Noel O'Flynn (Cork North Central, Fianna Fail)

The establishment of Ireland's first ever national DNA database, as proposed in the Bill, is a positive development, on which I commend the Minister. It will provide a powerful tool to gardaí in their fight against crime by giving them access to unprecedented levels of intelligence. It will enable them to quickly identify offenders, make earlier arrests, secure more convictions and identify critical leads for investigations. As well as leading to greater efficiency in the use of Garda time and resources, it is expected that the database will also act as a deterrent to offenders and re-offenders.

To examine the functions of the DNA database in more detail, it is important to know exactly what it will do and who it will affect. The database will contain DNA profiles generated from biological samples. These samples will be taken from various categories of persons, including offenders, former offenders and those detained on suspicion of committing a serious offence, as well as volunteers and missing or unknown persons. For elimination purposes, samples will also be taken from persons involved in crime prevention such as members of the Garda Síochána.

A DNA profile generated from the sample will be placed on the database with samples collected from the crime scene. These profiles will primarily be used in the investigation and prevention of crime. The analysis of the material on the database will produce "hits" that may indicate a link between the person and crime scene or other offences in which the individual was previously involved but with which no link had previously come to light. This means that not only will these samples be used to solve current investigations but they will also go a long way towards solving cold cases.

Another important function of the DNA database is that it will help identify deceased and missing persons. Every year countless people go missing in Ireland. Anything that helps shed some light on these disappearances and assists the families of missing people should be welcomed.

As any episode of "CSI" will show - I do not know if the Ceann Comhairle watches the programme - DNA testing is a staple of modern crime investigations. Described as the single greatest advance in the search for truth since the advent of cross-examination, DNA testing has revolutionised criminal investigations the world over. Deputies will have noted the major role DNA testing has played in our criminal justice system in recent years. We were reminded of its importance during the high profile trial of Eamon Lillis who was convicted of the manslaughter of his wife Celine Cawley earlier this year. As a result of DNA testing, forensic scientists were able to offer a detailed interpretation of the way events unfolded on the fateful morning in question. DNA testing also played a major role in the successful conviction of Brian Hennessy of Windgap, County Kilkenny, for the murder of Sharon Whelan and her two daughters on Christmas Eve in 2008.

To fully evaluate the debate on DNA testing and the establishment of a database it is first essential to gain a basic understanding of what is a DNA sample. The terms "samples" and "profiles" are often bandied without many of us understanding the main differences between them. A DNA sample is a sample taken from an individual, such as a mouth swab, plucked hair roots or blood, which contains the DNA of the individual for analysis. The sample is retained by the laboratory in secure, sterile conditions and bar coded to enable the sample to be matched to the profile if necessary. A DNA profile, on the other hand, is defined as a numerical representation following analysis of a DNA sample.

In examining the benefits of establishing a new DNA database, it is worth looking across the water to see how the database in the UK works. The United Kingdom National Criminal Intelligence DNA Database, most commonly referred to as NDNAD, was the world's first national DNA database and was, until recently, the largest. The majority of the active criminal population is now believed to have its DNA recorded and in turn, profiled. According to recent figures, the UK database holds 5.6 million profile records from approximately 4.8 million individuals, a figure which equates to roughly 7.8% of the population.

Police forces across Britain use DNA profiles to successfully solve thousands of cases every year. The overall hit rate for 2008-2009 is almost 60%. The match rates are highest in the case of burglaries, criminal damage and theft from vehicles, and of vehicles, more than 75% of crime scene to subject matches in 2008-2009 arose from these categories of offences. By all accounts, the establishment of a DNA database has revolutionised the way in which police work is conducted in the UK. There is no reason we cannot expect the same kind of success here.

There has been much discussion, even here today, in the context of this Bill of the rights to privacy of the individual. Article 1 of the UNESCO Universal Declaration on the Human Genome and Human Rights, 1997 states:

The human genome underlies the fundamental unity of all members of the human family, as well as the recognition of their inherent dignity and diversity. In a symbolic sense, it is the heritage of humanity.

It is, therefore, important that this Bill strikes the right balance between the rights of the individual to privacy and the wider interests of society in preventing crime and disorder. This requires that we give due consideration to the retention periods proposed for both profiles and samples.

In drafting this Bill, it was initially intended that all samples and profiles would be retained indefinitely, but I note what the Minister stated today and what Deputy Rabbitte stated in his contribution. The position has been changed following a high profile case to which the other speakers referred, S & Marper v. UK in 2008 at the European Court of Human Rights. This case is critical to understanding the legal parameters of this Bill. As such, it is worth looking at it in some detail.

In S & Marper v. UK the European Court of Human Rights in Strasbourg ruled on the issue of DNA evidence and in particular, on the retention of DNA samples and profiles of those arrested but not subsequently convicted. At the age of 11, "S" was arrested for attempted robbery. Even though he was subsequently acquitted of the charge, his fingerprints and DNA samples were still taken. The other applicant, Marper had been arrested for harassment, and his fingerprints and DNA samples also taken, although the prosecution was subsequently discontinued. Both Marper and "S" applied to the English courts for their fingerprints and DNA samples to be destroyed but their requests were refused. This decision was upheld on appeal, both by the Court of Appeal and the House of Lords. The applicants then took their case to the European Court of Human Rights, where it was unanimously held that there had been an interference with the right to private life guaranteed by Article 8 of the European Convention on Human Rights and that such interference was disproportionate and unjustified by the competing interest of crime prevention.

This judgment has implications beyond the immediate issue of retention. It places the burden on the State authorities of demonstrating that a particular breach of Article 8 is justified. It introduced considerations of proportionality and tests such as necessity as well as consideration of the needs of particular groups, for example, children.

For further information on this - Deputy Rabbitte already referred to it - I recommend also that Members of the House refer to the excellent research done by the Oireachtas Library and Research Service. This can be found in its Bills digest series.

The European Court of Justice judgment has been examined closely by the Office of the Attorney General. It found this judgment can be relied on by the Irish courts. In light of this, it is now necessary to differentiate between samples and profiles. It is also necessary to differentiate between those who have been convicted and others. Finally, it is necessary to take account of particular concerns relating to specific groups such as children.

Reflecting this, the Bill now proposes a mixture of retention periods. In the case of convicted persons, samples will be destroyed after three years and profiles will be retained indefinitely. The profiles of child offenders will be destroyed ten years after the end of the sentence.

The situation surrounding the retention of suspects' samples has understandably garnered much attention. This Bill sets out that where suspects have not been charged or have been acquitted, their samples will be destroyed after three years. Profiles may be held for ten years or five in the case of children. The person in question, however, is permitted to apply to the Garda Commissioner before the expiry of the default periods for removal and destruction.

There is no doubt that these retention periods should be kept under constant review. I welcome that the Minister is required by the Bill to review the destruction/retention arrangements for samples and profiles within seven years, and at any other time which he considers appropriate.

Another issue which has come to my attention and must be looked at is the risk that the DNA profiles stored on the new DNA database will be used for purposes not originally envisaged. This is known as "function creep." It is important that we guard against any future erosion of individuals' privacy in this regard. Taking account of this, the Bill provides for the establishment of a DNA database system oversight committee. It will be the committee's task to ensure the database will only be used for the purposes for which it is intended - the investigation and prevention of crime and the identification of missing persons. It is the committee's job to ensure that this function creep is not allowed to take hold.

This Bill sets out that the oversight committee will be chaired by a former or sitting judge of either the Circuit Court or the High Court. Ex officio members will include the director of the Forensic Science Laboratory as well as a nominee of the Data Protection Commissioner.

The new national database will be operated by the Forensic Science Laboratory, which will be renamed and carry the Irish initials EFE. It will carry out the DNA analysis and communicate the results to the Garda.

I take this opportunity to commend the work of the Forensic Science Laboratory. Since its establishment in 1975, it has delivered world-class forensic services. It is involved in the investigation of murders, assaults, sexual offences, armed robbery, firearm offences, drugs offences, criminal damage, arson, explosives, hit-and-run traffic accidents, fraud and any other offences where physical evidence occurs. In 2008 alone, the laboratory examined more than 16,000 cases. I pay tribute to Dr. Sheila Willis, the Director General of the laboratory, Dr. Louise McKenna, the director of science, and Dr. Seán McDermott, the director of operations, for their contribution to forensic science down through the years.

It is also worth mentioning at this point that work is in progress on providing a new facility for the Forensic Science Laboratory. Notwithstanding current budgetary constraints, the project is being advanced as expeditiously as possible by the Office of Public Works. Having considered various options, it has been decided to locate the Forensic Science Laboratory to a new purpose-built facility on State land at the Backweston Campus in Leixlip, which is already the location of the State Laboratory and the Department of Agriculture, Fisheries and Food laboratories. This will maximise synergy between the expertise and resources of the various laboratories.

Naturally, the new laboratory will have the capacity to maintain and operate the new national DNA database. It is also important to note that despite the current downturn, Budget 2010 has provided €4.1 million for the development of the new DNA database. This, coupled with the fact that the Garda Síochána remains well resourced with a budget of €1.5 billion this year, shows that Government is fully committed to the prevention of crime in all its forms. The benefits of establishing an efficient and effective DNA database are manifold. It will help in the prevention and investigation of crime, provide critical leads in cold cases, help identify missing and deceased persons and will act as a deterrent to criminals. I have no doubt it will help to put Ireland at the forefront of forensics for the next number of years.

When this Bill was first announced by the Minister, I received a letter from a graduate of Cork University who graduated in chemistry and forensic science in May 2009. She pointed out in her letter that she had to travel to London to do a masters in forensic medical science as there were no postgraduate courses available in forensic science in Ireland. Members may be aware that forensic science related courses are being introduced here every year. University College Cork, Dublin Institute of Technology, the Institute of Technology Sligo, Institute of Technology Tralee, Institute of Technology Waterford and Institute of Technology Tallaght have all introduced such courses in recent years - I hope Deputy Charlie O'Connor is listening as I mention Tallaght. The introduction of these courses leads students to believe jobs will be available in the forensic science area. However, that is not the case. The young lady who wrote to me stated:

I recently researched jobs for forensic science graduates in Ireland and found that only one forensic science laboratory exists in Ireland, (in the Phoenix Park, Dublin) and they are currently not recruiting. I then proceeded to email them, and requested information on the type of qualifications and graduates they require and when would they be likely to be recruiting again. To date, I received no response.

I will not mention the name of the person who sent this letter to me, but she is from west Cork. I will e-mail this letter to the director of this project and I am sure she will be more than happy to forward information to this young graduate. We have no business running courses on forensic science if positions will not be available for them. The Minister told me that 50 people were recruited within the past 12 months for this project.

The national DNA database system in the United Kingdom is the leader of the world's databases, with those of the United States and Europe closely following. The UK's database is the largest of any country, with approximately 7% to 8% of the UK population on the database, compared to 0.5% in the USA. In the United Kingdom, the national DNA database has proved to be one of the most effective tools for the prevention and detection of crime. Maintenance and development of the database is one of the British Government's top priorities and the government and police have invested over £300 million in the system over the past five years. As well as an individual's DNA profile, information such as name, date of birth, gender, ethnic appearance, etc., is also inputted.

The database in the United Kingdom was set up in 1995 to store data derived from DNA profiles. It operates on the basis that identifying offenders more often and more quickly should lead to increased detection of crime and bring more offenders to justice. The DNA database is also intended to act as a deterrent to offending and re-offending. This, in turn, helps to raise public confidence by ensuring that those guilty of offending can be found and dealt with by the criminal justice system. The setting up of the database has revolutionised the way in which the police work to help protect the public. The majority of the active criminal population is now believed to have their DNA recorded and profiled. Police forces across Britain use DNA profiles to solve successfully thousands of cases every year. All in all, the United Kingdom operates an excellent and successful national DNA database system. This, in turn, puts the UK at the top of the list when it comes to solving crimes, catching criminals and clearing the innocent. Confidence in the DNA database in Britain is, therefore, understandably at an all time high. I have no doubt that once we establish our database, we will experience the same success. Therefore, I commend the Minister on bringing forward this legislation.

See this speech in context