The DNA Evidence Act, 2016 - PowerPoint Presentation

1. The DNA Evidence Act, 2016AN OVERVIEWJustice Jennifer Straw

2. OPERATIONAL DAY The Act came into operation on the 1st of March, 2016. (The DNA Evidence Act, 2016 (Appointed Day) Notice)

3. PURPOSE OF THE ACT To provide for - the keeping, maintenance and operation of a consolidated forensic DNA databank (National DNA Register) for the purposes of forensic investigation and human identification; the regulation of the taking of bodily samples (other than finger prints taken for the purposes of the Finger Prints Act) from persons and crime scenes; andthe retention or destruction of samples and DNA profiles and related matters.

4. THE PRINCIPAL OBJECTS OF THE ACTSet out in detail at section 4(a) – (g) of the Act. The taking of samples from persons suspected or convicted of criminal offences for forensic testing and generating DNA profiles in respect of those persons to be entered in the investigation division of the National DNA Register - subsections (a) and (b)The regulation of the taking of samples from volunteers for the purpose of the investigation of offences or incidents that may have involved the commission of offences - subsection(c)The taking of samples from certain persons for elimination purposes and, where appropriate, the entry of their DNA profiles in the National DNA Register – subsection (d) The taking of samples for the purpose of generating DNA profiles in respect of missing persons, unknown deceased persons or unknown persons to be entered in the identification division of the National DNA Register – subsection (e)The establishment, maintenance and operation of the National DNA Register by the Forensic Institute – subsection (f) The retention or destruction of samples and the destruction or removal from the National DNA Register, of any DNA profiles generated – subsection (g)

5. ADMINISTRATIVE MATTERSThe National DNA Register is a consolidated forensic DNA databank. The said Register is to be established, maintained and operated on behalf of the Government by the Director of the Forensic Institute – section 5The Director of the Forensic Institute is also designated as the Custodian under the Act – section 10 The Custodian’s numerous functions are designated at section 11.

6. DIVISIONS OF THE NATIONAL DNA REGISTER Currently there are two divisions – The investigative division; and The identification division The Act does provide that the Minister with responsibility for national security may prescribe such other division (section 8(1))

7. THE INVESTIGATIVE DIVISIONThe investigative division contains a number of indices of DNA profiles, registrable particulars and other information that may be used to identify the person from whose biological material each DNA profile was generated (whether before or after the commencement date. – section 8(2) There are currently seven (7) indices and the Minister has the power to prescribe more.

8. THE INDICES OF THE INVESTIGATIVE DIVISION – section 8(2)Most of the indices are comprised of DNA profiles which are generated by means of DNA analysis. The reference index - DNA profiles taken from persons whose identities are known The crime scene index - DNA profiles generated from samples found at or recovered from crime scenes The suspected persons index - DNA profiles of persons suspected of having committed relevant offences The convicted persons index - DNA profiles of persons who have been convicted of relevant offences The volunteers index - DNA profiles taken from persons with their informed consent The elimination index - DNA profiles taken from persons under Part VII, which essentially is to ascertain whether a particular person has contaminated a crime scene

9. THE INDICES CONT’DThe statistical index - DNA profiles, registrable particulars and information – (i) obtained from the analysis of DNA material taken from persons in accordance with this Act where the Central Authority making a request that has been approved under the Mutual Assistance (Criminal Matters) Act or another appropriate entity pursuant to Government or multilateral cooperation of law enforcement agencies (ii) kept for statistical purposes and can be used for analytical purposes in the investigation of relevant offences

10. THE IDENTIFICATION DIVISIONThe identification division contains DNA profiles, registrable particulars and other information that may be used to identify the person from whose biological material each DNA profile was generated or the blood relatives of those persons. – section 8(3) There is currently only one index in this division, but the Minister may prescribe others. The missing and unknown persons index - contains DNA profiles created from samples taken from missing persons or blood relatives of missing persons to associate that DNA profile with missing persons, unknown persons and unknown deceased persons. – section 8(3)(a)

11. KEY DEFINITIONS “sample” – means a sample of DNA material taken from a person, or caused to be taken from a person, under this Act, a bodily sample, a crime scene sample and a sample taken, or caused to be taken from the clothing or other belongings of the person or from things reasonably believed to belong to, or to have been used by, the person or with which the person is reasonably believed to have been in contact. “DNA profile” – in relation to a person, means information comprising a set of identification characteristics of the non-coding part of DNA derived from an examination and analysis of a sample of biological material that is clearly identifiable as relating to the person and that is capable of comparison with similar information derived from an examination and analysis of another sample of biological material for the purpose of determining whether or not that other sample could relate to that person.

12. KEY DEFINITIONS CONT’D“registrable particulars” – in relation to a person, means the name, description, age, sex, dental records or photograph of, or document relating to, the person and any other particulars that may be relevant or useful in the identification of that person“relevant offence” - means an offence punishable by a term of imprisonment

13. APPLICATION OF THE ACTThe Act applies to – relevant offences committed, or believed to have been committed, before, on or after the commencement date ( 1st of March 2016) – section 3(1) The Act does not apply to the taking of a finger print under the Finger Prints Act – section 3(2)

14. APPLICATION OF THE ACT CONT’DThe Act does not affect the operation of any other statute which relates to –A requirement for bodily samples to be provided;any power being exercised by any authorizing officer under that statute; or The performance of functions of any person under that statute. – section 3(3) The DNA profile generated under any other statute is not the be entered into the National DNA Register unless this Act provides. However, it can be entered into the crime scene index. – section 3(4) Transitional provision - The Act provides that samples taken, DNA profiles generated from samples, registrable particulars and other information obtained from or in relation to the samples before the commencement date (March 1st 2016) are deemed valid, may be included in the National DNA Register and used in accordance with the Act. – section 71

15. CATEGORIES OF PERSONSThe Act identifies several categories of persons from who DNA samples may be taken and in so doing the Act differentiates between an adult and a child (person under age of 18 years, and in some case also differentiates between under 16 years) and a protected person. “adult” – means a person who has attained the age of 18 years “child” – means a person under the age of 18 years (note: in some provisions the Act makes a distinction between children under 16 years and above 16 years) “protected persons” – means and adult or child who by reason of a mental disorder, intellectual impairment, physical disability, illness or injury lacks the capacity to – (a) understand the general nature and effect of the taking of a sample; (b) indicate (by speech, sign language or any other means) whether or not he consents to a sample being taken; (c) guard himself against violence, exploitation or abuse, whether physical, sexual or emotional, by another person

16. CATEGORIES OF PERSONS CONT’DThe Act further distinguishes: persons in detention volunteers (which includes “relevant persons”)convicted persons (which includes offenders and former offenders and deceased persons suspected of committing relevant offences.)missing persons unknown persons [seriously ill or severly injured]Unknown deceased person.

17. 3) convicted persons includes offenders which is a person – section 29.(A) who has been convicted of a relevant offence before the commencement date of the Act and at that date a term of imprisonment or sentence of detention has been imposed by a Court, and that person is a person serving a sentence in a correctional institution or a young inmate serving in a juvenile correctional centre. That person may also be on temporary release or the sentence is otherwise still in force; (B) who has been convicted of a relevant offence before or after the commencement date and after that date a term of imprisonment/sentence of detention has been imposed by the court; (C) who falls under (A) or (B) above but at any time after the commencement date is subject to the requirements of part VII of the Sexual Offences Act (involves the Sexual Offences Register and Registry – registration and reporting requirements).

18. 3) convicted persons includes former offenders - Former offender (section 30) includes a - person (including a child) who at any time before the commencement date, if the Act had been in operation at that time, would have been an offender within the meaning of section 29 (as described above) but who on the commencement date was not an offender; person who at any time after the commencement date was an offender and a sample was not taken from him or was taken from him but the sample was insufficient and who is no longer an offender orperson who has been convicted of an offence before or after the commencement date of the Act in a jurisdiction other than Jamaica, that offence corresponds to a relevant offence and that person has been or is sentenced in that jurisdiction in respect of that offence and that person in no longer subject to that offence;

19. NOTES IN RELATION TO FORMER OFFENDERS A person is not to be treated at a former offender if the period under the Criminal Records (Rehabilitation of Offenders) Act has elapsed since the expiry of the sentence or if more than one such offence, the expiry of the sentence of the relevant offence that was the last to expire – section 30(3) In relation to a person convicted as a child of a relevant offence ,this section would designate them as a former offender only if the offence concerned is one that is required to be tried by the Parish Court or the Supreme Court; or if it is a conviction in another jurisdiction of an offence which is a corresponding offence that is required to be tried in the Parish Court or Supreme Court. – section 30(4) In section 30 references to a relevant offence includes references to corresponding offences in other jurisdictions. By extension the notification period for sexual offences in other jurisdictions are relevant – sections 30(5) and (6)

20. INFORMED CONSENT Based on the category of persons from whom the sample is required there may be different requirements. There is a further variation in the requirements if the sample sought is intimate or non-intimate. The requirements are generally set out at section 14 of the Act relate to an adult,protected person and a child. This is termed informed consent.

21. TYPES OF SAMPLES Intimate sample – includes any of the following taken from a person under this Act:a sample of – (i) blood (ii) urine (iii) semen (iv) tissue fluid obtained by breaking the skin; or (v) pubic hair swab, washing or sample taken from any part of a person’s genitals or bodily orifice other than the mouth; a dental material; or Foetus or products of conceptionNon-intimate sample includes – a sample of – (i) saliva (ii) hair, other than pubic hair (iii) a nail; or (iv) any material found under a nail(b) buccal swab (cheek)(c) A skin impression (d) a swab, washing or sample taken from any part of a person’s body other than a part which would be an intimate sample

22. INFORMED CONSENT CONT’DRequirements Adult – consent in writing required – section 14(1)(a)Protected person – consent in writing of a parent, guardian/adult relative, or order of Court (under section 22) authorising – section 14(1)(b)Child: 16 yrs and up –(other than protected person.) consent in writing or order of court under section 22 under 16 yrs – consent in writing of parent, guardian/adult relative or order of court under section 22 (section 14(1)(c)) Note: Except for certain provisions the references to Court generally include both the Parish Court and the Supreme Court.

23. INFORMED CONSENT CONT’DNote: The consent in writing of parent, guardian/adult relative shall not be sought if they are - the victim of the offence or have been arrested - section 14 (2)(a) complicity suspected on reasonable grounds – section 14 (2)(b) suspected by the Detention officer that they are likely to obstruct the taking of the sample - section 14 (2) (c)

24. INFORMED CONSENT CONT’DSection 14 (5) speaks to details of prescribed for informed consentwhich is to be signed and speaks to who is to be present for signing. .( JP or attorney) Section 14(7) allows for informed consent to be given by an adult relative named by the parent or guardian if the parent or guardian cannot be located to give informed consent or adult relative of child.Section 14(7)(b) states alternatively, the written consent of Children’s Advocate. For the protected person or child the sample is to be taken in the presence of certain persons, such as the parent or guardian unless they have been excluded. If they have been excluded then an adult relative and JP, is to be present unless the protected person/child does not wish their presence. – sections 17(1) –(6) NOTE THAT Section 22 allows for the detention officer to apply to the court for the taking of an intimate sample from protected person or child, if the parent or guardian cannot be contacted or will not attend within a reasonable time to give consent or they are excluded based on section 14(2) (above) or they refuse to consent or the protected person or child does not have a living parent or guardian or the detention officer cannot reasonably determine if there is a living parent or guardian.

25. INTIMATE AND NON-INTIMATE –procedure for taking samples generally.Section 15(1) differentiates between intimate and non-intimate (as previously defined). Informed consent may be given for non-intimate samples but where not given or withdrawn reasonable force may be used to obtain samples. Informed consent may be given for intimate samples but if not given or withdrawn an order is to sought from the court – section 15(1)(b)NON-INTIMATE - Before the detention officer seeks the consent or causes a sample to be taken the person is to be informed that if they refuse to consent to the taking of a non-intimate sample or if consent given and subsequently withdrawn it may be taken with reasonable force in accordance with section 25 – section 15(2) INTIMATE SAMPLE - if the person refuses or withdraws consent they are to be told that a court order may be sought.

26. PART IV – TAKING OF SAMPLES FROM PERSONS IN DETENTION Gives power to take samples from persons in detention as long as they are detained for relevant offence. The Detention Officer (as defined by the Act – includes inter alia members of the JCF and JDF, forensic analyst and correctional officer) can only take samples based on the provisions of the Act (s. 18). INTIMATE SAMPLE Where there is an authorisation given to take an intimate sample from a person in detention done under s. 21 and the authorising officer is of the opinion that the person may be a protected person, that person is to be assessed by a medical practitioner who shall specify his reason and issue a certificate as to whether the person is a protected person or not. If the Authorising Officer is then to seek the consent of the person to take the intimate sample, but before seeking that consent the person is to be informed:- nature of offence that the person is suspected to have been involved in -that an authorisation given under 19(2)(a)- grounds on which it has been given

27. TAKING SAMPLES FROM PERSONS IN DETENTION CONT’DNON- INTIMATE SAMPLE If it is an non-intimate sample such a sample may be taken from a person who is detained for a relevant offence for the purpose of the generation of a DNA profile to be entered into the reference index, and there must be an informed consent in writing or an authorisation officer’s authorisation for it to be taken.No authorisation should be given unless (per s. 20(3)) : 1- the Authorising Officer has reasonable grounds for suspecting involvement of the person in the commission of the relevance offence in which he is detained;2- the Authorising Officer has reasonable grounds to believe that the it tends to confirm or disprove that person is involved in the commission of that offence; and 3 - That the result of the forensic testing may be given in evidence.

28. TAKING SAMPLES FROM PERSONS IN DETENTION CONT’D-intimate sample.Section 21(2) gives more details as to how the intimate samples are to be taken from persons in detention for the purpose of the generation of a DNA profile for entry in Reference Index. Requirements: - Authorising Officer authorises it for purpose of entry into Reference Index. - Informed consent given in writing.Section 21(3) – authorisation not to be given unless Authorising Officer has reasonable grounds for: suspecting involvement of the person in the commission of the relevance offence in which he is detained.believing that it tends to confirm or disprove that person in the commission of that offence.

29. TAKING SAMPLES FROM PERSONS IN DETENTION CONT’DSection 21(4) states that if informed consent is withdrawn it can be inferred from the conduct of person before or during the taking of sample. That withdrawal is to be treated as refusal to give consent and the order or the court may be obtained and Part IV will apply. Informed consent under s. 21(2)(b) cannot be withdrawn after the sample has been taken.

30. PART V – TAKING OF SAMPLES FROM VOLUNTEERS A sample may be requested from any person, whether or not detained, for the purpose of generating a DNA profile in relation to the investigation of a relevant offence. An example of a volunteer is a victim or someone who is reasonably considered to be a victim of a relevant offence. The person’s consent in writing is to be requested but before seeking the consent, certain information is to be given to the volunteer. This set out in section 27(3)(a) – (d).

31. TAKING OF SAMPLES FROM VOLUNTEERS CONT’D Section 27(3) (a) –(d): (a) that the volunteer is not obliged to have the sample taken from him; (b) in a case in which a sample has already been taken under this section from the volunteer, a second or further sample is required to be taken from him for a reason that shall be told to the volunteer, being a reason failing within section 28; (c) that the sample will be used to generate a DNA profile in respect of the volunteer for the purposes of the investigation of the relevant offence in relation to which it is being taken; and (d) that the sample and the DNA profile generated from the sample in respect of the volunteer may be retained or destroyed in accordance with this Act. Under section 27(7) if the volunteer withdraws consent given before or during the taking of the sample, the withdrawal is to be treated as a refusal of consent and that withdrawal is to be confirmed in writing as soon as practicable.

32. PART VI – OF SAMPLES FROM OTHER PERSON FOR THE CONVICTED PERSONS INDEX Applies to offenders and former offenders (as defined above) sections 29-31.The sample is to be taken from the offender in the correctional institution in which serving sentence but only if the Superintendent of the correctional institution authorises it. Where the offender is on temporary release, the sample ought not to be taken unless an authorising officer authorises it. – sections 29(6) – (8) Section 29(9) speaks of the matters that the offender is to be informed of before taking the sample including the fact that authoristion has been given and reasonable force can be used to take the sample where the offender fails or refuses the sample to be taken (in accordance with section 33) Section 29 (10) gives the scope of what the words ‘term of imprisonment’ includes. Section 30 deals with samples taken from a former offender

33. PART VI – OF SAMPLES FROM OTHER PERSON FOR THE CONVICTED PERSONS INDEX CONT’DSection 31 speaks to the taking of the samples. Sets out basis for request from former offender.Section 30 defines former offender.If the former offender does not comply with the request for an intimate sample an application may be made to the Court. – section 31(5) The court will consider a range of consideration under section 31(6) Failure or refusal to comply with a court order (without reasonable cause) is an offence – section 31(9) and it is a defence if it can be shown that the person is not a former offender – section 31(10). Section 32 speaks to the taking of a sample from a deceased person suspected of commiting an offence, it can be taken from the body of the deceased for the purpose of generating a DNA profile to be entered into the investigation decision

34. PART VII –TAKING OF SAMPLES FOR ELIMINATION PURPOSES The purpose for this sample is to ascertain whether this person has contaminated a crime scene. It is to be noted that section 37 lists a special category of relevant persons to which this section applies. These are listed at 37(1)(a) –(f).The consent of the person is to be sought, but the person is to be notified that if he fails to consent then an application may be made to the court for an order (section 36(5)) authorising the sample and the court may make the order if it is satisfied it is in the interests of justice so to do. There is an additional requirement that the relevant person is informed that if he refuses to consent the procedure in section 27 (relating to volunteers) may be followed.

35. PART VIII – TAKING OF SAMPLES FROM PERSONS FOR IDENTIFICATIONSection 39 - If a person is missing, a sample can be taken if needed to find and identify missing persons. In this part, the Act designates that a sample can be taken from adult relative of missing person if person consents in writing. Section 39(4) – the detention officer may apply to court if there is a refusal.Section 39(5) – The court can make order (consideration – interests of justice). Section 39(6) – subject to the informed consent provisions, if an adult relative expressly withdraws consent which was given in writing before or during the taking of sample that withdrawal of consent is to be treated as a refusal and confirmed in writing as soon as practicable after withdrawal. Section 40 – allows sample from seriously ill or injured unknown person for purpose of DNA profile to assist with identification. Section 40(3) – specified persons (Chief Medical Officer, owner/manager of hospital or nursing home, or Commissioner of Police) can make application to the Supreme Court for an order authorising the taking of a sample. Order will be made if the Supreme Court Judge is satisfied of considerations under (a) and (b). Section 40 [4]Section 41 – permits the taking of samples from the body of an unknown deceased.The sample can be used to assist with the investigation of death of unknown deceased person. It is not just for identification. (section 41 (3)) Section 43 – Nothing is to affect provisions of other enactments or powers relating to investigation of offences under any other enactment or common law relating to the death of deceased persons.

36. RETAKING OF SAMPLESThere are several sections that deal with the retaking of samples where there is contamination or the sample is insufficient – sections 26, 28, 34, 35, 38 and 42

37. REASONABLE FORCE Referred to in section 25 and 33. of the Act.

38. PART IX – POST COLLECTION PROCEDURES

39. PART X – DESTRUCTION OF SAMPLES AND DESTRUCTION AND REMOVAL OF DNA PROFILES FROM NATIONAL DNA REGISTER

40. PART XI – OFFENCES AND PENALTIES See: First Schedule of the Act

41. PART XII – QUALITY MANAGEMENT

42. 2nd Schedule – supplementary provisions relating to samples and generation DNA profiles Example s. 3 of the 2nd schedule– where a sample of hair (other than pubic hair) is taken form a person under the Act, the sample may be taken by plucking hairs with their roots and in so far as is reasonably practicable the hairs shall be plucked singly.

43. PART XIII – GENERAL Section 61 – states that a sample from which a DNA profile is generated is not just restricted to the body of the person. Includes clothing or other belongings of the person or from things reasonably believed to belong to, or to have been used by the person or with which the person is reasonably believed to have been in contact.Section 62 – authorises a Justice of the Peace (‘JP’) to issue a warrant authorising a Constable to enter a place specified in the warrant to search and seize DNA material. The JP must be satisfied by information on oath that there are reasonable grounds to suspect that there may be in any place any DNA material that may be relevant as evidence in proving a relevant offence or has been acquired by a person for, or in the commission of an offence or as a result of the commission of a relevant offence. Section 63 – no proceedings can be brought against a person who takes a sample or generates a DNA profile if the person acts in accordance with the Act. Exception – Section 63(2) – Immunity will not apply to proceedings brought for use of unreasonable force in taking a sample so if unreasonable force is used then no immunity.

44. PART XIII – GENERAL CONT’DSection 64 – A person shall not be liable for anything done or omitted to be done in good faith, in the exercise of their functions under the Act. Section 65 – certificates are to be signed by an authorising officer, the custodian or a forensic analyst. So any certificate issued and authorised in relation to forensic material is proof of the matter so certified in the absence of anything to the contrary. Section 65 (2) – In relation to criminal proceedings, the court may require any of the signing officers above to attend and give evidence at any stage if it considers it necessary in the interest of justice. Section 66 – gives the Minister power to make regulations – (the only regulation so far is the DNA Evidence (Forms) Regulations, 2017)

45. EnD