Thursday, 2 February 2006
Question 7: To ask the Minister for Justice, Equality and Law Reform the safeguards he intends to incorporate into the legislation establishing a DNA database here; if he intends to follow the recommendations provided by the Law Reform Commission in November 2005 in relation to the establishment of such a database; and if he will make a statement on the matter. [3582/06]
As the Deputy is aware on 24 January last, the Government agreed that work should get under way on the preparation of a general scheme of a Bill to provide for the establishment on a statutory basis of a DNA database. I expect to publish the Bill later this year.
The Criminal Justice (Forensic Science) Act 1990, which provides the statutory basis for the taking of DNA samples only permits the examination of samples with regard to particular offences. The value of a DNA database, over and above our current system, is that it will allow profiles derived from samples taken from individuals to be analysed against all crime scene samples, regardless of when the crime took place. By doing so it will offer greater possibilities to identify perpetrators of crime. It will also contribute to the more efficient use of Garda resources. I am therefore satisfied the establishment of a database will make a significant contribution in the fight against crime. This has been the experience in other jurisdictions where databases are already in operation.
I am on record in this House as favouring the establishment in this State of as extensive a DNA database as possible subject to constitutional and ECHR obligations. However, having regard to the complexity and sensitivity of the issues involved, I considered it appropriate to await the outcome of the Law Reform Commission's examination of this issue, including the level of safeguards to be included before proceeding with plans to establish the database. As the Deputy is aware, the Law Reform Commission published its report in November last year.
I have paid close attention to the commission's recommendations, but there are areas in which I will go further than what was suggested by the Law Reform Commission. In particular, these will relate to the category of offences for which DNA samples may be taken. I have consulted the Attorney General and I do not agree there is a human rights dimension to a policy of destroying samples taken after a particular period of time. This is not justified, for example, with regard to the Criminal Justice Act 1984 and the issue of fingerprints. Similarly, it should not be the case for DNA samples to be destroyed after a period of time. That is an example of the State disabling itself in the proper investigation of offences.
Additional information not given on the floor of the House.
I have paid close attention to the commission's recommendations when preparing the proposals that have now been approved in principle by Government. I am sure the Deputy will understand that certain matters are still subject to detailed scrutiny. However, I assure him that my proposals will incorporate the following key safeguards. The database, while being extensive will be subject to certain operational restrictions to take account of civil rights issues. By that I mean it will include the DNA profiles of persons convicted of serious criminal offences, including those placed on the sex offenders register. It will also include profiles from samples taken from persons who have been detained on suspicion of involvement in serious offences. In addition, it will include profiles generated from samples provided by "volunteers" as well as those taken for the purposes of identifying missing or injured persons.
With the exception of profiles relating to missing and injured persons taken for identification purposes, it will only be possible to use DNA samples taken in connection with criminal investigations in the context of the investigation of crime — they will not be used for or made available for other purposes, such as the determination of paternity or in the assessment of health risks by, for example, the insurance industry.
With regard to the provision for the giving of samples by volunteers, their informed consent will be required. Profiles taken for the purpose of identifying injured or missing persons will be held in a separate index on the database and will not be speculatively searched for the purpose of criminal investigation against the profiles from crime scene samples held on the database. It will be an offence to disclose information or to receive information about samples or profiles other than in accordance with the legislation.
The storage of a person's profile on the DNA database will have no implications for a person in terms of employment, travel and so forth. This is because access to the database with be restricted and controlled and the information stored on it will not be generally available or known other than to those needing to know in the context of a criminal investigation. Anyone whose profile is stored on the database will have a right to make an application to have it removed and destroyed together with the sample from which it was generated.
The DNA database will be operated by the Forensic Science Laboratory. The laboratory operates under the aegis of my Department. My proposals will include provision for statutory oversight arrangements by suitably qualified persons to provide assurance, in the interests of transparency and public confidence, that the highest standards are being maintained. These statutory oversight arrangements will include independent accreditation and the development of codes of good practice.
While my proposals for the most part closely reflect the recommendations of the Law Reform Commission they do depart from those recommendations in certain respects, particularly the retention of samples taken from suspects and the establishment of an independent statutory agency to operate the database. The commission's report recommends that samples and profiles should be destroyed where they relate to persons who are detained on serious offences but who are released without charge, or who, if charged, are subsequently acquitted or otherwise discharged.
The Attorney General has advised that retaining indefinitely samples and profiles taken from suspects in these circumstances is not unreasonable and does not constitute a violation of any legal rights, once clear and strict safeguards are provided against the misuse of the samples and profiles. I share that view and, as I have already indicated, I will ensure that comprehensive safeguards and limits on access will be provided for. Accordingly, my proposals will provide for the indefinite retention of all samples subject to the right of every individual, as I have already mentioned, to apply to have his or her profile and sample destroyed.
With regard to the Law Reform Commission's recommendation that an independent agency be established to operate the database, I consider that the Forensic Science Laboratory, which, as I have said, operates under the aegis of my Department, is well placed to undertake the task of operating and managing the database. I do not, therefore, propose that a new agency should be established for that purpose. I accept, in the interests of transparency and public confidence, that oversight arrangements by suitably qualified persons are desirable to provide reassurance that the highest standards are being maintained. Therefore, as I have indicated, I intend to provide in statute for an independent oversight body. I believe this approach will meet the need for independent verification of the work of the laboratory and will facilitate the early commencement of the new arrangements.
The Minister's reply appears to be at odds with his views on the protective role of the State in other spheres.
The Law Reform Commission stated specifically that the database should be limited in its scope and that there should be clear and strict time limits on the retention of the data. Does the Minister agree there is real concern that if these samples are held for an indefinite period, and if they apply to any crime within the State, there is a danger they would be used for incorrect purposes?
This may occur if a Minister for Justice, Equality and Law Reform put out information that has not been through the law courts. I can think of a recent example of this. In essence, does the Minister not believe there should be some time limits on the retention of DNA samples? Does he believe that clear guidelines should be put down with regard to what type of crime would result in DNA samples being taken and retained? Does the Law Reform Commission recommend that safeguards similar to those recommended by the Human Rights Commission be put in place in the form of guidelines or a code of practice for the use of DNA samples?
I do not advance the view that every offence, no matter how trivial, carry the onus to extract DNA from a suspect. With regard to parking or other summary offences, I cannot imagine any reason why it would happen. There are other categories of offences that should not be the subject of a compulsory power to take such a sample.
Generally, in the case of indictable crime, a person arrested should be obliged to provide a DNA sample. Although I am grateful to the work carried out by the Law Reform Commission, I respectfully disagree with it on the following point. I do not believe civil liberties are enhanced by the destruction of a sample of DNA, for example, two, three or four years after it has been obtained. It would be a case of the State disabling itself in the battle against crime to carry out such an action. Recently I became aware of a case where a person was convicted of a serious crime using old evidence, many years after the offence and after the trail had apparently gone cold.
It is not simply a matter of getting convictions on DNA evidence tendered in court. One major advantage of DNA and the dramatic manner in which the technology is changing is that it gives gardaí leads almost immediately at the scene of a crime. People leave traces of DNA if they use a door handle to get into a building, if they carry a briefcase or if they go over objects in a bureau, for example. Traces of DNA left behind are very helpful to the Garda Síochána in such circumstances when it is able to match samples to those of known offenders and those who have been arrested previously for serious offences.
I am on the same page as the Minister on this issue. We are virtually the only country in Europe that does not have a DNA database, and the sooner we have it, the better. My concern is to get it as quickly as possible. An 18-year-old murder was solved with this technology. Some 6,000 crimes from the past four years in England have been investigated using DNA evidence, and these include murders and attempted murders. We should proceed with this database.
I have two problems. I am concerned that there has been such a small increase in the budget of the Forensic Science Laboratory, which indicates that not a whole lot will be happening this year. With regard to legislation, will the Minister give a timetable on when we will have it? Will he give an assurance that it will not be heaped into the wheelbarrow with other amendments to the Criminal Justice Act, as it is already vastly overloaded? I guarantee my party will do what it can to make sure the legislation is put in place quickly. We badly need the operation of this database.
The legislation has been sent for drafting and I hope to publish it in the summer of this year. I agree with the Deputy that this is a very important area of science and criminology. I am working at the moment on an ambitious programme to give the Forensic Science Laboratory, an important State service, a new home, and to do so as rapidly as I possibly can. I hope to provide facilities in a secure location in the Phoenix Park Garda complex, as part of a building programme, as speedy as the one responsible for the four-storey building that was erected in Templemore, and to expedite the transformation of the Forensic Science Laboratory into an institution with every possible technical and housing requirement fulfilled.
I also intend to provide for the proper storage across Ireland of samples and evidence because, at the moment, the Garda Commissioner and I have misgivings about the circumstances in which some evidence is kept. I assure Deputy Jim O'Keeffe that this is a priority, though I have not had the opportunity until now to indicate so. It is something on which I, the Commissioner and my colleagues in Government are anxious to make early progress.
I am happy that the Minister intends to erect a building to ensure that the integrity of samples is preserved. I hope he will do the same for other evidence brought before the courts which at present is retained in Garda stations but not under proper lock and key.
Is the Minister satisfied that we have sufficient expertise, an adequate methodology and sufficiently cutting-edge modern technology for the testing of DNA samples? In nearly every controversial case that comes before the courts we seem to have to go abroad for DNA testing. Do we have the resources and sufficient staff to conduct the sampling and provide a proper database ourselves?
I will agree to disagree with the Minister on most of what he said. Does he intend to include in the legislation a provision that samples given voluntarily by citizens to aid elimination from investigation will be destroyed? If not it will discourage people from aiding the State in its pursuit of crime and will impede investigations.
The Garda Síochána is capable of organising anything with DNA samples. Sinéad McDaid was killed on the side of the road on 12 June 2001. Sergeant Mick Murray, who was totally discredited at the Morris tribunal, exhibited a photograph as evidence in the High Court showing four signs on the road, but Garda Moran made a statement to the effect that there was only one.
I will not comment on any individual person or case. I am not in a position to do so and it would be inappropriate to act in the manner the Deputy invites me to.
I agree that the basis on which people volunteer information or a sample should not be abused. If they are led to believe that what they volunteer is to be used solely for the purposes of one particular investigation then that should happen. They should not be tricked into providing a sample for another purpose. Informed consent is the keynote for persons who volunteer samples.
Samples should be taken from people arrested for serious offences, namely, those carrying a penalty of five years' imprisonment or more. They should also be taken from people charged with a number of offences carrying lesser penalties, such as indecency or under age sex.