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

I do not propose to accept the amendment which addresses the issue of the transfer of DNA samples or profiles to other states. The Deputy is seeking to ensure there would be appropriate safeguards with such transfers. I am happy, therefore, to assure him that, in so far as the amendment purports to address the issue of mutual assistance, there are such safeguards which, in fact, go further than what he has proposed.

On the proposed subsection (1), I understand the amendment would apply to a person acquitted of an offence in the State in terms of a sample or profile being sought by another state for the purposes of investigating or prosecuting the person for the offence for which he or she has already been acquitted. The wording of the amendment does not make this clear and that of itself would prevent my accepting it.

Aside from that, however, I draw the Deputy’s attention to section 132 which amends section 79 of the Criminal Justice (Mutual Assistance) Act 2008. Section 79 of the Act sets out the action to be taken when a request for identification evidence is received by the State. Among other matters, a request can only be complied with where the evidence sought could be obtained if the investigation or proceedings in question were being conducted here. In the circumstances put forward by the Deputy relating to a person who has been acquitted, the prohibition against double jeopardy ensures a person cannot be prosecuted in the State for an offence for which they have been previously acquitted. Consequently, it would not be in accordance with section 79(1) of the Criminal Justice (Mutual Assistance) Act 2008 to transfer the evidence for similar purposes. Simply put, if evidence cannot be sought for a particular purpose in the State, it will not be provided for a similar purpose in another state.

Subsection (2) of the amendment proposes to limit the transfer of DNA samples or profiles to other jurisdictions with which the State has extradition treaties in place. The basis on which the State engages with other states for the purposes of mutual assistance is the mutual assistance Act 2008, prior to that the Criminal Justice Act 1994. As it stands, assistance in the provision of identification evidence which will include DNA profiles is only available if the evidence is in the possession of the Garda. If the evidence is not in its possession, the person from whom the evidence is sought must consent to it being taken and transferred. However, on foot of the Council’s Prüm Decision, to which the Bill is giving effect, the mutual assistance Act is also being amended to provide assistance for another EU state where the request relates to a DNA profile which is not in the possession of the Garda. Under Article 7 of that decision, we will be required to obtain from a person a sample with a view to generating a DNA profile and transmitting that profile to the requesting state. To provide for this requirement, section 133 inserts new sections 79A to 79C, inclusive, into the mutual assistance Act. These sections set out in detail the steps which must be taken in the State in obtaining a DNA sample from a person who does not consent to the taking of that sample, including, importantly, obtaining a court order. However, as these provisions arise from an EU instrument, they apply only to EU member states.

Subsection (3) of the amendment concerns the obtaining of a guarantee that samples or profiles will be destroyed within six months of being transferred. Again, the Bill amends the mutual assistance Act to ensure the necessary safeguards and destruction provisions are in place. Section 132(g) amends section 79(10) of the mutual assistance Act. This subsection requires the Minister to receive an assurance from the requesting state that the evidence and records relating to it will be destroyed when no longer required. Evidence must also be destroyed within three months of the date on which 12 months have passed since the taking of the sample and proceedings have not commenced. Evidence must also be destroyed within three months of an acquittal, dismissal or discontinuation of the proceedings. Destruction of evidence is also required within three months following proceedings which concluded with an order corresponding to a probation order or where subsequently a conviction is quashed or declared a miscarriage of justice.

I am entirely satisfied with these and the many other safeguards contained in the Bill. For these reasons, I will not be accepting the amendment.

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