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

I move amendment No. 4:

In page 13, line 15, after “sample” ” to insert “, other than in sections 168 and 169,”.

The aim of these amendments is to provide a more efficient means of proving the continuity of the chain of forensic exhibits in criminal trials. A review of the resource needs of the Forensic Science Laboratory carried out in 2008 identified that a significant proportion of administrative and scientific time is taken up meeting documentary requirements relating to the chain of evidence and, in particular, attending court to certify as to the chain of evidence.

The purpose of these amendments is to avoid the need for oral evidence to prove continuity to be given in criminal proceedings routinely. They provide for evidence to be given by way of certificate and are intended to be tailored to the work of the laboratory by availing of the inherent benefits of tamper evident containers in which samples taken from persons or recovered from crime scenes are inserted for the purpose of transmission for forensic testing. Inserting the sample in a tamper evident container and storing it in that container until such time as it is opened for the purpose of forensic testing should, in view of its security features, effectively render redundant the question of who handled it in the intervening period.

The new sections 168 and 169 that are being inserted into the Bill by amendments Nos. 21 and 22 are concerned with the two critical points in the chain, namely, the point at which the sample is placed in a tamper evident container and the point at which that container is opened for the purpose of conducting forensic tests on the sample that has been obtained.

Section 168 sets out the procedures that may be used for the transmission of samples for forensic testing. These are self-explanatory and describe the process to be followed where samples are being placed and transmitted for testing in tamper evident containers. These containers, which are defined, usually take the form of specially manufactured bags which come in different sizes and, most important, all have a unique identifying number. It will be noted that this is an enabling rather than a mandatory provision. This means that while this process may be used for the storage and transmission of samples, it does not have to be used for such purposes. It is possible, for instance, that crime scene samples may be too large to fit in tamper evident containers and, as such, verifying the chain of evidence in this manner may not be possible in every case.

Section 168(2) does not specify who should place a sample in a tamper evident container. This is because a variety of persons can take samples, as detailed under Part 2, for example, a garda, doctor, dentist or nurse. A variety of persons may also be involved in finding or recovering crime scene samples, such as a garda, State pathologist or doctor. Section 168(4), however, specifically refers to a member of the Garda Síochána as, irrespective of who takes the sample, it will be for a member to ensure that it is sent for forensic testing.

Section 168(6) provides key definitions relating to the operation of this overall section and section 169. The definition of the term "crime scene sample" in this section is, by necessity, broader than that given under section 2, as it is proposed that this system of proving continuity of the chain of evidence will cover all forms of samples found at crime scenes, not just biological material with which the Bill is primarily concerned. Amendment No. 4 makes a small revision to the definition of the term "crime scene sample" in section 2 to take account of this distinction.

The approach adopted to crime scene samples follows from the fact that the Bill is not seeking to specify all of the functions of the Forensic Science Laboratory in statute. The only functions of the laboratory that the Bill is concerned with are those relating to the DNA database system. However, the laboratory provides analysis of a wide range of substances found at or recovered from crime scenes, for example, paint and glass. As the burden of proving continuity equally applies to these samples as to samples of biological material, it is proposed that sections 168 and 169 will apply to all crime scene samples other than controlled drugs, which are to be dealt with separately. I will address that issue shortly.

The definition of the term "forensic testing" in section 168(6) is also broader than that given under section 2, which does not include a crime scene sample. Such samples are specifically required to be covered under sections 168 and 169 for the purpose of proving continuity of the chain of evidence but not elsewhere in the Bill where the focus is on biological samples only and on the generation of DNA profiles from them for the database.

A related but separate amendment is also being made to section 10 of the Misuse of Drugs Act 1984 relating to certification evidence for controlled drugs. Amendment No. 23 inserts a new section 170 to revise section 10 of the 1984 Act. This amendment is being made to allow the chain of evidence for exhibits received, handled, transmitted or stored by the Forensic Science Laboratory to be proved by certificate in evidence in court and to obviate the need for laboratory staff to give oral evidence. Section 10 of the 1984 Act already provides for certificate evidence relating to the examination, inspection, test or analysis, as the case may be, of a controlled drug. The Forensic Science Laboratory and the Director of Public Prosecutions are both in favour of this amendment, which aims to enhance and streamline the use of certification evidence in high volume cases involving controlled drugs.

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