merrion street

A Chathaoirligh, Senators,

The Criminal Justice (Forensic Evidence and DNA Database System) Bill 2013 is a landmark piece of legislation which provides for the establishment of a DNA Database. The Database represents a very significant development in the criminal justice system in Ireland. There are a number of reasons why this is the case. The Database will assist the Garda Síochána in the investigation of serious crime and in identifying serial offenders across a broad range of areas, including homicide, rape, sexual and other serious assaults and burglary. It will play a crucial role in the investigation of so-called “cold cases”. The Database will also assist in exonerating the innocent in cases of miscarriage of justice, as has been the case in other jurisdictions. The Database will be an important new tool, not just in relation to crime but also in finding and identifying missing or unknown persons. This capability should serve to provide significant assistance, reassurance and comfort to the families of people in these situations. In summary, this measure will provide crucial assistance to the Gardaí, and indeed members of the public, in vital areas, for decades to come.

The experience in other jurisdictions shows what an important contribution DNA databases make to criminal investigations where crime scenes are examined and produce forensic material. For example, the UK’s National DNA Database had a “match” or “hit” rate of 61% in 2012-2013. While “hits” simply place a person at the crime scene and are not necessarily followed by prosecutions, such a high rate does point to the level of intelligence that a DNA database can generate. We should, however, be realistic and not expect such high rates in the early years of our Database as the rate is partly dependent on the size of the Database and will grow as the database grows. The UK Database was established back in 1995 and contains over six and a half million DNA profiles from individuals.

I believe that the establishment of the DNA Database is long overdue. Ireland is currently almost alone among EU member states in not having such an investigative tool. Crime, particularly organised crime, is an international phenomenon that transcends national boundaries and there is a greater need than ever for cooperation between police forces in order to effectively combat it. The passage of this Bill will facilitate the State in meeting its obligations under EU law and any international agreements which require the State to maintain DNA and fingerprint databases for criminal investigation purposes and facilitate the searching, on a reciprocal basis and under strict conditions, of other states’ databases. I would draw Members’ attention to schedules 2, 3 and 4 of the Bill which contain the texts of the Prüm Council Decision, the Agreement between the EU and Iceland and Norway applying aspects of the Prüm Council Decision, and the Council Framework Decision on the accreditation of forensic science laboratories. I should mention that the Prüm Council Decision is required to be implemented by the first of December next.

It is worth recalling that the Bill before the House today is the product of analysis, debate, scrutiny, and the observations of numerous interested parties over many years. The Law Reform Commission published its Report on the establishment of a DNA Database in November 2005. The last Government published a DNA Bill in 2010. And the Bill before us today was published by my predecessor last September. In the course of its passage through the other House, a number of new issues were addressed and further changes made to the Bill. It is now a comprehensive piece of legislation that balances the need to have a world-class DNA database with the human rights of those whose profiles may be put on that database. I believe that this Bill achieves that balance and I am pleased to note that the Irish Human Rights Commission, in its most recent observations on the Bill, has acknowledged that many of the issues that it had raised in relation to the 2010 Bill have been addressed. I am aware that the Human Rights Commission and the Law Society have raised other points concerning the Bill and I will touch on some of these issues as I go through it now.

The Bill comprises 13 Parts, 172 sections and 4 Schedules. Given the size of the Bill and the limited time available, I propose to focus on the key elements in the legal framework for the taking, use and destruction of samples here today. There will of course be an opportunity at Committee Stage to discuss any other aspects of the Bill that Senators wish to explore.

Part 1 deals with preliminary and general issues. Sections 2 and 3 provide key definitions and interpretations that are central to understanding the overall framework.

Section 7 covers the necessary transitional arrangements between the existing regime and the commencement of this legislation, in order to protect, for example, proceedings underway based on biological samples taken under the Criminal Justice (Forensic Evidence) Act 1990 or under common law powers. Essentially, samples taken under the 1990 Act may be put on the database, but must be removed in accordance with the provisions of that Act. Samples taken with consent under common law powers may continue to be used in relation to the purpose for which they were taken but cannot be put on the database.

Parts 2 to 7 contain important provisions as they set out the powers to take samples of various sorts from different categories of persons.

Part 2 is concerned with the taking of samples from persons in Garda custody. It is important to note, however, that not all suspects in Garda custody will be subject to the Garda powers to take samples under Sections 11, 12 and 13. As is the case under the 1990 Act, the powers only apply to those who are in Garda custody under one of the existing detention powers listed in Section 9. Subject to a limited exception, the effect is that only those suspects detained in connection with serious offences, by which I mean offences attracting a maximum prison sentence of 5 years or more, may be required to provide a sample.

Section 11 provides for the taking of samples from persons in custody for the purposes of the database – there is no requirement that they assist in the particular investigation at hand. Samples taken under this Section will be instrumental in populating the database and ensuring its effectiveness as a source of intelligence. Bearing in mind the non-intrusive nature of the procedure for taking the sample, the consent of the suspect is not required. However, children under 14 years of age and protected persons are excluded from the provisions in section 11.

Section 11 is at the core of this Bill. It is what will give the database the critical mass that will drive its efficiency and effectiveness. We have set a high threshold for the taking of samples for the purpose of the database and we have tightened up the destruction regime considerably. But it is vital for the functioning of the database as a powerful aid to the investigation of crime that the profiles of those who are convicted of serious offences are retained on the database.

Sections 12 and 13 provide for the taking of intimate and non-intimate samples respectively for use in evidence. Intimate samples include blood, urine, swabs from the genital regions and dental impressions and, due to their nature, require the consent of the suspect, and this consent may be withdrawn. In the event that a suspect refuses to give consent or withdraws consent, adverse inferences may be drawn from this in certain circumstances in subsequent proceedings. The Bill makes clear however that a person cannot be convicted solely or mainly on the basis of such negative inferences. I am satisfied that these “adverse inference” provisions are proportionate in all the circumstances.

Section 24 provides for the use of reasonable force where a suspect refuses to allow a sample to be taken under section 11 or a non-intimate sample under the other sections. The use of reasonable force must be authorised by a Garda member not below the rank of Superintendent and it must be carried out in the presence of a member of An Garda Síochána of at least Inspector rank. The section does not apply to the taking of a sample from a child under section 11 for the purposes of the database but is available in relation to the taking of non-intimate samples from child suspects and protected persons where they are required for evidential purposes. The Bill applies additional safeguards for the use of reasonable force in relation to such persons. Finally, the taking of samples under reasonable force must, in all cases, be video recorded. I am aware that concerns have been raised about the use of reasonable force. As I have explained, these provisions are circumscribed but to my mind must be available to the Gardaí where required. “Reasonable force” is not a novel concept in our law. It is well understood by the Gardaí, the legal profession and the courts. I am satisfied that the provisions in this regard are necessary and proportionate.

Part 3 contains provisions covering the taking of samples by consent from volunteers and for mass screening. Mass screening, or perhaps more accurately, intelligence-led screening, involves inviting a group of individuals, determined by reference to particular characteristic such as age, gender or the geographical area in which they reside or work, to provide samples for the investigation of a particular offence. The decision to carry out such a screening is essentially an operational one requiring authorisation by a Chief Superintendent. Under no circumstances will the DNA profile of a participant be entered in the Database. However, in the event that the screening identifies a potential suspect he or she may be arrested and detained in connection with the investigation, in which case the sampling powers contained in Part 2 will apply.

Similar provisions to these have been of assistance to police forces across Europe in solving crimes where there was no evidence to directly link a suspect to the crime.

Part 4 is an important part of the Bill in terms of populating the Database and ensuring that it has the capacity to generate intelligence. It provides for the taking of samples for the Database from offenders and former offenders. In the case of offenders the following are required to provide samples:

 all offenders subject to a sentence of imprisonment for a serious offence on the commencement of the Bill, whether they are in prison or living in the community on licence, temporary release or subject to a suspended sentence;

 those sentenced to imprisonment after commencement in respect of a serious offence;

 those transferred to prisons in the State following conviction abroad in respect of a serious offence; and

 those who, on or after commencement, are subject to the sex offender registration requirements.

This Part also provides for the taking of samples from former offenders, in other words, those who have served sentences for serious offences or have been subject to the sex offender registration requirements and who continue to be of interest to the Gardaí. The Bill provides comprehensive guidance to the Gardaí to assist them in identifying which former offenders should be requested to provide a sample for the Database. In some cases an application to a District Court judge will be required. The power extends to former offenders who are now ordinarily resident or have their principal residence in Ireland regardless of where they were convicted. It is important to be aware of the risks posed by mobile former offenders and I believe that giving the Gardaí the power to require such persons to provide samples for the Database goes some way towards mitigating those risks.

It is worth saying that these provisions in relation to offenders and former offenders are expected to be largely transitional as once the Bill is fully operational, the profiles of all persons convicted of a relevant offence will be on the Database from the time of their arrest.

The provisions in Part 5 arise from the expansion of the use of DNA technology. It is necessary to provide for the possibility of accidental contamination of a sample by a person who, in an official capacity, attends at a crime scene or who handles a crime scene sample at any stage. If such accidental contamination is not identified it may lead to the Gardaí wasting time and effort investigating unidentified crime scene profiles which in fact relate to a Garda who investigated the scene or a member the staff of the Forensic Science Laboratory who examined items taken from the scene, or perhaps a scientist or pathologist dealing with the case. The Bill therefore sensibly provides for the taking of samples from such persons. The profiles created will then be available to be searched against unidentified profiles from particular crime scene stains, for the purposes of elimination from any further consideration in the context of the investigation.

Part 6 of the Bill is somewhat different to the previous parts of the Bill which were focused on the taking of samples for the purposes of crime investigation. This Part is concerned with the use of the Database to assist in finding and identifying missing or unknown persons, alive or deceased. Samples may be taken, for identification purposes, from:

- blood relatives of persons who are missing or from the belongings of the missing person,

- living persons who are unable to identify themselves due to injury or illness, or

- the remains of unidentified persons.

Part 7 deals with the taking of certain samples under Parts 3 and 6 from children or protected persons. It contains detailed provisions in relation to the issue of consent in this regard and on the provision of information to children and protected persons prior to the taking of samples from them.

Staying with the taking of samples for a moment, Section 157 in Part 13 of the Bill requires those bodies empowered to take samples, namely the Garda Síochána, the Ombudsman Commission, the Irish Prison Service, the Irish Youth Justice Service and the Forensic Science Laboratory, to prepare draft codes of practice, for Ministerial approval. These codes will provide practical guidance as to the procedures for the taking of samples and are intended to ensure proper adherence to the statutory framework and consistency in approach.

I wish to turn now to Part 8 of the Bill which deals with the structure and purposes of the DNA Database. Responsibility for the Database will rest with the Forensic Science Laboratory, which already has a distinguished record in providing independent expertise in the area of forensics and is well placed to become custodian of the Database. I would just mention at this point that the Forensic Science Laboratory is being renamed Forensic Science Ireland or FSI under Section 172 of the Bill.

Section 60 stipulates that the Database may be used for two purposes only:

- the investigation and prosecution of criminal offences; and

- the finding or identification of missing persons and the identification of unknown persons.

The Database is accordingly divided into an investigation division and an identification division. These divisions are subdivided into relevant indexes, reflecting the purpose for which the DNA profiles were generated and are held.

The DNA Database will clearly be a powerful tool and will contain sensitive personal information. I am sure therefore that all Senators will, like me, be conscious of the need to ensure that the integrity and security of the Database is maintained. Part 9 of the Bill provides for the establishment of an independent DNA Database System Oversight Committee which will oversee the management and operation of the system. The Committee will review the practices and procedures employed by Forensic Science Ireland in the operation of the Database and will report at least annually to the Minister and these reports will be laid before the Oireachtas. Schedule 1 of the Bill sets out in detail the structure and procedures of the Oversight Committee, which will be chaired by a judge or former judge of the High Court or Circuit Court, and one of whose members will be nominated by the Data Protection Commissioner.

I will turn now to Part 10 of the Bill, which deals with the circumstances in which samples and profiles may be destroyed or removed from the Database. This is a very important part of the legal framework and marks a significant departure from the approach taken in the 2010 Bill. The key changes relate to the retention arrangements for samples and the circumstances in which the DNA profiles of persons who are not proceeded against or are acquitted may be retained on the Database.

The changes to the proposed retention arrangements for samples and profiles are aimed at ensuring that the approach to retention is constitutional and meets the standards of the European Convention on Human Rights, with particular reference to the judgment of the European Court of Human Rights in the case of S & Marper v the United Kingdom.

Part 10 of the Bill provides for:

- The destruction of samples taken for the purpose of generating a DNA profile for the Database as soon as the profile has been generated or within 6 months of the taking of the sample, whichever is the later;

- A presumption in favour of removal from the Database of the DNA profiles of suspects who are not convicted subject to the Commissioner having the power to authorise retention on the Database where he or she determines that this is necessary. This decision is appealable to the District Court. The retention periods allowed will be 6 years in the case of adults and 3 years in the case of children.

- Revised arrangements for the retention of samples taken for evidential purposes, including a presumption in favour of destruction of samples relating to suspects who are not convicted, subject to the Commissioner having the power to authorise retention for 12 months (which will be renewable) where he or she determines that this is necessary. This decision is also appealable to the District Court.

- A statutory review of these arrangements is required within a period of 6 years, and subsequently whenever the Minister considers it appropriate. The Bill provides that the 6 and 3 year retention periods mentioned earlier may be revised, downwards only, by Ministerial order following such a review.

I welcome the fact that the Human Rights Commission has acknowledged the substantive changes made to this aspect of the Bill when compared with the 2010 Bill.

Part 11 of the Bill was inserted at Committee Stage in the other House. It deals with the destruction of fingerprints, palm prints and photographs and aligns those provisions with those applying to DNA samples and profiles in the Bill. The main provisions relating to the taking of fingerprints, palm prints and photographs are contained in the Criminal Justice Act 1984 and most of Part 11 is concerned with amending that Act to provide for the new destruction arrangements.

Part 12 of the Bill, which deals with international cooperation, has been expanded to address international obligations in a more comprehensive manner and, as I mentioned earlier, provides for the reciprocal searching of DNA databases and automated fingerprint identification systems maintained by states for criminal investigation purposes. In particular the provisions of this Part are aimed at giving effect to the Prum Council Decision and the Implementing Council Decision and to the subsequent agreement between the EU and Iceland and Norway. The Bill also covers bi-lateral agreements that the State may enter into, as it has already done with the United States.

Part 13 contains a number of miscellaneous provisions, a few of which I touched on earlier.

This Bill, in establishing a DNA Database System, represents a very significant step forward in criminal investigation in this jurisdiction. It makes good on this Government’s commitment to provide the Garda Síochána with the resources it needs to fight crime and to bring the perpetrators of crime to justice. DNA evidence is only one element in crime investigation but it is potentially a vitally important one. It should be also remembered that not only can the Database assist in detecting perpetrators and bringing them to justice but it can also help to exonerate the innocent and lead to better, more targeted use of police resources.

Finally, as I indicated at the outset, I am acutely aware of the need to strike an appropriate balance between the use of the DNA database in the investigation of crime in the public interest and of the individual’s constitutional right to fair process, privacy and their good name. I am confident that this Bill, with its many safeguards, achieves that balance. This truly is a landmark Bill, this is a historic day, and I am pleased as Minister for Justice to commend the Bill to the House.