With the agreement of the House, I suggest we take amendments Nos. 1 and 2 together. Is that agreed? Agreed.
Criminal Justice (Forensic Evidence) Bill, 1989 [Seanad]: Report and Final Stages.
Acting Chairman
I move amendment No. 1:
In page 3, between lines 37 and 38, to insert the following:
"(c) it is taken in the presence of a solicitor who has been requested to attend by the detainee and there has been no unreasonable delay by the solicitor in responding to the request to attend.".
I agree that amendment No. 2, as it deals with the same issue, should be taken with amendment No. 1. I do not propose to delay unduly on this amendment or go back over the arguments made in favour of each of these amendments in any depth as they were ventilated in the House on Committee Stage which took place ten days or so ago. The reason I have resubmitted amendment No. 1 is that I wish to see if the Minister has reflected on it in any way. I should say it has been slightly altered since Committee Stage. I have introduced the proviso that the attendance of a solicitor at the taking of a sample should not be a prerequisite if there has been any unreasonable delay on his part in attending. That was missing from the amendment on Committee Stage but I have included it now. I hope as a result it will be more acceptable to the Minister.
Amendment No. 2 is consequential and deals with the rights of a detained person and the circumstances in which a sample may be taken. The proposition of independent professional observation on behalf of the detained person is very useful from the point of view of protecting the rights of the suspect, who is an innocent person, in the police station, on the one hand and on the other preventing unnecessary, unfounded and unwarranted complaints being made by a detainee in any subsequent or other proceedings and ensuring that at the end of the day these samples are taken in such a way that they are above reproach and criticism or untainted by unnecessary and unwarranted argument, debate and controversy. I hope with this proviso the amendment will be acceptable to the Minister.
I have no doubt that the Deputy will be aware from what I said in response to a number of similar amendments on Committee Stage that I cannot accept these amendments. I recognise that by including the words "there has been no unreasonable delay by the solicitor" in amendment No. 1 the Deputy has sought to overcome certain problems which were highlighted during the course of Committee Stage. However, this does not alter the fact that what the Deputy is seeking is that there should in effect be a requirement in the Bill that a sample should not be taken except in the presence of a solicitor. I cannot agree to this. In the first place, I do not see what purpose would be served by having a solicitor present at the taking of a sample. The Bill provides that an intimate or intrusive sample may be taken only with the written consent of the suspect and then by a registered medical practitioner.
In support of his Committee Stage amendment, the Deputy referred to identity parades. I want to make it clear that what we are dealing with here in this Bill, the taking of bodily samples from suspects for forensic testing, is not the same as questioning or identity parades where undue pressure might be put on a suspect or where incorrect procedures might be employed, unwittingly or otherwise. We are talking about a sample being removed from a person's body and sent to a reputable laboratory for objective scientific testing. I see no need whatsoever to provide that a solicitor be present for this purpose.
As I said on Committee Stage, I see no objection to a solicitor being present at the taking of a sample if he happens to be at the station but what I am not prepared to accept, however, is any requirement or suggestion that a solicitor ought to be present. Again, I must stress that the general rules laid down by the courts in accordance with the Constitution and the Criminal Justice Act, 1984, as to the rights of detained persons to have access and to consult their solicitors will not be affected by the legislation. For the reasons I have given I am opposed to these amendments.
I am a little disappointed that the Minister has decided not to take on board the amendment. The arguments in favour of the amendment were ventilated at an earlier stage but I suppose the overriding factor is that a legal adviser may attend. I understand the amendment would make this a precondition and give the individual the right to demand that a legal adviser be present. The Minister has stated, however, that there will be no objection to a legal adviser being present at the Garda station. That is sufficient. It is not a matter that should be unduly pressed.
I understand from my colleague, Deputy Kavanagh, that this was a point of concern for the Labour Party. We accept, however, the Minister's assurance that there would be no objection to the presence of a legal adviser.
I am disappointed that the Minister has not accepted the arguments I have advanced. Attendance would work in the interests of everyone and would enhance the reputation and status of these examinations and tests. I have made my case and I have not convinced the Minister. He has stated that in the event of the solicitor coincidentally being present for the purposes of professional advice there would be no objection. The Minister indicated on Committee Stage that some problems might arise, suggesting that a medical practitioner might not be happy to have a solicitor present if tests of an intimate nature were to be made. Such concerns might lead to misunderstanding and confusion among the Garda. Will that point of no objection in the event of coincidental attendance at the station be included in regulations so that there will not be any ambiguity or difficulty in that limited area? If a person asks that a solicitor be there, it should be clearly set down that there is no objection.
There will be a directive. The Garda will be so directed.
Amendment put and declared lost.
Amendment No. 2 not moved.
I move amendment No. 3:
In page 4, between lines 18 and 19, to insert the following:
"(c) that the detainee or his solicitor may take possession of a sample where practicable and without interfering with the investigation of the Gardaí, for the purposes of an independent examination,".
In the course of Committee Stage I invited Deputies who participated in the debate to meet Dr. Donovan, the director of the Forensic Science Laboratory, to discuss their concerns and to visit the laboratory to see at first hand how it operates and to observe the very high standards which apply in relation to the handling and testing of samples. I regret that it was not possible to arrange for that in advance of Report Stage and I apologise to Deputies. I understand that Deputy Flanagan has visited the laboratory and spoken to Dr. Donovan.
I note that these amendments are in similar terms to those considered on Committee Stage. I indicated then that I could not accept the amendments. Having given the matter very careful consideration in the light of advice from the Forensic Science Laboratory, I have been confirmed in my view that what the Deputies propose is unacceptable. I recognise that I offered Deputies an opportunity to discuss with the director of the Forensic Science Laboratory the technical and practical problems to which these amendments would give rise. If Deputies wish, I am still prepared to arrange for a joint meeting with the director at which these matters can be discussed. I am prepared to give Deputies an undertaking that if in the course of such discussion any workable procedures emerge which would go some way to satisfying their concerns I will provide for them in the regulations to be made under section 5.
Having attended the Whips' meetings I appreciated that the Minister had indicated a firm agreement that we would visit the laboratory but I agreed to the Report and Final Stages being taken today, realising that such a visit was not practicable in the circumstances. It is no criticism of the Minister that we are back here so soon without having visited the laboratory. It is important to use the time available to have the Bill passed. I welcome the undertaking to look at this matter again in the light of a visit to the laboratory in the New Year.
There is a difference between amendment No. 3 and the amendment I tabled on Committee Stage. The Minister and others pointed out on Committee Stage that it might not always be practicable to interfere with, dissect, copy or apportion a sample for the purposes of independent examination. I have included in this amendment the words "where practicable". A solicitor or a detainee would be entitled to take possession of a sample where practicable and without interfering with the investigation by the Garda. If the case were made that it was impossible or impracticable to divide, apportion or copy a sample, it would not be required. If the Garda maintained that dividing or dissecting the sample or copying it might interfere with their investigation, that would be the overriding concern. The original amendment has been substantially qualified and I believe the Minister should consider it in the light of the additions.
We felt on Committee Stage that the Bill would be somewhat flawed if it did not include provision to allow an alleged offender to participate in an independent examination by being able to remove from the Garda station a portion of the sample taken for inspection. I hope I did not step out of line by proceeding to discuss the matter with Dr. Donovan and availing of an opportunity to attend at the forensic laboratory.
Absolutely not.
Having done so, I intend to withdraw amendment No. 4. I am satisfied that every opportunity will be given by the Forensic Science Laboratory to a person whose sample has been taken to engage in discussion which would allow that individual, or an expert for the defence, to proceed to the laboratory and engage in the appropriate type of scientific research. The forensic science laboratory never was and never will be merely a tool of the prosecution. It is important to stress that facilities are available to anybody who may have a sample there. Ideally the legislation might have built into it an amendment of the type envisaged here but there are practical difficulties. Having discussed the matter and having seen the operation in the laboratory, I fully accept the Minister's comments on Committee Stage that there would be practical difficulties, having regard to the type of sample and the difficulties involved in dividing a very small but significant sample which could enable a prosecution to be levelled. It is unfortunate that it is unworkable. I am satisfied that it is unworkable and I will be withdrawing my amendment No. 4.
It would appear that all parties share the same concern about this procedure. It is related to past experience in regard to the taking of blood or urine samples in respect of charges of drunk-driving. It is well known that, due to human error at times — not in any way the fault of the Garda — such samples can become mislaid or crossed. In my constituency I learned of two people who, so to speak, were allocated the wrong bottle, the net result of which was that the mistake was only discovered when the case went to court. Fortunately, both cases were dismissed. But, in these cases, there could be more serious crime involved. In drawing up the regulations under this section the Minister might consider that, whenever a sample is taken, it be contained in some type of bottle or carton to be transported to the State Forensic Laboratory for analysis. What I am advocating is that there be provision whereby an accused person be allowed append his or her signature to the relevant carton or package containing the sample. This would mean an accused person could be absolutely satisfied beyond all reasonable doubt that the sample taken was theirs and could not become confused with anybody else's.
I am quite prepared to examine that last suggestion in the context of the preparation of the relevant regulations.
In response to Deputy McCartan may I say that his amendment containing the words "where practicable" is just not feasible. Neither a garda nor doctor taking a sample from a suspect would have the necessary knowledge or expertise to decide whether, in any particular case, it would be practicable to divide that sample and give a portion to the suspect. We are talking about samples containing traces of materials which may not be visible to the naked eye. A trained forensic scientist only would be in a position to judge what might be practicable in any given case. I am pleased that the arguments I advanced, when examined by Deputy Flanagan in the surroundings of the State Forensic Laboratory have been understood. I am pleased he understands the difficulties and concerns I outlined on Committee Stage.
I have visited many forensic laboratories and while I have not yet visited our State laboratory, that does not mean I accept wholeheartedly the assurances or arguments being put forward.
There is a point of first principle involved here, that the suspect or detained person is deemed to be innocent until proved otherwise and is the person who is forfeiting the sample. In part, it flies in the face of a person not incriminating himself or herself. It is just as effective a denial of the right of self-defence if one is to not only say something but forfeit an article of clothing, sample, intimate or otherwise of the body. Therefore, the forfeiture or invasion of both these rights — that of innocence until proved guilty and against self-incrimination — should be balanced against a counter principle, a recognition of the fact that the sample belongs initially to the suspected person. It should also be recognised that we are legislating to give extraordinary powers to the Garda to take such samples, if necessary by force in certain circumstances, where they would not otherwise be so entitled.
All that is being argued here is a recognition of all of that, that a balance be maintained: as a fundamental first principle, that the accused, or detained person, be entitled to retain — where practicable, without interfering unnecessarily in the investigation of the Garda — a sample that has to be appropriately analysed.
I advanced the reasons for maintenance of these rights beyond the mere principle on Committee Stage by saying that the conditions in which a sample or article of clothing can be important, in certain circumstances in which there might be an element of dishonesty, not on the part of the Forensic Science Laboratory but in the process of an investigation, when samples or materials can become mixed, mislaid, wrongly labelled or interfered with. There should be this safeguard enshrined in the Bill based on the rights of the individual which should be respected.
Those are the reasons it is important that we pursue this matter again on Report Stage. I have listened to the Minister. I merely ask now that the question be put.
Amendment put and declared lost.
Amendment No. 4 not moved.
I move amendment No. 5:
In page 6, between lines 36 and 37, to insert the following:
"(b) require the provision of clinical conditions and equipment for the proper and safe taking, receiving and storage of all tests or samples obtained,".
This is a very general proposition. No doubt it is one the Minister will say he intends to deal with in any event. I am asking that the provision be recited in the Bill that, as a statutory requirement, he must make regulations in respect of all of these matters. I argue that strongly. Anybody who has followed this debate from Second Stage right through to Report Stage, will discover that I have been forced to climb down very substantially from the ideas I advanced on Second Stage. I stressed then the need for a national bank repository of all samples, indeed, the need for a director of such a bank in respect of which I argued on Committee Stage, who would have responsibility for the retention, safekeeping and testing of all samples. I further argued that samples be taken in conditions in which either a solicitor is present or that the taking of such samples be video-recorded, the tapes retained, or that there be some close scrutiny. All of those proposals have been abandoned, or I have been forced to abandon them. This means we are thrown back to the basic text and structure for which the Minister is providing, which gives the Garda the right to take such samples. Thereafter, it is entirely a matter of regulation plus the goodwill of the Garda and the professionalism of the State laboratory to ensure that matters are properly conducted.
Therefore my amendment No. 5 is a last attempt on the part of the Opposition — who are anxious to ensure that the highest standards of behaviour are maintained throughout these procedures and are provided for — to argue that, within the framework of this Bill, there be a statutory duty on the Minister to make regulations to ensure that these important standards are so maintained. Otherwise, the whole process of genetic fingerprinting will be set at naught. I hope this proposition, in its general sense, will be acceptable to the House.
I cannot accept this amendment because I believe that the existing procedures which apply in relation to dealing with samples are more than adequate. The Forensic Science Laboratory instruct the Garda on how samples are to be taken and subsequently handled. They supply the necessary materials and containers for taking and storing samples. The scientists in the State Forensic Science Laboratory are best equipped to judge how these things should be done. Nothing would be gained by including detailed technical requirements of this nature in the regulations to be made under this Bill. Deputies may recall that I dealt with those procedures at some length on Committee Stage.
Without going over the whole of the ground again I might remind Deputies how samples or material for forensic testing are treated at present. A garda who takes a sample, or to whom one is given by a doctor, generally delivers it by hand to the State Forensic Science Laboratory where it is personally received and entered into the records by a scientist. This is done because the courts insist on the continuity of custody of such materials. There is no question of such materials being left lying around in the station or being handled in any slipshod way. Once the sample reaches the Forensic Science Laboratory its movement, and the tests carried out on it, are meticulously logged. These are the arrangements which have been operating since the laboratory was established some 15 years ago. They have operated successfully, and without challenge, and I see no reason to change them.
I see every reason. I am sorry I am going to have hard words for the Minister in conclusion on this.
The first argument advanced by him is that it is not a matter for the Minister or for this House, it is primarily a matter for the Forensic Science Laboratory. I do not accept that. Every agency of State or otherwise who are given powers and authority, obligations and duties in law get them from this House. As legislators we are—I do not want to say supreme — the higher authority and to argue it has nothing to do with us is to argue against the order of things on the one hand and against the words of the section itself. I ask the Minister to look at it.
Section 5 (1) provides that the Minister shall make regulations relating to the taking of samples. That is what the section is entirely about. In fact, the Minister must make regulations about the taking of samples, so this suggestion that it is a matter for the laboratory flies in the face of the section itself. Section 5 (2) provides that the regulations shall, without prejudice to the generality of subsection (1), make provision for the recording in the records of a Garda station. It is talking about what goes on in a Garda station.
I listened carefully on Committee Stage and I accept fully, that there are the highest of standards applied within the State Forensic Science Laboratory. I did not visit it, but I remind the Minister that before it gets in the door of the laboratory a great deal happens to a sample. The State forensic scientists will have no hand, act or part in the taking, sealing, putting into a container, safe keeping and conduct of a sample up to the door of the laboratory. Their function starts from there on in but there is a whole life to that sample long before it ever gets there.
This provision in no way ties the Minister's hands. It is merely recording that this House believes we should put a duty on him to deal with matters of standards. They are important and, I believe, crucial.
I know I am slightly breaking the rules in speaking twice, but let me say to the Deputy that I am conscious of his concern in this area. It is unwarranted but I am conscious of it and in an attempt to meet him some of the way, after a good debate on this whole area on Committee and Report Stages, I am willing to consider matters like sealing, labelling and other non-technical aspects of this issue in preparing the regulations. We can discuss them on our visit to the Forensic Science Labortory.
If I have impressed the Minister with my reasonings I am happy to withdraw the amendment, but let us look again at what I am talking about. Clinical conditions and equipment for the proper and safe keeping, storge and the taking of samples are important. The Gardas Síochána would welcome directives on this so that the standards are set and worked out in consultation between the Minister's Office and that of the Garda. If he will give us an assurance that this matter will be addressed I will withdraw the amendment.
In the regulations.
Amendment, by leave, withdrawn.
Amendment No. 6 not moved.
I understood that amendment was out of order and I am not making any submission on it, unfortunately.
Question: "That the Bill be received for final consideration" put and agreed to.
Question proposed: "That the Bill do now pass."
I thank the Deputies who contributed to the various Stages of the debate on the Bill. All expressed general support for it and to the extent that some made criticisms I know they did so in an effort to be constructive and helpful. Deputies McCartan and Flanagan tabled a number of amendments which have not been accepted. This does not, to my mind, lessen the value of their being tabled. It helped us to have a detailed examination of the provisions of the Bill and to tease out those aspects which may have been unclear. I assure the Deputies I have considered all the amendments very carefully and objectively and, had I been convinced they were needed or would have improved the Bill, I would have happily accepted them.
Despite certain criticisms made during the course of the debate, I am satisfied that this is a balanced Bill and that it contains all the necessary safeguards to ensure that there is no abuse of the powers which it contains. I also assure Deputies that I will be carefully drawing those regulations and taking account of the points made in the debate.
The Bill, which has now passed both Houses, is important legislation. Forensic science has developed to the stage where it can provide important and even indispensable assistance to the Garda in the detection and prosecution of crime. The powers conferred in this Bill will ensure the Garda are in a position to take the fullest advantage of this assistance, and it will include safeguards in relation to defendants proving their innocence by the use of the most modern of forensic science facilities.
I thank the Deputies for their co-operation in dealing with this legislation.
The new powers extended to the Garda Síochána under this legislation are to be welcomed. It is very important that our criminal law code keeps pace with the developments in science and technology as we have been doing here over the past few weeks. I had a number of disappointments on Committee and Report Stages as far as amendments are concerned. Overall the safeguards in the Bill should allay the fears of any parties that there may be undue interference with personal rights and the freedom of the individual.
Obviously, the regulations will be of tremendous importance and it is a pity the House will not have an opportunity of discussing them, but that is for another day. I hope, however, that the Minister will act at the earliest opportunity on the recommendations of the Martin committee and that the placing of audiovisual recording equipment in Garda stations will be under way as quickly as possible.
The Bill represents a milestone in that it will see the further advancement of the use of DNA profiling. It will be available to the Garda Síochána and will have wide use in family law matters. It will aid the forces of law and order in the fight against crime. It represents a major breakthrough in identification, and I am happy that this law enforcement tool of the future, as it has been described, DNA profiling, will be available to the Garda Síochána. I welcome the legislation as far as that is concerned and look forward to the publication of the regulations.
I thank the Minister for dealing with the matters raised on Committee Stage by the Fine Gael Party. Unfortunately, perhaps, he did not take on board everything that was said, but we had a reasonable debate and I am happy that this Bill is being enacted prior to the end of this session.
I join with my colleagues in thanking the Minister for the manner in which he has dealt with the Bill. I came in at the latter end of the proceedings on this Bill, but from reading the debates in the Seanad and on the various Stages here, it would appear there was a good deal of agreement on it. At least the Minister endeavoured, as far as possible, to meet the points of view of all parties. I look forward to the Minister's invitation to visit the science laboratory. That will be a useful exercise for those of us involved not alone in this debate but in other debates that will follow.
As Deputy Flanagan said, this legislation is a milestone in that it will provide the Garda Síochána with an important tool to fight ever increasing crime, particularly serious crime, and the Labour Party welcome that. It will also help to ensure that people who are accused have the maximum scientific facilities available to them. That is important as well because justice must not only be done but be seen to be done.
I would join with Deputy Flanagan in his remarks in relation to the regulations. The regulations will be very important. The Minister has already given a commitment to take into consideration the views of the various contributors during the debate on this important Bill and I am quite sure that he will honour that in full.
When DNA profiling was discovered it was probably one of the most exciting forensic science developments in this century. It has profound implications not just for police investigations and the solution of crimes but also for the civil side in determining issues such as paternity and otherwise.
It is important to remember that it is a process of profiling, not fingerprinting as it was originally presented by ICI who hold the world monopoly on the process. There is a vast difference between a finger print and a profile. The differences were teased out here very fully on Second Stage, recognising that there are peculiar factors of genetic mutation and development within small communities like our own in Ireland that have to be understood. The permutations and combinations have to be worked out before we can be mathematically certain that we are in a position to fully utilise the genetic profiling process. We must also realise the importance of the clinical way in which the samples are taken, minded and dealt with.
In addition to that, the point has to be made at this stage that the view within the legal profession — and it has merit in it — is that the genetic profiling process we are providing for under this law will be inoperative as a matter of evidence at criminal trials until we pass a new criminal evidence Act. According to the literature explaining it, there are 11 stages of testing and evaluation before one ultimately gets the profile necessary for making a decision, and it would be virtually impossible to translate all that information into a presentable state at a criminal trial where matters are being contested, unless we have a criminal evidence Act that will come to the aid of the prosecution and the court in the presentation of evidence generally. I know the Minister has indicated time and again during this debate that that is at an advanced stage. I hope we will see that Bill before the House very early in the New Year because it is essential not just in this area but in many other areas of the criminal law that we have debated.
The final point to be made here is that the position of the defence or the accused at the trial is also an important consideration. The legal aid provisions generally for the payment of fees to experts are not generous and they do present difficulties for practitioners in the field who have to top up what is provided for under the legal aid regulations out of their own resources. This is something I would ask the Minister to look at in consultation with his officials because the role of the forensic defence expert will become important as forensic testing itself becomes important for the prosecution. One is directly related to the other. No form of impediment should stand in the path of a defendant seeking to avail to the fullest of the advantages of this process in attempting to assert his or her innocence.
Finally, I thank the Minister for listening with patience to the arguments and propositions put forward in this debate, to which he responded well. I hope every step will be taken by him now in drafting the regulations to ensure that DNA profiling becomes an integral, trustworthy and reliable addition to the armoury of the prosecution in the fight against crime in this State.
Question put and agreed to.
The Dáil adjourned at 1.45 p.m. until 10.30 a.m. on Tuesday, 18 December 1990.