These are not people who are the target of a police investigation. Some of them have not had contact with the police for many years, but they have all had police arrive on their doorstep recently, with a collection kit and a letter (not a court order).
Each of these clients has previously been to gaol for an offence with a maximum penalty of at least five years, but none of our clients had served a sentence of that length. After release, each client had been prosecuted for another offence, although some successfully defended the later charge. The two facts of imprisonment and subsequent prosecution plus their absence from the DNA database, is enough to qualify them as an ‘untested former offender’ under NSW legislation. This essentially means that if Police seek a court order for their DNA they will be successful.
Collection from former offenders is called ‘backcapture’, and we are seeing renewed effort from NSW Police to do a complete backcapture of all untested former offenders in NSW. The efficiency of this process is debatable. Backcapture is not so much about looking for needles in a haystack as it is about collecting hay to make a stack.
We recognise that DNA evidence can be very helpful in turning police investigations into successful prosecutions, but backcapture is now being done where there is no suspicion or investigation. There is simply the power to do so, and it is being used.
Our clients do not see this as fair. Before having received individual advice, many clients have been intent on refusing the procedure, regardless of whether there is a court order. Refusing a court order is itself a criminal offence, carrying a maximum penalty of 12 months imprisonment.
The decision by Police to pursue individual DNA samples with no likely investigative value is putting unnecessary pressure on the legal system by using the resources of the Local Court and legal advice services such as RLC. The backcapture scheme favours statistics and charge rates over rehabilitation or crime prevention, by bringing people under police attention despite years of good behaviour.
These years of good behaviour point to another trap in the current backcapture program – spent convictions. The form letter handed out by police when they arrive at people’s doors will often refer to a sentence of imprisonment imposed more than 10 years ago. Sometimes this sentence of imprisonment will be for a short period – perhaps maybe only a matter of weeks. But depending on subsequent convictions, the Criminal Records Act prevents a sentence that old being used as a basis for DNA backcapture. The Criminal Records Act recognises the value of rehabilitation, but the NSW Police Force DNA backcapture program does not.
