‘JUSTIFIED’ BREACH
Full Court backs forced taking of DNA from suspects in criminal probes despite constititional rights infringement
SIX SECTIONS of the DNA Evidence Act are in breach of several constitutional rights guaranteed to citizens, but those infringements are “demonstrably justified”, Jamaica’s Full Court has ruled.
The landmark decision was handed down yesterday, ending separate lawsuits filed by Bronton Johnson and Jaleel Forbes challenging the legality of Sections 5, 15, 20, 21, 23, and 25 of the DNA Evidence Act.
The cases were joined because the issues are similar.
The legislation was enacted in 2016 to regulate the collection of DNA samples from persons convicted or suspected of committing criminal acts as well as to enhance the ability of the police to investigate crimes.
Johnson, who is facing a charge of rape, filed his lawsuit after a High Court judge ordered him to give a DNA sample to the police.
Forbes was named as a suspect in a murder by the Manchester police before he was handcuffed to a bench, “forcibly held down from behind”, and buccal swabs taken from him, court documents revealed.
“The claimants have established, and it is accepted, that Sections 5, 15, 20, 21, 23, and 25 of the DNA Evidence Act infringe upon their rights under Section 13 (3) (j) of the Constitution,” said the panel of three justices – Simone Wolfe-Reece, Sonya Wint-Blair and Tara Car – referring to Johnson and Forbes.
But after considering a fair balancing of the rights of the State and the two men, they concluded that “the relevant sections of the DNA Act are proportional to the legitimate aim of the State” to conduct criminal investigations and prosecute offenders in an efficient manner.
“In doing so, the breach of the claimants’ right to privacy is demonstrably justified in a free and democratic society. The claimants are, therefore, not entitled to the constitutional declarations sought,” the judges ruled.
Johnson was first arrested and charged for rape in July 2012, and in April 2018, the case was transferred from the then Manchester Parish Court to the Manchester Circuit Court, records revealed.
In February 2020, following an application by prosecutors under Sections 5, 15, 20, 21, 23, and 25 of the DNA Act, a judge ordered that Johnson – who was on bail – be remanded by the police “solely for the purpose of taking a non-intimate [DNA} sample”.
He objected, and through his attorneys,
obtained a stay of the order before filing his lawsuit in the Full Court.
Forbes indicated in an affidavit that he visited the Spalding Police Station in Clarendon on February 9, 2022, at the request of a detective constable who wanted a witness statement regarding the death of Ryan Roberts.
According to his account, he was immediately arrested as a suspect in the killing after telling the constable that “I had no statement to give as I have no knowledge as to how Ryan Roberts came to his death”.
A judge at the Manchester Parish Court ordered on February 10, 2022, that he be released at 11 a.m. the following day if he was not charged with an offence, Forbes disclosed.
However, he said that on February 10, he was interviewed by the constable and later transferred to the Criminal Investigation Branch at the Mandeville Police Station.
“The first defendant [the constable] handcuffed me to a bench and forcibly held me down from behind in order that buccal swabs be taken from me, this after I refused to have my DNA sample taken,” Forbes claimed.
He was released from custody after the sample was taken but has not been charged with a crime, he said.
Norman Godfrey, the attorney for both men, argued, during the hearing of the lawsuits that the “forcible taking ”of Forbes’ DNA and the court order for Johnson, along with the provisions of the DNA Act, amount to “unlawful searches of the physical person”.
He said the actions of the State in both cases are “unjustifiable interferences” with his clients’ constitutional rights, specifically provided for in Sections 13 (3) (a) and 13 (3) (j) of the Constitution, Jamaica’s supreme law.
The attorney argued, too, that the infringements in the legislation could also impact other citizens.
“It cannot be considered in a free and democratic society that an individual should be subjected to the indignity of being held down and handcuffed and have force applied to extract from him material which contains his most personal information,” Godfrey argued.
NOT ABSOLUTE
However, Dwayne Green, the attorney who represented the Office of the Director of Public Prosecutions, argued that Johnson’s constitutional rights were not breached “as the rights in question are not absolute”.
“The court must seek to balance those rights with the aims and reach of the legislation,” Green asserted.
The Full Court concluded that the men’s constitutional rights under Section 13 (3) (a) were neither engaged nor infringed.
Section 13 (3) (j) guarantees citizens, among other things, the right to protection from searches of the person and property as well as respect for and protection of privacy and family life.
The judges noted that the taking of a DNA sample, though described as a non-intimate sample, involves “an intrusion on the physical body” of the claimants.
“Further, the retention of the samples under Section 47 (2) of the DNA Act breaches the right to informational privacy,” the judges ruled.
“The DNA profile is the personal information of the claimants, which would now be part of a national database. It is our finding that this right has been engaged and has been or is likely to be infringed.”
But the judges said they accepted the submissions by lawyers for the Government that a person who has been detained on a reasonable suspicion of having committed a criminal offence has a “reduced expectancy” of privacy.