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

I move amendment No. 4:

In page 112, after line 33, to insert the following:“100.(1) Where a person is arrested for the purpose of being charged with a relevant offence, a member of the Garda Síochána may take, or cause to be taken, the fingerprints and palm prints of the person in a Garda Síochána station before he or she is charged with the relevant offence concerned.
(2) The power conferred by subsection (1) shall not be exercised unless a member of the Garda Síochána not below the rank of sergeant authorises it.
(3) The provisions of subsection (1A) of section 6 and section 6A of the Act of 1984 shall apply to fingerprints and palm prints taken pursuant to this section as they apply to
fingerprints and palm prints taken pursuant to the said section 6.
(4) A person who obstructs or attempts to obstruct a member of the Garda Síochána acting under the power conferred by subsection (1) shall be guilty of an offence and
shall be liable on summary conviction to a class A fine or imprisonment for a term not exceeding 12 months or both.
(5) The power conferred by this section is without prejudice to any other power exercisable by a member of the Garda Síochána to take, or cause to be taken, the
fingerprints and palm prints of a person.
(6) Sections 8 to 8I of the Act of 1984 shall, with the following and any other necessary modifications, apply to fingerprints and palm prints taken from a person pursuant to
this section as they apply to fingerprints and palm prints taken from a person pursuant to section 6 or 6A of that Act:

(a) references to an offence to which section 4 of the Act of 1984 applies shall be construed as references to a relevant offence;
(b) references to section 6 or 6A of the Act of 1984 shall be construed as references to this section; and
(c) references to the detention of the person under section 4 of the Act of 1984 shall be construed as references to the person being arrested for the purposes of being
charged with a relevant offence under this section.”.

A new Part 11 is being inserted into the Bill with a number of provisions relating to fingerprints, palm prints and photographs. The majority of Part 11 involves the insertion of new provisions amending section 8 of the Criminal Justice Act 1984, which currently deals with the retention and destruction of such identification evidence. The destruction arrangements for fingerprints, palm prints and photographs contained in section 8 are being aligned with those for DNA profiles contained in the Bill as published. In effect, the current process, which requires a person to apply to have his or her fingerprints destroyed, is being replaced with one that presumes on the destruction of the fingerprints within 12 months, unless the person is convicted of an offence.The remaining sections in this new Part arise from the need to apply to Part 11 the proposed new destruction arrangements to other relevant statutory provisions or from the relocation of those provisions relating to fingerprints, palm prints and photographs that are already in the Bill, so that all those provisions are together in the Bill. That will help make the provisions more readily understandable.

I propose to deal first with the most substantial amendment in this group - amendment No. 7 - on which many of the other amendments in this Part hang. The purpose of this amendment is to provide for the alignment of the retention and destruction arrangements for fingerprints, palm prints and photographs with those for samples and profiles already in the Bill. Deputies will recall that the retention arrangements provided for in the Bill in relation to samples and profiles were framed in light of a judgment of the European Court of Human Rights in the case of S & Marper v. the UK. That case concerned a challenge to the indefinite retention regime in England and Wales that applied to the samples, profiles and fingerprints of persons who were not subsequently proceeded against or convicted. The court held that the “blanket and indiscriminate” nature of the arrangements failed to strike a fair balance between public and private interests, were a disproportionate interference with the right to privacy and could not be regarded as necessary in a democratic society. It is also likely that the same considerations apply to photographs, though these were not specifically dealt with in the Marper case.
Currently fingerprints, palm prints and photographs may be retained indefinitely, subject to persons who are not proceeded against within 12 months, are acquitted or against whom proceedings are dismissed or discontinued, having the right to apply to the Garda Commissioner for destruction. Such persons also have the right to appeal to the District Court and Circuit Court in the event of a refusal to destroy the identification evidence concerned.
I have decided that in all the circumstances, and taking particular account of the jurisprudence of the European Court of Human Rights, our default position on the retention of forensic evidence should be in favour of destruction, with the Garda Commissioner enabled to authorise retention, on a year-by-year basis, where a statutory test is met.This approach is consistent with my overarching aim in this Bill, outlined on Second Stage, to strike an appropriate balance between the use of identification evidence for the investigation of crime and protecting individuals’ personal rights.
Section 103 relates to the destruction of fingerprints, palm prints and photographs and substitutes a number of new sections for section 8 of the Criminal Justice Act 1984. The original section 8 is being replaced and new sections 8A to 8I are being added to that Act. The new section 8 provides for the automatic destruction of fingerprints, palm prints and photographs in certain circumstances, such as where the persons concerned are not proceeded against within 12 months, or are acquitted. These destruction arrangements are aligned with those already provided for in respect of biological samples and DNA profiles under sections 76 and 80, respectively, which the committee has already accepted.
Section 8A provides for the extension of the retention period under section 8 for fingerprints, palm prints and photographs in certain circumstances. This section broadly follows similar provisions already contained in the Bill in relation to the extension of the retention period for biological samples and DNA profiles. In cases where the Garda Commissioner determines that certain circumstances apply, having regard to specified matters, he may authorise the extension of the retention period for fingerprints, palm prints and photographs by a period of 12 months, or subsequent such periods where the statutory test continues to be met. In such cases, the Commissioner is required to inform the person concerned in writing that the authorisation has been given and of the person's right to appeal that decision to the District Court. The Commissioner is required to give effect to the decision of that court. These are substantially better arrangements that exist within our current law in this area.
Section 8B provides for the destruction of fingerprints, palm prints and photographs in exceptional circumstances. These exceptional circumstances are the following: it is established after a detention during which the identification evidence was taken that no offence was in fact committed; that the identification evidence was taken on the basis of mistaken identity; or a court determines that the detention of the person from whom the fingerprint, palm print or photograph was taken was unlawful. Section 8C specifies the meaning of certain terms in this new part. These relate to the dismissal of charges, quashing of convictions and determination of proceedings. It is a factual, interpretative provision intended to ensure clarity in this context.
Section 8D deals with the circumstances in which persons are to be informed of the destruction of their fingerprint, palm print or photograph. The section provides that written confirmation of destruction must be provided to persons in respect of whom the retention period for their fingerprints, palm prints or photographs was extended. This requirement follows the same approach taken for biological samples and DNA profiles under the revised section 98 that was discussed earlier, and will apply in all cases of extended retention, whether the person concerned appealed against such retention or not.
Section 8E provides that sections 8A, 8B, 8D, and 8H shall apply to the Garda Síochána Ombudsman Commission as well as the Garda Commissioner. This mirrors the approach already taken in respect of biological samples and DNA profiles in the Bill, and ensures that the same retention and destruction arrangements apply to all identification evidence taken by the Ombudsman commission in the course of its investigations. Section 98 of the Garda Síochána Act 2005 already provides that designated officers of the commission have the same powers as the Garda Síochána in respect of the taking of fingerprints, palm prints and photographs when investigating complaints that appear to involve offences. Section 8F allows the Garda Commissioner to delegate any of his or her functions under sections 8A, 8B, 8D and 8H. This section replicates and inserts into the Criminal Justice Act 1984 the powers of delegation currently provided in section 138 of the Bill, thus ensuring that they also apply to the Commissioner’s powers in relation to fingerprints, palm prints and photographs.
Section 8G sets out the manner in which notices to be given to persons under sections 8A or 8D are required to be served. Section 8H provides that where a person is required under sections 8 to 8B to destroy a fingerprint, palm print or photograph, they shall ensure that every copy thereof and every record relating to these forms of identification evidence, insofar as they identify the person from whom they were taken, be destroyed. Section 8I provides that the retention, destruction and related arrangements contained in sections 8 to 8H shall apply to fingerprints, palm prints and photographs taken before or after the commencement of this section. This means that such identification evidence taken under existing statutory provisions prior to commencement of this section will be covered by the new retention and destruction arrangements. This ensures equality of treatment of persons who had their fingerprints, palm prints or photographs taken under statute before or after the commencement of this legislation.

I turn to the other amendments relating to fingerprints, palm prints and photographs. Now that I have dealt with the key amendment in the group, I will return to amendment No. 4 which essentially moves section 154 of the Bill into Part 11 as section 100. This section deals with the power of An Garda Síochána to take fingerprints and palm prints of persons arrested for the purpose of charge. At present such identification evidence can only be taken where persons are detained following arrest or conviction. A new subsection (6) has been added in order to apply the destruction arrangements set out in new sections being inserted into section 8 of the Criminal Justice Act 1984 which I outlined earlier.

Amendment No. 5 inserts section 101 which amends section 3(1) of the 1984 Act, inserting definitions of “Commissioner” and “photograph” into this interpretation section. These words are required to be defined as they are referred to in amendments now being made to the 1984 Act in relation to the destruction of fingerprints, palm prints and photographs.

Amendment No. 6 moves section 155 of the Bill into Part 11 as section 102.

Turning to amendments Nos. 8 to 12, inclusive, there is currently a range of legislative provisions that permit An Garda Síochána to take fingerprints, palm prints and photographs in certain situations and in respect of certain offences. It is necessary to amend these provisions, with necessary modifications, so as ensure the new retention and destruction arrangements apply across these provisions in a consistent and coherent manner.

Amendment No. 8 inserts section 104 which amends section 9 of the Criminal Justice Act 1984 in order to apply the new retention and destruction arrangements to fingerprints, palm prints and photographs taken from, or of, persons in custody under section 30 of the Offences against the State Act 1939. It also incorporates section 156 of the Bill which is being moved to Part 11. This applies certain other provisions of the 1984 Act to persons detained under the 1939 Offences against the State Act.

Amendment No. 9 inserts section 105 which amends section 28 of the Criminal Justice Act 1984 in order to apply the new retention and destruction arrangements in respect of fingerprints, palm prints or photographs taken from, or of, persons dealt with under the Probation of Offenders Act 1907, or convicted. Amendment No. 10 inserts section 106 which amends section 5 of the Criminal Justice (Drug Trafficking) Act 1996 so as to apply the new procedures for the retention and destruction of fingerprints, palm prints and photographs taken from, or of, persons detained under section 2 of the 1996 Act.

Amendment No. 11 inserts section 107 which amends section 12 of the Criminal Justice Act 2006 which relates to the power of An Garda Síochána to take photographs from arrested persons. Section 107 applies the new retention and destruction arrangements to such photographs.

Amendment No. 12 inserts section 108 which amends section 52 of the Criminal Justice Act 2007 so as to apply the new retention and destruction arrangements to fingerprints, palm prints and photographs taken from, or of, persons detained for offences relating to firearms and explosives.

In brief, it can be said this brings into a new part of the Bill very important measures relating to fingerprints, palm prints and photographs, making them accessible in one coherent Act rather than across several Acts and where there is a consistent approach to the retention of records, whether it relates to DNA or other identification material. It also provides for a greater balance of protection in the area of personal rights and, importantly, reflects the jurisprudence of the European Court of Justice. It is of substantial importance that we ensure our legislation is balanced in this context and reflects decisions made by the court.

I hope members will welcome the extensive amendments contained in Part 11 which are of particular importance to this area of law and provide the correct balance between assisting gardaí in undertaking investigations and accessing important identification information and, on the other side, providing greater safeguards for personal rights and provisions that will ensure information it is not necessary to retain can be destroyed.