Aengus Ó Snodaigh (Dublin South Central, Sinn Fein)

Fáiltím roimh an deis labhairt i dtaca leis an Bhille seo. Mar atá sé dréachtaithe faoi láthair, ní féidir liom tacaíocht a thabhairt don Bhille. Cosúil le móran rudaí eile i dtaobh ceisteanna dlí agus cirt, caithfear iarracht cothromaíocht a shroicheadh idir cearta acu siúd atá á gciontú agus cearta an sochaí agus an íobarataigh atá tar éis fulaingt de thairbhe cibé coir atá i gceist.

Go minic is deacair an chothromaíocht sin a fháil i gceart agus sin an dúshlán dúinn mar pholaiteoirí ná iarracht i gcónaí a dhéanamh an chothromaíocht sin a fháil agus córas dlí agus ceart foirfe a bheidh cothrom agus a dhéanann i gcónaí iarracht a bheith cothrom a chruthú.

Bíonn sé deacair nuair atáimid ag déileáil leis a leithéid de reachtaíocht nuair atáimid ag déanamh ionsaí de shórt ar chearta íobartaigh nó cearta siúd atá á gcúiseamh againn. Níos luaithe inniu, bhímid ag trácht ar ghné eile den chóras dlí agus cirt agus bhí fadhbanna agam sa mhéid agus a bhí sa Bhille ach d'fháiltigh mé roimhe don chuid is mó.

Tá fadhbanna agam leis an reachtaíocht seo. Ní féidir liom tacaíocht a thabhairt dó mar atá sé dreachtaithe faoi láthair. Tá súil agam go mbeidh an tAire in ann athruithe a chur isteach ar Chéim an Choiste nó ar Chéim na Tuarascála a athróidh an meon atá agam agus atá ag mo pháirtí ina leith.

Sinn Féin believes the lawful and effective collection and use of forensic evidence from crime scenes, victims and suspects is crucial for obtaining sound convictions that are not based on confession or witness evidence alone. Basing a conviction on confessional evidence alone was a practice which was widespread and led to abuse of due process rights in the past in some jurisdictions. It has led to the conviction of many an innocent person in this and our neighbouring jurisdiction.

In some cases forensic evidence can also be crucial to avoiding wrongful conviction where the true culprit evades justice but that said, the potential of forensic evidence and DNA databases should not be presented to the public as anything more than what it is. Forensic evidence and associated databases may assist in the detection and prosecution of some offences but they will not ultimately reduce crime. Crime prevention requires a well resourced and holistic response to its individual and systemic causes, something which this Government has failed to implement, despite all its tough talking.

Even when it comes to the detection of criminals, the potential of a DNA database should not be oversold. It is not the be all and end all and it will not solve everything. The overall "hit" rate of crime scene matches was quoted by the last speaker and others who read from the Oireachtas Library-produced Bill digest in some length.

The hit rate of crime scene matches to suspects on the database in England and Wales for 2008 and 2009 stands at 60%. This sounds fantastic and any crime detection force in the world, including An Garda Síochána, would love that to be true. However, upon further investigation we see that the match rate is only for cases where DNA is actually obtained from a crime scene, the number of which is extremely low. Only 17% of cases ever have a full crime scene investigation and even fewer yield accessible forensic material. The match rate also includes DNA belonging to individuals whose presence can be innocently explained away.

This means the process is not the be all and end all and gardaí and members of other police forces should be aware of that. Ultimately, it is good and strong investigative techniques and proper Garda and police work that often yields better results than dependence on DNA or forensic evidence. It is a useful tool and should be used as such.

It must not be forgotten that forensic evidence is ultimately presented as opinion evidence to the court. Expert opinion, such as that of the scientific community, in this field is often diverse and divided. It is not an exact science, if there is any such thing as an exact science. For example, low copy number DNA is inadmissible in many jurisdictions, yet it has been used as the basis for prosecutions in others. Low copy number DNA was at the centre of controversy in Ireland during the Wayne O'Donoghue trial and in the Omagh bombing case. There are dangers in blindly accepting DNA, as some people would like us to do.

Blind and unthinking enthusiasts of DNA databases will often argue that "if you have nothing to hide then you have nothing to fear", but that simply is not the case. DNA databases can put innocent people at risk. This is particularly so as technology has developed to allow a generation of DNA profiles from the tiniest of DNA samples. In the Omagh bombing case, low copy number DNA evidence produced a partial match to a six year old schoolboy in Nottingham who was on the British database. He was quickly eliminated from the investigation, but what if he had been an innocent man in his twenties living in the Border counties? Would he have been quickly disregarded, or would the police have relentlessly circled in on him? Would he be in the dock by now? We do not know.

The link between the presence of DNA at a crime scene and involvement in that crime is far from straightforward. There is a danger that entirely innocent individuals will find themselves the targets of "eager beaver" prosecutors. For example, the Minister of State here today might shake the hand of the Minister for Justice, Equality and Law Reform, who might then go and commit a crime, leaving his skin cells at the scene. If the Minster of State's DNA was on the database, he might be drawn into a criminal investigation into something about which he knew absolutely nothing. The Garda might be prompted to come kicking his door down instead of the Minister's door. That could be a consequence of total dependence on DNA. It is a developing science and we need to bear that in mind.

Public education is also needed to limit the inflated and false expectations of forensics raised by popular television programmes such as "CSI Miami". The virtually infallible, precise technologies and unlimited resources depicted are generally not available to the Garda, nor to the State Laboratory. I remember asking the then Minister for Justice, Equality and Law Reform, former Deputy Michael McDowell, about the situation with the State Laboratory in 2002. He told me that the money was budgeted for it and that it would be built within four years on the site in the Phoenix Park. There is neither sight nor sound of it at this stage. The sod has not been turned and now it is being located elsewhere. It looks like it will be part-privatised to allow the private sector to deliver a service that was protected within the public service. We will try to ensure on Committee Stage that there is no privatisation of our justice system. Other jurisdictions have discovered that the influence of programmes such as "CSI Miami" has led to widespread misconceptions and expectations. Programmes such as "CSI Miami" put expectations on gardaí that once they get to a scene, they will be able to find evidence and get a quick conviction. We need education to ensure that not only the public, but jurors and victims question the misconceptions out there. The truth about the ability of forensic laboratories and the lack of resources in a small country like Ireland needs to be explained to the public.

Education and training for investigative and prosecuting authorities is also essential. There is a real danger that a forensic hit on a database will blinker an investigation, causing the Garda to disregard other important but non-forensic leads. Detectives in England used DNA from a hair caught in a rape victim's jewellery in 2007 to charge and prosecute a man for rape. The case fell apart when it came to court. The man in the dock was white, small and slim, but the victim had described her attacker as black, large and tall. That was a basic error, yet the police thought they had the right man based on DNA evidence. Somebody obviously forgot to read the victim's statement. I hope that never happens in Ireland, but it is part of the challenge we face when we produce a database and begin to depend on forensics.

It is also possible for a person's DNA to be placed at a crime scene, either by corrupt gardaí, by rival criminals, or by innocent transfer. False DNA traces can be planted. For example, a cigarette butt can be lifted and left at the scene of a crime. It is a bit more difficult, but Ben Goldacre of The Guardian has shown that fingerprints can also be planted at crime scenes.

Find a fingerprint on glass, paint it with Super Glue to make it more visible, photograph this with a digital camera, print it off on a transparency sheet, etch this with a beginners etching kit, use that as a mould to make a fake finger out of a fruit pastille and hey presto, you can plant someone else's finger print and eat the evidence once you're done!

This sounds far fetched, but is has been done. We can go back to those programmes that show how fingerprints have been used to gain access to computers and the like, and how some of the most expert criminals in the world can reproduce the fingerprints of people who do not know those criminals.

DNA can assist in proving a case either way. It can help to establish innocence as well as guilt. Will the Minister of State confirm whether this Bill establishes a right of access to DNA evidence post-conviction? Can those who have been wrongly convicted appeal based on the availability of DNA? This right was at the centre of a recent legal challenge in the US, where Alaska and six other states did not allow such access. The Innocence Project took a case on behalf of a convicted rapist who was convicted on the basis of DNA testing which showed that semen found at the scene of the crime was consistent with his own, but also consistent with that of 16% of the African-American population. After being convicted, he sought to pay for more exacting DNA testing which could have proved more conclusively whether the semen was his or not, but the Alaskan state refused his request. This was somebody who tried to prove his own innocence by using material held by the state on a database, yet he did not receive that access.

Having made some general cautionary comments about the use of forensic evidence and DNA databases, I wish to address the precise retention regime contained in the Bill before us.

It is my opinion that the regime is disproportionate and that it appears to have been arrived at arbitrarily. In that context, I remind the House that the European Court of Human Rights, in its judgment in the case of S. and Marper v. the United Kingdom, slammed the retention regime in England and Wales, particularly as it relates to those who have not been convicted of an offence. I am of the view that, if tested, the legislation before the House will also fall foul of that judgment. After the ruling to which I refer, the British Government considered changing its regime from one which principally involves indefinite retention of all profiles to one which retains the profiles of those who have not been convicted for six years. England's Equality and Human Rights Commission evaluated that proposal and indicated that six years did not represent the balance required by the judgment in S. and Marper v. the United Kingdom. Such a period is too long.

The Minister for Justice, Equality and Law Reform is proposing in this Bill to retain the DNA profiles of those who have not been convicted for ten years. Some of these people will actually have been acquitted or will even have been proven to be the victims of miscarriages of justice in that time. In addition, he is also seeking to retain the actual DNA samples of those who have not been convicted for three years. Surely the retention times in these cases should be linked in some way to whether they are required for a prosecution.

In S. and Marper v. the United Kingdom, European Court of human rights pointed to the Scottish retention regime as being preferable. In Scotland, DNA samples and profiles must be destroyed in cases where a prosecution results in an acquittal or where no prosecution occurs. In the case of sexual or violent crime, DNA may be retained for up to three years and the authorities may then apply for an extension beyond three years on a case-by-case basis. Such requests are subject to judicial oversight.

The relevant offences included in the Bill before the House may be narrower than those that come into play in England and Wales. However, they are not exclusively limited to sexual or violent crimes. At the very minimum, the Bill, and the retention timeframes and relevant offences, should be amended to bring it closer in line with the Scottish regime.

There is an international component to the Bill, which implements the Prüm decision which allows for the automatic searching of the databases of other member states. Article 3 of that decision provides that "Searches may be conducted only in individual cases and in compliance with the requesting Member States national law". However, the relevant laws, particularly those relating to privacy safeguards, are not harmonised across member states. On numerous occasions I have stated that harmonisation of the protections relating to databases and access relating thereto is required. I refer, in particular, to justice databases held by police forces.

The Government's primary responsibility is to the citizens of this country. The Bill should be amended to ensure that the national law of our State should apply to searches on our databases. Is the Minister aware of a note from the Presidency of the European Council to the ad hoc group on information exchange last December? This note states that the databases of smaller states are being damaged by overwhelming searches carried out by the authorities of larger states. Germany, Spain and Italy were identified as the culprits in this regard.

The Department of Justice, Equality and Law Reform's regulatory impact assessment predicts this legislation will give rise to €3 million in capital costs and that there will be an annual cost of €1.5 million in respect of its implementation. This is an underestimation, particularly in view of the fact that intensive and refresher training courses will be required for all those involved in administering justice throughout the State. There will also be a financial impact in the future in respect of the construction and fitting out of the State's forensic laboratory. I am not complaining about such expenditure, I am merely stating that the amounts involved have been underestimated.

Whatever amount of money is required should be spent in order to ensure that we have the best possible forensic laboratory in order to properly assist An Garda Síochána in its work. The State Laboratory cannot keep up with the number of requests for analysis submitted to it at present in respect of drug seizures. The Minister for Justice, Equality and Law Reform will be aware that the State Laboratory cannot analyse quickly enough the drugs which are being found in shipments and confiscated by An Garda Síochána, customs officials, etc. As a result, delays are being experienced in the context of processing cases.

Unless we take a decision to properly fund and resource the existing State Laboratory and the new forensic laboratory, there will be no point in passing the legislation because a disservice will be done to those who believe that the forensic and DNA database will be of benefit. If we do not provide sufficient funding or if we fail to put in place the safeguards to which I refer, we will do a disservice to the cause of justice in the State.

Does the Bill provide protection against the potential damage caused by the authorities in other countries continually requesting searches of our databases? How much time will be set aside in respect of such searches? How much access will be granted? Will the relevant databases have the capacity to accommodate numerous requests from abroad? Will the necessary personnel be available to monitor or assist the searches to which I refer?

The Bill should require that states may not request a search of our database until they have first searched their own databases. We should require that the offence under investigation be serious in nature and that a state should be obliged to demonstrate that an existing line of inquiry points in the direction of our State. It should not be the case that other states be permitted to carry out trawling exercises in respect of our databases.

The Human Rights Commission and the Irish Council for Civil Liberties, ICCL, have put forward a range of recommendations, which I wish to endorse. I urge the Minister to consider these recommendations to discover whether they can be taken on board in order to ensure that when we have completed our deliberations we will be left with legislation which is comprehensive and which will deal with the issues at hand. In other words, we should end up with a DNA database system that will stand the test of time in the context of ensuring that data will be safeguarded, the innocent protected and criminals prosecuted.

In its recommendations, the Human Rights Commission stated:

The 2010 Bill should provide that except in limited cases, bodily samples and DNA profiles should be destroyed and removed as soon as reasonably possible in circumstances where no proceedings have been instituted against a person, they have been acquitted, the charge has been dismissed or proceedings discontinued.

The power to take intimate and non-intimate bodily samples solely for the purposes of the entry of a DNA profile on the DNA Database System and not in furtherance of a specific criminal investigation should be removed from the 2010 Bill (section 11).

The proposals in the 2010 Bill in relation to negative inferences to be drawn from an accused person's failure to consent to the taking of intimate bodily sample should be removed from the 2010 Bill.

If the above recommendation is not accepted, a person should be entitled to have full access to legal advice as a matter of course before they can be requested to consent to the provision of an intimate bodily sample so that they can fully understand the implications of refusal to consent to the provision of intimate bodily samples where negative inference provisions apply.

Where it is not possible to ensure the presence of a parent or guardian, the "nominated adult" who is present during the taking of a sample from a child or protected person should be a social worker or other qualified professional who is not a member of the Garda Síochána. (Sections 21 and 22 should be amended accordingly.)

Bodily samples and DNA profiles of children and protected persons should be removed and destroyed as soon as reasonably possible in circumstances where no proceedings have been instituted against a person, they have been acquitted, the charge has been dismissed or proceedings discontinued. In the context of children, bodily samples and DNA profiles should always be removed as quickly as possible.

The parts of the 2010 Bill that allow for the search and comparison of DNA profiles amongst EU Member States should not be brought into force until the Irish Government has implemented the EU Council Framework Decision on the protection of personal data in the field of police and judicial cooperation in criminal matters into its domestic law.

The ICCL recommends that:

Under Part 3 of the Bill, volunteers may be approached by a Garda or authorised person for DNA sampling in relation to 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. However, the Bill does not incorporate sufficient safeguards in relation to this consent. The person should be told in ordinary words, in a language that he/she understands, of the consequences of agreeing to inclusion of the DNA database system. He or she should also be afforded the opportunity to seek advice on the matter.

The ICCL welcomed the establishment of an independent oversight committee and the inclusion on it of a representative from the Office of the Data Protection Commissioner. The Minister for Justice, Equality and Law Reform will appoint the members having regard to their qualifications and experience, but the ICCL considers that an independent appointment process should be established and that it should be mandatory to include a member with human rights expertise.

See this speech in context