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The DNA swab that cost Police $2,500 Sam Grover
23 December 2015

DNA image

When it comes to information, DNA is about as personal as it gets. The High Court recognised this in its damages award of $2,500 to a woman whose DNA was collected and stored by Police.

Background

The Criminal Investigations (Bodily Samples) Act 1995 compels people to surrender a DNA sample for the Police database after being convicted of certain crimes. 

In 2009, the applicant was convicted on four counts of selling a class C drug. As a result of those convictions, Police issued a notice requiring her to give a DNA sample under the Criminal Investigations (Bodily Samples) Act 1995. Her DNA profile would be extracted from this sample and stored in the national DNA database alongside 150,000 other DNA profiles.

After attempting to contact the woman a few times, Police came to her house and gave her the option of voluntarily giving a DNA sample through a mouth swab or being arrested and having  the sample taken involuntarily. She agreed to give the sample.

This is where things get complicated.

Under the Criminal Investigations (Bodily Sample) Act, people need to surrender a DNA sample if they are convicted of an offence that can result in a prison sentence of seven years or more. Selling the class C drug in question could lead to a maximum sentence of eight years, but only when a person was convicted of an indictable offence. The summary offence carries a sentence of up to one year.

The woman was originally charged with the indictable offence, but she ultimately pled guilty and was convicted of the summary offence. Police were mistaken in thinking that she was obligated to surrender a sample, and therefore their collection of that sample was improper in the circumstances.

The complaint

After she gave the sample, she complained that it had been improperly collected because she had been convicted of a summary offence and not an indictable offence. She also complained that the unnecessary collection was a violation of her right to freedom from improper search and seizure under the Bill of Rights Act.

This complaint made its way through a number of different channels (including this Office) before ultimately being heard by the High Court.

The High Court ruled that the Police had improperly collected her DNA sample, and in doing so had violated her right under the NZ  Bill of Rights to freedom from improper search and seizure.

In addition to awarding the woman damages of $2,500, the Court also made a declaration that in collecting her DNA, the Police had breached her rights under the NZ Bill of Rights Act.

What does this mean?

At its core, this case was a mistake by the Police. According to the judgement:

The breach arose because the police proceeded on the basis of an understandable but mistaken legal interpretation of the relevant provisions. While understandable, if the police seek to obtain such highly personal information, it is especially important to ensure that all care is taken to act lawfully. 

However, the courts still awarded damages, even though the mistake was understandable and the distress the applicant experienced was “at the low end.” The fact that the information was so personal and so unique was enough to lower the threshold of harm required to create liability.

In other words: if you’re going to collect someone’s personal information, make sure you have the permission or mandate to do so. Otherwise you could end up on the wrong side of not just the Privacy Act, but the High Court as well. 

Image credit: Caroline Davis2010 via Flickr Creative Commons

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