Establishment of a DNA Database - Law Reform Commission

More documents

Recommendations

Info

urglary, robbery and forgery, 40 as well as criminal damage offences. 41DNA sampling is also permitted for the bulk of drugs offences, offencesagainst the state, explosive and firearms offences.2.45 The main category of offences for which DNA sampling is notcurrently available is public order offences. These include offences such asintoxication in a public place, disorderly conduct in a public place, andthreatening, abusive or insulting behaviour in a public place. The penaltiesfor these offences include fines and/or imprisonment for up to 12 months.DNA sampling is not available for the majority of road traffic offences.Most are dealt with summarily; however, there are some exceptions, forexample, dangerous driving causing death or serious bodily harm. 42 Lesseroffences such as ‘careless driving’ and ‘driving without reasonableconsideration’ do not meet the five year imprisonment threshold fordetention and DNA sampling. Hence, it is clear that the 1990 Act permitsDNA sampling for an extensive range of offences and the Commissionfavours the current sampling threshold as a proportionate use of DNAsampling.2.46 Furthermore, in the Consultation Paper, the Commission rejectedthe suggestion that the present provision in the 1990 Act, which limits DNAsampling to offences for which an individual may be detained under the1939, 1984 or 1996 Acts, should be replaced by a provision enabling DNAsampling where a person is suspected of an arrestable offence. 43 TheConsultation Paper concluded that the definition of an arrestable offencedoes not cover a sufficiently broad spectrum of offences for the purposes ofDNA sampling. 44 For example, persons detained under section 2 of theCriminal Justice (Drug Trafficking) Act 1996 may not be suspected ofoffences which meet the threshold of an arrestable offence, but nonethelesscould be suspected of a relatively serious offence, permitting detention. TheCommission considers that it would be arbitrary and irrational to precludeDNA sampling in these few cases. The situation under the 1990 Act ispreferable. The scope of the Act is determined by detention provisions,which limits sampling to serious offences without imposing the requirementof a strictly arrestable offence.2.47 The Commission does not recommend any amendment to thepresent position by which DNA sampling is limited to offences for which an4041424344See Criminal Justice (Theft and Fraud Offences) Act 2001.See Criminal Damage Act 1991.Dangerous driving is prohibited principally by section 53 of the Road Traffic Act1961.See Consultation Paper at paragraphs 5.34-5.35.Ibid.30
individual may be detained under section 30 of the Offences Against theState Act 1939, section 4 of the Criminal Justice Act 1984 or section 2 of theCriminal Justice (Drug Trafficking) Act 1996.(f) Review and Consolidation of the Criminal Justice (ForensicEvidence) Act 19902.48 The Commission notes that the Criminal Justice (ForensicEvidence) Act 1990 has been amended by the Criminal Justice (DrugTrafficking) Act 1996 and that the Criminal Justice Bill 2004 proposesfurther amendments. In addition, the Criminal Justice (Forensic Evidence)Act 1990 Regulations 1992 also set out detailed procedures for the taking ofsamples. 45 In this Report, the Commission makes various recommendationswhich would provide for further amendment of the 1990 Act. TheCommission is conscious that the statutory procedure for the taking of DNAsamples in this jurisdiction is complex and elaborate. In light of theamendments already made and being proposed, the Commission hasconcluded that a complete review of the statutory procedures for samplingwith a view to consolidation would be beneficial.2.49 The Commission recommends that there should be a review of thestatutory procedures for sampling with a view to consolidation.(2) Profiles on the Database2.50 The next step in determining the exact scope of the proposedDNA database is to determine which profiles will be retained on the DNAdatabase. The related question of whether or not the full DNA sample willalso be retained once the profile has been generated will be examined inChapter 3. In the Consultation Paper, the Commission divided the retentionof DNA profiles into 3 categories: suspects, convicted persons andvolunteers. This report follows the same approach.(a) Suspects(i) Consultation Paper Recommendation2.51 In the Consultation Paper, the Commission recommended that theDNA profiles obtained from individuals in custody under section 30 of theOffences Against the State Act 1939, section 4 of the Criminal Justice Act1984 and section 2 of the Criminal Justice (Drug Trafficking) Act 1996 maybe retained indefinitely on a national database. 464546SI 130 of 1992.See Consultation Paper at paragraph 5.67.31
Page 1 and 2: REPORTTHE ESTABLISHMENT OF A DNA DA
Page 3 and 4: THE LAW REFORM COMMISSIONBackground
Page 5: Contact DetailsFurther information
Page 9: NOTEThis Report was submitted to th
Page 12 and 13: (3) Report Recommendation 87CHAPTER
Page 14 and 15: 4 In Chapter 1 the Commission discu
Page 17 and 18: CHAPTER 1ESTABLISHING A DNA DATABAS
Page 19 and 20: areas are reported to have little p
Page 21 and 22: of the DNA profiling and the securi
Page 23 and 24: from a crime scene was loaded onto
Page 25 and 26: E Limited versus Comprehensive Data
Page 28 and 29: database may be used are limited, i
Page 30 and 31: samples as well as profiles and the
Page 32 and 33: all the circumstances of the case,
Page 34 and 35: evidential risks. The Commission in
Page 36 and 37: 2.26 The Commission recommends that
Page 38 and 39: followed. If possible however, an a
Page 40 and 41: In order to exploit the full potent
Page 44 and 45: (ii) Discussion2.52 This recommenda
Page 46 and 47: Suspect’s profiles can still be m
Page 48 and 49: they are not identifiable by an unt
Page 50 and 51: legislative change has been upheld
Page 52 and 53: database. 79 The use of matches bet
Page 54 and 55: 2.69 If a suspect is convicted of a
Page 56 and 57: to the database in order to aid the
Page 58 and 59: (II) Discussion2.79 Taking samples
Page 60 and 61: 2.84 Finally, in the Consultation P
Page 62 and 63: has been expressed that this provis
Page 64 and 65: person’s rights to bodily integri
Page 67 and 68: 3CHAPTER 3RETENTION, DESTRUCTION AN
Page 69 and 70: generally been welcomed. 6 The UK H
Page 71 and 72: can be made when the need occurs, t
Page 73 and 74: easonableness. Both the House of Lo
Page 75 and 76: in the future a ‘genetic photo-fi
Page 77: the comparator sample is the source
Page 80 and 81: ody’s function of managing the da
Page 82 and 83: proposed DNA database. The Commissi
Page 84 and 85: accreditation programmes are a part
Page 86 and 87: necessary exceptions in the Acts fo
Page 88 and 89: personal information about an indiv
Page 90 and 91: section 3(5) of the New South Wales
Page 92 and 93:
the veracity of the DNA analysis. T
Page 94 and 95:
development training courses are ne
Page 96 and 97:
the State should accede to an inter
Page 98 and 99:
4.46 The Commission acknowledges th
Page 101 and 102:
5CHAPTER 5DNA EVIDENCE IN COURTA In
Page 103 and 104:
expressed in 2003 by the Court of C
Page 105 and 106:
the evidence. To do this one must d
Page 107 and 108:
5.15 Current UK Forensic Science Se
Page 109 and 110:
contamination could be dealt with p
Page 111 and 112:
(2) Discussion5.26 In the Consultat
Page 113 and 114:
equirement for additional evidence
Page 115:
Attorney General’s Reference No.
Page 118 and 119:
eing insufficient or unsatisfactory
Page 120 and 121:
6.22 The Commission recommends that
Page 122 and 123:
6.34 The Commission recommends that
Page 125 and 126:
APPENDIXDRAFT CRIMINAL JUSTICE (DNA
Page 127 and 128:
_________________________________DR
Page 129 and 130:
PART 2TAKING OF SAMPLESAuthorisatio
Page 131 and 132:
Additional sample8.—Where a sampl
Page 133 and 134:
Explanatory Note[This section sets
Page 135 and 136:
sample was taken, that there is goo
Page 137 and 138:
Analysis of samples23.—(1) Analys
Page 139 and 140:
(4) The Agency is, subject to this
Page 141:
129
show all

Establishment of a DNA Database - Law Reform Commission

Create successful ePaper yourself

Delete template?

Save as template?