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

When this amendment was tabled by the Deputy on Committee Stage, I explained the reasons I could not accept it. I pointed out that the former offenders' regime in sections 33 and 34 of the Bill is not a blanket provision covering all persons who fall within the ambit of the definition of former offenders in section 33. The Garda Síochána will have to identify individuals who are covered by section 33 and in respect of whom a garda not below the rank of superintendent is satisfied that "it is in the interests of the protection of society, and it is desirable for the purpose of assisting the Garda Síochána in the investigation of offences, to have a sample under section 34 taken from the person" for the purpose of generating and uploading the person's DNA profile to the DNA database. This is the first consideration before a request is made to a person to provide a sample.

There are then a number of further safeguards. In the event that the person fails to comply with the request, the Garda Síochána may apply to the District Court for authorisation to send a notice to the person requiring him or her to attend for the taking of a sample. Even if the person still fails to co-operate, he or she cannot be forced to provide a sample, although the Bill provides that such persons may be prosecuted.

The former offender provisions are also subject to the ten year rule contained in section 33(3). Broadly speaking, under this rule, a former offender may only be requested to provide a sample up to ten years after the sentence for the relevant offence concerned expired. The likelihood is that most former offenders covered by the Good Friday Agreement will be covered by the ten year rule given the passage of time since their release.

That is the manner in which I have previously outlined the position from a practical standpoint. From a strictly legal standpoint, it would not be possible to make the amendment the Deputy proposes as it would result in the unequal treatment of two similarly situated individuals. As a result, the amendment may be unconstitutional. This contention is supported by the manner in which prisoners were released in this jurisdiction under the Good Friday Agreement. While the Criminal Justice (Release of Prisoners) Act 1998 established a commission to advise the Minister regarding the release of prisoners by reference to that Agreement, no new power of release was provided in the Act. Rather, it enabled the Minister and Government to treat the release of qualifying prisoners in the same way as the generality of the prison population. I do not, therefore, see any particular reason for treating persons released under the Good Friday Agreement differently from other former prisoners in the context of the Bill.

I am, in any event, satisfied that few, if any, of the cohort of former offenders with which the Deputy is concerned are covered by the provisions of sections 33 and 34. Even if they are so covered, they cannot be compelled to provide a DNA sample. I do not propose to accept the amendment.

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