005] 2 NZLR 526 [2005] 2 NZLR 526, p 533, para 43 5 capacity to make decisions and understand or appreciate the consequences of their actions. It also ignores the root-causes of youth crime and the need for policy to address the underlying social issues that give rise to criminal offending by young people, outlined in the portion of Hammond J‟s judgment quoted above. 22. The law in New Zealand has accordingly developed over the years to reflect both the scientific evidence around the criminal culpibility of children and young people3 and to address the root causes of their offending, through processes designed to provide greater preventative measures4, support5 and, in many respects, accountability6. 23. In contrast, the Bill does not offer any scientific, legal or sociological basis for its position. It instead relies on a catchphrase “adult punishment for adult crimes” and a reference to a “clear perception” that the youth justice system is not working, without referring to any concrete evidence to justify either assertion. 24. Notwithstanding the irreparable damage the Bill would inflict on the youth justice system, we consider that it would irresponsible for the legislature to enact a Bill that seeks to impose drastic systemic change yet fails to refer to concrete or compelling evidence justifying the need for amendment. Current Statistics 25. The Bill‟s Explanatory Note refers to a “perception” that youth crime is on the rise and offers this as a primary reason for its establishment. However, a report by the Principal Youth Court Judge in 2004 indicates that this perception is not reflected by youth justice statistics, which indicates that youth crime has been relatively stable over the past few years.7 3 4 Crimes Act 1961 s 22, CYPF Act 1989 s208(e) and (h) CYPF Act s208 (a), (c)(ii) and (f)(i) 5 CYPF Act s208 (c)(i) and (ii) 6 CYPF Act s208(g) 7 Principal Youth Court Judge Becroft, Youth Offending: Putting the Headlines in Context, December 2004, http://www.justice.govt.nz/youth/media/rates1204.html 6 26. Moreover, only a small percentage of offending by under 17 year olds could described as serious, with half of all offences being dishonesty offences or rated by the Police as being of “minimum seriousness”.8 27. Violent offending, undoubtedly the most concerning aspect of youth crime, has also remained relatively stable over the past few years.9 It is of note that apprehensions for violent offending has increased generally, with the rate of violent offending committed by 31-50 year olds increasing more than by 14-16 year olds.10 Definition of a Serious Offence 28. The Bill introduces a new legislative body of offences known as “serious offences”. The criteria for a serious offence is any offence with a maximum penalty of 3 months imprisonment or a $2000 fine, or any charge in respect of a young person convicted of one “serious offence” or three other “non-serious offences”. This is the linchpin of the Bill, as it effectively removes the right of a child aged 10 or over charged with a “serious offence” to have their charge dealt with under the youth justice system. 29. The Bill‟s definition of “serious offence” is so inclusive that only around 12 existing offences fall outside the definition.11 The threshold is set so low as to incorporate some minor traffic offences, such as careless driving12. Petty offences, such as minor shoplifting13 (say of a chocolate bar for example) fall within this definition. First-time offenders on minor drugs or property charges (such someone charged with using cannabis14 or trespass without reasonable excuse15) also fall within the ambit of a “serious offence”. 8 9 ibid ibid 10 ibid 11 Executive Summary of opinion by PD Green, Barrister, on Young Offenders (Serious Crimes) Bill, paragraph 29 – commissioned by the Children‟s Commissioner, 2006 12 Land Transport Act s37 13 Crimes Act s223(d) 14 Misuse of Drugs Act s 7 15 Summary Offences Act s29 7 30. As far as we are aware, the Bill is novel in introducing a category of offences defined by an inherently subjective term. We consider that this is a flawed concept, which if enacted could set a dangerous legislative precedent. 31. Currently, the “seriousness” of an offence is determined by a combination of the nature of the offence, the context of the facts and the circumstances of the offender. Legislation catagorises offences by the Court‟s jurisdictional procedure used to prosecute them; summarily for minor offences, indictable for offences with greater penalties and purely indictable for the offences which have the most severe penalties. 32. The Bill makes no distinction or reference to the factors listed in the above paragraph. In fact it offers no basis, other than the 3 month imprisonment/$2000 fine penalty threshold, for determining whether an offence is “serious”. Pressure on the Criminal Justice System 33. We consider that the Bill would place inordinate, unsustainable pressure on the criminal justice system. By virtue of clauses 8 and 12, the Bill would have the effect of greatly increasing the numbers of young people appearing in the District Court. 34. Between 2004 and 2005, there were 8153 referrals to youth justice FGC‟s.16 In 2003, 13, 467 charges were processed by the Youth Court17. Given that the scope of offences defined as “serious offences” by the Bill, which would bring a 10-16 year old before the District Court, it would be reasonable to estimate that the Bill would introduce similar numbers of children and young people to the adult criminal justice system in the District Court each year. The numbers of children and young people brought before the District Court may well exceed that, as the 16 Vote: Child Youth and Family Services Statement of Intent 2006 http://www.msd.govt.nz/publications/statement-of-intent/2006/vote-child-youth-and-family-services.html 17 Source: Ministry of Justice 8 Bill makes it much more viable for police to exercise powers of arrest and prosecution towards this demographic.18 35. This would place further pressure on the administration of criminal procedure in the District Court. Court staff, duty lawyers and judges would find their already busy workload increased significantly. We are concerned that the introduction of a whole new tier of defendants may overload the Court system to the extent where its ability to administer the criminal justice system would inevitably be compromised. 36. In addition, we are very concerned at the likely impact the Bill would have on the numbers of children and young people detained in police cells. The situation in New Zealand has been unacceptable for many years. As the Committee will likely be aware, children as young as 10 have been detained in police cells for extended periods of time, on occasion for several days, due to a shortage of suitable youth detention or residential facilities. This practice has been subject to strong criticism from the Children‟s Commissioner, the judiciary and the Human Rights Commission. The practice is also in clear breach of New Zealand‟s international obligations under UNCROC and the UN Rules on the Administration of Juvenile Justice („the Beijing Rules‟). 37. We consider that the Bill will act to exacerbate what is already an unacceptable situation. As mentioned above, the Bill will have the effect of exposing much larger numbers of young people to arrest and prosecution. It would be therefore reasonable to predict that the numbers of children and young people subject to detainment would also increase. The Impact of the Bill on the Youth Court and FGCs 38. We are very concerned that, if enacted, the Bill would have the effect of marginalising the role of the Youth Court and the youth justice FGC process to 18 Further to this, it is of note that whilst police apprehensions of youth have remained stable over the decade 1991-2000, the numbers of police prosecutions has increased markedly. Youth Offending Strategy page 52, 53 9 such an extent as to render them redundant. New Zealand‟s current youth justice system, in particular the FGC process, is internationally admired. The FGC forum for resolving youth justice matters has been adopted in several overseas jurisdictions, including Australia, the UK and parts of Canada. 39. The Bill seeks to limit the jurisdiction of the Youth Court and the youth justice process under the CYPF Act to those offences which fall short of the maximum penalties required to fall within the Bill‟s definition of a “serious offence”. This would result in the Youth Court and FGC‟s only being able to be used in respect of around 12 offences (see paragraph 13 above). 40. This would effectively dismantle the youth justice system. Children and young people as young as 10 charged with an offence defined as “serious”, which applies to the overwhelming majority of criminal offences listed in the Crimes Act, the Summary Offences Act and other legislation, would be brought before the District Court and proceeded against as if they were an adult. 41. The Bill would also produce a legislative anomaly, as it is entirely at odds with the principles of the youth justice system under section 208 of the CYPF Act, which include: The principle that unless the public interest requires otherwise criminal proceedings should not be instituted against a child or young person if there is an alternative means of dealing with the matter.19 The principle the vulnerability of children and young persons entitles a child or young person to special protection during any investigation relating to the commission or possible commission of an offence by that child or young person.20 International Obligations 42. Such a scenario is a fundamental breach of Article 40 of UNCROC and the Beijing Rules. Article 40(3) specifically states: 19 20 CYPF Act s 208(a) CYPF Act s 208(h) 10 State Parties shall seek to promote the establishment of laws, procedures, authorities and institutions specifically applicable to children alleged as, accused of, or recognised as having infringed the penal law. 43. The Bill would undoubtedly bring New Zealand into international disrepute and damage our reputation as a nation which takes a progressive stance in human rights matters. 44. We note that our current system does not fully comply with our international juvenile justice obligations. 17 year olds, who fall under UNCROC‟s definition of a child or „minor‟, are proceeded against as adults in our criminal justice system. This is in breach of Article 40 of the Convention. 45. In addition, our youth justice system is not completely self-contained from the adult system. As the Committee will be aware, children aged 10 and over can be charged and convicted with murder or manslaughter. Children aged 15 and over can also be transferred to the District Court for sentencing, if convicted with a purely indictable offence. Further to this, children aged under 17 can be subject to terms of imprisonment, if convicted of murder or manslaughter or if convicted of a purely indictable offence.21 Children aged 15 and above can also be remanded in custody in an adult penal institution if charged with or convicted of a purely indictable offence22. This is contrary to New Zealand‟s obligations under Article 37(c) of UNCROC23 which requires the separation of child offenders from adult offenders in penal institutions, unless it is in the child‟s best interests to be placed in an adult penal institution. 46. In its 2003 Report on New Zealand, the UN Committee on the Rights of the Child expressed its concern at New Zealand‟s low age of criminal responsibility24 and the Government‟s position on age-mixing youth offenders with adult offenders in 21 22 Sentencing Act 2002 s18 Sentencing Act 2002 s 162 23 The New Zealand Government has a reservation to Article 37(c) of UNCROC but has stated that it intends to withdraw the reservation. The Department of Corrections is currently developing a “test of best interests” in respect of the practice of mixing child and adult offenders in prison – see Ministry of Youth Development, UNCROC Five Year Work Plan 2004-2008 p 9 24 CRC/C/15/Add.216 paragraph 20 11 penal institutions25. The Committee accordingly recommended that the New Zealand Government withdraw its reservation on Article 37(c)26 and recommended that the Government: “raise the age of criminal responsibility to an internationally acceptable age and ensure that it applies to all criminal offences27; and extend the Children, Young Persons and Their Families Act of 1989 to all persons under the age of 18” 28 47. It goes without saying that the Bill intends to take New Zealand‟s youth justice system in a diametrically opposite direction. The New Zealand Bill of Rights Act 1990 48. The Bill also directly conflicts with section 25(i) of the New Zealand Bill of Rights Act 1990 (NZBORA), which states: Everyone who has been charged with an offence has, in relation to the determination of the charge, the following minimum rights: (i) The right, in the case of a child, to be dealt with in a manner that takes into account the child’s age. Unfortunately, the office of the Attorney-General failed to consider the consistency of the Bill alongside section 25(i) in its legal advice to the AttorneyGeneral, which found the Bill to be NZBORA compliant. However, it is evident to us that the Bill is fundamentally inconsistent with section 25(i), particularly in the context of the youth justice principles enacted under section 208 of the CYPF Act and New Zealand‟s international youth justice obligations under UNCROC29 and the Beijing Rules. 25 26 Ibid, paras 6 and 49 Ibid paras 7 and 50 27 Ibid para 21(a) 28 Ibid para 21(b) 29 Articles 24(1) and 40(3) 12 49. We would also disagree with the view of the Attorney-General‟s legal advisors that the Bill is not inconsistent with section 9 of NZBORA which prohibits disproportionately severe treatment or punishment. We refer again to the judgment of the Court of Appeal in R v Slade, per Hammond J: If incarcerated, and again in this respect Dr Lambie‟s report was grounded on well-accepted professional literature, adolescents experience high levels of depression, anxiety, suicidal ideation and self-injurious behaviour, and victimisation from other inmates whilst incarcerated. Then too, in institutional terms, adult institutions offer less in the way of health and mental health services for adolescents than for adult prisoners (Soler, “Health issues for adolescents in the justice system” (2002), Journal of Adolescent Health, p 321).30 50. We consider the above statement provides a very clear basis for illustrating the Bill‟s non-compliance with section 9 (and section 25(g)) of NZBORA. We note that the Attorney-General‟s legal advisors did not refer to R v Slade (or any other New Zealand case law) in their analysis of the Bill‟s compliance with section 9 of NZBORA, nor did they refer to any research by psychologists on the impact of incarceration on young people. The Bill’s Social Consequences 51. The Bill does not address many of the underlying social factors that impact on youth crime. Poverty and exclusion from the education system are undoubtedly major factors. These are areas that need to be addressed if youth crime figures are to improve markedly. 52. In addition, there is a lack of co-ordinated, specialised support services for young people who enter the youth justice system. This problem was identified in the Ministry of Justice Youth Offending Strategy of 2002, which recommended the development of a new process for joint educational/vocational and health assessments prior to FGC‟s and improvement of co-ordination and collaboration between key practitioners.31 It also recommended that the Department of Child, Youth and Family have the responsibility to ensure the implementation and 30 31 [2005] 2 NZLR 526 p 534, paras 44 and 45 Ministry of Justice, Youth Offending Strategy 2002, p 36, 37 13 monitoring of FGC plans, with the establishment of a tagged budget to be used specifically on implementing FGC plans.32 53. We also consider that the numbers young people subject to exclusion from the education system needs to be urgently addressed33. There is a clear correlation between young people excluded from school and youth offending. A high proportion of young people who appear in the Youth Court are outside the education system and not attending school. The Education Act currently allows schools to legally reject the enrolment applications of excluded students34, despite the legal requirement that these students be enrolled at school 35. The Ministry of Education‟s 2005 Report on Suspensions, Exclusions and Expulsions showed that 44% of excluded students were not enrolled at a mainstream school at the time the report was issued.36 54. In addition, we are of the view that the Bill would have disastrous social consequences, if enacted. 55. Firstly, by removing the FGC process from all but the dozen or so “non-serious” offences left, the Bill will remove the ability of children and young people to access an alternative process to prosecution and to benefit from referrals to support agencies currently available. It will also reduce the role of victims of youth offending, who at present have a right to attend and have direct input into a youth justice FGC. 56. Secondly, the Bill would have the effect of criminalising much larger numbers of children and young people than at present. Thousands more young people will have criminal records, some as young as ten. This will have the effect of creating a much larger “underclass” of disaffected young people with diminished prospects and a negative social outlook. We are of the view that it is very likely that youth 32 33 Ibid p 37 By “exclusion” we refer to students excluded from school by the Board of Trustees following the student‟s suspension for disciplinary reasons (section 15(1)(c) Education Act 1989). 34 Education Act 1989 s17D 35 Education Act 1989 s20 36 Ministry of Education, Report on Stand Downs, Suspensions, Exclusions and Expulsions, March 2005 14 crime, anti-social behaviour and unemployment would increase. Maori children and young people, who are already over-represented in negative social indicators, would be further disadvantaged. 57. Thirdly, it would act to further lower the status of children and young people in our society. This issue was recently highlighted in the UK, where the UK Government‟s chief advisor on youth crime, Professor Rod Morgan, warned of children having “the mark of Cain on their foreheads” as a result of the UK Government‟s harsh youth justice policies37. In the UK, numbers of children sent to Court have increased markedly, despite apprehension rates remaining static. Professor Morgan noted instances of children sent to Court for trivial offences such as swearing in the playground or breaking windows.38 Human rights organisations and children‟s charities have warned that police have targeted children as “soft targets‟ for arrest to raise conviction rates 39. They have also commented on “a widening gulf” between adults and children due to the fact that “young people are now feared rather than cherished.”40 YouthLaw Tino Rangatiratanga Taitamariki John Hancock Senior Solicitor 13 July 2006 37 38 The Independent, as reported in the NZ Herald 24 April 2006, p B3 ibid 39 ibid 40 NZ Herald 24 April 2006 p B3 15 16