Wednesday, 22 June 2022
Defence Forces (Evidence) Bill 2019: Second Stage
I know we do not have a huge turnout for this legislation. It is important but I do not think it is controversial, which may explain why there is not a strong Opposition presence here. I am pleased to present this Bill to the House. While technical, it is important legislation. The principal purpose of this Bill is to provide for members of the Military Police to take and use DNA samples and other evidence for the purposes of its investigations, including outside the jurisdiction when Defence Forces personnel are deployed overseas.
The Military Police, a service corps within the Defence Forces headed by the Provost Marshal, conducts criminal investigations concerning persons subject to military law. The investigative capabilities of the Military Police are currently compromised by the lack of a comprehensive statutory basis for the taking of evidentiary samples. This Bill will remedy this situation and enhance the capability of the Military Police to carry out its investigations of serious offences.
The Bill provides that DNA samples may be taken when a person subject to military law is placed in service custody by the Military Police in connection with a relevant offence. The Bill also provides for the establishment of a DNA (Military Police) database system, to be administered by Forensic Science Ireland, to hold DNA profiles generated from DNA samples taken under this legislation.
The Bill closely mirrors the Criminal Justice (Forensic Evidence and DNA Database System) Act 2014, which provides for the taking of DNA samples by An Garda Síochána and for the establishment of a DNA database system with a view to assisting An Garda Síochána in the investigation of serious crime. Some necessary adaptations were required to take account of the military environment. However, the safeguards provided for in the 2014 Act regarding the taking of samples from persons have been incorporated in this Bill. In other words, we are simply giving Military Police the same powers that An Garda Síochána already has and uses.
The Bill also sets out the other powers of the Military Police when a member of the Defence Forces is placed in service custody. These powers, including the power to search and take fingerprints, are similar to the powers of An Garda Síochána in relation to a person who is arrested and detained.
A feature of the Bill is that DNA profiles generated from samples obtained under this Bill may be compared with DNA profiles held on the DNA database established under the Criminal Justice (Forensic Evidence and DNA Database System) Act 2014. The comparison will be carried out by Forensic Science Ireland.
I now come to the detailed provisions of the Bill, which is divided into 12 Parts. Part 1 includes standard provisions relating to the Short Title and definitions and clarifies the application of the Bill to a person subject to military law, including when any such person is for the time being outside the State or on board a ship or aircraft.
Part 2 deals with the taking of samples from persons in the custody of the Military Police for entry onto the DNA (Military Police) database system, as well as the taking of intimate and non-intimate samples. Any samples taken under this Part may only be taken in connection with the investigation of what is called a "relevant offence". For the purposes of this Bill, this means an offence for which a person subject to military law may be punished by imprisonment for a term of five years or more, for example, serious assault or murder. In other words, this is only being used in serious cases. The results of the forensic testing of a sample taken under this Part, and any DNA profile generated from any such sample, may be used in court martial proceedings. Provision is made for the retaking of samples in certain circumstances, such as where the original sample proves to be insufficient or is inadequately labelled.
Section 12 specifies the persons who are authorised to take intimate samples. Due to the nature of an intimate sample, the consent of the person in service custody must be obtained before any such sample is taken. Section 13 deals with the inferences a court martial may draw from a refusal to consent, or a withdrawal of consent, to the taking of an intimate sample.
Section 15 allows for the use of reasonable force in the taking of a non-intimate sample. In other words, we are asking people to co-operate with a process, and if they do not, then a judge will draw a conclusion for that. However, the use of this power is subject to a number of safeguards as specified in this section. Specifically, the use of reasonable force must be authorised by a member of the Military Police not below the rank of commandant. In addition, the taking of a sample pursuant to this section must be recorded by electronic or similar means. The provisions of this Part are similar to the equivalent provisions in the Criminal Justice (Forensic Evidence and DNA Database System) Act 2014, that is, they are the same standards the Garda applies.
Part 3 deals with the taking of samples from Defence Forces personnel and other persons to ascertain whether such persons have contaminated a crime scene sample.
Part 4 provides that the Military Police may request a person, referred to in the Bill as a "volunteer", to have a DNA sample taken from him or her for the purpose of generating a DNA profile in relation to the investigation of a particular offence against military law. A volunteer may include a person who is a victim, or reasonably considered to be a victim, of the alleged offence which is being investigated by the Military Police. The taking of a sample under this Part is subject to a number of safeguards, including a requirement to obtain the written consent of the volunteer. Where a person subject to military law refuses to give consent to the taking of a sample under this Part, then that refusal shall not of itself constitute reasonable cause for a member of the Military Police to suspect that person of committing the offence concerned for the purpose of arresting and placing that person in service custody.
Part 5 provides for the establishment by the director of Forensic Science Ireland, FSI, of a DNA (Military Police) database system. The system, which will be similar to the DNA database system established under the Act of 2014, will be used to contain DNA profiles generated from DNA samples taken under this Bill. The Part details the structure of the DNA (Military Police) database system, such as the various indexes which will be contained within the system.
Section 30 sets out in detail the functions of the director of FSI arising under this Part. Section 32 outlines the various comparisons that may be carried out by the director of FSI using DNA profiles entered onto the DNA (Military Police) database system, including comparisons with DNA profiles entered on the DNA database system established under the Act of 2014.
Part 6 outlines the powers of the Military Police in relation to the collection of evidence, other than evidence collected under Part 2 of this Bill for the purposes of DNA testing, from a person arrested by the Military Police and placed in service custody.Part 6 also has detailed provisions for the destruction, after specific time periods, of evidence obtained under section 34 and provides for the analysis of fingerprints taken from persons in service custody.
Part 7 deals with the destruction, after specific time periods, of samples taken for the purposes of the Military Police DNA database system and the removal from that database system of DNA profiles generated from such samples. It also provides for the extension, in certain circumstances for the specific periods, of the retention period for such samples and associated DNA profiles.
Part 8 sets out the offences arising under this Bill and the penalties that may be imposed for such offences.
Part 9 provides that the Minister for Defence shall, not later than six years after commencement of this Bill, review the operation of certain aspects of Parts 6 and 7 of the Bill and thereafter conduct similar reviews at such times as the Minister considers appropriate. Following any review, the Minister may, by ministerial order, reduce the period for the retention of evidence obtained under these Parts. In other words, there are reviews built into this legislation.
Part 10 provides that the provost marshal shall, following consultation with Forensic Science Ireland, prepare a code of practice to provide practical guidance to members of the Military Police in relation to the taking of samples for DNA testing under this Bill. This code of practice will help to ensure consistency in approach between this legislation and the 2014 Act. This Part also includes miscellaneous provisions, such as the delegation by the provost marshal of the functions assigned to him or her under this Bill to members of the Military Police, the making of regulations for the taking of samples and procedures, and for the transmission of samples for forensic testing.
Part 11 sets out minor amendments to the Act of 2014 which are required on foot of this Bill. The amendments have two principle purposes. First, the functions of the DNA database system oversight committee established under Part 9 of the Act of 2014 will be extended to cover the Military Police DNA database system. Second, amendments are being made to Part 12 of the Act of 2014 which implements, among other matters, the DNA and fingerprint data aspects of European Council Decision 2008/615/JHA, known as the Prüm decision, into Irish law. The Prüm decision contains provisions concerned with the stepping up of cross-border co-operation, particularly in combating terrorism, cross-border crime and illegal migration. These amendments to the Act of 2014 apply the provisions contained in that Act regarding the reciprocal searching of DNA databases and automated fingerprint identification systems maintained by states for criminal investigation purposes to any DNA or fingerprint data obtained by the Military Police in the course of their investigations. This is, in other words, sensible data sharing.
Part 12 sets out technical amendments to the Defence Act 1954 and the Courts-Martial Appeals Act 1983. The primary purpose of these amendments is to provide that a summary court-martial may deal with applications concerning various matters arising under this Bill.
In conclusion, I am pleased to submit this technical but important legislation for the consideration of the House. I commend the Bill to the House.
In short, this is just about applying the standards that the Garda currently uses to the Military Police to ensure that they can efficiently conduct investigations that, of course, respect people's privacy, but at the same time use DNA and a DNA database to good effect. It makes a lot of sense. For what it is worth, we did not have any amendments in the Dáil on this issue. There was, in general, cross-party support for what we are doing.
I thank the Minister for coming today. My colleague, Senator Joe O’Reilly, who is the spokesperson on foreign affairs and defence could not be here, so I am covering for him. As the Minister said, this is a technical Bill but, essentially, it is quite simple as well. All we are trying to do is have the military and the Defence Forces be in line with what An Garda Síochána is doing with its colleagues across EU member states.
When the Bill went through the Dáil, as the Minister said, it received backing from all sides. I think that will be quite similar here today. I welcome the Bill. It gives the Military Police the power to take DNA and other evidence for investigations to increase the capabilities of the Military Police that are compromised by the lack of structure to take evidence at the moment. This Bill will bring the Military Police in line with An Garda Síochána. It also applies to where a member of the Defence Forces is placed in service custody, quite similar again to An Garda Síochána. In addition, it includes the sharing of information, DNA and fingerprints between EU member states. As the Minister said, this is only used in serious cases. It will enhance the structure between all the EU member states in fighting serious crime. As has been said by many in the Lower House, this will be agreed by all sides and improve our capabilities to manage serious criminal activities. On Fine Gael’s behalf, I welcome this Bill. We thank the Minister for the work he and his officials have put into this legislation.
I welcome the Minister back to this House. He is a very busy man. I just saw on the television this morning that he was in Brussels a few hours ago. I join with the Cathaoirleach and Senator Ahearn in welcoming Senator Maria Byrne and her guests. Senator Byrne is very well known for her hospitality. I know her guests will be very well looked after on their visit to Leinster House. I hope they have an enjoyable day.
I thank the Minister for his comprehensive contribution on this legislation. The principle purpose of the Bill, as he outlined, is to provide for members of the Military Policy to take and use DNA samples and other evidence for the purposes of their investigations, including outside the jurisdiction when Defence Forces personnel are deployed overseas.
While technical, this is important legislation. It is required to ensure there is a comprehensive statutory basis for the collection of forensic evidence by the Military Police to assist them in their investigations. This includes investigations that may be required to be carried out in other jurisdictions where members of the Defence Forces are deployed overseas.
The Criminal Justice (Forensic Evidence and DNA Database System) Act 2014 does not, as the Minister outlined, provide for the activities of the Military Police. Some adaptations were required to take account of the military environment. The investigative capability of the Military Police is currently compromised by the lack of a comprehensive statutory basis for taking evidentiary samples. This Bill will remedy this situation and enhance the capability of the Military Police to carry out its investigations of serious offences, similar to the power currently available to An Garda Síochána. In this regard, the Bill also sets out, as the Minister outlined, the other powers of a member of the Military Police when a member of the Defence Forces is placed in custody. These powers, including the power to search and take fingerprints, are similar to the powers of a member of An Garda Síochána in relation to a person who is arrested and detained.
The Military Police are responsible for the prevention and investigation of offences, the enforcement of discipline and the general policing of the Defence Forces. They also enjoy a very close working relationship with An Garda Síochána and other statutory agencies at national and local levels. An Garda Síochána assists in providing specialist police training to the Military Police in the field of crime investigation.
This Bill was first introduced at Second Stage in the Dáil in October 2019, but unfortunately it lapsed with the fall of that Government. I am glad that it has been re-introduced and passed through the Dáil. I wish it a speedy passage through this House.
There is currently no external oversight of policing services within the Defence Forces, and no independent complaints process exists for the investigation of alleged Military Police misconduct or negligence. In addition, regular independent review and assessment of the quality of policing services is not undertaken.This lack of structured oversight is in contrast to the numerous oversight and complaints mechanisms for other policing and investigative bodies in the State. This is an unsatisfactory position. The Minister said that the principal purpose of the Bill is to provide for members of the Military Police to take and use DNA samples and other evidence for the purposes of their investigations. It will provide for the establishment of a Military Police DNA database system to be administered by Forensic Science Ireland to hold DNA profiles generated from DNA samples taken from persons under this Act. It is the opinion of the commission that robust and independent oversight and periodic review would greatly enhance the military policing service, benefiting the victims of crime, safeguarding the rights of suspects and increasing trust in the wider system of military discipline and justice. This Bill significantly enhances the powers of the Military Police and brings them in line with the powers of the Garda in respect of DNA collection and fingerprinting of suspects. It should also be borne in mind that the Garda is operationally independent when carrying out investigations. The Military Police, however, remains part of the military chain of command and cannot be considered truly independent. The commission on the Defence Forces recommended that the Military Police become independent of the operational chain of command and that robust and independent oversight and complaints mechanisms be introduced.
I understand a couple of Government amendments were passed on Committee Stage limiting the purposes for which the DNA database can be used and to introduce a code of practice for the taking of DNA samples. I welcome this technical Bill to the Seanad. We all want crimes to be investigated properly and for those who have committed crimes to be brought to justice. This Bill will help to ensure the Military Police is able to do that.
As always, there needs to be a balance between the effective investigation of crimes and respecting rights to data protection and privacy of those whose DNA is taken. In respect of the threshold of the crime, according to the Bill, samples are only taken for offences for which a person subject to military law may be punished by imprisonment for a period of five years or more, for example, serious assault or murder. The Minister moved that the Bill be read a Second Time and unreservedly commended it to the House. If it is so good and since it is so non-controversial, why is there a cut-off point that it cannot deal with less serious offences as well? There might be crimes that are serious in the eyes of a person but that fall short of that specified term of imprisonment of five years or more.
I have a question about one of the amendments made on Committee Stage in the Dáil in respect of the code of practice. One of the issues we have run into in some legislation is that codes of practice are non-statutory and have less importance than statutory codes of practices. Will the Minister confirm this a statutory code of practice? I acknowledge the code of practice would have to be approved by the Minister. It may be useful if the code of practice were to be sent to the committee for comment before the Minister was to grant approval or refusal. The main body for consultation on that code of practice is Forensic Science Ireland. Would the Minister be open to including the committee as a named body to be consulted under this legislation?
I thank the Minister for making himself available. I just learned a few minutes ago from Senator Wilson that he was in a different country this morning. His dedication to coming into the Seanad is second to none. We appreciate the presence of the senior Minister for Foreign Affairs. The Bill is technical and non-controversial. I am pleased the Green Party is happy to support it. My observations were not meant as criticisms. They are just enquiries and the Minister might revert to me at a time of his convenience through his Department.
Cuirim fáilte roimh an Aire, an Teachta Coveney. Tá an ceart ag an Seanadóir Martin nuair a deir sé go bhfuil an tAire i gcónaí díograiseach ag teacht os comhair an tSeanaid. Gabhaim mo leithscéal leis an Aire as a chur i láthair a chailleadh inniu.
The Minister is very welcome to the House. I apologise for missing his contribution. He will know from being at the Council of Europe that I am a few Senators down this week. It is one of those days of running from one thing to the other. We welcome the Bill. In effect, it is the adoption of a code of practice with respect to the use of forensic evidence in the gathering of evidence in circumstances where military personnel are suspected of certain offences under military law. It is also to provide for the establishment and operation by Forensic Science Ireland of the Department of Justice of a DNA (Military Police) database system. It is an important development in the ongoing process of modernising the Defence Forces, the means it employs to gather evidence and the rules which govern this. It is important the Minister is able to give an undertaking, because of the difficulties with recruitment and retention within the Defence Forces, that there will be sufficient resources available within the Military Police to ensure the detail contained in the roll-out of this Bill can be put into effect practically on the ground.
My colleague, Deputy John Brady, supported this Bill on Committee Stage but he also raised concerns that there is no set period to cover arrests and detention periods within the Defence Forces. This is an area of concern that requires attention in the time ahead. There are currently no stipulations regarding the extension of arrest periods, or who has the authority to extend these periods. There is a need for further amendments to the Defence Act to bring this up to the standard of other areas of military law. While we are debating the Bill, will the Minister update us on the commission on the future of the Defence Forces and when he thinks he will be able to take it before this House?
I thank the Senators for being both helpful and co-operative. I have a long closing speech here but I am just going to answer their questions if I can. No offence to the people who put the words together; they are very useful.
Yes, absolutely. This legislation is technical. It is effectively ensuring investigations undertaken by the Military Police can be as comprehensive, using DNA samples in the way the Garda uses DNA samples in other criminal cases. It would be extraordinary if there were investigations taking place under military law that could lead to a court martial that could not use modern forms of evidence gathering and so on. Of course, there are limitations to that. Certainly, the taking of intimate samples is only justifiable in cases of serious breaches of the law. There is a voluntary nature as well in respect of willingness to give a sample in certain circumstances, as is deemed appropriate.
Senators referred to other issues in respect of Military Police investigations around oversight, appeals mechanisms and so on, some of which were dealt with the commission report. Those issues do not require legislation at this point. This is about providing a legal basis for the taking of DNA samples, which at the moment we do not have. That is why it is a specific technical piece that mirrors what the Garda can do and updates the various Acts that need to be updated in that regard.
On the commission report, we are in the middle of discussions with other key Departments on ensuring we can bring a series of recommendations to Government that can be agreed. That is not an easy process, as those Senators who have been in government before will know.We are proposing a significant increase in expenditure for the Defence Forces, which is absolutely justified and necessary. We have the evidence base now to make informed, sensible decisions on the resourcing of our Defence Forces into the future. We also have the extraordinary and tragic context of a war on the Continent of Europe, which unfortunately is seeing somewhere between 200 and 400 people dying every day. Every country in the European Union is reviewing defence and security issues and we should be no different. The fact that we are militarily neutral and non-aligned does not protect us from some of these threats, including cyberattacks, and we know that. We are going to respond in a comprehensive way but consultation with other Departments is needed. That is happening and has been happening for a number of weeks now. I thank my colleagues for their co-operation because this is not easy stuff in terms of trying to accommodate a significant financial request, given the pressures on Government around the cost of living, healthcare, housing, disability services, education and so many other areas.
In response to Senator Ó Donnghaile's question, I hope to have it done before the recess. I gave a commitment that I would try to bring a memo for agreement to Government in the month of June and I would like to follow through on that if it is possible. Whether it happens next week or the week after is not really the issue. The main issue here is to get it right and to get a clear commitment so that we can set a course for the Defence Forces of reform, modernisation, recruitment, effective retention, growth, expansion and increased numbers. Of course, increased resources will be needed for all of that and we cannot do this overnight. We cannot do it in one, two or even three years. This is about setting a course for quite some time into the future, hopefully with some certainty around the availability of resources so that we can map out the four- to six-year plans that are needed in terms of upgrading equipment in the Defence Forces within the rules and the law and so on. This simply cannot be done overnight.
As Minister for Defence, I do not want to create expectations but we are very close to the most strategic defence memo that I can remember coming to Government, in terms of its scope, scale and commitment. I hope we will get agreement on that shortly so that the Department of Defence and the Defence Forces can work together to bring about the modernisation and reform that is badly needed.