The collection, use and retention of DNA is intrusive of both physical and informational privacy, as DNA reveals information about an individual and their whānau. It also provides the genetic link to past and future generations, which is whakapapa information, considered a taonga by Māori. Its collection also has implications in terms of tikanga Māori, such as the tikanga relating to mana and tapu.

To address these and other concerns, Te Aka Matua o te Ture | Law Commission has proposed considerable changes to the regime for Police collecting and retaining DNA samples and profiles, set out in the Criminal Investigation (Bodily Samples) Act 1995 (CIBS Act).

We recommend new legislation with a clear purpose to facilitate the collection and use of DNA in criminal investigations, prosecutions and investigations into missing and unidentified people in a way that:

• minimises interference with a person’s privacy and bodily integrity
• recognises and provides for tikanga Māori
• is consistent with human rights values.

We also recommend a new interdisciplinary DNA Oversight Committee with strong Māori representation should underpin the regime. This Committee would be charged with fostering a regime that upholds the purpose of the legislation.

This article outlines recommended changes to the existing suspect and databank regimes for practitioners familiar with the CIBS Act. These changes are intended to align the regimes with the proposed purpose of the new legislation. Key to the regimes is the recommended establishment of a new DNA Databank. This databank would hold DNA profiles generated from DNA samples obtained in both criminal investigations and investigations into missing people. There would be indices for different profiles – Crime Scene, Elimination (for victim and third-party profiles), Pre-conviction (for both suspect and arrestee profiles), Offenders, Missing and Unidentified, Unidentified Deceased and Relatives.

Collection of DNA

Suspect regime

Currently Police may obtain suspect samples by consent in respect of an imprisonable offence (or for the non-imprisonable offence of peeping and peering) from adults or from young people, if their parent or caregiver also consents. If consent is refused, a compulsion order can be sought.

We recommend that due to the inherent power imbalance, DNA should not be sought by consent from young people nor from those adults who lack the ability to provide informed consent (a court order would be required, as discussed below). Other adults should also have enhanced protections in relation to the consent process, including:

• Requiring police officers to explain (rather than “inform”) prescribed information in a manner and language appropriate to the suspect’s level of understanding.
• Providing materials in te reo Māori and other commonly spoken languages and visual aids.
• Video recording the consent process.
• Establishing the right to:
  • consult privately with a lawyer
  • nominate a support person to be present during the consent process.

The government will need to consider how to facilitate proposed access to legal advice, as per Kerr v New Zealand Police [2020] NZCA 245 at [68], in “a real and practicable way”.

We also recommend legal services should be classified as criminal rather than civil, for the purposes of legal aid. This would mean lawyers with the most experience in criminal and DNA matters could provide assistance.

If consent is refused, or a court order is required, we recommend continuing the current compulsion order process. This would remain largely unchanged for adults, but for children and young people we recommend a Youth Court Judge decides whether DNA should be obtained.

In rare situations, a suspect sample may be obtained indirectly from an adult, such as from an abandoned coffee cup, but only if a Judge makes an order after considering certain matters.

Suspect profiles will be held on the Pre-Conviction Index and only compared to the relevant crime scene profile unless a Judge permits a one-off comparison to all profiles on the Crime Scene Index.

The databank regime

Much of Police’s focus in the last 25 years has been adding profiles of known people to the DNA Profile Databank (DPD) and Temporary Databank, thereby increasing the pool of potential suspects who might match historic unresolved crimes and/or link to future crimes.

There are currently just over 200,000 profiles on the DPD originally obtained as follows:

• 1000 as suspect samples
• 91,000 voluntary databank samples
• 81,000 arrest or intention to charge samples
• 27,000 pursuant to a post-conviction contestable notice

Until 2009, Police’s principal means of collection for the DPD was requesting voluntary samples from adults (usually known offenders). The resulting profiles are retained on the DPD until consent is withdrawn (which rarely happens). If a profile linked to an historic offence and/or the person is subsequently convicted, their profile remains indefinitely on the DPD.

Due to the privacy intrusion, absence of individualised suspicion, and concerns as to whether consent is truly free and informed, we recommend voluntary databank sampling is discontinued.

Since Police’s powers of collection were statutorily increased in 2009, the focus has been compelling samples from:

• adults Police arrest or intend to charge with any imprisonable offence (or the offence of peeping and peering),
• young people Police arrest or intend to charge with a narrower range of offences.

DNA does not need to be relevant to the investigation or prosecution of the offence and there is no judicial oversight of the process. The resulting profile is held on the Temporary Databank and compared, prior to conviction, with profiles from unresolved crimes.

We recommend Police should no longer be authorised to obtain a sample on arrest or intention to charge from young people or from adults who lack the ability to understand. For other adults we recommend collection parameters are tightened so that a sample should only be obtained:

• in respect of an offence punishable by imprisonment for two or more years; and
• if a senior police officer considers it would be reasonable given the nature and seriousness of offending and the person’s history of prior offending.

Resulting profiles are only to be compared on a one-off basis to the Crime Scene Index if a Judge makes an order. The Judge must be satisfied there are reasonable grounds to suspect prior offending and believe a comparison may result in a match.

We recommend that the final way Police currently obtain profiles for the DPD – through service of a contestable databank compulsion notice after a qualifying conviction – continues but only in respect of adults convicted of an offence punishable by imprisonment for two or more years.

Retention of DNA

Adult profiles

Currently profiles from suspects and arrestees are automatically added to the DPD on conviction for the offence for which DNA was obtained. Most are then held indefinitely.

We recommend that if suspects or arrestees are convicted of an offence punishable by imprisonment for two or more years (a qualifying offence), a senior Police officer must consider if it is reasonable to transfer the profile to the Offenders Index. If so, they must issue a databank transfer notice. This notice can be challenged, similar to a databank compulsion notice.

We also recommend profiles are removed from the Offenders Index if:

• the adult receives a non-custodial sentence and is not subsequently convicted of a qualifying offence within seven years; or
• upon their death.

Profiles of children and young people

Currently DNA profiles of children and young people are held for four years, 10 years or indefinitely, depending on the offence and how the DNA sample was obtained.

We recommend better alignment with the rehabilitative focus of the Oranga Tamariki Act 1989 (OTA). Currently if a child or young person is discharged under s 282 of the OTA their profile is retained if the charge was proven before discharge, but not if the charge was not proven. We recommend no retention at all after a discharge.

If an order is made against a child or young person under s 283 of the OTA, or they are convicted of a qualifying offence, we recommend a Youth Court Judge should decide whether their profile is retained. In doing so, the Judge must consider the principles set out in Part 4 of the OTA.

Retained profiles will be held on the Offenders Index for five years and then removed unless the child or young person is sentenced to imprisonment for the original offence or if, during the five year period, they reoffend in which case the adult retention rules should apply.

Read the Report at the Law Commission website. The Government response to our Report is expected in May 2021.