Putting the genie back in the bottle: DNA databanks

While regulation of DNA databanks is a ‘good start’, the Commission’s report sidestepped the difficult, long unanswered questions in this area of law, says Associate Professor Carrie Leonetti.

Enormous power
Forensic DNA analysis holds enormous power to solve crimes by identifying suspects, missing persons, and unidentified remains in criminal investigations. It also has long-term implications for equality and privacy. Unlike other forms of forensic testing, DNA analysis has the potential not only to identify individuals with near certainty but also to predict characteristics and propensities associated with the genetic makeup of that individual, as well as of that individual’s biological family members. As the science behind genetic testing has advanced, DNA gathered and analysed for one purpose has been mined for other purposes.

A modern scarlet letter
In addition, DNA is largely collected from disadvantaged groups: arrestees, convicts, and young offenders in particular. These individuals generally are not viewed as stakeholders or given a seat at the table when DNA collection regimes are designed. DNA databanks are a modern scarlet letter. The difficulty of regulating scientific inquiry, in conjunction with the powerlessness of most individuals whose DNA is collected and analysed in the first place, poses a moral hazard for policymakers and criminal investigators.

Dated legislation
Currently, the collection and use of DNA in criminal investigations by the New Zealand Police is primarily governed by the Criminal Investigations (Bodily Samples) Act 1995 (CIBS Act), which is more than a quarter century old. Critics of the CIBS Act have raised concerns regarding its regulatory gaps and lack of oversight mechanisms, which pose serious risk to privacy, human rights, tikanga Māori, and Te Tiriti.

Enter the Law Commission
In October 2020, the New Zealand Law Commission issued its long-awaited report, The Use of DNA in Criminal Investigations, which aims to address these concerns. The report contains 193 specific recommendations, which together form a comprehensive regulatory framework for the collection and use of DNA in investigating crimes and missing persons.

The recommendations fall into two broad categories: oversight procedures and substantive regulations. The oversight mechanisms involve both judicial review of certain investigative techniques involving DNA and the creation of an independent DNA Oversight Committee. The substantive regulations consist largely of recommendations for statutory limitations on the use of DNA analysis for forensic purposes.

The primary oversight recommendations in the report are (1) the creation of a seven-member independent DNA Oversight Committee with at least three Māori members; (2) a data-reporting regime, which would require the police to collect and report data relating to ethnicity; (3) the creation of a new, comprehensive DNA databank, with seven indices, to replace the databanks established after passage of the CIBS Act, some of which currently lack statutory authorisation; and (4) oversight of the types of DNA analyses that can be used in investigations and prosecutions.

The primary recommendations relating to judicial review include: requiring a court order to obtain suspect samples from young people and requiring judicial oversight of the use of DNA “dragnets” and familial DNA searches.

The primary limitations on the use of DNA in criminal investigations include: (1) prohibiting the use of analysis techniques that predict the likely ancestry of a person whose DNA was found at a crime scene; (2) limiting police discretion to collect DNA samples on arrest and to use them in investigating unsolved cases unrelated to the grounds for arrest; (3) limiting DNA databanks to samples taken on conviction for relatively serious offences; (4) requiring expungement of samples from databanks after a period of non-offence or death; and (5) prohibiting external research on databanks.

Good start but questions still unanswered
While these regulations are a good start and certainly overdue, the Commission’s report still sidestepped the difficult questions that have long gone unanswered in this arena.

If forensic DNA analysis is crucial in catching the guilty, eliminating the innocent, and identifying the missing, then why do we collect, analyse, and databank only the DNA of individuals that we consider to be “criminals”? Is having one’s DNA collected, analysed, and, most importantly, placed in a databank for future use “punishment”? If being included in a DNA databank is not a form of punishment, then why do we not put every Kiwi’s DNA into a databank at birth, regardless of criminal history, and subject its subsequent use to the same rules? If, instead, the collection and databanking of DNA is a punishment, what authorises tacking it on to the more traditional sentences (imprisonment, probation, fines) that we already authorise?

The truth is that DNA databanking has always sat at an uncomfortable intersection, wherein its proponents claim that its collection is not punitive, merely a public-safety measure to enhance the accuracy of crime solving, but simultaneously limit such collection only to those individuals who are deemed unworthy of society’s protection.

The Commission’s recommendations would narrow the class of criminals whose DNA we can collect (young people only with a court order, only defendants convicted of relatively serious crimes), but the collection, analysis, and databanking of DNA in criminal investigations still largely replicates New Zealand’s tradition of penal populism.

What right to genetic privacy?
By separating the databank indices for elimination samples (the “innocent”), samples from the missing, unidentified, and their families (“victims”), pre-conviction investigation samples (“suspects”), and offenders (the “guilty”) and requiring expungement from the offender index after a particular period of “good behaviour”, the Commission’s recommendations further entrench the dichotomy between those who “deserve” to have their DNA banked and those who do not.

Even if Parliament adopts all of the Commission’s recommendations, DNA databanks will remain the repository of the genetic information of individuals whom we as a society deem to have forfeited their rights to genetic privacy (along with their families who are tainted by association).