Joe Costello (Dublin Central, Labour)

Ours is a sovereign State with a Constitution and we have signed up to the European Convention on Human Rights. Mainland Europe and Britain were engulfed in two world wars in the 20th century. We have not experienced civil strife for over 80 years. It is time we faced up to our status as a free, sovereign, democratic State and stopped behaving as a nation under siege from within and without. It is less, not more repressive legislation we need. It is time to dismantle the extensive scaffold of emergency and unusual powers with which we have tainted our democracy for so long and to put in their place a normal criminal and police code more befitting our modern republic. Such repressive measures would include the provision to have a 24-hour detention period and the proposed unilateral search warrant mechanism.

With the development of criminal forensic science, DNA can be used to identify suspects and has been a great asset in the fight against crime. However, one's DNA is also highly personal and it is widely acknowledged that collection and retention of DNA is open to abuse. The Criminal Justice (Forensic Evidence) Act 1990 provides for the collection of DNA samples only in extreme circumstances and with the suspect's consent because of the intimate nature of the collection. The Bill proposes the removal of the existing stringent requirements for the collection of samples. It redefines the mouth and head as non-intimate parts of the body for the collection — forcibly if necessary — of samples and provides for increased penalties for obstructing an officer from taking such samples.

Apart from a possible invasion of privacy, the period that the State may retain one's DNA before destroying it has increased from six months to 12 months, notwithstanding the fact that the suspect has neither been charged with nor convicted of any offence.

A more limited retention period is required as DNA samples, like fingerprint samples, can be used to falsely incriminate a person by, for example, the placing of a sample at a crime scene. Furthermore, the redefinition of the taking of DNA samples as non-intrusive could lead to invasion of personal body space where the person is reluctant to comply.

It is worth noting the Human Rights Commission's view on this matter. It is deeply concerned at the possible abuses inherent in the reclassification of samples and the authorisation of the use of force. Big brother is beginning to crowd the space once more.

As is his wont, the Minister for Justice, Equality and Law Reform has a penchant for grafting on amendments and miscellaneous sections to his original legislative offering which tend to become as significant as the original. The Criminal Justice Bill 2004 is no exception.

Section 29 is an extraordinary provision. It allows a garda only on his or her reasonable and subjective opinion that a person is committing an arrestable public order offence to fine that person on the spot or by post by means of a fixed charge notice. Failure to pay this fine will lead to a 50% increase in the amount of the fine after 28 days. Failure to pay the fine within two months will lead to prosecution and the defendant will be liable to a further fine of €1,500. The Minister has stated that this measure is aimed at public order offences connected with unruly behaviour and binge drinking. However, this type of broad measure has been used in the past to criminalise dissent and to discourage legitimate forms of public protest.

Again, it is a radical departure from the norm. Article 34 of the Constitution guarantees that justice will be administered in a court of law. However, this is not a court of law; it is another big brother. If the garda forms the opinion that an offence has been committed, he or she immediately becomes judge, jury and executioner. The suspect has no right to due process as there is no due process. If he or she fails to pay the automatic fine within the specified time, the offence is metamorphosed into a criminal offence attracting a summary conviction and €1,500. This is a catch-22 — a distortion of justice — and it provides enormous scope for abuse.

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