The recent trial of Jules Mikas for the murder of Teresa Cormack highlights the usefulness of DNA in solving awful crimes sometimes years after the event. The Government recognise this use for DNA and are currently seeking to strengthen the legislation which allows them to take DNA samples from convicted and suspected criminals and store those samples in a national DNA databank. At first glance this news is a reassuring employment by the Government of technology to fight violent crime. However, aspects of this strengthening (encompassed in the Criminal Investigations (Bodily Samples) Amendment Bill) concern those who keep an eye on the powers of the State.

One of the main difficulties with the Bill is that it has a retrospective effect. This retrospective effect means that people who are currently serving sentences of imprisonment for certain convictions entered before 12 July 1996 will have to give up samples of their DNA to be incorporated into the DNA databank. This means that prisoners who are found guilty, or who pleaded guilty, in a pre 12 August 1996 legal environment which did not demand that they provide a DNA sample are now more than 6 years later, to be coerced into providing that sample as a result of that same guilty verdict or plea.

Retrospective law making is something that Governments generally try to avoid. It is a flawed way of making and passing law because people feel that if they do something today the law applying to that action should be the law enforced today not tomorrow’s backward adjustment of it.

Realising that retrospective law making is not generally approved of, the Government has sought to excuse the retrospective effect of this Bill by saying that it only affects a limited population – prison inmates. Civil Libertarians would say that the limited effect of the retrospective Bill does not excuse it. This is especially so when the limited population affected by the Bill are prison inmates. As prisoners, inmates are a section of society which is confined and controlled by the State, and are therefore particularly vulnerable to its actions. That the retrospective effect of the Bill is aimed exclusively at this section of society compounds the injustice of the retrospectivity rather than relieves it

It remains to be seen whether the retrospectivity of the Bill survives the opposition to it from the New Zealand Law Society, the New Zealand Council for Civil Liberties and others when it passes further through the House.

The retrospectivity of the Bill is one aspect of a submission prepared for the Law and Order Select Committee on behalf of the New Zealand Council for Civil Liberties.