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Law Commission recommends updates to DNA forensic analysis law

2 June 2021
by Canterbury Legal

In recent months, the Commission has also produced a report containing 193 recommendations to update the law applying to forensic DNA analysis.

The law governing forensic DNA analysis was passed in 1995, and in just those 26 years, there’s been considerable development in our understanding of DNA, and the ways in which it can be used to help solve crimes. While it might sometimes be compared to fingerprints—a unique way to identify a person—DNA also allows one to identify someone’s family line.

And even if you can’t match a DNA sample to an existing record, you might be able to use it to narrow it down to a family. An example of this was the “Golden State Killer” in California, where a serial killer was identified more than 30 years after his last murder thanks to a DNA sample being matched to a distant relative in a public DNA bank.

There’s a whole lot of policy and privacy issues that weren’t really considered 25 years ago. And with that, the Commission has identified a number of issues with the Criminal Investigations (Bodily Samples) Act 1995 (“CIBS”).

  • 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.

Currently, all DNA samples taken in criminal investigations are stored in DNA databanks. The Commission recommends that these samples are separated into different categories: samples eliminated as being involved in a crime; victims; suspects; and offenders. Only offender profiles would be kept, and then expunged when it’s established the offender has been rehabilitated.

Still, the privacy implications of these kind of databases aren’t fully resolved. Writing in The Conversation, University of Auckland associate professor of law Carrie Leonetti identifies a number of potential issues with the proposed regime.

The recommendations are now with the Government, with the Commission awaiting its response.

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