According to the Ministry’s media release of 1 August, the rationale for this Bill
is to enable law enforcement agencies to more effectively carry out their
duties, while safeguarding personal data. The Bill enables more DNA to be
collected from suspects, offenders, volunteers and others, in order to have a
larger DNA database for comparison with evidence obtained from crime
scenes.
There may be discomfort in some quarters due to the expansion of the net for
collection of DNA. From the existing pool of registrable crimes, this Bill widens
the net by enabling DNA collection for a new class of eligible crimes, which will
include all offences punishable by imprisonment which are not compoundable
by a public officer under the law. It can be argued that actually, the current
legislation already enables DNA to be collected for many offences which the
average person may not consider serious, such as infringement of copyright
and possessing of uncustomed cigarettes. Now the Bill proposes to include
less serious offences such as voluntarily causing hurt. This raises the question
of what the appropriate threshold should be to justify collection of DNA from
individuals, simply for the database. In other jurisdictions, this has sparked
discussion about the balance between the public interest in securing evidence
to prove or disprove guilt, versus the public interest in ensuring that private
individuals are protected from unwarranted interference. These questions
should not be dismissed as unimportant.
At such times, it is appropriate to step back and ask what Singaporeans should
expect out of the criminal justice system. While we should always be
concerned about treating suspects and offenders fairly, we need also to
remember that victims are critical stakeholders who tend to be overlooked.
For instance, while a victim may have suffered harm, criminal justice systems
are such that the decision-makers in a case will be the prosecuting authorities,
with the victim’s wishes sometimes being overruled.
To that end, the evolution of technology, if correctly applied, can result in
bringing to more victims the justice and closure they deserve. To illustrate my
point, I wish to share a vivid personal experience from my days in law
enforcement. It is public information that in the 1990s, the Police introduced
an investigation tool known as AFIS – the Automated Fingerprint Identification
System. The system automated the matching of fingerprints lifted from crime
scenes with those stored in a database of convicted persons and suspects. The
implementation of AFIS at that time resulted in the resurrection of many old
case files where fingerprint matches were suddenly found. I remember being
assigned one such case. A fingerprint from a housebreaking scene was found
to match the print of a person then in prison for another offence. My
colleague and I then proceeded to visit the prisoner. He initially denied any
involvement in the matter. However, when it was pointed out to him that his
fingerprint was found at the scene, he immediately recanted and admitted that
he had indeed broken into the flat. As I listened to him narrate what
happened, I was struck by how his description of the position of the windows
and furniture, and where the elderly female victim lay asleep, corresponded
exactly with the scene found by police many years earlier. He was thereafter
charged with this old offence and sentenced by the court accordingly. It was
indeed gratifying to know that technology worked correctly in that case, to
bring justice to the elderly woman, albeit years later. If enhancing the DNA
database will result in more cases being solved, and bring justice and closure to
more victims and their families, that is an outcome we should support.
At the same time, there is the important issue of safeguarding personal
information. As mentioned by the Leader of the Opposition, we have looked at
how DNA collection is managed in other jurisdictions including Australia and
the UK.
The Bill before us, no doubt, widens significantly the state’s powers to collect
DNA from individuals. However, we see some attempt to limit the scope of the
state’s powers. I will cite two examples. First, as far as what types of DNA
samples may be collected, Clause 2 makes clear that though the Minister may
prescribe additional types of samples that may be collected, he cannot include
samples obtained from more private parts of a person’s body such as the
genital areas. A second example of scope limitation is found in the proposed
Section 25. This section states that while reasonable force may be used to take
body samples where the person does not consent, use of such force does not
extend to taking an invasive sample such as a blood sample. I support these,
and other limitations on the State’s powers.
That said, I have concerns about two particular aspects of the Bill which I
believe need to be clarified.
First, on volunteers giving their DNA samples. Under the current Section 13D
of the RCA, a person may volunteer to give a body sample if he was present at
the scene of a crime, or if he is being questioned in connection with the
investigation. In this Bill, the proposed Section 23 will expand the potential net
of volunteers, by enabling any volunteer to provide his body sample even if
there is no nexus between the volunteer and the crime. I note that such a
provision does exist in other jurisdictions, so in principle I do not object to the
change. However, the question is – how this will operate in practice, and in
particular, whether vulnerable groups may be pressured to provide blood
samples thinking that they have no choice but to “volunteer”?
Already with the current Section 13D, I had noted previously in this House the
case in 2008 (14 years ago) of blood samples being taken from 200 foreign
workers in the aftermath of an attack on a student at Clementi Woods Park.
When I filed a Parliamentary Question on this in 2008, the Ministry replied that
the blood samples were drawn after the workers had voluntarily given their
consent. I do not know how the consents were obtained from the 200 workers
to draw the blood samples; however, one could well ask to what extent the
workers were worried that non-co-operation would jeopardise their
employment in Singapore. With the expanded powers to collect body samples
from just about anybody who volunteers, what safeguards will be in place to
ensure that vulnerable groups are not picked on, and that the consent of
volunteers is informed and freely given?
My second concern is about the proposed Section 27. This section makes it an
offence to refuse to consent to give a body sample when one is liable to give
it. Although refusal to consent is already an offence, the proposed Section 27
creates a new offence if a parent or guardian of a child refuses to give consent
for a body sample to be drawn from the child. Although it is right to seek the
consent of the parent or guardian in the case of a child, is it appropriate to
inflict punishment on a parent or guardian who does not give consent to an
invasive procedure on his or her child? Are there other jurisdictions where
parents are punished in this way?
Finally, I should end on a note of caution. While DNA profiling has certainly
been a game-changer for law enforcement, there are limitations. From what I
understand, DNA profiles lifted from crime scenes are often incomplete, and
hence less helpful in identifying a particular suspect. Such partial profiles will
match with many people. There is also the risk of DNA being contaminated at
the crime scene or being brought there by secondary transfer i.e. a person who
was not at the scene may have his DNA inadvertently, or even deliberately,
brought there by someone else. It is a fact that there have been miscarriages
of justice in other jurisdictions involving DNA evidence, such as wrongful
convictions due to mix-ups in the laboratories handling the DNA.
We must be alive to all these risks and demand the highest standards in our
investigations, including in the handling, processing and analysis of DNA
samples. The relevant agencies including the courts should also be mindful not
to regard DNA evidence as infallible, but assess it in the light of other evidence,
so as to minimise the risk of wrongful convictions.