Pat Rabbitte (Dublin South West, Labour)

Balancing the competing imperatives of preventing or solving crime and ensuring the protection of human rights is a perennial challenge for legislators, especially in the criminal justice area. At times of high emotion generated by a particular atrocity or controversy, it is difficult to find a sympathetic audience for articulation of the necessity to balance these competing imperatives. It is all the more difficult when standards in our society have plumbed the depths where violence is commonplace, the vulnerable are exposed and unlawful killings are a regular feature. We may add to this explosive cocktail the impulse of justice ministers to be seen to do something, to introduce tough legislative measures and to be presented as standing up to the criminal fraternity. Often, there is little substance in these measures other than the licence to rhyme off actions taken by the minister, even if they are futile, unenforceable or simply ignored.

The Bill is a meaningful innovation that will permit gardaí to take full advantage of DNA technology in the detection of crime. In the matter of creating a DNA database which will contain DNA profiles generated from biological examples, this question of balancing the competing imperatives I have spoken about is especially relevant.

Forensic science can use DNA in blood, semen, skin, saliva or hair found at a crime scene to identify a matching DNA of an individual, such as a perpetrator. The process is called genetic fingerprinting or, more accurately, DNA profiling. In DNA profiling the lengths of variable sections of repetitive DNA are compared between people. This method is usually an extremely reliable technique for identifying a matching DNA.

DNA can be collected from any of the cells mentioned above and from that DNA sample, a DNA profile can be established. DNA profiling is a biological identification system. It is based on showing a particular sequence of DNA being repeated a number of times. For example, "9" means the sequence is repeated nine times, "7" means it is repeated seven times and so on. The expansion of this system allows the build up of a full sequence which is then placed on a database. Samples can then be compared on that database and identical DNA samples can be detected. This would allow the relationship to be determined between a sample from a crime scene and that of a person suspected of being involved in the crime. Many cases are recorded where DNA has been a very useful tool in connecting a crime scene to the perpetrator of the crime. The chance of two unrelated individuals having matching DNA is reported to be of the order of one in 1 billion.

The Labour Party agrees that, in line with the primary objective of preventing and detecting crime, the gardaí should have at their disposal the benefits of modern science and technology. DNA profiling was developed as relatively recently as 1984 and the potential benefits of a DNA database are awesome. In this context of DNA science, the potential of this crime control technique is constrained by the absence of a permanent collection of reference profiles to which samples obtained at a crime scene can be compared.

The purpose of this Bill is to replace the existing statutory and common law arrangements governing the taking of bodily samples for forensic testing from suspects for use as evidence in criminal investigations and to provide for the establishment of a DNA database system for use by the Garda Síochána as an intelligence source for criminal investigations. A DNA database enables a person, not previously suspected of committing a crime, to be identified as the possible perpetrator of an offence or to exclude a person from further investigation.

It is also true that identification can be complicated if the crime scene is contaminated with DNA from several people. DNA samples are, therefore, capable of being compromised. Although the probability of two persons having the same DNA profile are very small, it is an important point of principle and for that reason conviction based solely on DNA should not be considered sufficient. Additional corroborating evidence should be required.

Internationally, the practice now is that people convicted of certain types of crimes may be required to provide a sample of DNA for a database. On the one hand, this has helped investigators to solve old cases where only a DNA sample was obtained from the scene. On the other hand, some convicted people in the United States have been released from prison on the basis of DNA techniques which were not available when a crime had originally been committed. Sometimes the guilty have been convicted; sometimes the innocent have been acquitted.

Human rights advocates have argued that storing the DNA of innocent persons is a disproportionate invasion of privacy when weighed against the actual convictions using DNA. The European Court of Human Rights, in the case referred to by the Minister of S and Marper in the UK, found that the law as it existed in England and Wales, under which DNA samples of people who are arrested but not charged or convicted can be retained indefinitely, constituted a disproportionate interference with the right to respect for private life and, therefore, violated Article 8 of the European Convention on Human Rights.

In regard to the above point, the issue referred to by Deputy D'Arcy of function creep is an important one. This means that gradually the DNA database might be used for additional reasons other than those originally intended. This needs to be carefully monitored - for example, if DNA could be used to determine health risks or genetically determined diseases, this might have implications for getting life insurance cover or for obtaining a mortgage, although the banks are able to determine this at the moment without the benefit of DNA.

It is beyond question that the technology will continue to develop and evolve and more sophisticated systems will emerge for analysis of the DNA, providing more and more detailed information which has the potential to discriminate or exclude certain categories of people in a most unfair manner.

There is no question about the intrinsic value of DNA in the solving of crime, clearing a person's name, aiding identification, tracing a missing person and so on. It is a question of striking a balance between the values outlined above and ensuring the right to privacy of the individual.

The right to privacy was first recognised by the Supreme Court in Kennedy v. Ireland where the unlawful tapping of the telephones of two journalists was held to be a violation of the individuals' right to privacy. The privacy commissioner of Canada, for example, has observed that, "No surveillance technology is more threatening to privacy than that designed to unlock the information contained in human genes".

The right to privacy is implicated in a number of ways by the establishment of a national DNA database. First, by the taking of samples and second, by the retention of samples and the profiles derived from them which, in some circumstances, may be for an indefinite period of time. Also, the exchange of DNA samples or information based upon them between the original custodians of the DNA sample or profile and law enforcement agencies in other jurisdictions.

There are a number of important judgments handed down by the European court in the area of privacy and, as the Minister said, the most important of which is S and Marper v. UK. As a result, the importance of having clear detailed rules that govern the scope and application of measures that allow for the taking of bodily samples and the creation of DNA profiles as well as minimum safeguards concerning duration, storage, usage, access to third parties and procedures for preserving the integrity and confidentiality of data and procedures for its destruction.

Sections of the Bill that will require focus on Committee Stage include the provisions for the taking of samples from various categories of persons - for example, those in Garda custody - a person in prison, the taking of intimate samples for evidential purposes, taking a sample from a child and the need for the presence of a parent or guardian, taking samples from a protected person, the use of reasonable force, the retaking of a sample, taking samples from volunteers, mass screening of persons - for example, by time, age, sex, geographic basis and so on.

I welcome the provision for the appointment of a committee to oversee the management of the database system. However, I cannot see any definition of what category of person might be appointed to such a committee in terms of, for example, what qualifications they might have. The Minister referred specifically to the fact he intends to include a person from the Office of the Data Protection Commissioner, which I welcome. However, given the technical nature of the process, there should be some indication of the competences required for membership of that committee.

The establishment of a DNA database is expensive and requires careful management. Oversight of the collection, storage management and so forth is critical and should be rigorous. In this context it is worth noting the comments of the European Court of Human Rights in the S and Marper case. In particular, the court stated that "bearing in mind the rapid pace of developments in the field of genetics and information technology, the Court cannot discount the possibility that in the future the private-life interests bound up with genetic information may be adversely affected in novel ways or in a manner which cannot be anticipated with precision today".

In its remarks on the Bill, the Minister's favourite civic society organisation, the Irish Council for Civil Liberties, ICCL, acknowledges that the Data Protection Commissioner and Irish Human Rights Commission were consulted on the Bill and "many human rights benchmarks have been incorporated". The ICCL, however, raises raise a number of concerns which will require to be teased out on Committee Stage.

I refer to two such concerns. The first relates to the retention and destruction of samples, on which the ICCL states:

At certain stages, a person whose data has been retained in the database system may apply to the Garda Commissioner requesting its removal and the Commissioner must give reasons why this request cannot be facilitated. Notwithstanding that, the Bill also contains default periods for the removal of DNA data. Under Part 10 of the Bill, the default retention period for samples taken for evidential purposes is 3 years and 10 years for profiles which are entered in to the database system. However, under s. 8, the Commissioner can apply to the District Court to retain a sample beyond the default period. The samples of convicted persons can be retained indefinitely except for child offenders whose details may be removed after 10 years.

However, the samples retained relate to a range of offences, some of which, although they may potentially attract a prison sentence of 5 years or more, are not of a violent or sexual nature. Sampling applies to offences where a person can be detained under s. 4 of the Criminal Justice Act 1984. The ICCL questions the compliance of this provision with the ECtHR judgment in S and Marper given that the system most favoured by the ECtHR was the Scottish framework. In Scotland, DNA samples are only retained in respect of unconvicted persons where there was suspected involvement in violent or sexual crimes.

I ask the Minister to respond to this point.

I share Deputy D'Arcy's concern regarding the position of children, an issue we will have to address on Committee Stage. The second concern raised by the Irish Council for Civil Liberties relates to mass screening and volunteers and concerns the provision in Part 3 under which volunteers may be approached by a garda or authorised person for DNA sampling in the investigation of a particular offence. These samples will not be entered into the DNA database system unless consent of the volunteer is provided on request. The ICCL argues that the Bill does not incorporate sufficient safeguards in relation to this consent. I ask the Minister to respond on this point.

A more detailed and comprehensive critique of the Bill has just now come to hand from the Irish Human Rights Commission. Committee Stage may be the more appropriate forum for teasing out a number of matters raised by the commission in its submission.

I thank the Library and Research Service for its work on the Bill. The service continues to do good work in making legislation accessible in technical areas such as this. I also thank the Minister and his officials for the detailed presentation on the Bill. It is an intelligible and accessible explanation of the purpose of the Bill and what it seeks to obtain under the different divisions. It will be helpful when we try to frame amendments for Committee Stage.

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