I rise on behalf of The Workers' Party to welcome the debate on this important issue not just of genetic fingerprinting but the whole question of enabling the Garda with better and more comprehensive powers to deal with the taking of genetic samples. In the context of developments of science and technology it is obviously a timely and important debate to undertake.
Having said that, I want to indicate that The Workers' Party have very grave reservations about the structure and provisions of the Bill and I hope that the Minister will have regard to the points we have to make and seriously address them. In the event that there are no improvements introduced into the structure of the legislation in the context of the wider powers for the Garda in the taking of samples and also in regard to genetic fingerprinting as a process of identification, I regret to say that The Workers' Party will have no hesitation in opposing the Bill on Second Stage and, indeed, on Committee Stage.
There is general agreement with the principle that the Garda should have powers to detain in certain circumstances and to obtain samples for the purposes of forensic testing. There is no difficulty with that as a principle. It already exists and there are many areas of Garda investigation where under the law they have done so and will continue to do so. A topical area, which will perhaps be far more topical by the time the day is out, is that of blood testing and the taking of samples of blood from persons who drive cars when they should not. Fraud is another area where there is clearly a need for the expansion of our law to keep abreast of developments so that the Garda can equip themselves to deal with crime as it emerges and develops in a modern society. A glaring example is that of the Bailieborough Co-op investigation where a squad of Garda sat in there for many long months investigating the records and goings-on in that co-op and came out with nothing; yet within weeks of their investigation the "Today Tonight" programme could illustrate it to us all on the screen. The big question is, are we equipping the Garda to keep abreast of developments, with the devices to deal with the computerised, technological society in which we live so that they can address the more sophisticated criminal of the modern day. The "Today Tonight" programme on Gallagher again illustrates this difficulty for us, when in one jurisdiction that arch criminal was brought before the courts, prosecuted and made to answer for the huge fraud that he visited upon many people in this community, yet he can walk the streets in Dublin and elsewhere free from any imposition of justice after a long period of time; and when that programme could illustrate vividly the extent of his crimes and frauds. It is a great pity. In any event in this legislation we are beginning to recognise that society is becoming much more technically sophisticated and that the means available to the Garda, not just in the area of genetic fingerprinting but elsewhere, are expanding daily. It is proper that we address the central issue and codify, bring under one Act, the powers available. In general therefore, there are no difficulties.
However, I am concerned about some other aspects. First there is the question of inferences. My worries here are very much exemplified in the Minister's comment when describing the sting in the tail phenomenon it represents. He said a refusal may be taken "as an inference of guilt". I am concerned that we are going too far when we say the only inference to take from a refusal or a failure is one of guilt. That is the difficulty I see in legislating into our law the right to draw inferences from certain events.
Deputy Kavanagh has mentioned the problem of haemophiliacs. We have the problem of people who, perhaps, have reservations for religious or other reasons about submitting themselves to certain examinations. The Bill as circulated does not suggest that the only inference we can draw in those circumstances is one of guilt. The Bill is drawn wider and suggests it is a matter for the judge at the return for trial order or the jury or judge at the trial stage, to drawn an inference and that is all, but it is the Minister's declaration that that inference is one of guilt that worries me and helps to illustrate the problems that can arise about relying upon this type of legislative approach to inferences. We should consider whether it is not better simply to leave it for the jury to consider and adduce it in evidence. Tell the jury that when the person in the police station was confronted with the request he or she refused, and leave it there. Why then go to the next step of trying to impose a diktat on the jury, by telling them they can draw an inference? They can do that on all facts presented to them. Their duty is to try the issue of guilt or innocence according to the evidence and the facts. I wonder whether we want to legislate for this at all. The sanction or sting in the tail is there. In this context where we have legislated for this kind of inference to be drawn under the 1984 Act, has the Minister any information what extent the drawing of inference, refusing to give information or failing to comply with certain inquiries have been relied upon in subsequent criminal prosecutions? My impression — it is only that — is that it has not been relied upon very often because it is considered at times to be an effort to direct and juries often tend to recoil from the diktat being imposed.
There is another matter that has to be addressed but maybe it cannot be dealt with in a Bill. There is a clear pattern in the use of section 30 — and I have no doubt in time section 4, once the Garda have come to grips with the full complexities under the 1984 Act — for detention purposes as an information gathering exercise. That is the only inference that can be drawn from the statistics which show that a very small proportion of people detained under section 30 are subsequently charged. It is clearly an indication that time and time again the powers available to the Garda, coupled with powers to take samples or to seek account of movements, have been used merely as information gathering exercises.
There is a very important civil liberty issue here. It arose in the Charles Self murder investigation where the Garda had a very explicit and absolute — if one can use that term in the area of evidence — piece of evidence, that of the thumbprint left at the scene in the blood of the victim and the only person who could have left that there was the person who perpetrated the horrible murder. Subsequently the line of investigation followed included assembling all those persons in the Dublin and wider community who were considered by the Garda to fit into a general category, the gay community. That example is illustrated by the very high flown brochures presented by Cellmark Limited, a subsidiary of ICI, when they talked about the Leicestershire case where the police, in order to conclude their investigations, required over 5,000 male members of the two villages in the area where two girls had been brutally murdered to submit to DNA sampling and examination. It is a point. To what extent will these technological facilities and powers be an invitation and an opportunity for the gardaí to engage in information gathering as opposed to serious crime investigation?
The authorisation for the taking of samples is another matter of concern and it works into the consideration of existing experiences under section 30 where again the extension order can be signed by the Superintendent of the Garda Síochána and certain samples can be taken from the person in detention at the authorisation or direction of the superintendent or higher officer. Again I have reservations about that power being exercised within the remit of the Garda.
The Minister should consider whether the power of direction or authorisation should emanate from a member of the Judiciary, that is, a member of the District Court. That is the position at the moment with regard to the taking of fingerprints in many cases, such as fraud; the same applies to writing samples. The Garda officer must resort to the court on sworn information for the power to get the warrant to take the sample. The Garda must go to the court when it is time to seek a search warrant to enter and search a person's house. Indeed, to arrest in some instances the officer must on sworn information, put on written record his or her belief or reasons for acting or seeking the power to proceed. There is no reason that we cannot rely on this.
There is a general availability of judges of the District Court. The person who is to be challenged with the request for the sample will be in Garda custody under section 30, if needed, for 24 hours at the start and 48 hours subsequently. Under section 4 the person can be detained in certain circumstances for longer than the six hour period. Therefore, in terms of opportunity or convenience, there is no reason the officer could not and should not be asked to go to the District Justice on sworn information for authority to take the sample. The importance of that is that the record will be lodged with a court; a judge will have the opportunity to supervise the issuing and can ask questions of the officer if necessary — in practice it does not happen — but even the simple procedure of going to an independent authority in open court or indeed in the office of a judge, lodging information sworn on oath and explaining the reasons that the powers need to be exercised and then lodging the document as a matter of record, is an important safeguard of civil liberties not provided for in the Bill. The concept that the authorisation can be given orally as provided for and subsequently and as soon as possible after ratified in writing is a disaster. It will simply be retrospective authorisation. The officer will proceed for convenience or speed and with the assistance of the superintendent get the written record subsequently. Who is to say whether the superintendent had been contacted to give oral authorisation in the first place? If they are not prepared to go to the District Court for the authority the notion that the authority can be given orally and subsequently ratified in writing does not have regard to or respect for the notion of safeguarding or protecting the individual. I urge the Minister to look at that matter before Committee Stage.
The question of the destruction of records is also raised in the Bill. I am curious to know why the records of a person who is made answerable to the courts for an offence and found under the 1907 Probation of Offenders Act to have committed the offence in such circumstances as not to warrant a conviction but marking the fact that the person is placed on probation will be retained for three years whereas the records of a person who is arrested and detained on suspicion of a serious offence will be destroyed in a far shorter period if there is no charge within six months and the court proceedings are completed within 21 days — if my memory serves me right. I wonder why an extraordinary lengthy period is retained for somebody dealt with under the 1907 Probation of Offenders Act?
Deputy Flanagan dealt with the question of regulations and I wholeheartedly support him on the idea that regulations should be in the affirmative form requiring action by the Houses of the Oireachtas before they are passed into law. It is important that we have a debate on the regulations before they are put in place because they are important issues. I know there is the omnibus introductory clause to the regulations but they should be expanded to deal specifically with the reception, retention and storage of samples taken and their ultimate destruction when that has been decided on. On Committee Stage I will be asking the Minister to expand the regulations to cover grounds that are not covered but more particularly to allow this House to play an active role in reviewing the regulations once drafted as was the experience in the 1984 legislation when the regulations of 1986 were circulated and were made available for comment not just in this House but generally.
The Bill provides us with the opportunity to debate again the whole question of police station oriented investigation. There is absolutely no doubt that as we make advances in technology and enable the Garda to take samples right across the board to assist them in their investigations of crime, there will be an inevitable drift towards the police station becoming, if it has not already done so, the centre of criminal investigation generally. The idea of gardaí out on the street knocking on doors interviewing members of the public, being footsore and weary, is a concept of the past. We are moving towards the process of investigation that is concentrated in the police station. Again this forces us to address the issue of the rights of persons once detained in Garda custody on suspicion of crime.
During the debate on the Labour Party's Private Members' Bill dealing with the need to review those rights I made the point, and I want to repeat it again, that as we move towards the concentration of investigations at the police station, we must invade the same place with protections and rights for the person detained. Let us remember that he or she is at all of those stages an innocent person and should remain so until otherwise proven. Consequently it is essential that video and tape recordings of all transactions involving suspects in police stations be established. We provided for this in the legislation of 1984. The Barra Ó Briain committee recommended it in the seventies and I understand this matter is under active consideration by the Martin committee. While not seeking in any way to anticipate the final recommendations of that committee, if video and tape recordings are re-emphasised by them in their recommendations it is essential that those recommendations be acted on without delay and that they be instituted and established as early as possible throughout the country. All samples taken by the Garda from persons in custody must be recorded on video and audio tape. We must extend the obligations on the Garda under regulations not simply to questioning and answering but to the taking of samples under this Bill or indeed any other legislation and that should be done in full view of a video tape and within the reception of an audio tape recorder. That is the basic requirement.
We are currently considering the video recording and video taping of interviews and questions as a means of addressing the potential for a dishonest garda. Look at the opportunities that must be available to that person if he or she is thwarted in questioning procedures to then interfere, meddle or abuse any samples that may be taken or relied upon in subsequent prosecutions. What is to stop the officer, having taken the samples, from stepping out of the interview room out of the view of the detained suspect and do whatever is necessary to infect the sample, exhibit or interfere or tamper with the evidence? Not only should the sample be taken in full view of the video recording and in the full reception of audio recording but the sealing of the sample should take place in the same circumstances so that whatever is taken should be put into bags or other receptacles and then sealed there. Again I recommended to the Martin committee that evidence taken outside of these standards should not be relied on or allowed in evidence unless the prosecution can establish extraordinary circumstances or excuse. If there are technical or other reasons or problems arising that we cannot agree on in this procedure, I contend that a sample should not be taken from the suspect detained other than in the presence of his or her solicitor. Again there is no reason that this cannot be achieved, given the availability of lawyers and modern communications and the fact that the suspect may be detained for any number of hours necessary under the provisions of section 30 and section 4 of the 1984 Act. I do not see any difficulty with this provision. I have been present in Garda stations many times over the years when samples were taken from suspects. It is far different from being present when a suspect is being questioned. I do not argue that a solicitor should be present during questioning. It is an invidious task to be there because of the likelihood or potential of interrupting or interfering with the line of questioning or inquiry but that does not arise where the issue is the taking of sample or a swab and observing that they are put into a sealed receptacle where they cannot be subsequently interfered with. Equally it should be provided for in the legislation as under the Road Traffic Acts that, where possible, a sample should be divided and made available to the suspect's representative, guardian or legal adviser. I acknowledge and respect that in many instances this may not be possible, for example, the taking of a sample of saliva is difficult to do but in virtually all other instances, for example, the taking of a dental impression, two should be taken and one handed to the defence. Likewise, in relation to a sample of hair, adequate should be taken and some handed to the defence. A sample taken of blood or any other matter should be divided and handed to the defence or his representative. That should be the standard provided for in legislation.
The second major issue is the security and safeguarding of samples once taken and who should retain them. It should be a thing of the past that a police officer would put samples into the locker in the police station or bring them home or, like the unfortunate Professor Harbison, given the circumstances and pressures under which he has to work, carry them around in his motor car for days or even weeks, as emerged in the Kerry babies inquiry. The sample, once sealed in the presence of the suspect under scrutiny of the video recording or of the suspect's legal representative, should as soon as possible be conveyed and stored in a central registry of exhibits which should be established at the State Forensic Laboratory. That should be a prerequisite to the introduction of any of these powers. There the samples should be logged and held in a registry. Access to them by officers for the purpose of further examination should be logged and the exhibit should be supervised by a designated person of the laboratory who is to be considered the examination officer for that case. This is a basic requirement for proper procedures in this area.
These proposals are eminently sensible and reasonable, having regard to the fact that we have a small island population. We are not dealing with a vast range of requirements. We have one police force, not multiple police authorities which might make the establishment of a central registry complicated. We have a single State Laboratory centrally located in Dublin. I see no difficulty in the implementation of these proposals, which are essential if not indispensable. The more we develop forensic science in the process of criminal investigations, the more essential it is to ensure a clinically controlled and safeguarded procedure for all persons subjected to these processes.
In the context of genetic finger printing it becomes more essential. Often a court will be asked to accept the findings of a forensic scientist in regard to genetic finger printing and in other contexts where the evidence is practically incomprehensible, not only to the judge and jurors but to the lawyers employed in the prosecution and defence of the case. Often the evidence will be invisible for all practical purposes because of the minuteness of the sample involved. In many instances the evidence will be based upon a sample which was effectively destroyed in the process of its examination in the laboratory. In those circumstances it is essential that whatever is taken from the suspect be delivered, sealed and uninterfered with, to the forensic science laboratory, where it then comes under the control of forensic experts.
Currently in the criminal courts there are investigations into such matters as firearm residue. Policemen in the course of their duties may handle their firearms and often discharge them. They then take swabs from the hands of suspects to establish whether they may have had contact with firearms. While they use plastic gloves while taking these swabs, the subsequent handling of the samples can cause huge problems of cross-contamination. We must guard against that with the greatest diligence.
The proposals I am making as essential prerequisites to the implementation of this legislation are practicable and will not involve any great expense. Even if some expense is involved, it will be a cheap price to pay in the cause of fair procedure and ultimately fair trial. Unless there are some assurances from the Minister that the Government and the Minister, in consultation with the Garda and the State Laboratory, are working towards this type of clinical, fair procedure, The Workers' Party will not be happy to allow this kind of law to be put in place and we will oppose it.
A related question concerns the destruction of the sample. Very important issues arise. We would argue that a store must be established at the Central State Laboratory for all samples taken in the course of criminal investigation by the police and that the people in charge of the laboratory should in good time be charged with the destruction of the record. This raises the issue: who has the property of the sample once taken? This is not an unreal argument. Under the 1984 Act there is provision for the destruction of fingerprint photographs and other records. I have been involved as a practitioner in a row between a district superíntendent's office and the special detective unit in Dublin Castle. The district superintendent's office were quite happy to abide by the law and destroy the records if necessary but the special detective unit said they wanted to keep them for their records and ongoing investigations. The issue of ownership and control of samples is crucial. It is vital that the law should not be thwarted in regard to destruction by inter-unit rivalries within the Garda Síochána and by people who think they are above and beyond the law simply because they are called the special detective unit or some other crack name.
The question is whether we are to endorse in the long term, if not sooner, a central bank of information. Is there an argument from the Garda, as is the case in Britain, that we should be building up a deoxyribonucleic acid profile of our population? I am utterly opposed to that concept. We should not even contemplate it. I have no doubt the Garda will be arguing that this is an effective way of keeping records and tabs on the so-called criminal community. It is a dangerous invasion of civil liberty if that is the road we are to go down. Unless we have a centrally appointed responsible person for the reception of these exhibits who is equally charged with their destruction in due course the samples can ultimately be abused. That brings in the question of duplication of results and their retention. There is a general suspicion that even where samples are destroyed, copies are available in sections of the Garda for ongoing investigations. This situation can be strongly guarded against if my proposals are implemented in some shape or form. For that reason it is important that the Minister gives some response to this before we pass the Second Stage of the Bill.
In relation to authorisation, I made the point that it must only be a judge of the District Court who can authorise the taking of these samples, recognising that there needs to be a balance between the needs of the Garda to investigate and the rights of an innocent person in custody to be protected. That formula is important in the context of the amendment introduced by the Minister in the Seanad on powers to deal with a person in prison. A person in prison is there under order of the court and is technically in the custody of the court through the authority of the High Court handed down in the Constitution. That is a way of drawing the balance. Currently a member of the Garda Síochána cannot have access to a person in prison without order of the court in certain circumstances or without the authority of the Governor and the consent of the person. Often a garda goes to see a prisoner and as soon as the prisoner realises he is to be investigated by a member of the Garda he walks out. It is important to empower the Garda to take samples from persons in custody. There is nothing wrong with that in principle but the way to respect the legal status of the person who is technically still in the custody of the court is to go to the judge of the District Court and ask for authority to proceed.
I do not accept as central what is perceived to be the central issue of this Bill. I have dealt with some of the more important issues in relation to taking samples. The other great issue relates to genetic fingerprinting. We have given far too much regard to the deoxyribonucleic acid, or DNA process. It has been heraided by ICI and its subsidiary, Cellmark Diagnostics as the breakthrough of the century. It is far too soon to give it that great plaudit.
I was concerned when I heard a Deputy refer to the thumbprint impression as being slightly crude, something much less sophisticated than the DNA process. As things stand the thumb impression is a far more sophisticated identifying process than the DNA process. The thumbprint is and has been proved to be unique to every individual. In the history of police investigation two people have never been found to have identical fingerprints. The fingerprint can be photographed in situ before it is lifted. The process is clearly understood by lawyers, defendants, jurors and judges. The thumbprint can be presented in the form of an enlarged photograph with comparison charts and it is clearly understood. The fingerprint is eminently challengeable. It is open to the defendant to come to court and, through and expert, at least have an opinion on what is being presented. The fingerprint is the benchmark of the approach we should take to forensic evidence and its reception into trial procedures in our jurisdiction.
We must try to achieve the same balance in the DNA process. Balance is singularly absent in the current procedures presented to us from the DNA process. In this regard I acknowledge the assistance I had from practitioners in England and the US who have worked the DNA process and the few in Dublin who have been involved in cases where DNA evidence has been presented. In January the Garda News talked about five cases where it has been used. The number of cases has now increased to ten and the number where it is being used is rapidly increasing. I also acknowledge assistance from academics in Nottingham and from the National Council for Civil Liberites in London who have investigated generally in this area.
There is nothing wrong with the idea of progressing the DNA process. We are close to accepting that we all have genetic uniquenesses which can be detected in the DNA process. However, we have not yet established the scientific process to deliver absolutely certain results that can be relied on. That is the basic problem. Sticking one's thumb into ink and putting it onto paper is a very simple and straightforward process. Photographing the print, enlarging it and putting it up on a chart leaves little room for error. That is nothing like the process involved in genetic fingerprinting which is an incredibly intricate and often unchallengeable process. For that reason it is perhaps a little too early for us to give the huge plaudits that have been inherent in some of the earlier remarks made by Deputies here and by Cellmark diagnostics in their hugely vaunted procedure and documentation.
The fallibility of the process is identified by the Leicestershire double murder case where the suspect realising that he was in trouble, because the community was being press ganged into submitting a sample, contrived to deliver a fasle sample subsitituted by a workmate. The suspect got away with it until the workmate let it slip in a public house and the person to whom he let it slip relayed the story to the police. It was after that, that the suspect was apprehended. That case helps to illustrate that unless there are strict standards of application in the use of the DNA process, even at the investigative stage, things can go radically wrong. Initial tests in that investigation had exonerated the perpetrator of the crimes simply because he had been skilfull enough to substitute samples from a workmate.
It is worth noting that in their document "DNA Profiling — A Guide For Use in Criminal Investigation" published by Cellmark Diagnostics, they say on page 9:
It is important to note that such screening should be carried out in conjunction with other forensic investigations.
Even in their literature, trying to sell this process worldwide, they accept that there are fallibilities in the process and that Garda and police investigators should not simply rely on DNA but that it must be fitted into a broad investigation. It must also be recognised that the first patent in the DNA process was taken out in 1987 in England. They are now establishing a worldwide patent for the process. It is a relatively new concept and we have a long way to go before we are satisfied that we have an infallible process which can give us the results they claim. For example, it is estimated that between brother and brother and brother and father 62.5 per cent of the bands that can appear in the process are shared. It is suggested that in paternity cases it is important to test the brother and/or the father in certain instances to ensure that there is no possibility of error. How does that apply to the suspect defendant who is detained for the purposes of criminal investigation? Are we also to detain his brother and father to ensure that there is no risk of an error arising, given the high rate of the share of banding that can arise in close relationships?
It is also thought in the single and multi-probe investigation tests that the probability of similarity arising run to odds as low as 250:1 where there are only four bands and to one in one million against with more bands. There can be instances where the genetic finger-printing will establish very few bands on the sample available where the odds are that much more reduced.
It is also suggested — and this is best put in an article by the leader of the attack on the system — in The Sciences, the journal of the United States National Academy of Sciences. The molecular biologist, Simon Ford, attached to the University of California and Irvine, in the issue in January said:
Laboratories have a vested interest in one finding — guilt — and their reports, like all other evidence, should be considered suspect.
That is a very dramatic statement from a scientist who recognises a problem which is peculiar to the DNA examination process and it simply cannot be ignored. The issue has been raised time and again by scientists in the field who say that there are huge question marks over the whole issue. It has been pointed out, for example, in an article written by Robin McKie, science correspondent with the Sunday Observer, on Sunday, 28 January last, that questions remain. He said:
Nevertheless, some nagging questions remain, such as how genetic fingerprint bands among various populations and groups differ. In some areas, certain bands may be more common, perhaps due to slight inbreeding over centuries, or because of racial variation in a village or town. In such cases, there could be a higher than expected occurrence of two samples being identical purely by chance. False convictions might then result.
That highlights the need for sample examination to establish a proper statistical probability basis for the introduction of the test to our courts. Will the Minister say to what extent our forensic science personnel carried out those tests from a sample of our population? To what extent have we satisfied ourselves on issues of probability because it is not just a question of carrying out the process and indicating the bands? There is a further statistical base indicating probability opportunities contained in this whole process that must be satisfied before we can implement it. We must acknowledge that we are an island community and because of that — and the drop in our population since the 1840s — there is a far more significant, closer inbreeding process in this island than there would be, for example, in Britain, mainland Europe or America. It is a problem that must be fully addressed before we can process the matter further.
As a general principle, problematic issues may arise. I want to deal with the concept of when or at what stage we accept that a scientific process is no longer in the investigative stage and has developed to being accepted as a given principle. This has been dealt with in American law since the 1923 case of the District of Columbia Frye v. The United States. The court held in that case that proof of the general acceptance of the scientific technique is a condition precedent to the admission of scientific testimony. Have we yet arrived at the stage in our law that allows us to proceed with the use of the DNA process on the basis that there is general acceptance of the scientific technique? I do not believe that we have because of particular reservations imposed by the Cellmark organisation on the independent testing and evaluation of the genetic fingerprint process. It was said in that case:
Just when a scientific principle or discovery crosses the line between the experimental and demonstrable stages is difficult to define. Somewhere in this twilight zone the evidential force of the principle must be recognised and, while the courts will go a long way in admitting expert testimony deduced from a well recognised scientific principle or discovery, the thing from which the deduction is made must be sufficiently established to have gained general acceptance in the particular field to which it belongs.
I adopt that quotation as a basic principle of approach in our review of the law.
There is no difficulty in the whole area of civil investigation if couples in paternity or emigration issues wish to submit themselves to DNA fingerprint genetic examination an are happy to bind themselves to the outcome. If that is the case let the process proceed but it is a vastly different thing to incorporate it in our criminal law in the circumstances in which it is currently being introduced and to say that it is an acceptable standard in the way it is being administered and made available because so much debate and controversy have arisen in recent times about the process. It is too early to put all our eggs into the DNA process and to say that that is the end of the matter.
In this regard the point has been illustrated by the history of the Greiss test in relation to establishing traces of nitroglycerine on a person's hands or body. That is a very important point in the context of what is acceptable. We all know about the Greiss test because it was employed by the British authorities at the time of the Birmingham Six bomb investigation. That test led to charges being laid against the six people playing cards on their way to a funeral in Belfast, having been taken from the boat-train.
Subsequent investigation and debate has shown that the Greiss test, which was unchallenged in 1976 and 1977 when those people were put in prison for life, has become extremely suspect if not entirely discredited. It is a good illustration of the point that has to be made that we are very much in the infancy of genetic fingerprinting. Unless it is available to us to ensure the strictest of standards, access to all information available and independent challenge, we have a long way to go before we can be entirely happy that we have a process that can be universally accepted here.
I would end my reservations in general about the process by quoting from an article entitled "DNA Fingerprints — black box or black hole", written by Andrew Hall in the new law journal of 16 February. Mr. Hall is a person of good standing in the area and understands the issues involved. I will quote from him as a person who best puts the issue once and for all. Under the paragraph entitled Evidential black box, he states:
Despite these problems,
Problems of the procedure over the years, some of which I have referred to—
the technique appears to have been embraced with enthusiasm by those charged with investigating crime and the number of cases in which DNA analysis is applied seems ever increasing. In a limited but important number of cases, the identification of a perpetrator by DNA finger-printing may be the sole evidence in the possession of the Crown. That in itself may not present a threat to civil liberty so long as the scientific basis of the technique, and the rigour of its application in the laboratory, is subject to informed scrutiny and stringent controls. The question is whether the technique has gained its scientific credentials in this way or, indeed, whether its application is subject to proper control.
He goes on to say:
The uniqueness of the procedure, I would argue, may hold unique dangers in the absence of a critical approach by both lawyers and forensic scientists. The risk is that it becomes a black box into which the scientific evidence is placed at one end and the verdict in a criminal case is produced at the other.
We have to explore the area of the black box and ensure that we are dealing with a process at the end of the day that is sound, universally understood and universally challengeable in the balance of adversarial jurisprudence that is the hallmark of our criminal law procedure and jurisdiction.
There are issues even more damning of the process as it currently stands than the problems of whether it represents a single area of darkness for us, that is the whole regime and administration of the process at the moment. Again, in the same article Mr. Hall deals with the matter succinctly. He says:
Another unique feature of the technique is the virtual monopoly over testing procedures. The Jeffreys testing system is subject to patent and, so far as the writer is able to discover, only the police scientific laboratories and Cellmark Diagnostics, a private company, are able to apply the procedure in the United Kingdom.
While we have relied on the process for ten cases in this jurisdiction, it is exclusively to the Cellmark Laboratories in Abingdon in England that we have had recourse. Mr. Hall continues:
Blood testing using traditional techniques, by contrast, is a procedure which is universally available and any number of independent experts are available to the defence who wish to examine or to challenge prosecution scientific testimony. Since the same procedures are used by the police forensic laboratories and by Cellmark, if laboratory techniques are less than perfect, or if the underlying science is flawed, there may simply be a replication of the same inaccurate result. Where a scientific process is unregulated, and the procedure is essentially a "trade secret", what protection is there in this vitally important area?
There is no forensic or other proof relied upon in the prosecution of cases standing in the unique position in which genetic fingerprinting is currently standing. The process discovered by Professor Jeffreys in the mid-eighties, as I have said, is subject to worldwide patent, first taken out in Britain in 1987. All tests are controlled directly by Cellmark, a subsidiary of ICI, for good commercial reasons. They do not want competitors in the field; they want a worldwide network of revenue creating profit enterprise and the best of luck to them but I do not want that process to be incorporated into the investigation of serious crime that will decide issues such as whether a person is guilty of the most heinous murders or rape.
It is a remarkable feature that you cannot get an independent agent to carry out an examination of the results achieved by Cellmark or their agents in the different laboratories. They hold a patent and they hold direct control of the examination, a condition of which is no independent outside investigation. There is no other area of the forensic law in which this exists. As a defence lawyer one can have recourse to a ballistics expert, a chemistry expert, to all the range of experts in the field of forensic testing and one can send them into the laboratory of the testing authority. The Forensic Science Laboratory in Dublin on a weekly, if not more frequent, basis is visited by forensic experts, professors of chemistry and of all the sciences in the different universities to examine, test and if necessary, take samples either within the control of the laboratory or elsewhere, and carry out independent tests to see if the same results are achieved.
Genetic fingerprinting is the one area where this cannot be done. We are told that this is the breakthrough of the century in terms of criminal investigation, that it will cut out so much other time-consuming work of the police investigating authorities, that it will be a short cut and an easy access to identifying the perpetrators of crime and that it will be an absolute answer to the question of who commits the crime. If that is so, it is all the more reason it should be susceptible to independent scrutiny and examination. It is not acceptable that the company who are trading worldwide with the process are maintaining such secretive control of the tests.
This is a problem that must be addressed. The standards of justice and fair play in this jurisdiction require that. There must be access to independent challenge by experts on behalf of defence if needed. The case may arise where the accused will say "I accept the results", as has been instanced here in regard to the five cases reported in the January issue of the Garda News. Two of the defendants pleaded guilty, one was exonerated, one withdrew an appeal in the interim process and the other probably has come to hearing by now. There are many more cases where a defendant will want to query or challenge and everything must be available to him or her in those circumstances to act. The position is completely unacceptable.
There are major problems surrounding the introduction of the testing here. The difficulty is illustrated in part by the fact that in May last year when Minister of State, Deputy Leyden, was introducing the Bill into the Seanad he forecast that the State Laboratory in Dublin would be carrying out genetic fingerprinting testing in the autumn of last year. That has not happened and today the Minister told us that that will not take place until the coming autumn. The problem is related in part to the trouble of negotiating the terms upon which Cellmark will make the process available and the probes usable by the State Forensic Laboratory in Dublin. I am asking the Minister to indicate the terms of the contract and the restrictions placed upon the State Laboratory in Dublin against allowing independent forensic scientists employed by defendants access to the tests and the process on the one hand, and the availability of the techniques to carry out their own examinations or tests where that is advised, appropriate and necessary.
I have referred to Mr. Hall's comment on this monopoly as being unique. It is not only unique, it is invidious and has to be addressed because it will prove to be unconstitutional in any defence. I cannot see how the prosecution could ask a judge to receive evidence in a criminal trial where the defence have effectively been denied the opportunity to independently challenge, assess or understand what is being presented. I foresee great difficulties in regard to that. In discussions with practitioners, and members of the Bar, on the matter my fears have been confirmed. That must be investigated and dealt with.
Equally, the whole question of the standards to be applied raise important issues. If we are to continue to rely on the standards by relying on Abingdon as the source of our tests then we will have problems of evidential proof. If, on the other hand, we successfully establish a DNA laboratory here the problem may not arise. Again, we must ask what terms or requirements have been written into the Cellmark contract with the State Laboratory in regard to the process and standards to be applied.
The chain of evidence is an important concept in our criminal law. It is certainly not so forceful a concept in the British legal system. Any person who was ever involved in or watched any of the Criminal Law Jurisdiction Act cases where policemen from our neighbouring jurisdiction came here to present evidence will have noticed that they were completely confounded by the fact that they would have to bring experts or witnesses to indicate what happened the sample once taken or the exhibit once received and taken into police custody, how they were cared for and who had control over them during the time they were retained in police custody before being presented to court. Those issues will have to be addressed in the context of this evidence.
The qualification of the person carrying out the test is another matter that will have to be dealt with. In regard to the Greiss test in the Birmingham Six case it emerged in evidence that those tests were carried out by a junior member of the staff who had just qualified and who was unsupervised. It emerged that the samples were subsequently destroyed. Will those standards be applied by direction of Cellmark under the contract that has been ironed out between the Forensic Science Laboratory here and the parent multinational company in England? That is a matter of immense importance.
The process involved is illustrated in the documents produced by Cellmark and circulated to the legal professions worldwide. Those documents explain briefly what is involved in the profiling process. The sample, blood in this instance, is taken and the DNA component must be extracted. The DNA component, by a chemical process, is cut into fragments by a restriction enzyme. The DNA fragments are then separated into bands during electrophoresis in an agarose gel. The DNA band so extracted is then placed in a gel and is transferred to a nylon membrane by a technique known as Southern Blotting. The radioactive DNA probe is then prepared for examining. The DNA probe binds to specific DNA sequences on the membrane and the excess DNA probe is washed off. At this stage the radioactive probe is bound to the DNA pattern on the membrane. The X-ray film is then placed next to the membrane to detect the radioactive pattern. At the end of it all, the eleventh stage of the process, one begins to get the pattern that is used for comparative purposes between the samples in question.
It is estimated that the process in all its complexity can take up to three to four weeks in any one case to be completed. We are not just talking about a simple lifting of a hair and looking at it through a microscope or looking at a fabric strand or at a finger mark lifted in ink. We are talking about an incredibly intricate process that takes weeks to complete. In any one case there could be multiples of samples to be investigated before conclusions can be drawn. Are we equipping our laboratory to deal with the complexities of this process? Are we training our policemen in all of the important intricacies about how to preserve samples once taken?
A whole range of guides must be followed. The kinds of substances, solutions and containers are crucial to the proper reception and retention of the exhibit. The temperature varies depending on the time the exhibit must be retained, anything ranging from 4º Centigrade for something dealt with within a matter of hours to —20º Centigrade for something that has to be retained for days. How does Professor Harbison hope to maintain a —20º condition in the boot of his motor car as he shoots around the country from one crime investigation to the other before he returns to his laboratory or the State Laboratory at John's Road?
The complexity has been mentioned in the documentation I have referred to. It was mentioned in many commentaries by scientists in the field underscoring that, again, DNA fingerprinting is almost unique in the complexity and intricacies involved. We must deal with the concept of trial by expert. We have to guard against simply presenting the black box testimony and expecting the verdict to emerge automatically at the other end. That is something that must be fought against. Consequently, the introduction of the independent assessor, and the facilities for that assessor, are essential and must be respected.
The cases involved in this process that have introduced debate illustrate the worries we have. The Leicestershire case, the Crown V. Pitchfork, the name of the unfortunate defendant, disclosed that the taking of samples was not properly supervised at police investigation level. As a result the perpetrator of those two horrendous murders was exonerated in the process of investigation.
There is no point in relying upon the notion that DNA is infallible; it is not if the proper standards are not applied and if the proper policing process is not relied upon. The Joseph Castro case referred to by Deputy Flanagan is another example of where, in a pre-trial ruling, under the principle in Frye, to which I have already referred, the court not being satisfied then set up a tribunal of inquiry of experts appointed by both prosecution and defence. It was only at that stage it emerged that the company involved——
