Bar Association calls on gov’t to withdraw DNA bill

-sees `fertile ground for much mischief’

Deeming it fertile ground for much mischief, the Guyana Bar Association yesterday called on the PPP/C government to withdraw forthwith a proposed amendment to the Police Act which would permit the taking of DNA samples from any person who might be in lawful custody.

In a hard-hitting statement, the Bar Council of the Association said it would challenge the amendment if it proceeds in its current form and it also berated the PPP/C government for not consulting with it on the proposed amendment for DNA sampling and other planned amendments which were tabled in the National Assembly on Thursday.

The Bar Association adverted to a report in the July 13 Sunday Stabroek which it noted reported on the “very troubling proposed amendment” to the Police Act by way of the Police (Amendment) Bill No. 8 of 2021. The Bar Association further pointed out that the Sunday Stabroek report said that the DNA amendment bill is at variance with such provisions in other jurisdictions.

The Bar Association noted that the Bill inter alia proposes to amend S. 25 of the Police Act, Cap. 16:01 to empower a member of the Police Force, for the purpose of identification, to take the ‘DNA’ of any person who may from time to time be in lawful custody.

“The proposed amendment, if passed in its current form, without more, can result in the gross erosion and infringement of a person’s constitutional rights. Inter alia, Article 143 of the constitution protects against the search of a person without his/her consent or an Order of the Court.

“The Bar Association therefore finds it wholly unacceptable that the power to obtain ‘DNA’ from the body, would be placed in the hands of a member of the Police Force without oversight and sufficient safeguards”, the statement from the legal practitioners’ body said.

The Bar Association noted that S. 25(2) of the said Act makes provision in the case of refusal of a person to submit to same, to be taken before a Magistrate.

“However, the threshold is low as the Magistrate only needs to be satisfied that the person is in lawful custody. No consideration is required to be given to any other factor or circumstance including whether the ‘DNA’ is required in connection with the offence, there is sufficient evidence to ground a charge, the nature of the offence and or how the DNA is to be obtained or secured.

Alarming and dangerous

“‘DNA’ evidence is a useful tool in proving the guilt or innocence of an accused. However, the obtaining of that information merely on arrest, without consent or Order of Court, is alarming and dangerous. Generally, ‘DNA’ can only be obtained from the body by invasive means, which also raises concerns of state sanctioned assault, if done without consent”, the Bar Association said.

It added that the proposed amendment is so sweeping that it “lays fertile ground for much mischief in the event of its misuse, without due and proper safeguards”.

The statement added that “The Bar Association expresses its deep concern on the said proposed amendment in its current form and calls for its forthwith withdrawal; to be reconsidered with due and proper consultation, which is expected and required in a democratic society.

“The said proposed amendment does not have the support of the Bar Association and will be met with challenge should it proceed in its current form”.

The statement also flayed the government for the lack of consultation on the various proposed amendments.

“The Bar Association notes the publication in the Official Gazette, between June 4-12, 2021 of at least seven (7) proposed amendments to legislation which fundamentally touch, concern and affect the administration of justice.

“The Bar Association, a stakeholder and body affected by many of the proposed amendments, was not consulted thereon as we should have been and must be in recognition of the duty in law to consult”, the statement declared.

The June 13th Sunday Stabroek reported that “deoxyribonucleic acid (DNA) information” is to be added to the list of identifying information police officers can record under Section 25 of the Police Act.

Currently, Section 25 provides that it is lawful for any member of the force to take and record for the purpose of identification any measurement, photographs and finger-print impression of all persons who may from time to time be in lawful custody.

There is an additional provision that if the identifying information relates to a person who has not previously been convicted of any criminal offence and that person is discharged or acquitted, all records are destroyed or handed over to that person.

In Guyana a person is deemed to be in lawful custody where that person is lawfully detained at any police station in connection with the commission of any crime or offence no matter the severity.

Under the proposed amendment, there is no requirement that the DNA be relevant to the investigation of the crime or offence for which the individual is detained. “The effect of this amendment is that in addition to measurements, photographs and fingerprint impressions, a member of the Force can take and record DNA information of a person in lawful custody for the purpose of identification,” the explanatory memorandum for the bill states.

If passed, the amendment will allow the GPF to collect DNA from any person detained in connection with any crime or offence. As defined under the Prevention of Crimes Act, this includes everything from murder to any act or omission which is not a crime but is punishable either on summary conviction or on indictment.

In Trinidad and Tobago the Deoxyribonucleic acid (DNA) Act allows for a non-intimate sample, such as a cheek swab, to be taken from a person in several instances, including if they are charged with an offence, if a stain derived from a crime scene exists and there are reasonable grounds for suspecting that that person was involved in the offence and for believing that forensic DNA analysis could confirm or disprove such suspicion, or if they have been convicted of an offence and are serving a term of imprisonment.

In Jamaica, Section 15 of the DNA Evidence Act also requires either informed consent of the detainee or a Court Order before an intimate sample is acquired. In this case, a non-intimate sample can be obtained without consent only if there is reasonable grounds for suspecting the person committed the offence and the sample collected can be used to confirm or disprove this suspicion.