Frances Fitzgerald (Dublin Mid West, Fine Gael) | Oireachtas source

I thank Senators for their support for the Bill. As I said on Second Stage, it is excellent that we are at this point in respect of the Criminal Justice (Forensic Evidence and DNA Database System) Bill. We have to ensure the legislation is on the Statute Book. There is an EU directive, the terms of which we have to meet by 1 December. I am aware this amendment was tabled on Committee and Report Stages in the Dáil where a good discussion took place and my predecessor explained the reasons he was not prepared to accept it. I do not intend to accept the amendment either but I would like to reiterate the reasoning here to deal with some of the concerns outlined.

The first point is that the former offenders' regime in sections 33 and 34 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 also 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. Ultimately, if the person still refuses to co-operate, he or she cannot be forced to provide a sample, although the Bill does provide that he or she may be prosecuted for failing to comply with a notice to attend to have the sample taken, but that is all.

The former offender provisions, which are relevant to the points the Senator has made, are also subject to the ten year rule contained in section 33(3). Broadly speaking, under that 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 so-called former offenders covered by the Good Friday Agreement would be covered by this ten year rule, given the passage of time since their release, although I appreciate there may be some exceptions to that.

That is the position from a practical perspective. From a strictly legal standpoint, it would not be possible to make the amendment the Senators propose as it would result in the unequal treatment of two similarly situated individuals and, as a result, 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 the Government to treat the release of qualifying prisoners in the same way as the generality of the prison population. I do not believe, therefore, there is any particular reason for treating persons released under the Good Friday Agreement differently from other former prisoners in the context of the Bill. It is consistent with the approach that has already been taken in the State.

I believe that few, if any, of the group of former offenders with whom the Senators are concerned are covered by the provisions of sections 33 and 34 and, even if they are, they cannot be compelled to provide a DNA sample. I do not propose to accept this amendment but I hope that my response will enable Senators understand the reason I am taking this approach.