Alan Shatter (Dublin South, Fine Gael) | Oireachtas source

I move: "That the Bill be now read a Second Time."

The Criminal Justice (Forensic Evidence and DNA Database System) Bill 2013 is landmark legislation. It will, I believe, prove to be the most important Bill introduced into this House during the lifetime of the Government in the provision of assistance to An Garda Síochána in the investigation of serious crime and identifying serial offenders across a broad range of areas, including homicide, rape, sexual and other serious assaults and burglary. The Bill not only provides for the establishment of a DNA database to assist the Garda in the investigation of serious crime but will also assist in finding and identifying missing or unknown persons. It will also play a crucial role in the investigation of what have become known as cold cases, the identification of perpetrators and their being brought before our courts. In addition, it will be of assistance in cases where there is an alleged miscarriage of justice by providing crucial information to assist in the determination of whether an individual has been wrongly convicted and imprisoned. The Bill also replaces the legal framework for the collection of forensic evidence from suspects and puts it on a statute-only footing. In essence, this measure will provide crucial assistance to the Garda in vital areas for decades to come.

The establishment of a DNA database is long overdue. While in Opposition, I campaigned for the introduction of such a database. Its establishment is a commitment in the programme for Government. On becoming Minister for Justice, Equality and Defence in 2011, I prioritised the introduction of comprehensive legislation to facilitate the optimal use of DNA in the fight against crime and to enhance co-operation with EU Member States and other countries. In doing so, I was conscious that the legislation should fully respect human rights. I believe that the legislation before us meets these objectives and strikes the right balance between them. I want to put on the record of this House my thanks to the officials in my Department and those in the Attorney General's office engaged in the substantial work required to bring this comprehensive measure before the House.

Significant benefits will arise from the enactment of this legislation and the establishment of a DNA database. As Deputies will no doubt be aware, the usefulness of a DNA database comes from its capacity to link crime scenes and to identify suspects for unsolved crimes. This type of intelligence will be invaluable to the Garda in relation to identifying prolific offenders involved in volume crime such as burglary but also in relation to serious offences against the person, such as homicide and sexual offences. It will also contribute in the move towards more effective, targeted and smarter policing and will facilitate co-operation with other police forces in relation to criminals who travel from one country to another to engage in criminal acts.

During preparation of the Bill, I was anxious to ensure that everything necessary was done so that, without undue delay following its enactment, the Garda would be able to avail of the assistance provided under the Bill in the crucial work in which they are engaged on a daily basis. Despite the financial limitations by which we have been constrained since taking up office, the Forensic Science Laboratory was furnished with resources for the necessary specialist staff and to allow for the purchase, installation and validation of sophisticated robotic sample handling instruments to cater for high throughput of samples. These are now in use and will be capable of processing the anticipated increased submissions associated with a national database. The Forensic Science Laboratory has also been resourced to purchase an information management system to track all cases and samples from log-in at the laboratory, through all examinations to disposal and despatch on completion and the installation of this system is in progress.

I take this opportunity to thank Dr. Sheila Willis and all of those who work with her for their skill and expertise and the extraordinary assistance they give on a daily basis to An Garda Síochána and for the work undertaken by them in preparation for the enactment of this measure. Unfortunately, the Bill published by my predecessor in 2010 had many flaws and inadequacies. While the Bill before the House incorporates much of the 2010 Bill, it contains substantial amendments aimed at addressing issues of genuine concern, particularly in relation to the retention of the samples and DNA profiles of persons who are not subsequently convicted. The Bill also contains more comprehensive provision in the area of international co-operation, to which I referred earlier. It is also worth saying that the passage of this Bill will facilitate the State in meeting its obligations under EU law and any international agreements which require the State to maintain DNA and fingerprint databases for criminal investigation purposes and facilitate the searching, on a reciprocal basis and under strict conditions, of other States databases. I draw the attention of Deputies to Schedules 2 and 3 where the texts of the Prüm Council Decision and the agreement between the EU and Iceland and Norway applying aspects of the Prüm Council Decision are set out for ease of reference.

The Bill comprises 157 sections, 12 Parts and three Schedules. Given its size, I propose to focus on the key elements in the legal framework for the taking, use and destruction of samples. There will, of course, be an opportunity on Committee Stage to discuss any other aspects of the Bill that Deputies wish to explore.

Part 1 deals with preliminary and general issues. I draw particular attention to sections 2 and 3 which provide definitions and interpretations that are central to understanding the overall framework of the Bill. Section 7 covers the necessary transitional arrangements between the existing regime and this legislation in order to protect, for example, proceedings underway based on bodily samples taken under the Criminal Justice (Forensic Evidence) Act 1990 or under common law powers.

Parts 2 to 7 contain important provisions as they set out the powers to take samples of various sorts from different categories of persons. Before outlining these powers it may be useful to make a few general points about sampling. First, 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 this will be either a mouth swab or plucked head hairs. These are the least intrusive types of samples and do not require medical input. Second, 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 the 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 and includes the generation of DNA profiles but is not limited to it.

Part 2 is concerned with the taking of samples from persons in Garda custody. It is important to note, however, that not all suspects in Garda custody will be subject to the Garda powers to take samples under sections 11, 12 and 13. As is the case under the 1990 Act, the powers only apply to those in Garda custody under one of the existing detention 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 prison sentence of five years or more, may be required to provide a sample.

Section 11 provides for the taking of samples from persons in custody for the purposes of the database, namely, the investigation of criminal offences generally. There is no requirement that they assist in the particular investigation at hand. Samples taken under this section will be instrumental in populating the database and ensuring its effectiveness as a source of intelligence. Bearing in mind the non-intrusive nature of the sample the consent of the suspect is not required. I would point out that the taking of samples under section 11 for the purpose of the database 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.

I also highlight for Deputies certain other limitations placed on the Garda powers created by section 11. These arise from the need to treat children and other protected persons with great care. In relation to 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. While the Bill does not make changes in this regard, it excludes child suspects under 14 years from the scope of section 11. This age threshold has been chosen as excluding all child suspects would, having regard to Garda experience, result in a very real loss of intelligence. Section 11(6) commits the Minister to review the operation of this overall section in respect of children after a period of not more than six years.

Protected persons are also excluded from the scope of section 11. For the purposes of the Bill, such vulnerable persons are defined as children or adults 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, irrespective of whether they consent to the taking of a sample.

Sections 12 and 13 provide for the taking of intimate and non-intimate samples, respectively, for use in evidence. Intimate samples include blood, urine, swabs from the genital regions and dental impressions. Due to their nature, such samples require the consent of the suspect and may only be taken by medical professionals. Section 12(7) and (8) clarify that consent may be withdrawn before or during the taking of the sample, either expressly or by implication, but cannot be withdrawn once the sample has been taken. In the event that a suspect refuses to give consent or withdraws consent, adverse inferences may be drawn from this in certain circumstances in subsequent proceedings.

Samples taken for evidential purposes under sections 12 and 13 must be authorised by a garda not below the rank of inspector who has reasonable grounds for suspecting the involvement of the person in the commission of a serious offence and for believing that the sample will tend to confirm or disprove such involvement.

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 as it could suggest to the jury that the accused had a previous criminal record or at least previous contact with the Garda. The added benefit of re-doing the forensic tests is that it acts as a quality control mechanism.

Section 24 provides for the use of reasonable force where a suspect refuses to allow a sample to be taken. I stress, however, that this section only applies to the taking of non-intimate samples and its application is subject to certain safeguards. Authorisation for this action must be given by a Garda member not below the rank of superintendent and must be carried out in the presence of at least a Garda inspector. The section does not apply to the taking of a sample from a child under section 11 for the purposes of the database but is available for the taking of non-intimate samples from child suspects and protected persons where they are required for evidential purposes. The Bill applies additional safeguards for the use of reasonable force in relation to such persons. The taking of samples under reasonable force must, in all cases, be video recorded.

While the vast majority of samples taken for the purposes of criminal investigations will be taken from suspects or convicted persons, provision is made in Part 3 for the taking of samples by consent from volunteers - people who are not suspects or convicted persons, including victims of an offence or incident - for the purposes of a particular investigation.

Part 3 also provides for mass screenings. This involves inviting a group of individuals, determined by reference to particular characteristics such as age, gender or a geographical area in which they reside or work, to provide samples for an investigation of a particular offence. While the decision to carry out such a screening is essentially an operational one, due to its cost and intrusive nature, authorisation by a chief superintendent is required. Under no circumstances will the DNA profile of a participant be entered in the DNA database. However, 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 contained in Part 2 will apply.

To avoid the perception that a refusal to volunteer a sample may be used to ground the arrest and detention of the person in connection with the offence concerned, the Bill specifically provides that a refusal to consent to the taking of a sample shall not of itself constitute reasonable cause for a member of the Garda to suspect the person of having committed the offence concerned for the purpose of arresting and detaining him or her in connection with the investigation of that offence.

Part 4 is an important part of the Bill in terms of populating the database and ensuring 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. Should an offender not co-operate, reasonable force can be used where necessary following authorisation at governor 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, albeit with additional restrictions in relation to the use of force to take a sample from a child in a children 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 who have been subject to the sex offender registration requirements and continue to be of interest 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 ordinarily resident or have their principal residence here, regardless of where they were convicted. It is important to be aware of the risks posed by mobile former offenders. Giving the Garda the power to require such persons to provide samples for the database goes some way towards mitigating those risks.

The provisions in Part 5 arise from the expansion of the use of DNA technology. It is necessary to provide for the possibility of accidental contamination of a sample by a person who, in an official capacity, attends at a crime scene or handles a crime scene sample at any stage. If such accidental contamination is not identified, it may lead to the Garda wasting time and effort investigating unidentified crime scene profiles which relate to a garda who investigated the scene or a member the staff of the Forensic Science Laboratory who examined items taken from the scene or a scientist or pathologist dealing with the case. The Bill, therefore, sensibly provides for the taking of samples from such persons. The profiles created will then be available to be searched against unidentified profiles from particular crime scene stains for the purposes of elimination from any further consideration in the context of the investigation.

The Forensic Science Laboratory is being renamed Forensic Science Ireland or FSI under section 157 to better reflect the range of functions conducted by it.

Part 6 is somewhat different from the previous Parts, which were focused on the taking of samples for the purposes of crime investigation. This Part is concerned with use of the database to assist in finding and identifying missing or unknown persons, alive or deceased. Samples may be taken, for identification purposes, from blood relatives of persons who are missing, from the belongings of the missing person, from living persons who are unable to identify themselves due to injury or illness, and from the remains of unidentified persons. A garda of at least the rank of inspector must authorise the taking of a sample from any living person in connection with the identification of persons. Where it is proposed to take a sample from blood relatives, their consent is obviously required. In the case of persons unable to identify themselves, an order from the High Court is necessary. The coroner's consent is required before a sample may be taken from the remains of an unidentified person.

This facility to identify missing or unknown living or deceased persons is undoubtedly of great potential benefit in a number of situations.

It will be invaluable both in the event of a natural or other disaster resulting in mass casualties and in individual cases.

Part 7 deals with the taking of certain samples under Parts 3 and 6 from children or protected persons. It contains detailed provisions on the issue of consent in this regard and on the provision of information to children and protected persons prior to the taking of samples from them.

Before moving away from the subject of the taking of samples, I should make reference to certain overarching provisions and principles in this regard that are set down under Part 12 of the Bill. Section 141 is concerned with the human rights and dignity of all persons from whom samples are being taken. It stipulates that samples are 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; in the case of suspects, no samples are to be taken during questioning; and nothing in the Bill authorises the taking of a sample in a cruel, inhuman or degrading manner. Section 142 permits the making of regulations on the taking of samples, but the principles set down in section 141 are of such a fundamental nature that primary legislation is appropriate.

Also in Part 12 on the taking of samples, section 143 requires those bodies empowered to take samples, namely the Garda Síochána, the Garda Síochána Ombudsman Commission, the Irish Prison Service, the Irish Youth Justice Service and Forensic Science Ireland, to prepare draft codes of practice for ministerial approval. These codes will provide practical guidance as to the procedures for the taking of samples and are intended to ensure proper adherence to the statutory framework and consistency in approach.

Part 8 of the Bill deals with the structure and purposes of the DNA database. Responsibility for the database will rest with the FSI, which in its current guise already has a distinguished record in providing independent expertise in the area of forensics and is well placed to become custodian of the database. Section 60 stipulates that the database may be used for two purposes only: the investigation and prosecution of criminal offences and the finding or identification of missing persons and the identification of unknown persons.

Reflecting these 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, the reference index and three elimination indexes, the latter which will contain the profiles of Garda, FSI and other personnel whose duties put them at risk of inadvertently contaminating crime scenes. The overall purpose of the investigation division is to provide intelligence to be used by gardaí in the investigation of crime. There are three main sources for the samples used to generate profiles for this division: those lifted from crime scenes, those taken from suspects and convicted persons, and those provided by officials.

The identification division of the database will comprise the missing and unknown persons index. The results of searching between these two categories of this index will be of vital assistance to the Garda in identifying such persons.

Regarding interrogation of the DNA database, searches are limited to those permitted under section 68. These restrictions 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. The Bill also provides that the disclosure of information relating to a sample or information in the database other than for permitted purposes is an offence punishable on summary conviction by a fine of up to €5,000 and-or 12 months imprisonment, and on indictment by a fine of up to €50,000 and-or five years in prison.

The DNA database will clearly be a powerful tool and will contain sensitive personal information. I am sure therefore that all Deputies will, like me, be conscious of the need to ensure that the integrity and security of the database is maintained. Part 9 of the Bill provides for the establishment of an independent DNA database system oversight committee which will oversee the management and operation of the system. The committee will review the practices and procedures employed by Forensic Science Ireland in the operation of the database and will report at least annually to the Minister and these reports will be laid before the Oireachtas. Schedule 1 of the Bill sets out in detail the structure and procedures of the oversight committee, which will be chaired by a judge or former judge of the High Court or Circuit Court, and one of whose members will be nominated by the Data Protection Commissioner.

Part 10 of the Bill deals with the circumstances in which samples and profiles may be destroyed or removed from the database. This is a very important part of the legal framework and marks a significant departure from the approach taken in the 2010 Bill. The key changes relate to the retention arrangements for samples and the circumstances in which the DNA profiles of persons who are not proceeded against or are acquitted may be retained on the database.

The changes to the proposed retention arrangements for samples and profiles are aimed at ensuring that the approach to retention is constitutional and meets the standards of the European Convention on Human Rights. Deputies will recall the 2008 judgment of the European Court of Human Rights in the case of S and Marper v. the United Kingdom. That case concerned a challenge to the indefinite retention regime in England and Wales that applied to the samples, profiles and fingerprints of persons who were not subsequently proceeded against or convicted. The court held that the "blanket and indiscriminate" nature of the arrangements failed to strike a fair balance between public and private interests, were a disproportionate interference with the right to privacy and could not be regarded as necessary in a democratic society.

The approach in the 2010 Bill regarding persons not proceeded against or convicted consisted of a right to apply to the Garda Commissioner for destruction of a sample or removal of a profile from the database, and an obligation on the Commissioner to destroy samples and remove profiles from the system within certain default periods - three years in the case of the samples, and five and ten years, for children and adults, respectively, in the case of removal of the profiles.

On further reflection and bearing in mind how the law in this area has developed in other jurisdictions in recent years, I decided to recast the retention provisions contained in the 2010 Bill. Part 10 of the Bill now provides for the destruction of samples taken for the purpose of generating a DNA profile for the database as soon as the profile has been generated or within six months of the taking of the sample, whichever is the later. It also provides for a presumption in favour of removal from the database of the DNA profiles of suspects who are not convicted subject to the Commissioner having the power to authorise retention on the database where he determines that this is necessary. His decision is appealable to the District Court. The retention periods allowed will be six years in the case of adults and three years in the case of children.

Part 10 also provides for revised arrangements for the retention of samples taken for evidential purposes, including a presumption in favour of destruction of samples relating to suspects who are not convicted, subject to the Commissioner having the power to authorise retention for 12 months, which will be renewable, where he determines that this is necessary. This decision is also appealable to the District Court. A statutory review of these arrangements is required within a period of six years, and subsequently whenever the Minister considers it appropriate. The Bill provides that the six and three-year retention periods mentioned earlier may be revised, downwards only, by ministerial order following such a review.

Part 11 of the Bill, which deals with international co-operation, has been expanded to address international obligations in a more comprehensive manner and provides for the reciprocal searching of DNA databases and automated fingerprint identification systems maintained by states for criminal investigation purposes. In particular the provisions of this Part are aimed at giving effect to the DNA and dactyloscopic data - fingerprint - aspects of the Prüm Council Decision, which I mentioned earlier, and its implementing Council decision; giving effect to the agreement between Iceland, Norway and the EU applying the Prüm Council Decision and the implementing Council decision, the text of which is at Schedule 3 to the Bill; and making provision for bilateral and multilateral agreements on the lines of the Prüm Council Decision between the State and other states - thus far one agreement has been signed with the United States.

Access to the DNA database and the automated fingerprint identification system by other states will be strictly controlled. Searches will be conducted by officers authorised for that purpose using DNA profiles or dactyloscopic data that do not contain any identifying data - in other words, it will be anonymous. In the event that a search reveals a match between the data supplied and data contained on the database being searched, the matter must be pursued within our mutual assistance framework in the Criminal Justice (Mutual Assistance) Act 2008. Part 11 includes extensive amendments to the provisions of the 2008 Act dealing with the transmission of identification evidence to other states.

These amendments were aimed at ensuring that persons whose samples or DNA profiles are transmitted under that Act benefit from a comparable level of safeguards to those available to persons who are the subject of criminal investigation within the State.

Access to the databases of other states has the potential to be useful in view of the international mobility of criminals. Part 11 addresses some specific requirements of the Prüm decision in respect of the level of data protection that must be applied to the processing of personal data for the purposes of that decision. Part 12 contains several miscellaneous provisions, some of the more significant of which I referred to earlier in the context of the taking of samples. A small number of issues are currently being considered in my Department, in respect of which I will be bringing forward amendments on Committee Stage. These mainly relate to data protection and the arrangements for the retention of fingerprints and photographs.

In establishing a DNA database system, the Bill represents a significant step in criminal investigation in this jurisdiction. It is only right that An Garda Síochána should have access to the most modern forensic technology to assist the force in solving serious crimes and in the detection of perpetrators. DNA evidence is only one element in crime investigation but it is potentially a vital element. Let us remember that not only can the database assist in detecting perpetrators and bringing them to justice but, as I mentioned at the start, it can help to exonerate the innocent as well and lead to better more-targeted use of police resources. The experience in other jurisdictions demonstrates the important contribution DNA databases make to criminal investigations where crime scenes are examined and produce forensic material. For example, the United Kingdom national DNA database had a hit rate of 61% in 2011-12. While hits simply place a person at the crime scene and are not necessarily followed by prosecutions, such a high rate points to the level of intelligence that a DNA database can generate. I caution Deputies, however, not to expect such high rates in the early years of our database since the rate is party dependent on the size of the database and will grow as the database grows.

As I indicated at the outset, I am acutely aware of the need to strike an appropriate balance between the use of the DNA database in the investigation of crime in the public interest and protecting individuals' personal rights. I am confident the Bill, with its many safeguards, achieves that balance and I am pleased to commend it to the House.

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