Last week we commenced this topic with a look at the US Supreme Court decision in Maryland v King where it was held that DNA testing on suspects in custody was not in breach of their Fourth Amendment protection against unreasonable search and seizure of person or property.
We ended by pointing out that Barbados had passed the Forensic Procedures and DNA Identification Act, 2005 which essentially allowed our police force to do the same thing.
Section 17 of the Barbados Constitution provides that “(1) Except with his own consent, no person shall be subjected to the search of his person or his property or the entry by others onto his premises. (2) Nothing contained in or done under the authority of any law shall be held to be inconsistent with or in contravention of this section to the extent that the law in question makes provision that is reasonably required (a) in the interest of defence, public safety, public order, public morality, public health… (b) for the purpose of protecting the rights or freedoms of other persons…”
The definition of forensic procedures has been divided by the act into the categories of “intimate” and “non-intimate”. The former includes examination of the genital or anal area or breasts, blood and pubic hair sampling, dental impressions, swabbing or washing of pubic areas and the taking of photographs or casts of wounds from such areas.
The latter includes hair sampling, fingernail sampling, saliva or buccal swabbing, finger, foot or hand printing, photography or casting of areas other than the pubic area.
Section 3 of the act provides that a suspect may give his informed consent to the conduct of any forensic procedure thereby allowing authorised persons to conduct the testing. Informed consent involves an explanation of the procedure and the opportunity to consult with an attorney-at-law although the latter may be restricted where the police officer considers that this would allow the suspect to “destroy or contaminate any evidence that might be obtained”.
Section 7 allows for refusal on the part of the suspect but really the act merely pays lip service to the constitutional protections in light of other provisions which we will discuss below.
Where the suspect refuses, the police officer is authorised to order the conduct of any non-intimate forensic procedure or by section 14 a magistrate may make the order in the case of either type of procedure. Be reminded that swabbing for DNA testing is classified as a non-intimate procedure.
The magistrate must be satisfied only on a balance of probabilities (which is the lowest standard) that the person is a suspect in relation to a serious offence and there are “reasonable grounds to believe that the suspect committed (i) that offence; (ii) another serious offence arising out of the same circumstances surrounding that offence; or (iii) another serious offence for which the evidence likely to be obtained by the carrying out the procedure on the suspect is likely to have probative value”.
It is the constitutionality of precisely the third situation which occupied the court’s attention in the Maryland v King case. The minority of judges condemned the decision and pointed out that the exceptions to the constitutional ban on arbitrary search and seizure did not allow for ordinary crime fighting.
Unlike the US Fourth Amendment, our Constitution speaks directly to the issue of consent — its protection should not be eroded by merely paying lip service to the concept of consent and then allowing some random police officer, albeit at the rank of Inspector or above, to force the suspect to submit.
Furthermore, the protection against self-incrimination in criminal matters is well entrenched to the point where it is specifically stated in the Constitution that an accused cannot be compelled to give evidence against himself. Evidence is gathered before and then presented at trial. The taking of a DNA sample to link a suspect to a crime for which he may not have been arrested is open to abuse and I would submit contrary to the letter and spirit of the Constitution.
I long for the day when draft legislation in white or green paper form is circulated to the public who can make contributions and comments before these things are passed in Parliament and allow for the avoidance of abuses of state powers.
If you think that such things are relevant only to known criminals then think again. It could one day be you or your son, daughter, father, brother in custody, rightfully or wrongfully.
To be continued next week.
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