Michael D'Arcy (Wexford, Fine Gael)

This Bill seeks to establish, in line with international standards, a DNA database for use in the investigation and prevention of crime. Drafting of the Bill has been fundamentally influenced by a 2008 decision of the European Court of Human Rights with respect to the regulation of the DNA database in England and Wales in which the court held that there was a breach of Article 8, relating to the right to a private life, of the European Convention on Human Rights, ECHR. Although the court accepted that the retention of DNA samples for the detection and prevention of crime was a legitimate aim, it concluded that the retention of those samples was an interference with the right to private life of the applicants, albeit one that could be justified in certain circumstances. In this case, however, the court struck down the "blanket and indiscriminate nature of the power of retention in England and Wales" and concluded that the applicants' right to private life had been violated. The court identified the Scottish system as being most consistent with the ECHR. There data is retained for up to three years in respect of unconvicted people where the charge involves a violent or sexual crime.

The major tenets of the argument surrounding the establishment of a DNA database lie in the challenge of striking a balance between the rights of the individual to privacy, bodily integrity and the privilege against self-incrimination with wider societal interests in preventing disorder and crime. Striking such a balance raises complicated questions such as how useful it may be to retain DNA information, what weight should be given to the interests of the police, those whose information they hold and the general public, including those who are or may become the victims of crimes, how the database should be populated, and whose records should be retained. In addition, the establishment of a DNA database raises concern with regard to possible future permutations of its use, often referred to as function creep. These concerns have arguably been reflected in the evolving uses of databases in the United States, England and Wales where, in some instances, they have extended far beyond the scope of what was originally envisaged.

The difference between samples and profiles is pivotal. The science of DNA now is well-established but is an area of intense study and rapid growth in the field of human genetics that may yet have much to reveal. The amount of information that can be deduced from a biological sample may be much wider in ten or 20 years than is the case today. The revolutionary nature of DNA evidence as a forensics tool has been described as being the single greatest advance in the search for truth since the advent of cross-examination. The Law Reform Commission's comprehensive report on the subject, published in 2005 at the request of the Attorney General, identifies the purpose of a DNA database as assisting in identifying links between crimes such as in the case of stains left at the scene of the crime by serial offenders, the rapid exclusion from the ambit of the investigation of suspects who already are on a database and whose profiles do not match and the making of cold hits, that is, where a stain is matched with a profile of a person on the database who was not a suspect.

At the trial stage, DNA evidence is presented in court via the cross-examination of expert witnesses as to the scientific basis for declaring a DNA match and the statistical likelihood of that match appearing in the population at large. At the post-trial phase, DNA evidence has facilitated the reopening of cases, at times leading to the exoneration of wrongfully convicted defendants. The cases of the Birmingham Six and Guildford Four are good examples. In addition, DNA profiling has led to the identification of unknown deceased persons. However, it is at the pre-trial stage that the greatest scope exists for the role of a DNA database in the context of the investigation and prosecution of crime. Samples gathered from crime scenes or from volunteers, such as victims of crime, can be used to generate profiles, which then can be compared to profiles already stored. By comparing unknown crime scene profiles to known reference profiles, such as, for example, those of offenders, former offenders or arrestees, hits will help the Garda to generate suspects but also may eliminate other known profiles from suspicion because a hit does not occur. Likewise, matches generated by comparing crime scene profiles would indicate a serial offender and would provide investigative leads.

The establishment of a national database would have an inevitable impact on a number of rights guaranteed by the Constitution of Ireland and the European Convention on Human Rights, which, of their nature, must be safeguarded. No right, including a constitutionally-protected right, is absolute and where there are sufficiently compelling reasons for doing so, a constitutional right may be interfered with provided the interference is proportionate to the desired objective and required to protect stronger competing interests or the requirements of the common good. The debate surrounding the establishment of a DNA database concerns a number of rights recognised by both the Constitution and the courts.

The right to privacy is implicated in a number of ways by the establishment of a national database, first, by the taking of samples and, second, by the retention of samples and the profiles derived therefrom, which in some circumstances may be for an indefinite period. Third, the exchange of samples or information based upon them between the original custodians of the sample or profile and law enforcement agencies in other jurisdictions. Finally, the privacy of third parties also may be threatened.

The privilege against self-incrimination sometimes is referred to as the right to silence and has been held to be a constitutional right by the Supreme Court on numerous occasions. In common with other rights, the privilege against self-incrimination is not an absolute right and there are a number of strictly-defined statutory restrictions placed upon it. Notwithstanding the limitations on the exercise of the right, the onus of proof in any criminal trial rests on the prosecution. As for the right to trial in due course of law, Article 38.1 of the Constitution states "[n]o person shall be tried on any criminal charge save in due course of law." The phrase "in due course of law" has been held to incorporate a number of different principles, some of which are particularly relevant in the context of DNA evidence. The Irish courts have interpreted Article 38 to require that all criminal trials be conducted in accordance with the presumption of innocence, a concept that interacts with evidential rules regarding the burden of proof, which in the criminal law context is guilt beyond all reasonable doubt. The constitutional status of the presumption of innocence and its centrality to the criminal justice system was confirmed by Mr. Justice Costello in O'Leary v. Attorney General and has been described by the courts as being:

personal to the dignity and status of every citizen. It means that he or she is entitled to the status of a person innocent of criminal charges until such has been proven in a court conducted in accordance with law.

The compatibility of DNA retention regimes in respect of those arrested but not subsequently convicted of an offence and the presumption of innocence is an area of particular controversy. The Human Genetics Commission, HGC, which is the United Kingdom's advisory body on new developments in human genetics and their effects on individuals, addressed the issue succinctly when it argued that adopting a middle ground between the less practical extremes of a database storing only profiles of convicted offenders or the population at large must be strongly justified. It stated:

To treat an unconvicted person as having a diminished entitlement to privacy in the same way as a convicted person, i.e. to treat them "as if" they were guilty of an offence despite their guilt not being proven at the outcome of a judicial process, would be to set aside the judicial process and the presumption of innocence in favour of a balance of probabilities or a simple, untried belief that the person had committed the offence but evaded conviction.

The HGC goes on to argue that, to justify holding personal genetic information of unconvicted persons, there must be robust criminological evidence to show that some groups of people who have not been convicted nevertheless present a higher than average risk of committing criminal offences. Some of the problems experienced in the United Kingdom in adducing such evidence are addressed later.

In addition, a further element of Article 38 pertinent to DNA profiling is the principle of equality of arms, defined by the Irish Human Rights Commission in the following terms:

The principle of equality of arms implies that everyone who is a party to proceedings must have a reasonable opportunity of presenting his case to the court under conditions which do not place him or her at a substantial disadvantage .... A fair balance must be struck.

In this context, it has been suggested that where DNA evidence is adduced by the prosecution, adequate State funding should be made available to the defence in order to carry out independent testing and thus meet the State's case on a roughly equal basis. In the State (Walshe) v. Murphy, the High Court quashed a conviction for drunken driving on the grounds that the defendant did not have adequate opportunity to "have the specimen which he has retained analysed and to contest the validity or correctness of the certificate".

The right to bodily integrity was first recognised by the Supreme Court in the seminal case of Ryan v. Attorney General. As originally recognised, the right to bodily integrity protected the citizen from having his health endangered by the State. The right was subsequently expanded upon and now covers the right to refuse medical treatment. It is also settled law that the legality of any medical treatment is predicated on the consent of the patient. Where medical treatment is carried out in the absence of a patient's consent, a battery at common law is committed for which the doctor may be liable. It also is a criminal offence under the Non-Fatal Offences Against the Person Act 1997. The significance of the right to bodily integrity is particularly relevant in circumstances in which a DNA sample may be obtained using reasonable force as is proposed under the terms of the Bill.

The laws of evidence must be considered. The admissibility of DNA or any other evidence in a criminal trial is contingent upon its relevance to the case. In other words, the only admissible evidence is that which is relevant. This is not to say that all relevant evidence must be admitted. The leading case on the admissibility of evidence is People (Attorney General) v. O'Brien, in which the Supreme Court held that, where evidence has been obtained in circumstances involving illegality, the trial judge could, in his or her discretion, rule to exclude the evidence.

The use of DNA in a criminal trial is dependent upon the presence of a suitably qualified individual capable of interpreting it. In this way, DNA evidence is a form of opinion evidence in respect of which a considerable body of law has accumulated. Opinion evidence is generally not admissible, since witnesses are normally only permitted to testify as to matters within their knowledge as opposed to what may be of their opinion. It is for the jury as the trier of fact to arrive at a conclusion. In this regard, opinion evidence is an exception to the general rule. Where evidence of a scientific nature is adduced, an expert in that particular field may give evidence. This creates a specific problem in the context of criminal litigation, a difficulty that has been described as being cultural, namely, a clash between the scientific world accustomed to black holes and scientific revolutions and the legal world where such qualified certainties are not sufficient.

The general scheme of a criminal justice (forensic sampling and evidence) Bill was published in 2007. The proposals drew from the LRC's 2005 report and were followed by a consultation process during which submissions were received from a number of civil society groups. In 2006, a review was commissioned by the Government on the resource needs of the Forensic Science Laboratory and the wider scientific context, culminating in the production of the Kopp report. However, the general scheme was never published as a Bill and was the subject of numerous redrafting exercises in the years that followed. This delay was directly related to the close scrutiny of DNA databases at European level, with close attention paid to the decision of the ECHR and the UK's compliance with the judgment.

The Criminal Justice (Forensic Evidence and DNA Database System) Bill 2010 repeals the Criminal Justice (Forensic Evidence) Act 1990 and partly gives effect to the Prum Council decision of 2008. The purposes for which the DNA database is established is restricted to the investigation of criminal offences, the finding or identification of missing persons, the seriously ill or severely injured who are unable to indicate their identity and the identification of the bodies of unknown deceased persons.

It is beyond the scope of this paper to engage in a section-by-section analysis of the Bill. The principal themes will be addressed, looking in particular at the proposed content of the database, the collection of samples for the purposes of extracting profiles and the data retention regime to be put in place. The current framework surrounding DNA is provided by the 1990 Act, as amended by section 14 of the Criminal Justice Act 2006, which regulates the taking of bodily samples for forensic testing and applies where a person is in Garda custody under section 30 of the Offences Against the State Act 1939, section 4 of the Criminal Justice Act 1984 or section 2 of the Criminal Justice (Drug Trafficking) Act 1996 or where a person is in prison and would, but for that imprisonment, be liable to be arrested and taken into custody for an offence under these Acts. The taking of samples under the 1990 Act is confined to the taking of samples for evidential purposes. It is used in tandem with the taking of samples on a voluntary basis under the common law.

The DNA database will consist of two divisions, namely, the investigation and identification divisions. The investigation division will consist of three separate indexes, each populated with profiles from different categories of person. The reference index, provided for in Parts 2 and 4 of the Bill, consists of profiles generated from the samples of offenders, both adults and children, former offenders within the meaning of the Bill and the bodies of deceased persons who are suspected of having committed an offence. These provisions are laid out in sections 30 to 34, inclusive. Profiles generated from samples collected from those detained in custody on suspicion of having committed a relevant offence under Part 2 of the Bill may also be entered on the index. Suspects include persons arrested on suspicion of having committed a relevant offence and detained under section 30 of the 1939 Act, section 4 of the 1984 Act, section 2 of the 1996 Act or section 50 of the Criminal Justice Act 2007.

For the most part, the offences concerned carry a maximum sentence of five years or more, with a limited number of exceptions in the case of the 1939 and 1996 Acts. This represents a key difference in the proposed Irish regime in comparison to that of England and Wales, which concern all those arrestees suspected of committing a recordable offence, namely, all offences above a minor threshold. The taking of blood or urine samples is provided for under other statutory frameworks, such as the Road Traffic Acts, for the investigation of offences carrying lesser penalties. These will not be concerned by the Bill unless they fall within the offences defined in the four sections listed. An example would be the offence of dangerous driving causing death, which carries a maximum penalty of ten years.

Under the Bill, offenders include those who are still serving a sentence before the commencement of section 30, who are sentenced after commencement and those prisoners transferred to the State under relevant legislation in respect of an offence that corresponds with a relevant offence under the Bill. Also included are all those on the sex offenders register. A similar regime is to be put in place in the case of child offenders, although the word "child" is to be understood in light of the fact that section 155(2) of the Children Act 2001 allows certain offenders detained in child detention schools to remain there for a period of up to six months after attaining the age of 18 years.

Former offenders are those persons who are no longer subject to a sentence for a relevant offence or are no longer on the sex offenders register. This definition is subject to a number of exceptions, as some categories of person who have served a sentence are not categorised as former offenders for the purposes of the Bill. This includes someone whose DNA profile is already on the reference index of the DNA database and in respect of whom the Garda or a District Court judge is not satisfied that it is appropriate for a sample to be taken. In this instance, the number of relevant factors to be taken into account are listed in section 32(2)(b). Another category applies to people who are not ordinarily resident or have a principal residence in the State. Another exception applies if a period of ten years has elapsed since the expiry of the last sentence for a relevant offence or since the last notification period in the case of sex offenders. In the case of child offenders, only those convictions handed down that were triable in the Central Criminal Court are eligible for consideration, as well as any other offences prescribed having regard to their nature and seriousness. Failure or refusal to comply with the provisions of Part 4 constitutes an offence.

Section 34 of the Bill allows a garda of at least superintendent rank to apply to a District Court judge for an order to take a sample from a deceased person where the garda has a reasonable belief that the person committed a relevant offence and that creating a DNA profile for comparison would further the investigation of that offence. However, this section does not authorise the exhumation of the body of a deceased person relevant to section 34(15). While the profiles of volunteers are gathered only in respect of a particular investigation, volunteers may specifically consent to the entry of their profiles on the reference index.

The elimination index provided for in Part 5 of the Bill consists of profiles generated from samples collected from persons who, in the execution of their duties, are considered to be at risk of inadvertently contaminating crime scene samples with their DNA. There are three strands to the elimination index, those being, gardaí, crime scene investigators and prescribed persons. The crime scene index will contain profiles generated from samples found at or recovered from crime scenes, including samples generated before the commencement of the Bill.

The identification division will consist of the missing and unknown persons index of the DNA database, as provided for in Part 6 of the Bill, and refers to profiles generated from samples collected from missing persons, seriously ill or severely injured persons who are unable by reason of illness or injury to identify themselves and from unknown deceased persons. Under the 1990 Act, where a person is detained in Garda custody in the circumstances mentioned, a garda or medical practitioner, complying with appropriate safeguards and procedures, may take a bodily sample for the purposes of forensic testing. The Act draws a distinction between samples that require consent to be taken and samples that do not require consent. Section 2 of the 1990 Act lays out the requirements to be met by the Garda before they take a sample. Following amendments to the 2006 Act, taking samples of saliva or mouth swabs no longer require consent.

Part 2 foresees the collection of samples in respect of detention on a similar statutory basis to the 1990 Act, with the addition of a person detained under section 50 of the Criminal Justice Act 2007, which generally carries a maximum sentence of five years or more imprisonment.

The Bill, similar to the 1990 Act, differentiates intimate from non-intimate samples and imposes differing consent and authorisation regimes to each category. Intimate samples refer to samples of blood, pubic hair or urine, a swab from a genital region or a body orifice other than the mouth or a dental impression. Non-intimate samples on the other hand, refer to samples of saliva, hair (other than pubic hair), a nail or a skin impression, such as a footprint or a fingerprint. In addition, specific authorisation and consent regimes are envisaged for protected persons, 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 to indicate consent. In the case of non-intimate samples information is to be given in a manner and language that is appropriate to the level of understanding of the protected person or child concerned and is age-appropriate in the case of a child. In the case of intimate samples distinctions are drawn among minors according to their age. For a child aged 14 or older the child's consent is required, along with that of a parent or guardian, or upon an order from a District Court judge, if required. For a child below the age of 14 consent of a parent or guardian or an order from a District Court judge is required.

Section 15 provides for a number of exceptions under which a parent or guardian may be excluded from giving consent, including where he or she is the victim of the offence, has been arrested in respect of the offence, is suspected of being complicit in the offence or is likely to obstruct the course of justice. Resort to an order of a District Court judge is provided for in the event that a parent or guardian cannot be located, refuses to attend the Garda station within a reasonable time, is excluded from giving consent under section 15 or refuses to give appropriate consent. The judge must take into account, where applicable, the reason for the parent's refusal, the nature of the offence, the best interests of the person concerned, the interests of the victim and of the protection of society. Non-intimate samples, that is hair or mouth swabs only, can also be taken from volunteers. The Bill also allows a sample of biological material to be taken from human remains to generate a DNA profile.

Section 19, similar to the 1990 Act, provides that a refusal to consent to the taking of a sample without reasonable cause may give rise to an adverse inference being drawn in subsequent criminal proceedings, which may in turn be treated as corroborating any evidence to which it is relevant. It cannot, however, be the sole or main basis of a conviction. However, the inference does not apply to protected persons or to a child under 14. Equally, it cannot apply to a child over 14 who gave consent but whose parent or guardian refused consent. Such inferences constitute an exception to the general principle that a suspect ought not to be obliged to provide evidence which may incriminate him or her.

Section 24 provides that in the case of a non-intimate sample, reasonable force may be used to collect a sample if authorised by a garda not below the rank of superintendent when the detained person is informed in advance of the intention to use reasonable force and the taking of a sample in such circumstances is video-recorded. Special provisions apply to the use of force on protected persons and children over the age of 12. Use of force is not allowed in the case of children under 12. Provisions are also set down for re-taking a sample in the event that it proves insufficient for forensic testing.

Sections 121 to 123 amend the Criminal Justice Act 1984 with respect to taking fingerprints and palm prints from persons arrested for the purpose of a charge.

I am concerned about taking a sample from a child between the ages of 12 and 18. Would the Minister consider prescribing a very clear schedule of exactly what this will entail? We must ensure that taking of a sample from someone between the ages of 12 and 18, where force is allowable, is very clearly prescribed.

I appreciate the need for the delay in introducing the Bill. The Garda have called for this legislation since the late 1990s and the Law Reform Commission paper dates to 2005. It was correct and appropriate not to advance the Bill until there was a determination by the European Court of Human Rights. It was appropriate to await the judgment on the methodology used in England and Wales.

Fine Gael broadly supports the Bill. Our greatest concern is with the use of reasonable force to take samples from people aged between 12 and 18. While the penalties are reasonable and necessary, severe penalties should be applied to those who use information gained from the DNA database incorrectly. If those two matters are appropriately dealt with, the Government will have significant support from Fine Gael.

See this speech in context