New Zealand Law Society - Input sought on DNA profiling in criminal proceedings

Input sought on DNA profiling in criminal proceedings

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The Law Commission is seeking input on the role and function of DNA profiling in criminal proceedings.

It has released an issues paper, The Use of DNA in Criminal Investigations, and is now seeking public input until 31 March 2019.

New Zealand's Criminal Investigations (Bodily Samples) Act 1995 regulates DNA collection from known individuals, either by consent or by compulsion, and establishes the National DNA Profile Databank to hold the resulting profiles.

The Act focuses on the use of a DNA profile to identify an individual offender – either by offering an investigative lead in relation to unsolved criminal offending or by providing evidence in the prosecution of an offence.

While New Zealand was the second country to create a legislative regime for the use of DNA in criminal investigations, the Law Commission says it is no longer possible to read the legislation and obtain an accurate picture of the role and function of DNA profiling in criminal proceedings.

It says the purpose of the Act is also unclear; the structure confusing; and there is no independent oversight.

Commissioner Donna Buckingham says the Commission thinks that developments in the 22 years since the Act came into force raise questions on which informed public debate is needed. This includes:

  • Whether Police can analyse an item discarded by a suspect to get a DNA profile (indirect sampling).
  • Whether Police can search the National DNA Profile Databank for close matches to DNA left a crime scenes - indicating that it may have been a close relative of the person on the known person databank at the crime scene (familial searching).
  • Whether Police can analyse DNA left at a crime scene so as to predict the person's appearance or ethnicity (forensic DNA phenotyping).

“In considering these questions we need to focus not only on supporting the effectiveness of DNA profiling in the criminal context, but also address the privacy, tikanga, human rights and Treaty of Waitangi concerns that arise," Ms Buckingham says. “We are keen to hear the public’s views on these as well as other issues identified in the paper”.

The Law Commission has established an interactive website as part of its consultation process.