DNA Evidence Bill and Jamaica

Minister of National Security in Jamaica, Peter Bunting tabled the long awaited DNA Evidence Bill in the Lower House of Parliament in April 2015. The clamours for the DNA Bill had been loud especially since Jamaica’s murder rate has fluctuated at an unhealthy high for at least the last 10 years.

The most recent data out of the police force for 2015 show that there has been an increase in murders of 65 between January to April 2015 and the corresponding period in 2014. In exact numbers, 363 people were killed over the January to April 2014 period. 428 people were killed over the similar period of 2015 – an increase of approximately 18 percent.

– 2014 Jan – April = 363 murders

– 2015 Jan – April = 428 murders

The rate of conviction in Jamaica for almost all crimes, is pitifully low. Additionally, police are often coming up with grand theories about crimes but they very rarely catch the culprits behind the crimes. No one knows if there are serial killers in Jamaica. No one knows if the petty traffic offender is at his core a merciless killer. We just don’t know.

The fear on the part of eyewitnesses to a crime in Jamaica is high. Murderers are known to have made eyewitnesses the target of the most barbaric acts of savagery. The system needs help if it going to rescue itself from savages.

I believe our investigative processes can be assisted by the introduction of and the proper use of DNA.

Perhaps one of the areas in the newly tabled DNA Evidence Bill around which there has been expressions of discontent is the clause which gives the police (detention officer) power to use ‘reasonable force’ to restrain a suspect and obtain a non-intimate DNA sample.

Clause 15(1) of the Bill recites it thus:

15 – (1) In order to take a sample from any person the following shall apply  –

(a) to take a non-intimate sample, informed consent may be given but if informed consent is not given or is subsequently withdrawn, then reasonable force may be used to obtain the non-intimate sample;

I have heard a few members of the defence bar raising concerns that any unauthorized touching of an individual using little or even reasonable force constitutes trespass to the person – itself a criminal act.

The law on battery defines battery as the application of unlawful physical force against the person of the victim. However in this instance where the intended use of reasonable force is lawful – being a provision in a statute, I do not believe the argument of trespass or battery can stand unless it can be demonstrated that the force used was unreasonable.

Under the bill, all suspects in particular offences must give a DNA sample to an appropriate person. This means, it is not for all offences wherein someone is a suspect that the police have legal authority to extract a DNA sample from that individual.

The only persons from whom a DNA sample can lawfully be taken are persons who are ‘suspected persons’ in an offence punishable by a term of imprisonment.

‘Suspected person’ means one of three things. It means:

(a) someone who has been arrested on suspicion of being involved in a relevant offence;

(b) someone who is charged with a relevant offence; or

(c) someone who has been summoned to appear before a court for a relevant offence.

HOW A DNA SAMPLE CAN BE TAKEN

The Bill contemplates and specifies that a DNA sample can only be taken from a suspected person under the following circumstances:

(a) with their consent;

(b) without their consent using reasonable force in the presence of a Justice of the Peace; or

(c) without their consent but with a court order.

It must be noted that this consent contemplated by the bill, must be given in writing and it must be given by an adult.

More anon

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About emilyshields

Attorney-at-Law, Partner -Gifford Thompson & Shields; Broadcast Journalist; Host of RJR's Hotline - www.rjr94fm.com; Gunner Twitter- @emilymshields
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