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

I move amendment No. 2:

In page 12, between lines 20 and 21, to insert the following:

“ “Act of 1990” means Criminal Justice (Forensic Evidence) Act 1990;”.

The purpose of this group of amendments is to set out the arrangements for dealing with historic samples and DNA profiles that were taken prior to the commencement of this legislation. Biological samples can currently be taken in either of two ways. The Criminal Justice (Forensic Evidence) Act 1990, provided for the taking of samples and the creation of DNA profiles but did not provide for the establishment of a statutory DNA database system, as does this Bill. Samples can currently also be taken by consent under common law powers. This Bill replaces the legal framework for the collection of forensic evidence and puts it on a statute-only footing. It is necessary, however, to set out the transitional arrangements between the existing regime and this legislation in order to protect, for example, proceedings underway based on bodily samples taken under the 1990 Act or under common law powers. The main amendment in this regard is to section 7 of the Bill, which is replaced and expanded by amendment No. 5. Subsections (1) and (2) remain largely the same and subsections (3) to (5) are being added.

Subsection (3) provides that a DNA profile that was generated from a sample taken under the Act of 1990 may be entered in the reference index of the DNA database system, irrespective of whether it was generated before or after commencement of this legislation. Subsection (4) qualifies this, however, by providing that profiles generated from samples taken under the 1990 Act shall not be entered on the DNA database system if the sample is required to be destroyed under that Act. Samples are required to be destroyed in cases where, for instance, the person whose sample was taken is acquitted or not proceeded against. Subsection (4) also provides that if the DNA profile has already been entered on the DNA database system when the sample from which it was generated is required to be destroyed, then it shall be removed from the database within a period of three months.

Subsection (5) deals with the manner in which historic samples taken with consent, and DNA profiles generated from them, will be required to be treated. These samples and profiles can be retained for use in respect of the offence in respect of which they were taken or generated, subject to the persons concerned having been detained under a statutory provision referred to in section 9(1), which generally relate to offences attracting a maximum prison sentence of five years or more. As at present, those who had their samples taken by consent can apply to have them, or profiles generated from them, destroyed. Subsection (5) provides that, if a sample taken with consent, or a DNA profile generated from it, is required for any purpose other than that for which it was taken, the Garda Commissioner must inform the person concerned in writing and obtain his or her consent to its use for that purpose. Otherwise the sample or profile may not be used for that purpose. This is considered a proportionate approach and an appropriate safeguard in order to protect the rights of individuals who voluntarily gave samples in the context of a particular investigation but not for any other purpose. Furthermore, DNA profiles generated from samples taken by consent cannot be put on the DNA database system.

The remaining amendments in this group of amendments are consequential or related to the main amendments in section 7 which provides for the manner in which historic samples and profiles are to be treated on a transitional basis.

Amendment No. 2 inserts a definition of the "Act of 1990" into section 2, clarifying that such reference in the Bill is to the Criminal Justice (Forensic Evidence) Act of that year. Amendment No. 11 amends section 62 to provide that the reference index of the DNA database system can also contain DNA profiles generated from samples taken under the 1990 Act, as provided in section 7(3), to which I referred earlier. Amendment No. 18 amends the Criminal Justice (Mutual Assistance) Act 2008 so as to cover, where appropriate, destruction arrangements for samples and DNA profiles taken or generated under the 1990 Act. Amendment No. 19 likewise amends the International Criminal Court Act 2006 in this regard.

Amendments are also being made to the Bill in relation to the use of historic samples for identification purposes. Deputies will be aware that the Bill not only provides for the establishment of a DNA database to assist the Garda Síochána in the investigation of serious crime but also to assist in finding and identifying missing or unknown persons. It is important that historic samples, and DNA profiles generated from them can be used for these purposes.

Amendments Nos. 7 and 8 to section 48 of the Bill ensure that DNA profiles generated from samples taken from missing persons or blood relatives of missing persons before commencement of this legislation may be put on the DNA database system. The other provisions of this section will apply to these samples and profiles, as appropriate. Likewise, amendments Nos. 9 and 10 to section 50 have the effect of providing that samples relating to unknown deceased persons that are in the possession of the Garda Síochána, the Forensic Science Laboratory or the State Pathologist's office before commencement may be entered on the DNA database system. If no provision was to be made for such historic samples it would not be possible to use the DNA database system to assist in the identification of the person without exhuming the remains and taking another sample. I presume Deputies would agree it is important to retain such samples for the purposes mentioned.

Amendment No. 16 revises section 92 so as to provide that the destruction arrangements that apply in relation to samples and DNA profiles of missing persons or their blood relatives, or unknown deceased persons, taken or generated following commencement of this legislation will also apply, as appropriate, to historic samples or profiles of such persons. That completes the description of the intention of the amendments which are fine-tuning aspects of the Bill because these aspects are very important. The amendments are proportionate and balanced to ensure that people's rights are adequately and properly protected.

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