Alan Shatter (Dublin South, Fine Gael) | Oireachtas source

Before I respond specifically to the amendment, I thank Deputies for their support for the Bill and their fortitude in dealing with what is already a very large Bill, to which I propose to add some additional sections. I also inform the select committee that I will bring forward some further amendments on Report Stage to deal with historical samples and DNA profiles, easing the burden on the Forensic Science Laboratory and improving continuity in the chain of evidence for forensic exhibits in criminal trials.

Turning to amendment No. 1, the former offenders regime in sections 33 and 34 is not a blanket provision covering all persons who fall within the ambit of the definition of former offenders in section 33; rather, the Garda Síochána will have to identify individuals who are covered by section 33, in respect of whom a garda not below the rank of superintendent is satisfied that it is in the interest of the protection of society and desirable for the purpose of assisting the Garda Síochána in the investigation of offences to have under section 34 a sample taken from the person for the purpose of generating and uploading that person's DNA profile to the DNA database. That is the first hurdle to be jumped before a request is made to a person to provide a sample. It is not automatically an issue of obtaining samples.

There are a number of further safeguards. In the event that the person fails to comply with the request, the Garda Síochána may apply to the District Court for authorisation to send a notice to the person requiring him or her to attend for the taking of a sample. Even then if the person fails to co-operate, he or she cannot be forced to provide a sample, although the Bill provides that he or she may be prosecuted.

The former offender provisions are also subject to the ten year rule contained in section 33(3). Broadly, under that rule, a former offender may only be requested to provide a sample up to ten years after the sentence for the offence concerned has expired. The likelihood is that most former offenders covered by the Good Friday Agreement will be covered by this ten year rule given the passage of time since their release. That is the position from a practical standpoint. From a strictly legal standpoint, it would not be possible to make the amendment the Deputy proposes. In the first instance, it would result in the unequal treatment of two similarly situated individuals and as a result might be unconstitutional. Even if the proposal did not suffer from a possible constitutional impediment, it would be extremely difficult to ground such a provision as there is no statutory provision covering the release of prisoners under the Good Friday Agreement in this jurisdiction.

I understand where the Deputy is coming from, but his concerns are misplaced. I am satisfied that few, if any, of the cohort of former offenders about whom he is concerned are covered by the provisions of sections 33 and 34. Even if they are, they cannot be compelled to provide a DNA sample. I will not, therefore, accept the amendment the Deputy has proposed.