DNA legislation crisis

A sub-committee of the Cabinet, which included Minister of Justice Herbert Volney, met last Wednesday, ahead of Thursday’s the weekly Cabinet meeting at Diplomatic Centre, St Ann’s, and discussed proposals from the Justice Ministry to have crucial sections of the Deoxuribonucleic Acid Act 2007, overhauled.

A key concern for the legislative review committee of the Cabinet is the fact that while DNA legislation passed in 2007 proposed the setting up of a databank and empowered the court to compel persons to give samples, the legislation failed to empower the court to make such orders in relation to convicted criminals and charged persons.

The result, officials say, is a major gap in the data files of the Forensic Science Centre as convicts and charged persons—persons thought to be the most likely to end up in a criminal database—are now declining to give samples.

“We are at the moment preparing an amendment that would allow for the taking of samples from persons suspected of crime and from convicted persons,” Volney, a former judge, told Sunday Newsday this week. “The State has been unable to obtain court orders under the DNA legislation because of how the law was drafted.”

But at the sub-committee meeting this week, the committee also agreed to an overhaul of the entire legislation, a process which will begin in one week.

“We need to urgently put the teeth in the mouth of the DNA dog so that it could bite,” Volney said.

When the DNA Act was passed in 2007 on the eve of the 45th anniversary of this country’s Independence, it was heralded as a major tool in the fight against crime.

The legislation, passed by the PNM, was similar to earlier legislation passed in 2000 by the UNC. That 2000 legislation had lingered unimplemented for years. But after the DNA 2007 legislation was assented on September 28, 2007, little has been said of the act’s operation or effectiveness.

In fact, the year after the legislation came into force, the murder rate climbed to 550 (2007 recorded 395 murders). The rate has declined slowly thereafter: 509 in 2009, 485 in 2010. At the same time, the rate of conviction has remained flat.

Experts say it may still be too early to tell the true impact of DNA legislation due to the slow nature of the criminal justice system. But some question how effective the legislation can be given its major gaps.

The 2007 DNA legislation set up a database and empowered the State to obtain orders from the High Court to compel persons to give samples. But there were huge omissions, which are now causing problems and have resulted in some accused persons and convicts refusing to cooperate.

For example, on April 14, 2008, a man charged with the murder of Stephen Hackshaw refused to give a sample to police, even after confessing to two persons that he committed the murder. Police applied to the High Court under Section 19 of the DNA Act, so as to find out whether blood found on the man’s trousers was the victim’s blood. The court found that it was unable to grant an order to compel the man—who was charged for the murder—to give a sample.

In July 2008, Justice Alice Yorke Soo-Hon (now a Justice of Appeal) found that the 2007 DNA legislation, which she described as unclear, contained key gaps.

At issue was the fact that Section 19 of the act only empowers the court to compel a “suspect” to give samples and no one else. Though the legislation was supposed to result in the setting-up of a comprehensive DNA database, persons who would have been thought most likely to end up in that database, convicts and charged persons, were not covered.

“Regrettably our own DNA Act is not very clear on who is a suspect,” Soo-Hon ruled. “There is no definition of suspect or accused.”

“Another very important distinction is that Section 19 makes no mention of persons charged or convicted of an offence,” she said.

“Considering the legislation as a whole and the way that it is drafted at present, it is my view that a court may only order that an intimate sample be taken from a suspect and not from an accused already charged with a crime or someone already convicted of an offence.”

No amendments were made to the Act after this court ruling and now, even persons convicted of crimes can refuse to give samples, in the face of the legislation’s rationale.

“This is a major problem,” Volney said this week.