Rewriting The Rulebook On DNA In Criminal Investigations – Expert Reaction

A new report highlights significant gaps in the rules around how DNA is obtained, used and retained for criminal investigations.

The Law Commission report finds the current system is lacking independent oversight – even from the Independent Police Conduct Authority – and fails to accommodate tikanga Māori or uphold te Tiriti o Waitangi.

The SMC asked experts to comment on the report and its 193 recommendations.

Associate Professor Debra Wilson, School of Law, University of Canterbury, comments:

“New Zealand was the second country in the world to use DNA in criminal investigations. Our two databases contain over 202,000 DNA samples (with approximately 14,000 added in 2018-2019). With this amount of genetic data being stored, it is vital that there are appropriate laws to regulate collection and use of these samples.

“New Zealand’s DNA laws are out of date, and lack coherency following a series of amendments. The Law Commission has recommended replacing the current law with a new law that is coherent, up-to-date, and culturally appropriate.

“The Commission recommends permitting the use of techniques seen overseas like ‘dragnets’ (asking every person fitting a description, for example ‘male in Christchurch’, to provide a DNA sample); familial testing (searching the databank for a similar-but-not-identical sample, which might indicate that the similar sample is related to the offender); and genealogy searching (using DNA people have sent to companies like ancestry.com). While these techniques have been used successfully overseas, they raise complicated issues of consent and privacy rights.

“The lack of independent oversight is seen as a ‘fundamental regulatory gap’ in the current law. In 2018-2019, over 13,000 of the 14,000 people providing samples had been required to do so by police officers, with no judicial oversight.

“For some Māori, DNA is considered sacred and therefore the taking of a sample is tapu. The current legislation does not mention this issue, and considerable thought is needed as to how samples can be taken and used in culturally appropriate ways.”

No conflict of interest.

Karaitiana Taiuru (Ngāi Tahu, Ngāti Kahungunu, Ngāti Rārua), STEAM Māori Cultural Advisor at Taiuru & Associates Ltd, final year Doctoral Student at Te Whare Wānanga o Awanuiārangi, comments:

“Currently there are no Te Tiriti/Treaty of Waitangi considerations guiding the New Zealand Police or any other government organisation from taking DNA samples from adults and young people who are being investigated for criminal investigations for an offence that is imprisonable, nor is there for the length of time the DNA sample is stored by an external organisation, regardless of if the suspect is innocent, convicted or deceased.

“Instead, the New Zealand Police currently have wide discretionary powers when taking (voluntarily, by stealth or by force) DNA samples. Many of the offences are minor with “maximum penalties” of imprisonment, yet statistically Māori have samples taken at a much higher rate than non Māori. These samples are taken without cultural sensitivities or informed consent of the donor, nor to their whanau and communities.

“The Law Commission’s recommendations are a significant and positive step forward to protecting Māori Peoples, their culture, privacy and human rights in a rapidly evolving scientific and technological world where Māori are often not represented, or their concerns voiced. The removal of DNA samples after seven years and from the dead will ensure that DNA is not being matched from the living to the dead, creating a damaging tikanga breach.

“The recommended mandatory Māori representation on the DNA oversight committee would likely address the highly sensitive current cultural issues and future risks of DNA technologies that could significantly bias Māori Peoples, whānau and hapū with digitised DNA, Māori data sovereignty, familial searching, profiling, access to Guthrie Cards and consumer DNA web sites and the matching of DNA with the suite of biometric systems the Police and other government organisations currently have deployed. The extra safeguard to protect Māori is that the Independent Police Conduct Authority is also recommended as extra option.”

Conflict of interest: Made a personal public submission in 2018 as an academic Māori (researching Tikanga Sovereignty of Māori genetic and genomic research and storage) to the Law Commission review of the Criminal Investigations (Bodily Samples) Act 1995.

Associate Professor Nessa Lynch, Faculty of Law, Victoria University of Wellington, comments:

“This review of the DNA legislation is timely. The DNA legislation was enacted in 1995 as a conservative and judicially authorized regime. Piecemeal and populist reforms have expanded the scope of the collection and retention regimes since. There is little public awareness of the current breadth and depth of state power in this context. In particular, police power has expanded markedly, with DNA able to be compulsorily acquired for a broad spectrum of offences (many of which do not give rise to significant public safety concerns). Māori are strongly overrepresented at all stages of the criminal justice system, from apprehension to arrest to bail decisions to sentencing and imprisonment rates. This filters through to the DNA collection and retention statistics also.

“It is important that the Review has recommended a new piece of legislation. The reforms since 1995 have bolted on new powers without considering the overall purposes. The proposal to align the legislation more closely with human rights, tikanga Māori and te Tiriti is welcome, given the special significance of DNA in revealing sensitive personal information. The recognition of the different and special status of children and young persons is valuable, given the different values (such as reintegration) that guide youth justice.

“The review sets out a number of recommendations around the regulation of both forensic techniques and the governance of the database. As already noted, the science is now far ahead of the regulation, and a number of practices have been occurring without specific authorisation or oversight. Reducing the complexity of the information provided to those who are requested or required to provide a sample is vital, given the vulnerability of many of the people who populate our criminal justice system.

“I strongly support the importance of independent oversight. Aotearoa is unusual amongst comparable jurisdictions in lacking such oversight and audit. It is unwise for such a large repository of personal information to be solely in the custody of the Police and one forensic provider without oversight. Individual citizens must have confidence that legislative and human rights requirements are complied with. It is also an appropriate time for the Government to consider the governance of biometrics more generally (such as fingerprints, facial images, voice and vein patterns).”

Conflict of interest: A/Prof Lynch was a member of the expert advisory panel for the Law Commission’s report and was also consulted in the preparation of the terms of reference for the review.

Dr Geoff Chambers, Senior Research & Teaching Fellow, School of Biological Sciences, Victoria University of Wellington, comments:

“A single DNA databank seems to be a good idea, but it depends what is meant by this term. I think that individual casework databases will always be required while an investigation is in progress. Later some, or all, of these profiles and possibly samples can be transferred to central information storage subject to rules governing this process.

“Searching databanks outside the control of the NZ forensics community will sometimes be a useful option for individual identification either directly or via familial relationships. I agree we should think carefully about how, when and why this is done.

“Independent oversight of sensitive processes like forensic databanking could be a valuable thing, much in the way that Ethics Committees support medical research. Having something like this might help to increase public confidence in the process. However, the way that such oversight would work must be carefully considered – as the panel or committee must be properly qualified, but also neutral and act in a way that is not allowed to hinder investigation or create an unwanted layer of bureaucracy.

“In short, DNA profiling as practiced in NZ is a safe and effective with high public familiarity and acceptance. It’s on every police programme on TV and treated very much like photography. We should tread carefully for fear of creating anxieties that do not presently exist.”

No conflict of interest.

Paige McElhinney, Director and expert witness, The Forensic Group Ltd, comments:

“DNA profiling is an incredible tool for criminal justice. Developments and new techniques as well increasing sensitivity means that now more than ever DNA analysis is often key to an investigation. In our search for answers, we still need to do it right.

“The time was right for a review of the legislation and the findings issued today identified many issues with the current system, which we have been seeing on a practical level in the cases that we review. This comprehensive review is a fantastic first step and the recommendations within, including the development of a DNA Oversight Committee, will not only address the current issues we see in casework but manage advances in technology into the future.”

Conflict of interest: Paige was part of the expert advisory group to the Law Commission for this report and is a past employee of ESR, which was also consulted for the report.

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