Peter Fitzpatrick (Louth, Fine Gael) | Oireachtas source

The Bill seeks to provide for the establishment, management and oversight of a DNA database system, which will be used in criminal investigations and also to assist in finding missing persons and identifying unknown persons. The Bill provides for the taking of samples for the purpose of the DNA database system. It also seeks to replace the existing statutory and common law arrangements for the taking of samples for forensic testing and for use as evidence in criminal investigations and proceedings with an updated statute only regime.

The Bill provides for the taking of samples, mouth swaps and hair follicles from the following for the purpose of generating a DNA profile in regard to the person for entry into the DNA database: most suspects, other than children under 14 years of age and vulnerable persons, detained by gardaí in connection with serious offences - generally offences subject to a sentence of five years or more; offenders entered on the sex offenders register on or after the commencement of the legislation; offenders subject to a sentence of imprisonment in regard to serious offences on or after commencement, whether they are in prison, on temporary release or otherwise; and some former offenders who are no longer subject to sentence.

The difference between a DNA sample and profile is pivotal. A DNA sample contains an individual genome - the brain of the cell - which contains an individual's entire genetic information. However, a DNA profile consists of taking points from particular points in an individual's DNA sample. Therefore, the retention of a DNA does not raise the same ethical consideration as the retention of a DNA sample.

In regard to the retention of data, the Bill sets out retention periods for both DNA samples and profiles. Where certain circumstances arise, a sample must, if not previously destroyed, be destroyed before the expiry of three months from the date on which the specified circumstances first applied. In certain circumstances, the Commissioner of the Garda Síochána may authorise the extension of the period by a further 12 months. In regard to samples taken from suspects, offenders and former offenders for the purpose of generating a profile for the entry into the DNA database system, such samples must, if not previously destroyed, be destroyed as soon as a DNA profile is generated from the sample or within six months of the taking of the sample whichever is the later.

In regard to the DNA profile, where a suspect is not proceeded against or convicted, the Garda Commissioner has the power to authorise retention of a profile on the database, where he has determined this is necessary, up to a maximum of six years in the case of an adult and three years in the case of a child. A decision to extend the retention period may be appealed to the District Court. The Garda Commissioner can apply to the District Court to retain profiles beyond the above mentioned periods where there is a good reason to do so.

Some of the positive implications of the establishment of a DNA database, as envisaged by the Bill, include the potential to investigate and solve crime and the establishment of the innocence of those wrongly convicted. The discovery of DNA profiling has had an enormous impact on modern policing and is commonly referred to as the gold standard for identification. In light of the increasing use of the technique in police practice, on 5 February 2003, the then Attorney General, Rory Brady SC, requested the Law Reform Commission to consider the establishment of a DNA databank. As part of the consideration, the commission was requested to consider the constitutional human rights issues that may raise as well as formulating proposals for reform.

In order to ensure the integrity of the DNA database and information it generates, the Bill provides for the management and operation of the database to be overseen by an independent committee that will be chaired by a judge or former judge of the High Court or Circuit Court. Its membership will include a nominee of the Data Protection Commissioner.

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