DNA BILL STRENGTHENS INVESTIGATIONS WHILE PROTECTING RIGHTS - KENNY

Posted on October 9, 2013 10:43 PM   |   Permanent Link   

Speaking on the Criminal Justice (Forensic Evidence and DNA Database System) Bill 2013

I am glad to speak on this legislation today. Legislation that governs issues surrounding DNA and crime is a sensitive issue, one that involves balancing the need to conduct effective criminal investigations with the need to protect human rights and civil liberties.

The enactment of this legislation will fulfil a key commitment that was made in the Programme for Government. When it is up and running, the database will have the capacity to link crimes and to identify suspects in relation to unsolved crimes. This will enable the Gardaí to conduct better investigations and make better use of resources. In addition, making use of such database technology in the forensics field has the added benefit of facilitating the searching, subject to strict conditions, of other national DNA databases.

In bringing forward this legislation, I know the Minister was determined that the legislation would fully respect human rights, and I believe this has been done with the legislation.

The Bill provides for the taking, subject to appropriate safeguards, of biological samples in the form of mouth swabs or hair follicles from suspects and convicted persons including sex offenders from which their DNA profiles will be generated for entry in the database. Crime scene profiles from unsolved crimes whether occurring before or after the new legislation becomes law will also be entered in the database.

The actual data will be held on purpose built software supplied in use by agencies around the world. This software called CODIS (Combined DNA Index System) is used in over 40 countries, including 18 EU member states. It was installed in the Forensic Science Laboratory in 2012.

The level of intelligence that will be generated by a DNA database will be invaluable to the Gardaí in relation to identifying prolific offenders involved in volume crimes such as burglary. It will also have a big impact in relation to serious offences against the person, such as homicide and sexual offences. It will contribute to the move towards more effective, targeted and smarter policing operations and will also facilitate cooperation with other police forces across the world, where criminal cases where those behind crimes are mobile. This is something I have spoken on before in this House. In addition to benefitting criminal investigations the database will also be of benefit in identifying missing and unknown persons, including unidentified human remains, whether in individual cases or as the result of a natural or man-made disaster. It is also important to point out that the database will be of benefit in establishing the innocence of persons suspected or wrongly convicted of offences and will help in preventing miscarriages of justice. These last two points are ones that I think should not be overlooked.

It seems clear to me that the last Fianna Fáil government really was asleep at the wheel, and not just in economic matters, but in matters of human rights and civil liberties. Had their incarnation of this legislation become law, the results may well have been catastrophic in terms of human rights, civil liberties and also to the legal integrity of criminal investigations.

The Bill published today is substantially amended in many respects to address issues that gave rise to genuine concerns, including in relation to the sensitive area of the retention of samples and DNA profiles of persons who are not subsequently convicted in order to ensure that any interference with their privacy rights is justified by the public interest in the investigation of crime and is proportionate.

Clear terms govern the level of information that is to be given to a person before a sample is taken in the case of compulsory samples and before consent is sought in the case of voluntary samples. The types of samples that may be taken from persons for the purpose of the database are restricted to the least intrusive samples - mouth swabs or plucked head hair - the hairs are to be plucked singly in so far as practicable and no more are to be plucked that is reasonably considered necessary. Draft codes of practice for the purpose of giving practical guidance as to the procedures regarding the taking of samples under the Bill are to be drawn up by the Garda Síochána, the Ombudsman Commission, the Irish Prison Service and the Irish Youth Justice Service for approval by the Minister, and these codes are to be published.

A high offence threshold for the taking of samples from suspects and offenders applies - generally samples may only be taken for the purposes of the database or for evidential purposes in relation to offences having a penalty of 5 years imprisonment or more. Where reasonable force may be used to take a sample it requires prior authorisation of an officer of at least Superintendent rank. and its use must also be observed by a senior person who has responsibility for determining how many officers are required. It must be electronically recorded.

There are special safeguards for protected persons and children who are suspects. Protected persons will not be subject to sampling for the purposes of the database - evidential samples may be taken where required. Children under 14 years will not be subject to sampling for the purposes of the database - evidential samples may be taken where required - the position with regard to children of 14 years and older is to be reviewed within 6 years. Reasonable force may not be used to take a database sample from a child suspect.

Information is to be given in a language and manner appropriate to the protected person and is to be age appropriate. Provision is made for a person other than a member of the Gardaí to be present when a sample is being taken from a protected person or child - the person may be a parent/guardian/adult relative or a person nominated by the member in charge. Such persons are also to be given the information that is required to be given to the protected person or child. Special provision is made in relation to the giving of consent on behalf a protected person/child for the taking of intimate samples (where required for evidential purpose) - in certain circumstances a District Court order may be sought to authorise the taking of an intimate sample.

In general the consequence of refusing to consent to the taking of an intimate sample is that an adverse inference may be drawn in subsequent proceedings - this consequence does not arise in the case of protected persons or, for the most part in the case of children.

There are safeguards in the Bill around the DNA Database itself. The purposes of the database are set out clearly in the Bill is order to counter any possibility of 'function creep' and this is something which I am strongly in favour of. The searches that may be conducted between different categories of profiles entered in the database are specified to ensure that a profile is used only for the purpose for which it was taken.

The management and operation of the database is to be subject to independent oversight by a statutory committee for the purpose of ensuring its integrity and security. The Committee is to be chaired by a judge or former judge of the Circuit Court or High Court and will include a representative of the Data Protection Commissioner. The Committee may make recommendations to the Director of FSI or the Minister as regards the management and operation of the database. The Committee may, on its own volition, conduct reviews of any aspect of the management and operation of the database and the Minister can also instruct the Committee to review any matter relating to the database.

The Committee's reports are to be submitted the Minister, and are to be laid before the Houses of the Oireachtas and published - subject to certain restrictions in the interests of national security, the security of the database, criminal investigations and to avoid infringing the constitutional rights of any individual. Disclosure of information relating to biological samples or information on the database is a criminal offence triable summarily or on indictment.

In relation to the destruction of samples taken from suspects, prisoners etc for the purposes of the database, the Bill provides that such samples will be destroyed as soon as the profile has been generated from the sample or within 6 months whichever is the later - the destruction of these samples will have no effect on the usefulness of the database as it is only the profile that is required for the database.

In relation to persons who are not proceeded against or are not convicted, the Bill includes a presumption in favour of the removal from the database of the DNA profiles of such persons subject to the Garda Commissioner having the power to authorise retention on the database where he is satisfied that this is necessary - a statutory test is set out by which the Garda Commissioner will make this decision. His decision will be appealable. The retention periods allowed will be 6 years in the case of adults and 3 years in the case of children. The DNA profiles of persons of serious offences will, of course, continue to be held on the database indefinitely.