Seán Crowe (Dublin South West, Sinn Fein) | Oireachtas source

I will begin by thanking the Oireachtas Library and Research Service for the work it has done on the Bill. Its digest is very useful for Opposition Deputies. It is a resource and facility we tend not to talk up but it is very useful.

There is a danger that many of the concerns I intend to express will lead to repetition because they are similar to those raised by Deputy Jack Chambers. I refer, for example, to the fact that the Minister of State, in his wisdom, has decided to prioritise this Bill over others that we believe are more important because of the crisis in the Defence Forces, particularly as it relates to the retention of personnel. If I were in the position of the Minister of State, this Bill might not necessarily have been my priority.

The Bill makes provision for members of the military police to take and use DNA samples. It also provides for the establishment, management and oversight of a DNA military police DNA database system operated by Forensic Science Ireland. It largely mirrors the Criminal Justice (Forensic Evidence and DNA Database System) Act 2014, with necessary adjustments to accommodate the specific military context. That Act provided for the establishment of a DNA database for use by An Garda Síochána and replaced the arrangements for the taking of samples for forensic testing.

As Sinn Féin did with the Criminal Justice (Forensic Evidence and DNA Database System) Act 2014, we support the spirt of the Defence Forces (Evidence) Bill 2019. We will not oppose it on Second Stage but, like all legislation, it needs detailed and robust examination on Committee Stage. It is possible that we will table amendments to strengthen the Bill. I will be interested to hear what the Minister of State has to say at the end of Second Stage.

The Bill also provides for: the collection of intimate and non-intimate samples; the establishment and content of a military police DNA database; and the retention of data. A central issue in the establishment of a DNA database involves the challenge of striking a balance between the rights of the individual to privacy, bodily integrity and the privilege against self-incrimination with wider societal interests in preventing disorder and crime. The use of DNA evidence also raises concerns about the laws of evidence, particularly the admissibility of such evidence and the value or weight that may be attached to it once admitted. There is also concern about the chain of evidence and where the evidence is taken abroad.

Sinn Féin believes the lawful and effective collection and use of forensic evidence from crime scenes, victims and suspects can be crucial for obtaining sound convictions that are not based on confession evidence alone, a practice that has led to widespread abuse of the right to due process.

In some cases, forensic evidence also can be crucial to avoiding wrongful conviction while the true culprit evades justice. We hear of this all the time in other jurisdictions but it could also apply in this jurisdiction. The use of forensic science to solve criminal cases is growing globally.

Sinn Féin therefore acknowledges the need for collection and analysis of forensic evidence. However, my party is also aware that forensic science is constantly evolving and the degree of its accuracy is a continual matter of debate among experts. For example, in 2009 a debate emerged among forensic scientists on whether a certain type of internal bleeding seen in infant deaths can only be caused by the shaking of a baby, which finding generally results in a murder conviction.

These are many more situations in which the use of forensic evidence is at the very least uncertain and potentially could lead to perversion of justice.

Sinn Féin therefore believes that ongoing research is needed in a variety of areas where forensic methods and definitions, both newly emerging and established, are being used for the prosecution of persons.

Notwithstanding what I have said, most methods of forensic evidence gathering are accepted by Sinn Féin as being generally relevant and necessary methods of criminal investigation where applied to the appropriate standard by trained personnel and under appropriate supervision and monitoring.

Part 5 of the Bill provides for the establishment of the military police DNA database system. The database will be established by the director of Forensic Science Ireland.

We have had a DNA database since November 2015, following the enactment of the Criminal Justice (Forensic Evidence and DNA Database System) Act 2014. By the end of 2018 a total of 26,649 DNA profiles had been uploaded to the DNA database, which is a significant number. Is the Minister of State satisfied that the forensic science laboratory has the necessary equipment, resources and staff to meet the demands of this Bill? This is a concern that will no doubt be echoed by other Opposition spokespersons. There is no point in passing this legislation only to be faced with poor resources.

The overall purpose of the database is set out in section 26 of the Bill, which states the database "shall be used only for the purpose of the investigation and prosecution of an offence against military law, whether committed [inside] or outside the State." Function creep is an issue of concern with this Bill. Sinn Féin does not want to see a gradual widening of the database beyond the purposes for which it was originally intended. Many people with a civil liberties background would have a concern about the retention of information such as this.

Section 72 of the Bill sets out a number of general principles related to the taking of DNA samples. Samples must be taken in a way which affords reasonable privacy to the person. They need to be human rights complaint. Samples must not be taken from a person in the presence or view of another person whose presence is not necessary. That is a practical suggestion. Nothing in the Act authorises the taking of a sample in a cruel, inhumane or degrading manner. That is a reasonable approach and part of the safeguards in the Bill. A sample being taken from a person in custody must not be taken while they are being questioned. If questioning has not been completed before the sample is taken, it must be suspended while the sample is being taken. Again it should not be something oppressive that is used to pressurise into making a statement or whatever. Again this is welcome.

Section 10 of the Bill sets out the procedure for the taking of intimate samples from persons in the custody of the military police. Such samples may only be taken if a member of the military police not below the rank of captain authorises it. Consent must also be given by the person from whom the sample is to be taken. That mirrors the evidence the practice in the Garda Síochána where an officer of a senior rank is required.

The authorisation can only be given where there are reasonable grounds from suspecting the involvement of the person in the relevant offence and for believing that taking the sample will tend to confirm or disprove that suspicion. The person may withdraw their consent before or during the taking of a sample. That is important because for those who feel oppressed by it or uncomfortable with it, it should be one of the safeguards, particularly with intimate samples. Intimate samples may only be taken by a registered medical practitioner, a registered nurse or a registered dentist, as appropriate.

Section 11 of the Bill sets out the procedure for the taking of non-intimate samples from persons in custody. As with intimate samples, the taking of a non-intimate sample must be authorised by a member of the military police not below the rank of captain. The authorisation can only be given where there are reasonable grounds from suspecting the involvement of the person in the relevant offence and for believing that taking the sample will tend to confirm or disprove that suspicion. This seems fair and reasonable.

I have some concerns regarding the collection of DNA samples for the purpose of the investigation and prosecution of an offence against military law committed outside the State and how that would work. I ask the Minister of State to elaborate on that. We may be able to discuss it on Committee Stage. We have concerns over how the samples are held and the chain of command.

The retention of DNA samples and profiles is an important part of this legislation. Under section 47, both intimate and non-intimate samples must be destroyed under certain circumstances. However, section 48 provides that these periods may be extended by the provost marshal in certain specified circumstances that seem justifiable and reasonable. It might be no harm for the Minister of State to elaborate on that. He may already have done so in his speech.

Sections 51 to 54, inclusive, of the Bill deal with the issue of retention and removal of DNA profiles on the military police DNA database system. DNA profiles must be removed immediately from the database in certain exceptional circumstances outlined in section 53. The provisions as outlined seems reasonable and proportionate but I look forward to a more detailed discussion on Committee Stage,

Like others, I am concerned about resources. The Defence Forces have a designated strength of 9,500 but now have only 8,653 personnel. There is a full-blown recruitment and retention crisis. Morale is on the floor. Recruitment and retention have been all but impossible due to poor pay and cut after cut to allowances that Defence Forces members rely on to make a living. Every official representative body for the Defence Forces along with some unofficial groups have been shouting in public and in private about this crisis but it is deepening rather than being resolved. The simple question is as follows. Is the Minister of State providing the military police with enough resources to carry out these new measures? Is the Defence Forces' strength adequate to carry out these new measures? Has the Minister of State had discussions with representative organisations of Defence Force members about this Bill, which proposes serious changes?

The Minister of State needs to have everyone on board. If members of the Defence Forces have concerns, those concerns will need to be addressed. Defence Forces members are on the front line and the proposed changes will affect them. The Minister of State needs to engage fully with them about their concerns. Perhaps he can answer these questions in his summary. We will support this Bill but it would be useful to go into more detail on Committee Stage to strengthen it and address concerns about its impact on civil liberties and personal freedom.

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