Ann Phelan (Carlow-Kilkenny, Labour) | Oireachtas source

I am grateful for the opportunity to speak on this Bill, which is one of the most important pieces of legislation to come before this House during the term of this Government. The consequences of having a DNA database will be felt acutely in the area of solving serious crime. I cannot understand why legislation of this nature was not enacted during the time of plenty of the Celtic tiger era.

A strand of DNA contains the essence of life. Each living thing has its own distinguishing brand of DNA and, therefore, it can be used as a tool to identify each of us by our own unique code. This is why it is used by police forces across the world to fight serious crime. The largest database in the world is in the US and since 1994 that database has been used on over 200,000 occasions to assist in 192,000 investigations. In a specific case study in the city of Denver, it was found that of all the cases taken for the single crime of burglary, 76% would not have been taken to court by the district attorney but for DNA evidence. It has since emerged that where DNA testing is done in cases of crimes against property, such as burglary, twice as many cases have been accepted for prosecution. Using DNA, as opposed to simply fingerprinting, is five times more likely to allow investigators to identify a suspect. DNA is a bit like a fingerprint in that we all have a different set-up but the DNA we all carry can never be changed.

One of the key innovations in this Bill is the establishment of a database to assist the Garda in tackling crime. When the database is operational it will have the capacity to link crimes and identify suspects in unsolved crimes. It will enable the Garda to be more efficient in investigations and make better use of resources. It will also give a new impetus to the investigation of crimes which may have occurred some time ago. Several years ago a forward thinking garda kept some forensic samples from a murder case on record. His actions led to the conviction of the murderer several years later. The Bill allows for samples taken from a crime scene, such as a strand of hair, tiny pieces of skin or drops of blood, to be sampled, identified and entered into a database that allows investigators to compare the information and match it to anything they may have on the system, thereby potentially establishing someone's presence at a crime scene.

The database can also allow the Garda to link with international police forces and their databases to determine whether samples taken here match those of anyone who has committed a crime in other jurisdictions. Similarly, if a crime is committed in the UK or further abroad, samples can be matched to the Irish database.

The proposed database will contain the genetic profiles of most people convicted of serious offences which attract prison sentences of five years or more and will include those found guilty of rape and most other sexual offences. Children under the age of 14 years will not be included. The database will also include individuals listed in the sex offenders register on or after the commencement of the legislation, as well as certain former offenders who are no longer in prison. The Bill provides for the removal of profiles and the destruction of samples taken from people who have not been convicted of any prescribed crime. This is an aspect that some people might overlook. The database can not only establish an individual's participation in a crime, but can also prove his or her innocence.

I have long campaigned for the establishment of a DNA database. Last year, I asked the Minister of State at the Department of Health, Deputy Kathleen Lynch, to retain blood samples and other medical evidence taken from newborn babies for use in finding out more about diseases. These samples could also provide the basis for a DNA database. I am glad that the Minister of State agreed to my request because the samples provided invaluable information.

I am glad to contribute on this Bill. Legislation that governs issues surrounding DNA and crime is a sensitive issue, one that involves balancing the need to conduct effective criminal investigations with the need to protect human rights and civil liberties. The enactment of this legislation is a key commitment in the programme for Government. When up and running, the database will have the capacity to link crimes and identify suspects in unsolved crimes. This will enable the Garda to conduct better investigations and make better use of resources. In addition, making use of such database technology in the forensics field has the added benefit of facilitating the searching, subject to strict conditions, of other national DNA databases.

In introducing this legislation, the Minister stated that it would fully respect human rights. I believe that this will be done. The Bill provides for the taking, subject to appropriate safeguards, of biological samples in the form of mouth swabs or hair follicles from suspects and convicted persons, including sex offenders, from which their DNA profiles will be generated for entry in the database. Crime scene profiles from unsolved crimes, whether occurring before or after the new legislation becomes law, will also be entered in the database.

The actual data will be held on purpose-built software already in use by agencies around the world. This software is used in more than 40 countries, including 18 EU member states. It was installed in the Forensic Science Laboratory in 2012.

The level of intelligence that will be generated by a DNA database will be invaluable to the Garda in identifying offenders involved in crimes such as burglary. It will also have a major impact in terms of serious offences against the person, such as homicides and sexual offences. It will contribute to the move towards more effective, targeted and smarter policing operations and will also facilitate co-operation with other police forces across the world.

In addition to benefiting criminal investigations, the database will be of benefit in identifying missing and unknown persons, for example, unidentified human remains or the victims of natural or man-made disasters. It is also important to point out that the database will be of benefit in establishing the innocence of persons suspected or wrongly convicted of offences and will help in preventing miscarriages of justice. These important points should be clearly stated.

The Bill published today has been substantially amended in many respects to address issues that gave rise to genuine concerns, for example, the sensitive question of the retention of samples and DNA profiles of persons who are not subsequently convicted, in order to ensure that any interference with privacy rights is justified by the public interest in the investigation of crime and is proportionate.

Clear terms govern the level of information that is to be given to a person before a sample is taken in the case of compulsory samples and before consent is sought in the case of voluntary samples. The types of samples that may be taken from persons for the purpose of the database are restricted to the least intrusive samples – mouth swabs or plucked head hair. Draft codes of practice for the purpose of giving practical guidance on the procedures for the taking of samples under the Bill are to be drawn up by An Garda Síochána, the Garda Síochána Ombudsman Commission, the Irish Prison Service and the Irish Youth Justice Service, IYJS, for approval by the Minister. These codes will be published.

A high offence threshold for the taking of samples from suspects and offenders applies. Generally, samples may only be taken for the purpose of the database or for evidential purposes in respect of offences having a penalty of five years imprisonment or more. Where reasonable force may be used to take a sample, it requires prior authorisation of an officer of at least superintendent rank and its use must also be observed by a senior person who has responsibility for determining how many officers are required. It must be electronically recorded.

There are special safeguards for protected persons and children who are suspects. Protected persons will not be subject to sampling for the purposes of the database, but evidential samples may be taken where required. Children under 14 years of age will not be subject to sampling for the purposes of the database, but evidential samples may be taken where required. The position with regard to children aged 14 years and older is to be reviewed within six years. Reasonable force may not be used to take a database sample from a child suspect.

Information is to be given in a language and manner appropriate to the protected person and is to be age appropriate. Provision is made for a person other than a member of the Garda to be present when a sample is being taken from a protected person or child. This person may be a parent, guardian, adult relative or a person nominated by the member in charge. Such persons are also to be given the information that is required to be given to the protected person or child. Special provision is made in respect of the giving of consent on behalf of protected persons or children for the taking of intimate samples where required for evidential purpose. In certain circumstances, a District Court order may be sought to authorise the taking of an intimate sample.

In general, the consequence of refusing to consent to the taking of an intimate sample is that an adverse inference may be drawn in subsequent proceedings. This consequence does not arise in the case of protected persons or, for the most part, in the case of children.

The Bill contains safeguards around the DNA database itself. The purposes of the database are set out clearly in the Bill in order to counter any possibility of "function creep". I am strongly in favour of this position. The searches that may be conducted between different categories of profiles entered in the database are to be specified to ensure that a profile is only used for the purpose for which it was taken.

The management and operation of the database is to be subject to independent oversight by a statutory committee for the purpose of ensuring its integrity and security. This committee is to be chaired by a judge or former judge of the Circuit Court or High Court and will include a representative of the Data Protection Commissioner. The committee may also make recommendations to the director of Forensic Science Ireland, FSI, or the Minister as regards the management and operation of the database. The committee may, of its own volition, conduct reviews of any aspect of the management and operation of the database and the Minister can instruct it to review any matter relating to the database.

The committee's reports are to be submitted the Minister, laid before the Houses of the Oireachtas and published, subject to certain restrictions in the interests of national security, the security of the database and criminal investigations and to avoid infringing the constitutional rights of any individual. Disclosure of information relating to biological samples or information on the database is a criminal offence triable summarily or on indictment.

Regarding persons who are not proceeded against or convicted, the Bill includes a presumption in favour of the removal from the database of the DNA profiles of such persons subject to the Garda Commissioner having the power to authorise retention on the database where he or she is satisfied that this is necessary. A statutory test is set out by which the Garda Commissioner will make this decision. This decision can be appealed. The retention periods allowed will be six years in the case of adults and three years in the case of children. The DNA profiles of persons convicted of serious offences will continue to be held on the database indefinitely. I commend the Bill to the House.

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