The use of DNA in criminal investigations

The forensic analysis of DNA is a powerful tool in solving crime. However, the use of DNA in criminal investigations also raises important legal and ethical issues.

In New Zealand the Criminal Investigations (Bodily Samples) Act 1995 (‘the Act’) gives the Police powers to collect and use DNA in investigating crime. The Act also regulates two DNA databanks. These databanks store DNA information from individuals who have been charged with, or convicted of, certain offences. This information can then be compared to DNA collected from the scenes of unsolved crimes. Matches between the two provide the Police with investigative leads.

In light of significant amendments in 2003 and 2009, the Minister of Justice has asked the Law Commission to conduct a comprehensive review of the Act. The purpose of the review is to determine whether the current legislation is fit for purpose and keeping pace with developments in forensic science, international best practice and public attitudes. The review will consider whether human rights and tikanga Māori are being appropriately recognised. It will also focus on ways to simplify the legislation and improve its accessibility.

The Law Commission will conduct a comprehensive review of the Criminal Investigations (Bodily Samples) Act 1995 (the Act). The Act provides the New Zealand Police with powers to collect, retain, and use DNA in criminal investigations. It also regulates two DNA profile[1] databanks that are maintained, on behalf of the Police, by the Institute of Environmental Science and Research (ESR).

The Act was the subject of significant amendments in 2003 and 2009. The purpose of this review is to determine whether the current legislation is fit for purpose and whether it is keeping pace with developments in forensic science, international best practice and public attitudes, in relation to the collection, retention and use of DNA in criminal investigations. The review will also examine whether the Act gives appropriate recognition to both law enforcement values and human rights, including the right to privacy.

The Law Commission’s review will include (but not be limited to) an examination of the following areas and issues:

Recognising public and individual interests

• Identification and assessment of the law enforcement benefits of the use of DNA in criminal investigations
• Whether human rights, including the right to privacy, are appropriately recognised
• The legal and ethical issues around the control and ownership of DNA
• Whether Māori interests, including in relation to tikanga Māori, are appropriately recognised.

Recognising the broader context

• Recent and predicted scientific developments in the forensic analysis of DNA
• International agreements, obligations and best practice
• The relationship between the Act and regimes governing the collection, retention and use of other biometric information including fingerprints
• The relationship between the Act and other related legislation including the Children, Young Persons and their Families Act 1989, the New Zealand Bill of Rights Act 1990, the Privacy Act 1993, the Health Information Privacy Code 1994, the Criminal Record (Clean Slate) Act 2004 and the Search and Surveillance Act 2012.

Improving legislative design

• The scope, coverage and accessibility of the Act, with a view towards simplification and improving legislative design.
• The checks and balances that protect the integrity of the databank regime
• The criteria for deciding from whom to collect a DNA sample. Procedural and technical matters including the requirements governing consent, the use of reasonable force, taking DNA samples from children, young persons and other vulnerable persons, retention of DNA samples and DNA profiles, reporting requirements, record keeping and information sharing with domestic agencies and foreign law enforcement agencies.

Review Process

This review will be conducted by the Law Commission. The Commission will engage with interested parties in both the public and private sector during the review, and will carry out a public consultation process. The Commission will also establish an officials group and an expert advisory group to provide technical expertise and advice representing a range of perspectives.

The Commission expects to produce an issues paper in November 2018. Following a formal consultation process, the Commission will publish a final report in 2020.

The Use of DNA in Criminal Investigations. Te Whakamahi i te Ira Tangata i ngā Mātai Taihara (NZLC IP43, 2018)

The Law Commission has published an Issues Paper reviewing the Criminal Investigations (Bodily Samples) Act 1995 (CIBS Act) and the use of DNA in criminal investigations. In conducting the review we held frequent meetings with New Zealand Police and the Institute of Environmental Science and Research (ESR), these being the two agencies that use the CIBS Act on a daily basis. We also established two advisory groups, one of experts and one of officials, and our Māori Liaison Committee convened a subcommittee to consult with us. We also met with interested parties, including forensic scientists and academics specialising in law and social sciences.

As a result of our consultation and research we have identified the following broad issues with the current law: 

• The purpose of the CIBS Act is unclear and the structure is confusing;
• The science is continually developing and these developments raise human rights, Treaty of Waitangi, ethical and tikanga issues, as well as issues around informational privacy that need to be addressed;
• The CIBS Act is not sufficiently comprehensive; and
• There is no independent oversight.
• The purpose of the issues paper is to facilitate consultation and foster public debate. Many of the issues and options are relatively technical and so our target audience is primarily those who work in the criminal justice sector or a related scientific, academic or legal field. However, some core issues would benefit from much wider public debate.

The Use of DNA in Criminal Investigations | Te Whakamahi i te Ira Tangata i ngā Mātai Taihara (NZLC R144, 2020)

On 30 October 2020 the Law Commission completed its review of the Criminal Investigations (Bodily Samples) Act 1995 and submitted its report to the Minister responsible for the Law Commission. 

The report was published by the Law Commission on 24 November 2020 and tabled in Parliament on 27 November 2020.

The report revealed significant gaps in the operation of the current law, including insufficient independent oversight and a failure to accommodate human rights values, tikanga Māori and the Treaty of Waitangi | te Tiriti o Waitangi.

The Commission recommends a new, comprehensive regime to control how DNA is obtained, used and retained for criminal investigations. Core recommendations include:

• Improving protections for adults from whom Police seek to obtain DNA by consent or on arrest.
• Requiring a court order to obtain DNA from suspects who are children or young people or who lack the ability to provide consent.
• Regulating the use of DNA where the current law is either silent or fragmented. This includes elimination sampling, mass screening, familial searching, and genetic genealogy searching.
• Establishing a single DNA databank to hold all DNA profiles obtained by Police with clear rules on how these DNA profiles can be used.
• Restricting the retention of offenders’ DNA profiles and aligning any retention of youth offender profiles more closely with the rehabilitative focus of the youth justice regime.
• Creating an independent mechanism for the assessment of new DNA analysis techniques and whether these should be approved for use.
• Improving oversight by increasing the role of the judiciary, establishing a new DNA Oversight Committee (with mandatory Māori representation), and providing for external auditing by the Independent Police Conduct Authority.

Government responded to the Commission's report The Use of DNA in Criminal Investigations | Te Whakamahi i te Ira Tangata i ngā Mātai Taihara (NZLC R144).

The Government accepted the overall findings of the report and the conclusions that the Criminal Investigations (Bodily Samples) Act 1995 is no longer fit for purpose and the regime lacks adequate independent oversight and governance structures.

The Government also accepted the recommendation for a new Act for the DNA regime and the recommendation to establish an independent oversight body.

The Government has indicated it will assess the scope and scale of work required and consider when it could be progressed.