Genetic Testing and the Criminal Law

Don Chalmers

• Publisher: Routledge-Cavendish
• Year: 2017
• ISBN:
  9781135428624
• Edition: 1
• Topic: Law
• Subtopic: Law Theory & Practice
• Index: Law

Genetic Testing and the Criminal Law is a unique international treatment of the dynamic and established criminal investigation technique of DNA testing.

Gathering together expert practitioners, judges and researchers from twelve countries, each chapter deals with the specific criminal law of the jurisdiction in its interaction with the expanding use of DNA testing in criminal investigations and trials.

The chapters cover the criminal law of the United Kingdom, Japan, Australia, Germany, New Zealand, Spain, South Africa, Canada, Italy, Finland, Argentina and Denmark, providing valuable accounts not only of the use of genetic testing in the criminal law, but also of the development of the law in these jurisdictions. No previous work has included such an extensive comparative study in this important area.

Collectively, this book emphasizes the need for the law to respond to scientific developments thoughtfully and with a sensitive, well-reasoned approach to current concerns relating to the reliability of DNA evidence in criminal trials and the privacy and civil liberties issues surrounding the collection of DNA samples from individuals and their storage.

This book is an invaluable reference for scholars, practitioners of criminal law and private international law, and students interested in this increasingly significant field of law.

Chapter 1
General Themes

Professor Donald Chalmers
Dean, Faculty of Law, University of Tasmania

Introduction

In the mid-1980s, some of the emerging knowledge on DNA analysis was extended to forensic investigations following the seminal work of Professor Sir Alec Jeffreys¹ in the UK. The value of DNA testing² is great and has been described as ‘the single greatest advance in the “search for truth”, and the goal of convicting the guilty and acquitting the innocent, since the advent of cross-examination’.³ The effectiveness of genetic testing in securing convictions has been both powerful and dramatic. However, the technique is equally powerful in excluding suspects from an investigation and acquitting the innocent.⁴ The post-conviction use of DNA test results has been significant. For example, in the famous ‘Gladsaxe’ case in Denmark,⁵ the Forensic Genetics Section carried out a DNA analysis of the hairs of a person previously convicted of attempted rape, as a scientific experiment. A match was found with the DNA profile of a person other than the accused convicted of the rape. This led to the retrial of the first case, and the accused was acquitted. The negative match was decisive proof of innocence.⁶

Some general themes can be identified in the chapters that follow, dealing with DNA testing⁷ in the various national criminal justice systems considered in this book. First, civil liberties concerns are recurrent themes in all the chapters. The act of taking blood samples may cause bodily harm and generally constitutes an invasion of privacy. Each chapter raises recurrent concerns about consent of the individual to the test, protection of privacy of genetic information,⁸ dignity of the individual and the overriding requirement for fairness in the criminal investigation and trial process. For example, the chapter on Spain notes that their Criminal Code is subject to the principle of due process of the law (principe de legalité) and the right of privacy, both protected by the European Convention on Human Rights.⁹ Argentina only accepts procedures that are compatible with the Constitution, which imposes standards for the respect of human dignity and privacy. In the case of the Constitution of the Republic of South Africa,¹⁰ the rights to dignity,¹¹ privacy¹² and the right to bodily and psychological integrity¹³ are entrenched. Similarly, in New Zealand, courts have held that although compelling someone to give bodily samples against their will, if necessary by force, is prima facie an infringement of the fundamental rights implicit in the New Zealand Bill of Rights Act 1999, that Parliament had overcome such barriers to DNA testing through the specific enactment of the Criminal Investigations (Blood Samples) Act 1995.¹⁴ Similarly, in the Netherlands, the Supreme Court (HR 2 juli 1990, NJ 1990, 751) moved in the same direction by deciding that in view of Article 11 Grondwet (the right to bodily integrity) a suspect cannot be forced to give bodily material for DNA comparison without legal consent. Genetic testing has been fully assimilated into the general procedures for the investigation, prosecution and trial of criminal offences.

Secondly, the 1990s saw a general trend towards the introduction of specific legislation dealing with the taking of genetic samples from suspects or accuseds. The specific legislation in each jurisdiction aims to balance the rights of suspects with the wider public interest in gathering satisfactory evidence of serious offences. Generally, the rights of suspects and accuseds are protected by detailed procedural safeguards involving consent, authorisation for taking samples by senior police officers or court order, different procedures for intimate and non-intimate samples, prescribed conduct for taking samples, disclosure of results to the person and destruction of samples on discontinuance of proceedings or acquittal. Thus, for example, the chapter on Canada¹⁵ noted that DNA evidence was first accepted in criminal proceedings in 1988.¹⁶ Later, in 1995, faced with a number of difficulties surrounding DNA, the Canadian Parliament legislated to establish a body of law dealing with the administration and taking of DNA samples for genetic testing.¹⁷

Technical scientific standards of testing are generally not included in the specific legislation. In addition, each chapter indicates that legal issues relating to the interpretation of test results, the accuracy and reliability of test results and the admissibility of test results in evidence remain within the general law of evidence.

It is possible to identify some common themes from the details of the specific legislation in the different countries. These are that there are reasons for conducting a forensic procedure; that a person has proper authority to order the conduct of the test (be it a senior police officer or a judge or magistrate); that civil liberties of suspects and accuseds are respected by procedures involving cautions, information or attendance of third parties; that distinctions are recognised between non-intimate or intimate genetic test samples; and that suitably qualified persons, usually medical practitioners, carry out the test.

Thirdly, the use of genetic testing and evidence in criminal proceedings has been more frequent in cases of serious crimes where there are grounds for serious suspicion. In the Netherlands, more than mere probable cause is required; a serious suspicion needs to be present for the genetic test to be ordered (Code of Criminal Process, Article 195D). Similarly, the UK Police and Criminal Evidence Act 1984 (as amended)¹⁸ provides that a police officer may only give authorisation for the taking of an intimate sample if he or she has reasonable grounds (a) for suspecting the involvement of the person from whom the sample is to be taken in a recordable offence,¹⁹ and (b) for believing that the same will tend to confirm or disprove involvement (s 62(1), (1A)). Before any sample is taken, the subject must be informed of the grounds on which the relevant authority has been given including, where appropriate, the nature of the suspected offence.²⁰ In Denmark, under the Administration of Justice Act (Retsplejeloven) (AJA), for any ‘viewing of the body’ in a criminal investigation of an accused (s 792), there must be reasonable ground to suspect that an offence has been committed.

Finally, despite initial grave concerns over DNA testing and some ongoing concerns among civil libertarian groups (especially over longer storage of DNA profiles in some jurisdictions, such as the UK), increasingly strong levels of acceptance of the reliability of DNA evidence have been recorded. For example, the UK Human Genetics Commission commissioned a public opinion survey which found that 94% of people surveyed agreed with DNA testing to identify and eliminate possible offenders from police enquiries, especially for serious offences.²¹

Time in the criminal process when sampling and testing may occur

The national chapters present a broadly common position that genetic testing may occur at any time during the investigative period, subject to prescribed procedures and authorisation by a police officer or, in other cases, by a judicial officer. In France, where a judge conducts the investigation after the criminal charge has been laid, Article 81 of the Code de Procédure Pénal (CCP) (regarding the juge d’instruction) and Article 156 of the CPP (jurisdiction) establish the procedural basis for collecting DNA sampling and testing. If the suspect is known, the investigative judge commissions the DNA investigation. Scots law provides that a sheriff can authorise the taking of a sample, even from a person who is not suspected of the crime but is required to assist in the detection of crime.²² Sampling and testing may occur before arrest, at arrest, after indictment, or after conviction, depending on the circumstances. Arrest is generally not a necessary precondition for a genetic test. For example, in New Zealand, a sample may be taken from a suspect in any criminal investigation in respect of an offence committed or believed to have been committed.²³ There is a general qualification in most jurisdictions that requires that there are reasonable grounds for the ordering of a genetic test. DNA samples may be taken and tested when there is probable cause to believe that a person might be responsible for a crime. However, in Spain, a person must be charged with an offence before a DNA sample can be taken.²⁴

Collection of DNA samples

The national chapters show a consistency in the legal requirements for the collection of samples for genetic testing. There are consistent distinctions drawn between samples from ‘accuseds’ and ‘non-accuseds’ and samples categorised as ‘intimate’ or ‘non-intimate’.

Reasons for conducting a DNA test: accuseds and non-accuseds

Legislation in the various jurisdictions generally draws distinctions between samples from ‘accuseds’ and ‘non-accuseds.’ Thus, the Danish Administration of Justice Act (Retsplejeloven) distinguishes between samples taken for genetic tests from accuseds (s 792c) and other persons (s 792). In the case of an accused, the police have authority to take a blood test. The accused has, however a right of challenge to the court (s 746). The court will then by court order decide upon the legality of the measure taken. A non-accused person may consent to a genetic test, preferably in writing, although this is not an absolute requirement (s 792d). Similarly, the German Code of Criminal Procedure distinguishes between ‘accuseds’, suspected persons and other persons (non-suspects). Italian law also allows for samples to be taken from witnesses (Code of Criminal Procedure, Article 392).

In Germany's 81a of the Code of Criminal Procedure Strafprozeßordnung (StPO) allows blood samples to be taken from a suspect without consent by a doctor authorised to do so by a judge. Under s 81a(2) of the StPO, the Department of Public Prosecution and other authorised bodies (police sergeants and higher ranking police officers; see s 152 of the Judicature Act Gerichtsverfassungsgesetz (GVG)) may request that a sample be taken if a delay would hinder the investigation.²⁵ Where the suspect consents, the procedures in s 81a are not mandatory, provided the procedure is not dangerous to health and the accused has knowledge of all-important circumstances and the right of refusal. The legal requirements for taking blood samples from persons other than suspects (including the victim of the crime) are prescribed in s 81c(2) of the StPO. Blood samples may only be taken without consent where there is no danger to health and the measure is absolutely ‘indispensable’ for the detection of the truth.²⁶ Measures under s 81c(2) of the StPO take place only at the request of a judge or, ...

Table of contents

• Cover
• Half Title
• Title
• Copyright
• Preface
• Acknowledgments
• List of Contributors
• Contents
• Glossary of Abbreviations
• 1: General Themes
• 2: Argentina
• 3: Australia
• 4: Canada
• 5: Denmark
• 6: Finland
• 7: Germany
• 8: Italy
• 9: Japan
• 10: New Zealand
• 11: South Africa
• 12: Spain
• 13: United Kingdom
• Index