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

This amendment addresses the transfer of DNA samples or profiles to other states. I understand that the amendment seeks to ensure there are appropriate safeguards with regard to such transfers. I assure the Senator that insofar as the amendment purports to address mutual assistance such safeguards do exist and in fact go further than what has been proposed. In regard to subsection (1), I understand the amendment would apply to persons acquitted of an offence in this State where a sample or profile is sought by another state for the purpose of investigating or prosecuting the person for the offence for which he or she have already been acquitted. I am stating this as the wording of the amendment does not make that clear. I draw the Senator's attention to section 132 of the Bill, which amends section 79 of the Criminal Justice (Mutual Assistance) Act 2008. Section 79 of the 2008 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 was conducted here. The request cannot go outside of Irish law. There may be concern that a country could make a request that is not permissible under Irish law but the aforementioned section is clear in that regard.
In the circumstances put forward by the Senator relating to a person who has been acquitted, the prohibition against double jeopardy ensures that a person cannot be prosecuted in this State for an offence for which he or she have been previously acquitted. Consequently, it would not be in accordance with section 79(1) to transfer the evidence for similar purposes. To put it simply, if evidence cannot be sought for a particular purpose in this State, it will not be provided for a similar purpose to another state. That is an important safeguard.
Subsection (2) of the amendment proposes to limit the transfer of DNA samples or profiles to other jurisdictions with which the Irish State has extradition treaties in place. The basis on which this State engages with other states for the purpose of mutual assistance is the Mutual Assistance Act 2008 and prior to that the Criminal Justice Act 1994. As the matter 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 the possession of the Garda, the person from whom the evidence is sought must consent to it being taken and transferred. However, on foot of the Prum Council decision, to which the Bill is giving effect, the Mutual Assistance Act is also being amended to provide assistance to 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, sections 133 to 135 of the Bill insert new sections, 79A to 79C, into the Mutual Assistance Act. These sections set out in detail the steps which must be taken in the State in relation to obtaining a DNA sample from a person who does not consent to the taking of that sample, including obtaining a court order for the taking of the sample. 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, however, the Bill amends the Mutual Assistance Act to ensure the necessary safeguards and destruction provisions are in place. Section 132, paragraph (g) of the Bill, 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 safeguards and the many other safeguards contained in the Bill and for these reasons will not be accepting the amendment.