Dermot Ahern (Louth, Fianna Fail)

I welcome the opportunity to present the Criminal Justice (Forensic Evidence and DMA Database System) Bill to the House. As the title suggests, the Bill has two main aims, namely, to update our laws on the taking of samples from suspects for use in evidence and to upgrade our criminal intelligence capacity. This latter aim will be achieved through the establishment of a DMA database system. I will endeavour to address all the major aspects of the Bill, particularly the provisions relating to the taking, use and destruction of samples. I will also deal with the structure of the database, oversight arrangements and international co-operation in this area.

Without doubt, the establishment of a DNA database is a major innovation. It will ensure that the Garda Síochána will be able to take full advantage of DNA technology in the detection of crime. By helping to identify previously unsuspected persons as possible perpetrators and eliminating innocent persons quickly, it will be invaluable to the Garda in focusing its investigations and in using its resources efficiently. It will also have the potential to play a major role in finding missing persons and in identifying unknown persons.

In providing such a powerful resource I am conscious of the importance of limiting its impact on individual freedoms. I am particularly conscious that biological samples contain a person's genetic code. With this in mind, I ensured that close attention was paid to finding the right balance between the public interest in the detection of crime and securing justice for victims, on one hand, and the rights to bodily integrity and privacy, on the other.

The Bill has 12 parts and two schedules. Part 1 deals with preliminary and general issues, many of which are standard provisions. However, I wish to highlight sections 2 and 3. These provide definitions and interpretations that are critical to understanding the overall framework. Section 4 provides the basis for the transmission of samples or DNA profiles outside the State in response to requests for mutual assistance and will ensure that we can meet our international obligations in this regard. Sections 6 and 7 deal with the Criminal Justice (Forensic Evidence) Act 1990, providing for its repeal and for the necessary transitional arrangements, to protect, for example, proceedings under way.

It will be clear from a quick perusal of the Bill, particularly Parts 2 to 7, inclusive, that much of it is concerned with powers to take samples from different categories of persons for different purposes. Before outlining these powers, I wish to make a few general remarks with regard to sampling.

It is the purpose for which a sample is required that determines the type of sample that may be taken. For example, where a sample is required from a person solely for the purposes of the database, it will be either a mouth swab or plucked hairs. These are the least intrusive and do not require medical input. Where samples are required from a suspect for the purposes of a particular investigation, the type of sample will be determined by the nature of the offence concerned, the circumstances of its commission and the evidence lifted from the crime scene. For example, swabs from the skin of a suspect may be required to determine whether the suspect had contact with a particular substance or a victim. The Bill recognises this by permitting a broad range of what are termed intimate and non-intimate samples to be taken for forensic testing in connection with a particular investigation. The term "forensic testing" is broadly defined. It includes the generation of DNA profiles but is not limited to it. I highlight these points to emphasise that the scope of the Bill goes beyond the taking of samples capable of being used for DNA analysis.

Before I deal in detail with the powers in Parts 2 to 7 to take samples, I will outline the arrangements for the database. Responsibility for its establishment and operation is allocated to Forensic Science Ireland, or EFE as it will be called. This will be the new name of the Forensic Science Laboratory as of 1 July. This name change is intended to better reflect its remit. The laboratory has a distinguished record in providing independent expertise in the forensics field and it is well placed to take on the role of custodian of the database.

The purposes of the database are stipulated and limited by section 57, which provides that the database may be used for only two purposes: the investigation of criminal offences; and the finding or identification of missing persons and the identification of unknown persons. Reflecting these distinct purposes, the database is divided into an investigation division and an identification division. The investigation division will comprise five indexes of DNA profiles: the crime scene index will contain crimes scene profiles including historic crime scene profiles; the reference index will contain profiles relating to suspects and offenders; and the elimination indexes, of which there are three, will contain the profiles of personnel, including Garda and EFE personnel whose duties put them at risk of inadvertently contaminating crime scenes. The identification division will comprise the missing and unknown persons index. It is the results of the searching within and between these indexes that will be of invaluable assistance to the Garda. I would emphasise that the searches are limited to those permitted by section 65. These limitations ensure transparency in the operation of the database and that DNA profiles are used only for the purpose for which the related sample was taken.

To return to the powers to take samples, it is important to put on the record that, with effect from the commencement date, samples may be taken from most persons detained under the statutory powers listed in section 9 and from persons who are, at that time, still subject to a sentence for an offence to which those detention powers apply. These categories will provide the core material for the reference index and I will elaborate on these aspects as we go through the provisions.

Part 2 focuses on suspects in Garda custody. An important point to note is that section 26 ensures that on commencement the common law system which operates in parallel with the statutory regime and which permits the Garda to take samples from suspects on a consensual basis will be terminated. In view of the expansion of the Garda powers to take samples from suspects I believe that a single statutory regime is preferable.

I must stress that not all suspects will be subject to the Garda powers to take samples under sections 11,12 and 13. The powers apply only to those who have been detained under one of the existing 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 sentence of imprisonment of five years or more, may be required to provide a sample. This high threshold ensures that suspects arrested in connection with, for example, minor public order offences will not be subject to these sampling powers.

It is important to recall that although the Bill provides that samples may be taken for various purposes, section 11 provides for the taking of samples from suspects solely for the purposes of the database. Samples taken under section 11 will be instrumental in populating the database and ensuring its effectiveness as an intelligence source. The consent of the suspect is not required. I draw the attention of Deputies to a number of limitations on the power created by section 11. They are prompted by the need to treat children and "protected persons" with great care.

As regards child suspects, it is already the law that they may be detained where this is necessary for the proper investigation of an offence. Generally the detention powers may not be exercised in respect of children under 12 years. This Bill does not make any change in that regard but it does exclude child suspects under 14 years from the scope of section 11. I have selected 14 years as the lower age threshold for the taking of samples for the purposes of the database as to exclude all child suspects would, I believe, result in a real loss of intelligence. Section 11(6) commits me to reviewing this on the basis of experience.

I have also excluded "protected persons" from the scope of section 11. For the purposes of this Bill such vulnerable persons are defined as adults or children who, by reason of a mental or physical disability lack the capacity to understand the general nature and effect of the taking of a sample, or lack the capacity to communicate by any means whether they consent to the taking of a sample. It will be a matter for the member in charge who already has statutory responsibility for the treatment of persons in custody to determine whether a person is a protected person. Provision is made for medical assessments if required. Being under the influence of an intoxicant is not sufficient.

I emphasise that section 11 samples are taken for the database - there is no requirement that they assist in the particular investigation at hand. However, the taking of samples for this purpose must be justified not only by the gravity of the offence for which the person has been detained but also by the nature of the offence. By nature I mean whether it is an offence, the investigation or prosecution of which could be assisted by DNA evidence. Such evidence would not, in all probability be relevant to, for example, taxation and company law offences. Section 11 therefore provides for orders to exclude certain offences. This provision has the added advantage of flexibility. If it subsequently transpires that sampling becomes relevant to a particular category of offences the order can be revised.

Section 11 samples are of critical importance to the success of the database as an intelligence tool. Samples taken under sections 12 and 13, on the other hand, are of critical importance to the prosecution of offences. They provide for the taking of intimate and non-intimate samples respectively for use in evidence.

Intimate samples require the consent of the suspect. They include blood, urine, swabs from the genital regions and dental impressions and, as can be readily appreciated, they cannot be taken without the co-operation of the suspect. However, a refusal to consent must not be without consequence. Section 19 provides that in the event of a refusal adverse inferences may be drawn in certain circumstances in subsequent proceedings.

Samples taken for evidential purposes must be authorised by a Garda not below the rank of inspector who has reasonable grounds for suspecting the involvement of a person in the commission of the offence in question and for believing that the sample will tend to confirm or disprove that involvement. The rank of inspector has been selected in this instance whereas a sergeant may authorise the taking of a sample under section 11. This graduated approach reflects the nature of the decision that is required and the potential consequences for the suspect.

The need for an intimate or non-intimate sample in connection with a particular offence may arise from a database hit or independently of any intelligence generated by the database. A further sample must be taken for use in evidence when a hit links a previously unknown suspect to an unsolved crime. This is necessary because to use the hit as evidence could be prejudicial to the accused. It could suggest to the jury that the accused had a previous criminal record or, at the very least, previous contact with the Garda. The added benefit of re-doing the forensic tests is that it acts as a quality control mechanism.

I wish to make a general comment about the value of DNA evidence at this juncture. DNA is highly discriminating and the facility to generate DNA profiles adds a very powerful tool in the investigation and prosecution of crime. However, as a rule, other evidence is also required. For example, where a person's DNA is found at a crime scene there may be a perfectly legitimate reason for it being there. DNA evidence shows a link between a suspect and a crime scene but we must remember that how that link came about is still very much a matter for evidence at trial. Therefore, the Bill does not accord any particular status to DNA evidence. It will continue to be treated in the same way as other expert evidence. I have already referred to the issue of consent; it must be in writing and it must be informed. In the case of suspects, it is required only in the case of intimate samples. Section 15 specifies who may give consent. Clearly, an adult suspect who does not lack capacity can consent on his or her own behalf. Special arrangements are required in regard to children and protected persons. In the case of protected persons and children under 14 years, the consent of a parent or guardian is required or an order of a District Court judge. In the case of children aged 14 years and upwards, the child's consent is also required.

The possibility of an inspector applying to a District Court judge for authorisation to take an intimate sample from a protected person or child may arise in a number of circumstances, including where the parent or guardian cannot be contacted despite reasonable efforts by the Garda; they are not willing to attend at the Garda station within a reasonable timeframe; or they are excluded from giving consent because one of them is a victim of the offence; or has been arrested in connection with or is complicit in the offence. Such circumstances cannot be allowed to act as an absolute bar to the collection of vital evidence from a suspect. Providing recourse to a District Court judge ensures consideration of where the interests of justice lie having regard to the interests of the suspect, the victim and the public.

Section 24 sets out the circumstances in which reasonable force may be used to take samples under Part 2. It is restricted to the taking of samples under sections 11 and 13. It does not apply to the taking of intimate samples. To ensure that this power is used appropriately and only when strictly necessary, a range of safeguards is provided, including that the use of force must be authorised at superintendent level and that its use must be done in the presence of an inspector and video-recorded. Some further limitations apply in respect of children. For example, reasonable force may not be used to take samples for database purposes, under section 11, from child suspects.

I have already highlighted a number of exceptions to the sampling arrangements in Part 2 where children and protected persons are concerned. Other special provisions included in this Part ensure that vulnerable suspects have someone other than a member of the Garda to support them when a sample is being taken. That other person may receive any information that is required to be given to a suspect. A parent, guardian or other adult relative may fulfil this role. However, in some circumstances, for example, in the event of the absence of a parent, the member in charge may be required to nominate a person other than a garda. That person must be of the same sex as the person from whom the sample is being taken and, in the case of protected persons, is required to have experience in dealing with persons who have physical or mental disabilities.

As can be seen, Part 2 is very important in the overall scheme of the Bill. However, I now move on to Part 3 which deals with the taking of samples from persons who are not suspects or offenders, the latter being dealt with in Part 4. Essentially, this Part is concerned with the procedure to be followed by the Garda when requesting a person to volunteer a sample in connection with a particular investigation. Such persons could include a victim or perhaps a member of the public who comes upon a crime scene. I should make it clear that this Part is limited to the taking of samples from a person for the purpose of generating that person's DNA profile. The samples are, therefore, restricted to mouth swabs or plucked hairs. In the event that other samples are required, for example, from a victim of a sexual assault, they will continue to be governed by existing practice.

It is important to note that samples taken from volunteers are taken on the basis of a consent which is limited to their use in connection with a particular offence. The consent does not extend to the entry of the DNA profile in the database. Nevertheless, there may be circumstances in which it would be useful for the Garda to be able to enter the profile of a volunteer in the database for the purpose of speculatively searching it against the crime scene index. The Bill recognises that but requires a separate written consent on the part of the volunteer who must be properly informed of the effect of such entry. In no circumstances may a volunteer who is a victim, a protected person or a child be requested to consent to the entry of their DNA profile in the database.

This Part also provides for mass screenings. A mass screening involves inviting a group of individuals determined by reference to a particular characteristic such as sex or age to provide samples for a specific investigation. The decision to conduct such a screening must be an operational one but, due to the cost and its intrusive nature, authorisation by a chief superintendent is required. In no circumstances will the DNA profile of a participant be entered in the database. 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 in Part 2 will apply.

Part 4, together with section 11 to which I have referred, will be instrumental in 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 at commencement 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.

Where the offender is in prison, the sample will be taken by a prison officer with the use of reasonable force where necessary following authorisation at senior level. Where the offender is in the community, he or she will be required to attend at a Garda station to have the sample taken. Failure to attend will constitute a summary offence. Similar arrangements apply in the case of child offenders but with additional restrictions on the use of force to take a sample from a child in a children's detention school.

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 concern to the Garda. The Bill provides comprehensive guidance to the Garda to assist it 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 this country regardless of where they were convicted. I am very conscious of concerns around the risks posed by mobile former offenders and I believe giving the Garda the power to require such persons to provide samples for the database will go some way towards alleviating those concerns.

I will touch on Part 5 briefly. Its provisions are consequential to the expansion of the use of DNA technology. It provides for the taking of samples from persons who in the course of their duties are at risk of inadvertently contaminating crime scene samples. It applies to Garda personnel, the staff of EFÉ and such other bodies as may be prescribed. Examples of such bodies include the State Pathologist's Office and the Garda Síochána Ombudsman Commission. Deputies will recall that I have already mentioned that the profiles will be on specific indexes in the investigation division of the database. The advantage of having these DNA profiles is that it avoids the Garda wasting time and effort investigating an unidentified crime scene stain that in fact belongs to one of the investigation team or to the scientist dealing with the case.

I have so far focused on the taking of samples in connection with the investigation of crime. Part 6 is focused on the taking of samples for the identification division of the database. This facility will be invaluable in the event of a disaster resulting in mass casualties but will also be useful in individual cases. Three situations are addressed - missing persons, unknown living persons and unknown deceased persons. Where it is proposed to take a sample from a living person, for example, the blood relatives of a missing person, consent is required. The profiles generated from the samples taken under this Part will be entered in the missing and unknown persons index and may be searched against other entries in that index but also against the investigation division where this would assist identification.

Deputies will recall that consent is required in some cases before samples may be taken under Parts 3 and 6. As is the case with suspects under Part 2, special arrangements are required on who may consent on the part of children and protected persons. These arrangements, which overlap to some extent with those in Part 2, are set out in Part 7.

Before leaving the subject of when samples may be taken, I draw attention to a number of overarching provisions in Part 12. Section 109 requires samples to be taken in circumstances affording reasonable privacy and only in the presence and view of such persons as are necessary to take the sample; and in the case of suspects, no samples may be taken during questioning. Section 109 also states clearly that nothing in the Bill authorises the taking of a sample in a cruel, inhuman or degrading manner. While section 110 permits making regulations in regard to taking samples, the principles set out in section 109 are of such a fundamental nature that primary legislation is appropriate. Section 111 requires those bodies empowered to take samples, namely, the Garda Síochána, Ombudsman Commission, Prison Service and youth justice service, to prepare draft codes of practice in consultation with the director of EFE for ministerial approval. These codes will provide practical guidance on the procedures for taking samples and will go a long way towards ensuring proper adherence to the statutory framework and consistency in approach.

It is important that the database and related arrangements employed by EFE, for example, in the receipt, storage and handling of samples, generation of profiles for the database, conduct of searches, reporting of results and destruction of samples, are subject to rigorous oversight. Part 9 achieves this by providing for an independent statutory oversight committee chaired by a senior judge. Schedule 2 gives details of membership and other matters. Members should note that the committee will include a nominee of the Data Protection Commissioner. The committee will have power to make recommendations to the director of EFE and to the Minister. It will also have power to review any matter relating to the operation and management of the database of its own accord. Its reports, subject to some limited restrictions relating to, for example, the security of the database, will be laid before both Houses and published. I am confident these arrangements, taken together with the risk of criminal prosecution for the disclosure of information on the database for any purpose not permitted by the Bill, will safeguard the security and integrity of the database.

Part 10 concerns the destruction of samples and the destruction or removal of DNA profiles from the database. This matter has been the subject of an important judgment by the European Court of Human Rights in S & Marper v. the United Kingdom. The very detailed and nuanced arrangements in Part 10 have been developed following careful consideration of that judgment which requires us to balance the public interest in the detection of crime and the individual's right to privacy. Part 10 does this by prescribing different treatment for convicted persons and persons who are not convicted, adults and children, and samples and DNA profiles, respectively. This last distinction arises from the realisation that a much greater amount of personal information is contained in a biological sample than in a profile. A sample contains the whole of a person's DNA. A profile, however, is a series of numbers and letters derived from a very small portion of that person's DNA and which contains far less genetic information.

Starting with samples taken from suspects and offenders for the database, a default destruction period of three years will generally apply. In the case of DNA profiles, it is only those relating to convicted persons that will be retained indefinitely. An exception will apply in the case of some former child offenders who do not re-offend; their profiles may be removed from the database within ten years. In the case of persons who are not convicted, or persons who have had their conviction quashed or declared to be a miscarriage of justice, default time periods will apply to the removal of their profiles from the database. Generally the default periods will be five years in the case of children and protected persons and ten years in the case of adults. In advance of the expiry of these periods such persons may apply to the Garda Commissioner for the destruction of their sample and the removal of their DNA profile from the database. In the event of a refusal of their application they may appeal to the District Court. The prescribed periods may be altered, mostly downwards, based on a review of the operation of the Bill. For example, I hope it will be possible to reduce the three-year default destruction period applying to database samples. However, for the moment, I am satisfied that the approach taken strikes a reasonable balance.

Part 11 is concerned with international co-operation. It transposes the DNA-related aspects of Council Decision 2008/615/JHA of 23 June 2008, the text of which is set out in the first schedule. The Prüm Council decision, as it is often called, requires member states to permit automated searching of our DNA databases for criminal investigation purposes on a reciprocal basis. Such searches are conducted on anonymous data. In the event of a hit, the matter must be pursued within the mutual assistance framework. Bearing in mind the international mobility of criminals, access to the databases of other member states has the potential to be very useful. These Prüm-related provisions cannot be commenced until the data protection requirements of the Council decision have been transposed. My Department is considering how best to make provision for new data protection requirements in the criminal context. While no decision has been taken, I hope to be in a position to do so in the not too distant future.

Another provision that merits attention is section 103. It removes any doubt that a person may be required to give a sample under any provision of the Bill even though he or she may have provided a previous sample. This is essential as there is a wide variety of circumstances in which a person who has given a sample for one purpose may be required at a later date to provide a sample for another.

I will refer now to the issues that I am examining and may wish to bring forward as Committee Stage amendments. I am giving consideration to the arrangements for the retention of fingerprints and photographs. I am also considering whether further provisions are required in the area of international co-operation and to give fuller effect to the automated search provisions of the Prüm Council Decision. This Bill may also present an opportunity to transpose Council Framework Decision 2009/905/JHA of 30 November 2009 on accreditation of forensic service providers carrying out laboratory activities. Apart from these matters, I will have other amendments, many of a drafting or technical nature, but also some aimed at elaborating aspects of the Bill and refining the operation of some procedures.

It would be remiss of me not to acknowledge that many of the Bill's provisions take account of the analysis carried out by the Law Reform Commission for its comprehensive report on the establishment of a DNA database. This Bill marks a major step up in the use of DNA technology by the Garda Síochána in the fight against crime but does so in a balanced and carefully constructed manner which ensures that individual freedoms are not sacrificed in the pursuit of a public good. I have been at pains to ensure a system that will also be efficient and effective at its operational level. I am satisfied that the Bill provides for such a system and I am pleased to commend it to the House. We took the judgment in the S & Marper case very much into account in drafting it.

See this speech in context