Jul 23, 2021 News
By Carlos Gonsalves
Kaieteur News – This publication has noted that the Government of Guyana (GOG) has recently submitted for consideration to the Parliament of Guyana several key pieces of legislation directed towards mitigating crime through the enhancement of policing. These amendments are set to modernise Guyana’s approach to crime fighting, and to use contemporary and scientific methods of investigations that will inevitably boost the State’s prosecutorial capacity according to Attorney-General and Minister of Legal Affairs, Anil Nandlall, “The whole gamut of these amendments is intended to modernise police method of investigation and to make them more scientific-based, all in an effort to strengthen the State’s capacity to investigate, prosecute and secure convictions.”
The Police (Amendment) Bill is one such Act which was tabled in the House in June and which proposes that “deoxyribonucleic acid (DNA) information” is to be added to the list of identifying information police officers can record under Section 25 of the Police Act. The current powers entitled to be exercised by the GPF under Section 25 provides that it is lawful for any member of the force to take and record for the purpose of identification any measurement, photographs and finger-print impression of all persons who may from time to time be in lawful custody. An additional provision annexed to the same section, mandates that if the identifying information relates to a person who has not previously been convicted of any criminal offence and that person is discharged or acquitted, all records are destroyed or handed over to that person.
The conflict between the Police Amendment Bill 2020 and human rights guaranteed under the Constitution, was succinctly placed into context by the Guyana Bar Association (GBA) in a June 14, 2021 press release, where the organisation rejected the proposed amendment to Section 25 of the Police Act in its current state, citing that, “The proposed amendment, if passed in its current form, without more, can result in the gross erosion and infringement of a person’s constitutional rights. Inter alia, Article 143 of the constitution protects against the search of a person without his/her consent or an Order of the Court.”
The GBA continued to state that, “No consideration is required to be given to any other factor or circumstance including whether the ‘DNA’ is required in connection with the offence, if there is sufficient evidence to ground a charge, the nature of the offence and or how the DNA is to be obtained or secured.”
The abovementioned premise forms the foundation for the GBA to conclude that, “The proposed amendment is so wide that it lays fertile ground for much mischief in the event of its misuse, without due and proper safeguards.”
It becomes pertinent to examine the response of the GOG to the reservations expressed by the GBA and to the inevitable litigation that would ensue should the amendment be assented to in its current form.
Considering the GBA stating its rejection of the amendment in its current form, Attorney General (AG) and Minister of Legal Affairs, Anil Nandlall, had indicated that the government would be revising the proposed amendment to the Police Act. In what was likely an attempt to ensure that the PPP/C Government was not mistakenly identified as the genesis of the faulty amendment, the AG stated that, “This piece of legislation was inherited by the Home Affairs Minister from his predecessor.” He further posited that, “It’s a very small amendment, and the concerns that have been raised are very clear. In our efforts to address those concerns, we will look at whether they are in consonance with what the international protocols on the issue are” and that he had “already discussed this with my colleague, Minister Robeson Benn, and he has agreed that the proposed amendment will be reviewed in order to address some of the concerns which have been raised.”
According to the AG, “The objections which we have seen is not directed to the police extracting DNA samples from persons per se, they relate, as I understand them, to the stage of the investigation when the DNA sample is to be taken, so, we don’t need to reinvent the wheel, we will simply look at what is the trend in the Caribbean and in the Commonwealth and what is the international protocols on the extraction of DNA and try to implement that in Guyana.”
In further justifying the amendment, the AG noted that, “One cannot rule out the utility of taking and keeping DNA samples of persons who are considered the usual suspects, they may not have suffered a conviction for whatever reason, but they are known to be associated with certain criminal activity.”
An objective look at some similar mechanisms in the Caribbean reveals a glaring discrepancy with the current proposed Guyanese legislation. In Trinidad and Tobago the Deoxyribonucleic acid (DNA) Act allows for a non-intimate sample, such as a cheek swab, to be taken from a person in several instances, including if they are charged with an offence, if a stain derived from a crime scene exists and there are reasonable grounds for suspecting that that person was involved in the offence and for believing that forensic DNA analysis could confirm or disprove such suspicion, or if they have been convicted of an offence and are serving a term of imprisonment. In Jamaica, Section 15 of the DNA Evidence Act also requires either informed consent of the detainee or a Court Order before an intimate sample is acquired. In this case, a non-intimate sample can be obtained without consent only if there is reasonable grounds for suspecting the person committed the offence and the sample collected, can be used to confirm or disprove this suspicion.
In the United States, the American Bar Association’s (ABA) position is similar to the Jamaican position and advises that a DNA sample should not be collected from the body of a person without that person’s consent, unless authorised by a search warrant or by a judicial order. It further notes, that if the person from whom the sample is to be collected is suspected of committing a crime, an order should be issued only upon an application demonstrating probable cause that a serious crime has been committed, and that the sample is collected by a physically non-invasive means following reasonable suspicion that the person committed the crime. Samples collected by physically invasive means require probable cause that the person committed the crime and proof that the sample will assist in determining whether the person committed the crime. As aforementioned, both the justification and the proposed method of operation of said amendment, appears to be in conflict with similar provisions in the Caribbean. It becomes particularly worrisome when it is learnt that the reasons proffered by Guyana’s AG for the DNA bill have striking similarities to the justification of similar endeavours by various countries such as China and Kuwait.
In China, the Human Rights Watch reported in 2017 that “China’s police are collecting DNA from individuals for a nationally searchable database without oversight, transparency, or privacy protections.” According to the article, “In many parts of the country, police officers are compelling ordinary individuals – neither convicted nor even suspected of a crime – to have their blood drawn and DNA taken. Samples have also been collected from vulnerable groups already targeted for increased government surveillance, including migrant workers, dissidents, and minority Muslim Uyghurs. Because police wield wide powers, and because there are no actionable privacy rights in China, people have little ability to refuse the collection of such personal information.” The article continues to state, that documented cases demonstrate that the collection of DNA does not appear to be connected to solving specific cases of crimes. Police have conducted campaigns to amass biometrics from ordinary citizens simply because it has identified gathering “basic information” a goal, important for the unspecified need to “solve crimes. Additionally, there are no legal guidelines on how long DNA samples can be stored, shared, or used, or how their collection can be challenged. Commenting on this phenomenon is Sophie Richardson, the China Director at Human Rights Watch, who has been quoted saying, “Mass DNA collection by the powerful Chinese police absent effective privacy protections or an independent judicial system is a perfect storm for abuses.”
The second territory to which the Guyana Government’s DNA Bill justification bears similarities with is Kuwait. According to an October 2017 article, the nation’s Constitutional Court issued a decision to strike down Kuwait’s overly broad DNA law. The court found that the DNA law violated articles 30 and 31 of Kuwait’s constitution, which protect the right to personal liberty and privacy. The 2015 law had required all Kuwaiti citizens, residents, and visitors to provide DNA samples to authorities, in violation of their right to personal privacy. Kuwait was the only country to require nationwide compulsory DNA testing. The United Nations Human Rights Committee, which monitors implementation of the International Covenant on Civil and Political Rights, found in 2016 that the law imposed “unnecessary and disproportionate restrictions on the right to privacy.”
The manifestations of responsible DNA collection are governed by policies that mandate prerequisites relating to the sample being needed to aid in the solving of a crime, or where the owner of the sample is suspected under reasonable cause of having committed a crime among others. Additionally, as exists in some Caribbean jurisdictions when sample owners are acquitted, samples are to be destroyed or handed over. Unfortunately, none of these provisions are immediately evident in the intent behind the intended Guyanese amendment, and there is immense doubt that such considerations exist at all within the scope of the proposed amendment. This undoubtedly would lead to ensuing litigation to review the bill’s constitutionality should it be assented in its current form or without appropriate checks and balances to prevent abuses.
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