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Dáil Éireann debate -
Thursday, 4 Mar 2010

Vol. 704 No. 2

Criminal Justice (Forensic Evidence and DNA Database System) Bill 2010: Second Stage.

I move: "That the Bill be now read a Second Time."

I welcome the opportunity to present the Criminal Justice (Forensic Evidence and DNA Database System) Bill to the House. As the title suggests, the Bill has two main aims, namely, to update our laws on the taking of samples from suspects for use in evidence and to upgrade our criminal intelligence capacity. This latter aim will be achieved through the establishment of a DNA database system. I will endeavour to address all the major aspects of the Bill, particularly the provisions relating to the taking, use and destruction of samples. I will also deal with the structure of the database, oversight arrangements and international co-operation in this area.

Without doubt, the establishment of a DNA database is a major innovation. It will ensure that the Garda Síochána will be able to take full advantage of DNA technology in the detection of crime. By helping to identify previously unsuspected persons as possible perpetrators and eliminating innocent persons quickly, it will be invaluable to the Garda in focusing its investigations and in using its resources efficiently. It will also have the potential to play a major role in finding missing persons and in identifying unknown persons.

In providing such a powerful resource I am conscious of the importance of limiting its impact on individual freedoms. I am particularly conscious that biological samples contain a person's genetic code. With this in mind, I ensured that close attention was paid to finding the right balance between the public interest in the detection of crime and securing justice for victims, on one hand, and the rights to bodily integrity and privacy, on the other.

The Bill has 12 parts and two schedules. Part 1 deals with preliminary and general issues, many of which are standard provisions. However, I wish to highlight sections 2 and 3. These provide definitions and interpretations that are critical to understanding the overall framework. Section 4 provides the basis for the transmission of samples or DNA profiles outside the State in response to requests for mutual assistance and will ensure that we can meet our international obligations in this regard. Sections 6 and 7 deal with the Criminal Justice (Forensic Evidence) Act 1990, providing for its repeal and for the necessary transitional arrangements, to protect, for example, proceedings under way.

It will be clear from a quick perusal of the Bill, particularly Parts 2 to 7, inclusive, that much of it is concerned with powers to take samples from different categories of persons for different purposes. Before outlining these powers, I wish to make a few general remarks with regard to sampling.

It is the purpose for which a sample is required that determines the type of sample that may be taken. For example, where a sample is required from a person solely for the purposes of the database, it will be either a mouth swab or plucked hairs. These are the least intrusive and do not require medical input. Where samples are required from a suspect for the purposes of a particular investigation, the type of sample will be determined by the nature of the offence concerned, the circumstances of its commission and the evidence lifted from the crime scene. For example, swabs from the skin of a suspect may be required to determine whether the suspect had contact with a particular substance or a victim. The Bill recognises this by permitting a broad range of what are termed intimate and non-intimate samples to be taken for forensic testing in connection with a particular investigation. The term "forensic testing" is broadly defined. It includes the generation of DNA profiles but is not limited to it. I highlight these points to emphasise that the scope of the Bill goes beyond the taking of samples capable of being used for DNA analysis.

Before I deal in detail with the powers in Parts 2 to 7 to take samples, I will outline the arrangements for the database. Responsibility for its establishment and operation is allocated to Forensic Science Ireland, or EFE as it will be called. This will be the new name of the Forensic Science Laboratory as of 1 July. This name change is intended to better reflect its remit. The laboratory has a distinguished record in providing independent expertise in the forensics field and it is well placed to take on the role of custodian of the database.

The purposes of the database are stipulated and limited by section 57, which provides that the database may be used for only two purposes: the investigation of criminal offences; and the finding or identification of missing persons and the identification of unknown persons. Reflecting these distinct purposes, the database is divided into an investigation division and an identification division. The investigation division will comprise five indexes of DNA profiles: the crime scene index will contain crimes scene profiles including historic crime scene profiles; the reference index will contain profiles relating to suspects and offenders; and the elimination indexes, of which there are three, will contain the profiles of personnel, including Garda and EFE personnel whose duties put them at risk of inadvertently contaminating crime scenes. The identification division will comprise the missing and unknown persons index. It is the results of the searching within and between these indexes that will be of invaluable assistance to the Garda. I would emphasise that the searches are limited to those permitted by section 65. These limitations ensure transparency in the operation of the database and that DNA profiles are used only for the purpose for which the related sample was taken.

To return to the powers to take samples, it is important to put on the record that, with effect from the commencement date, samples may be taken from most persons detained under the statutory powers listed in section 9 and from persons who are, at that time, still subject to a sentence for an offence to which those detention powers apply. These categories will provide the core material for the reference index and I will elaborate on these aspects as we go through the provisions.

Part 2 focuses on suspects in Garda custody. An important point to note is that section 26 ensures that on commencement the common law system which operates in parallel with the statutory regime and which permits the Garda to take samples from suspects on a consensual basis will be terminated. In view of the expansion of the Garda powers to take samples from suspects I believe that a single statutory regime is preferable.

I must stress that not all suspects will be subject to the Garda powers to take samples under sections 11, 12 and 13. The powers apply only to those who have been detained under one of the existing powers listed in section 9. Subject to a limited exception, the effect is that only those suspects detained in connection with serious offences, by which I mean offences attracting a maximum sentence of imprisonment of five years or more, may be required to provide a sample. This high threshold ensures that suspects arrested in connection with, for example, minor public order offences will not be subject to these sampling powers.

It is important to recall that although the Bill provides that samples may be taken for various purposes, section 11 provides for the taking of samples from suspects solely for the purposes of the database. Samples taken under section 11 will be instrumental in populating the database and ensuring its effectiveness as an intelligence source. The consent of the suspect is not required. I draw the attention of Deputies to a number of limitations on the power created by section 11. They are prompted by the need to treat children and "protected persons" with great care.

As regards child suspects, it is already the law that they may be detained where this is necessary for the proper investigation of an offence. Generally the detention powers may not be exercised in respect of children under 12 years. This Bill does not make any change in that regard but it does exclude child suspects under 14 years from the scope of section 11. I have selected 14 years as the lower age threshold for the taking of samples for the purposes of the database as to exclude all child suspects would, I believe, result in a real loss of intelligence. Section 11(6) commits me to reviewing this on the basis of experience.

I have also excluded "protected persons" from the scope of section 11. For the purposes of this Bill such vulnerable persons are defined as adults or children who, by reason of a mental or physical disability lack the capacity to understand the general nature and effect of the taking of a sample, or lack the capacity to communicate by any means whether they consent to the taking of a sample. It will be a matter for the member in charge who already has statutory responsibility for the treatment of persons in custody to determine whether a person is a protected person. Provision is made for medical assessments if required. Being under the influence of an intoxicant is not sufficient.

I emphasise that section 11 samples are taken for the database — there is no requirement that they assist in the particular investigation at hand. However, the taking of samples for this purpose must be justified not only by the gravity of the offence for which the person has been detained but also by the nature of the offence. By nature I mean whether it is an offence, the investigation or prosecution of which could be assisted by DNA evidence. Such evidence would not, in all probability be relevant to, for example, taxation and company law offences. Section 11 therefore provides for orders to exclude certain offences. This provision has the added advantage of flexibility. If it subsequently transpires that sampling becomes relevant to a particular category of offences the order can be revised.

Section 11 samples are of critical importance to the success of the database as an intelligence tool. Samples taken under sections 12 and 13, on the other hand, are of critical importance to the prosecution of offences. They provide for the taking of intimate and non-intimate samples respectively for use in evidence.

Intimate samples require the consent of the suspect. They include blood, urine, swabs from the genital regions and dental impressions and, as can be readily appreciated, they cannot be taken without the co-operation of the suspect. However, a refusal to consent must not be without consequence. Section 19 provides that in the event of a refusal adverse inferences may be drawn in certain circumstances in subsequent proceedings.

Samples taken for evidential purposes must be authorised by a Garda not below the rank of inspector who has reasonable grounds for suspecting the involvement of a person in the commission of the offence in question and for believing that the sample will tend to confirm or disprove that involvement. The rank of inspector has been selected in this instance whereas a sergeant may authorise the taking of a sample under section 11. This graduated approach reflects the nature of the decision that is required and the potential consequences for the suspect.

The need for an intimate or non-intimate sample in connection with a particular offence may arise from a database hit or independently of any intelligence generated by the database. A further sample must be taken for use in evidence when a hit links a previously unknown suspect to an unsolved crime. This is necessary because to use the hit as evidence could be prejudicial to the accused. It could suggest to the jury that the accused had a previous criminal record or, at the very least, previous contact with the Garda. The added benefit of re-doing the forensic tests is that it acts as a quality control mechanism.

I wish to make a general comment about the value of DNA evidence at this juncture. DNA is highly discriminating and the facility to generate DNA profiles adds a very powerful tool in the investigation and prosecution of crime. However, as a rule, other evidence is also required. For example, where a person's DNA is found at a crime scene there may be a perfectly legitimate reason for it being there. DNA evidence shows a link between a suspect and a crime scene but we must remember that how that link came about is still very much a matter for evidence at trial. Therefore, the Bill does not accord any particular status to DNA evidence. It will continue to be treated in the same way as other expert evidence. I have already referred to the issue of consent; it must be in writing and it must be informed. In the case of suspects, it is required only in the case of intimate samples. Section 15 specifies who may give consent. Clearly, an adult suspect who does not lack capacity can consent on his or her own behalf. Special arrangements are required in regard to children and protected persons. In the case of protected persons and children under 14 years, the consent of a parent or guardian is required or an order of a District Court judge. In the case of children aged 14 years and upwards, the child's consent is also required.

The possibility of an inspector applying to a District Court judge for authorisation to take an intimate sample from a protected person or child may arise in a number of circumstances, including where the parent or guardian cannot be contacted despite reasonable efforts by the Garda; they are not willing to attend at the Garda station within a reasonable timeframe; or they are excluded from giving consent because one of them is a victim of the offence; or has been arrested in connection with or is complicit in the offence. Such circumstances cannot be allowed to act as an absolute bar to the collection of vital evidence from a suspect. Providing recourse to a District Court judge ensures consideration of where the interests of justice lie having regard to the interests of the suspect, the victim and the public.

Section 24 sets out the circumstances in which reasonable force may be used to take samples under Part 2. It is restricted to the taking of samples under sections 11 and 13. It does not apply to the taking of intimate samples. To ensure that this power is used appropriately and only when strictly necessary, a range of safeguards is provided, including that the use of force must be authorised at superintendent level and that its use must be done in the presence of an inspector and video-recorded. Some further limitations apply in respect of children. For example, reasonable force may not be used to take samples for database purposes, under section 11, from child suspects.

I have already highlighted a number of exceptions to the sampling arrangements in Part 2 where children and protected persons are concerned. Other special provisions included in this Part ensure that vulnerable suspects have someone other than a member of the Garda to support them when a sample is being taken. That other person may receive any information that is required to be given to a suspect. A parent, guardian or other adult relative may fulfil this role. However, in some circumstances, for example, in the event of the absence of a parent, the member in charge may be required to nominate a person other than a garda. That person must be of the same sex as the person from whom the sample is being taken and, in the case of protected persons, is required to have experience in dealing with persons who have physical or mental disabilities.

As can be seen, Part 2 is very important in the overall scheme of the Bill. However, I now move on to Part 3 which deals with the taking of samples from persons who are not suspects or offenders, the latter being dealt with in Part 4. Essentially, this Part is concerned with the procedure to be followed by the Garda when requesting a person to volunteer a sample in connection with a particular investigation. Such persons could include a victim or perhaps a member of the public who comes upon a crime scene. I should make it clear that this Part is limited to the taking of samples from a person for the purpose of generating that person's DNA profile. The samples are, therefore, restricted to mouth swabs or plucked hairs. In the event that other samples are required, for example, from a victim of a sexual assault, they will continue to be governed by existing practice.

It is important to note that samples taken from volunteers are taken on the basis of a consent which is limited to their use in connection with a particular offence. The consent does not extend to the entry of the DNA profile in the database. Nevertheless, there may be circumstances in which it would be useful for the Garda to be able to enter the profile of a volunteer in the database for the purpose of speculatively searching it against the crime scene index. The Bill recognises that but requires a separate written consent on the part of the volunteer who must be properly informed of the effect of such entry. In no circumstances may a volunteer who is a victim, a protected person or a child be requested to consent to the entry of their DNA profile in the database.

This Part also provides for mass screenings. A mass screening involves inviting a group of individuals determined by reference to a particular characteristic such as sex or age to provide samples for a specific investigation. The decision to conduct such a screening must be an operational one but, due to the cost and its intrusive nature, authorisation by a chief superintendent is required. In no circumstances will the DNA profile of a participant be entered in the database. In the event that the screening identifies a potential suspect he or she may be arrested and detained in connection with the investigation in which case the sampling powers in Part 2 will apply.

Part 4, together with section 11 to which I have referred, will be instrumental in populating the database and ensuring that it has the capacity to generate intelligence. It provides for the taking of samples for the database from offenders and former offenders. In the case of offenders, the following are required to provide samples: all offenders subject to a sentence of imprisonment for a serious offence at commencement whether they are in prison or living in the community on licence, temporary release or subject to a suspended sentence; those sentenced to imprisonment after commencement in respect of a serious offence; those transferred to prisons in the State following conviction abroad in respect of a serious offence; and those who, on or after commencement, are subject to the sex offender registration requirements.

Where the offender is in prison, the sample will be taken by a prison officer with the use of reasonable force where necessary following authorisation at senior level. Where the offender is in the community, he or she will be required to attend at a Garda station to have the sample taken. Failure to attend will constitute a summary offence. Similar arrangements apply in the case of child offenders but with additional restrictions on the use of force to take a sample from a child in a children's detention school.

This Part also provides for the taking of samples from former offenders, in other words, those who have served sentences for serious offences or have been subject to the sex offender registration requirements and who continue to be of concern to the Garda. The Bill provides comprehensive guidance to the Garda to assist it in identifying which former offenders should be requested to provide a sample for the database. In some cases an application to a District Court judge will be required. The power extends to former offenders who are now ordinarily resident or have their principal residence in this country regardless of where they were convicted. I am very conscious of concerns around the risks posed by mobile former offenders and I believe giving the Garda the power to require such persons to provide samples for the database will go some way towards alleviating those concerns.

I will touch on Part 5 briefly. Its provisions are consequential to the expansion of the use of DNA technology. It provides for the taking of samples from persons who in the course of their duties are at risk of inadvertently contaminating crime scene samples. It applies to Garda personnel, the staff of EFÉ and such other bodies as may be prescribed. Examples of such bodies include the State Pathologist's Office and the Garda Síochána Ombudsman Commission. Deputies will recall that I have already mentioned that the profiles will be on specific indexes in the investigation division of the database. The advantage of having these DNA profiles is that it avoids the Garda wasting time and effort investigating an unidentified crime scene stain that in fact belongs to one of the investigation team or to the scientist dealing with the case.

I have so far focused on the taking of samples in connection with the investigation of crime. Part 6 is focused on the taking of samples for the identification division of the database. This facility will be invaluable in the event of a disaster resulting in mass casualties but will also be useful in individual cases. Three situations are addressed — missing persons, unknown living persons and unknown deceased persons. Where it is proposed to take a sample from a living person, for example, the blood relatives of a missing person, consent is required. The profiles generated from the samples taken under this Part will be entered in the missing and unknown persons index and may be searched against other entries in that index but also against the investigation division where this would assist identification.

Deputies will recall that consent is required in some cases before samples may be taken under Parts 3 and 6. As is the case with suspects under Part 2, special arrangements are required on who may consent on the part of children and protected persons. These arrangements, which overlap to some extent with those in Part 2, are set out in Part 7.

Before leaving the subject of when samples may be taken, I draw attention to a number of overarching provisions in Part 12. Section 109 requires samples to be taken in circumstances affording reasonable privacy and only in the presence and view of such persons as are necessary to take the sample; and in the case of suspects, no samples may be taken during questioning. Section 109 also states clearly that nothing in the Bill authorises the taking of a sample in a cruel, inhuman or degrading manner. While section 110 permits making regulations in regard to taking samples, the principles set out in section 109 are of such a fundamental nature that primary legislation is appropriate. Section 111 requires those bodies empowered to take samples, namely, the Garda Síochána, Ombudsman Commission, Prison Service and youth justice service, to prepare draft codes of practice in consultation with the director of EFE for ministerial approval. These codes will provide practical guidance on the procedures for taking samples and will go a long way towards ensuring proper adherence to the statutory framework and consistency in approach.

It is important that the database and related arrangements employed by EFE, for example, in the receipt, storage and handling of samples, generation of profiles for the database, conduct of searches, reporting of results and destruction of samples, are subject to rigorous oversight. Part 9 achieves this by providing for an independent statutory oversight committee chaired by a senior judge. Schedule 2 gives details of membership and other matters. Members should note that the committee will include a nominee of the Data Protection Commissioner. The committee will have power to make recommendations to the director of EFE and to the Minister. It will also have power to review any matter relating to the operation and management of the database of its own accord. Its reports, subject to some limited restrictions relating to, for example, the security of the database, will be laid before both Houses and published. I am confident these arrangements, taken together with the risk of criminal prosecution for the disclosure of information on the database for any purpose not permitted by the Bill, will safeguard the security and integrity of the database.

Part 10 concerns the destruction of samples and the destruction or removal of DNA profiles from the database. This matter has been the subject of an important judgment by the European Court of Human Rights in S & Marper v. the United Kingdom. The very detailed and nuanced arrangements in Part 10 have been developed following careful consideration of that judgment which requires us to balance the public interest in the detection of crime and the individual’s right to privacy. Part 10 does this by prescribing different treatment for convicted persons and persons who are not convicted, adults and children, and samples and DNA profiles, respectively. This last distinction arises from the realisation that a much greater amount of personal information is contained in a biological sample than in a profile. A sample contains the whole of a person’s DNA. A profile, however, is a series of numbers and letters derived from a very small portion of that person’s DNA and which contains far less genetic information.

Starting with samples taken from suspects and offenders for the database, a default destruction period of three years will generally apply. In the case of DNA profiles, it is only those relating to convicted persons that will be retained indefinitely. An exception will apply in the case of some former child offenders who do not re-offend; their profiles may be removed from the database within ten years. In the case of persons who are not convicted, or persons who have had their conviction quashed or declared to be a miscarriage of justice, default time periods will apply to the removal of their profiles from the database. Generally the default periods will be five years in the case of children and protected persons and ten years in the case of adults. In advance of the expiry of these periods such persons may apply to the Garda Commissioner for the destruction of their sample and the removal of their DNA profile from the database. In the event of a refusal of their application they may appeal to the District Court. The prescribed periods may be altered, mostly downwards, based on a review of the operation of the Bill. For example, I hope it will be possible to reduce the three-year default destruction period applying to database samples. However, for the moment, I am satisfied that the approach taken strikes a reasonable balance.

Part 11 is concerned with international co-operation. It transposes the DNA-related aspects of Council Decision 2008/615/JHA of 23 June 2008, the text of which is set out in the first schedule. The Prüm Council decision, as it is often called, requires member states to permit automated searching of our DNA databases for criminal investigation purposes on a reciprocal basis. Such searches are conducted on anonymous data. In the event of a hit, the matter must be pursued within the mutual assistance framework. Bearing in mind the international mobility of criminals, access to the databases of other member states has the potential to be very useful. These Prüm-related provisions cannot be commenced until the data protection requirements of the Council decision have been transposed. My Department is considering how best to make provision for new data protection requirements in the criminal context. While no decision has been taken, I hope to be in a position to do so in the not too distant future.

Another provision that merits attention is section 103. It removes any doubt that a person may be required to give a sample under any provision of the Bill even though he or she may have provided a previous sample. This is essential as there is a wide variety of circumstances in which a person who has given a sample for one purpose may be required at a later date to provide a sample for another.

I will refer now to the issues that I am examining and may wish to bring forward as Committee Stage amendments. I am giving consideration to the arrangements for the retention of fingerprints and photographs. I am also considering whether further provisions are required in the area of international co-operation and to give fuller effect to the automated search provisions of the Prüm Council Decision. This Bill may also present an opportunity to transpose Council Framework Decision 2009/905/JHA of 30 November 2009 on accreditation of forensic service providers carrying out laboratory activities. Apart from these matters, I will have other amendments, many of a drafting or technical nature, but also some aimed at elaborating aspects of the Bill and refining the operation of some procedures.

It would be remiss of me not to acknowledge that many of the Bill's provisions take account of the analysis carried out by the Law Reform Commission for its comprehensive report on the establishment of a DNA database. This Bill marks a major step up in the use of DNA technology by the Garda Síochána in the fight against crime but does so in a balanced and carefully constructed manner which ensures that individual freedoms are not sacrificed in the pursuit of a public good. I have been at pains to ensure a system that will also be efficient and effective at its operational level. I am satisfied that the Bill provides for such a system and I am pleased to commend it to the House. We took the judgment in the S & Marper case very much into account in drafting it.

This Bill seeks to establish, in line with international standards, a DNA database for use in the investigation and prevention of crime. Drafting of the Bill has been fundamentally influenced by a 2008 decision of the European Court of Human Rights with respect to the regulation of the DNA database in England and Wales in which the court held that there was a breach of Article 8, relating to the right to a private life, of the European Convention on Human Rights, ECHR. Although the court accepted that the retention of DNA samples for the detection and prevention of crime was a legitimate aim, it concluded that the retention of those samples was an interference with the right to private life of the applicants, albeit one that could be justified in certain circumstances. In this case, however, the court struck down the "blanket and indiscriminate nature of the power of retention in England and Wales" and concluded that the applicants' right to private life had been violated. The court identified the Scottish system as being most consistent with the ECHR. Their data is retained for up to three years in respect of unconvicted people where the charge involves a violent or sexual crime.

The major tenets of the argument surrounding the establishment of a DNA database lie in the challenge of striking a balance between the rights of the individual to privacy, bodily integrity and the privilege against self-incrimination with wider societal interests in preventing disorder and crime. Striking such a balance raises complicated questions such as how useful it may be to retain DNA information, what weight should be given to the interests of the police, those whose information they hold and the general public, including those who are or may become the victims of crimes, how the database should be populated, and whose records should be retained. In addition, the establishment of a DNA database raises concern with regard to possible future permutations of its use, often referred to as function creep. These concerns have arguably been reflected in the evolving uses of databases in the United States, England and Wales where, in some instances, they have extended far beyond the scope of what was originally envisaged.

The difference between samples and profiles is pivotal. The science of DNA now is well-established but is an area of intense study and rapid growth in the field of human genetics that may yet have much to reveal. The amount of information that can be deduced from a biological sample may be much wider in ten or 20 years than is the case today. The revolutionary nature of DNA evidence as a forensics tool has been described as being the single greatest advance in the search for truth since the advent of cross-examination. The Law Reform Commission's comprehensive report on the subject, published in 2005 at the request of the Attorney General, identifies the purpose of a DNA database as assisting in identifying links between crimes such as in the case of stains left at the scene of the crime by serial offenders, the rapid exclusion from the ambit of the investigation of suspects who already are on a database and whose profiles do not match and the making of cold hits, that is, where a stain is matched with a profile of a person on the database who was not a suspect.

At the trial stage, DNA evidence is presented in court via the cross-examination of expert witnesses as to the scientific basis for declaring a DNA match and the statistical likelihood of that match appearing in the population at large. At the post-trial phase, DNA evidence has facilitated the reopening of cases, at times leading to the exoneration of wrongfully convicted defendants. The cases of the Birmingham Six and Guildford Four are good examples. In addition, DNA profiling has led to the identification of unknown deceased persons. However, it is at the pre-trial stage that the greatest scope exists for the role of a DNA database in the context of the investigation and prosecution of crime. Samples gathered from crime scenes or from volunteers, such as victims of crime, can be used to generate profiles, which then can be compared to profiles already stored. By comparing unknown crime scene profiles to known reference profiles, such as, for example, those of offenders, former offenders or arrestees, hits will help the Garda to generate suspects but also may eliminate other known profiles from suspicion because a hit does not occur. Likewise, matches generated by comparing crime scene profiles would indicate a serial offender and would provide investigative leads.

The establishment of a national database would have an inevitable impact on a number of rights guaranteed by the Constitution of Ireland and the European Convention on Human Rights, which, of their nature, must be safeguarded. No right, including a constitutionally-protected right, is absolute and where there are sufficiently compelling reasons for doing so, a constitutional right may be interfered with provided the interference is proportionate to the desired objective and required to protect stronger competing interests or the requirements of the common good. The debate surrounding the establishment of a DNA database concerns a number of rights recognised by both the Constitution and the courts.

The right to privacy is implicated in a number of ways by the establishment of a national database, first, by the taking of samples and, second, by the retention of samples and the profiles derived therefrom, which in some circumstances may be for an indefinite period. Third, the exchange of samples or information based upon them between the original custodians of the sample or profile and law enforcement agencies in other jurisdictions. Finally, the privacy of third parties also may be threatened.

The privilege against self-incrimination sometimes is referred to as the right to silence and has been held to be a constitutional right by the Supreme Court on numerous occasions. In common with other rights, the privilege against self-incrimination is not an absolute right and there are a number of strictly-defined statutory restrictions placed upon it. Notwithstanding the limitations on the exercise of the right, the onus of proof in any criminal trial rests on the prosecution. As for the right to trial in due course of law, Article 38.1 of the Constitution states "[n]o person shall be tried on any criminal charge save in due course of law." The phrase "in due course of law" has been held to incorporate a number of different principles, some of which are particularly relevant in the context of DNA evidence. The Irish courts have interpreted Article 38 to require that all criminal trials be conducted in accordance with the presumption of innocence, a concept that interacts with evidential rules regarding the burden of proof, which in the criminal law context is guilt beyond all reasonable doubt. The constitutional status of the presumption of innocence and its centrality to the criminal justice system was confirmed by Mr. Justice Costello in O'Leary v. Attorney General and has been described by the courts as being:

personal to the dignity and status of every citizen. It means that he or she is entitled to the status of a person innocent of criminal charges until such has been proven in a court conducted in accordance with law.

The compatibility of DNA retention regimes in respect of those arrested but not subsequently convicted of an offence and the presumption of innocence is an area of particular controversy. The Human Genetics Commission, HGC, which is the United Kingdom's advisory body on new developments in human genetics and their effects on individuals, addressed the issue succinctly when it argued that adopting a middle ground between the less practical extremes of a database storing only profiles of convicted offenders or the population at large must be strongly justified. It stated:

To treat an unconvicted person as having a diminished entitlement to privacy in the same way as a convicted person, i.e. to treat them "as if" they were guilty of an offence despite their guilt not being proven at the outcome of a judicial process, would be to set aside the judicial process and the presumption of innocence in favour of a balance of probabilities or a simple, untried belief that the person had committed the offence but evaded conviction.

The HGC goes on to argue that, to justify holding personal genetic information of unconvicted persons, there must be robust criminological evidence to show that some groups of people who have not been convicted nevertheless present a higher than average risk of committing criminal offences. Some of the problems experienced in the United Kingdom in adducing such evidence are addressed later.

In addition, a further element of Article 38 pertinent to DNA profiling is the principle of equality of arms, defined by the Irish Human Rights Commission in the following terms:

The principle of equality of arms implies that everyone who is a party to proceedings must have a reasonable opportunity of presenting his case to the court under conditions which do not place him or her at a substantial disadvantage . . . . A fair balance must be struck.

In this context, it has been suggested that where DNA evidence is adduced by the prosecution, adequate State funding should be made available to the defence in order to carry out independent testing and thus meet the State's case on a roughly equal basis. In the State (Walshe) v. Murphy, the High Court quashed a conviction for drunken driving on the grounds that the defendant did not have adequate opportunity to “have the specimen which he has retained analysed and to contest the validity or correctness of the certificate”.

The right to bodily integrity was first recognised by the Supreme Court in the seminal case of Ryan v. Attorney General. As originally recognised, the right to bodily integrity protected the citizen from having his health endangered by the State. The right was subsequently expanded upon and now covers the right to refuse medical treatment. It is also settled law that the legality of any medical treatment is predicated on the consent of the patient. Where medical treatment is carried out in the absence of a patient’s consent, a battery at common law is committed for which the doctor may be liable. It also is a criminal offence under the Non-Fatal Offences Against the Person Act 1997. The significance of the right to bodily integrity is particularly relevant in circumstances in which a DNA sample may be obtained using reasonable force as is proposed under the terms of the Bill.

The laws of evidence must be considered. The admissibility of DNA or any other evidence in a criminal trial is contingent upon its relevance to the case. In other words, the only admissible evidence is that which is relevant. This is not to say that all relevant evidence must be admitted. The leading case on the admissibility of evidence is People (Attorney General) v. O’Brien, in which the Supreme Court held that, where evidence has been obtained in circumstances involving illegality, the trial judge could, in his or her discretion, rule to exclude the evidence.

The use of DNA in a criminal trial is dependent upon the presence of a suitably qualified individual capable of interpreting it. In this way, DNA evidence is a form of opinion evidence in respect of which a considerable body of law has accumulated. Opinion evidence is generally not admissible, since witnesses are normally only permitted to testify as to matters within their knowledge as opposed to what may be of their opinion. It is for the jury as the trier of fact to arrive at a conclusion. In this regard, opinion evidence is an exception to the general rule. Where evidence of a scientific nature is adduced, an expert in that particular field may give evidence. This creates a specific problem in the context of criminal litigation, a difficulty that has been described as being cultural, namely, a clash between the scientific world accustomed to black holes and scientific revolutions and the legal world where such qualified certainties are not sufficient.

The general scheme of a criminal justice (forensic sampling and evidence) Bill was published in 2007. The proposals drew from the LRC's 2005 report and were followed by a consultation process during which submissions were received from a number of civil society groups. In 2006, a review was commissioned by the Government on the resource needs of the Forensic Science Laboratory and the wider scientific context, culminating in the production of the Kopp report. However, the general scheme was never published as a Bill and was the subject of numerous redrafting exercises in the years that followed. This delay was directly related to the close scrutiny of DNA databases at European level, with close attention paid to the decision of the ECHR and the UK's compliance with the judgment.

The Criminal Justice (Forensic Evidence and DNA Database System) Bill 2010 repeals the Criminal Justice (Forensic Evidence) Act 1990 and partly gives effect to the Prum Council decision of 2008. The purposes for which the DNA database is established is restricted to the investigation of criminal offences, the finding or identification of missing persons, the seriously ill or severely injured who are unable to indicate their identity and the identification of the bodies of unknown deceased persons.

It is beyond the scope of this paper to engage in a section-by-section analysis of the Bill. The principal themes will be addressed, looking in particular at the proposed content of the database, the collection of samples for the purposes of extracting profiles and the data retention regime to be put in place. The current framework surrounding DNA is provided by the 1990 Act, as amended by section 14 of the Criminal Justice Act 2006, which regulates the taking of bodily samples for forensic testing and applies where a person is in Garda custody under section 30 of the Offences Against the State Act 1939, section 4 of the Criminal Justice Act 1984 or section 2 of the Criminal Justice (Drug Trafficking) Act 1996 or where a person is in prison and would, but for that imprisonment, be liable to be arrested and taken into custody for an offence under these Acts. The taking of samples under the 1990 Act is confined to the taking of samples for evidential purposes. It is used in tandem with the taking of samples on a voluntary basis under the common law.

The DNA database will consist of two divisions, namely, the investigation and identification divisions. The investigation division will consist of three separate indexes, each populated with profiles from different categories of person. The reference index, provided for in Parts 2 and 4 of the Bill, consists of profiles generated from the samples of offenders, both adults and children, former offenders within the meaning of the Bill and the bodies of deceased persons who are suspected of having committed an offence. These provisions are laid out in sections 30 to 34, inclusive. Profiles generated from samples collected from those detained in custody on suspicion of having committed a relevant offence under Part 2 of the Bill may also be entered on the index. Suspects include persons arrested on suspicion of having committed a relevant offence and detained under section 30 of the 1939 Act, section 4 of the 1984 Act, section 2 of the 1996 Act or section 50 of the Criminal Justice Act 2007.

For the most part, the offences concerned carry a maximum sentence of five years or more, with a limited number of exceptions in the case of the 1939 and 1996 Acts. This represents a key difference in the proposed Irish regime in comparison to that of England and Wales, which concern all those arrestees suspected of committing a recordable offence, namely, all offences above a minor threshold. The taking of blood or urine samples is provided for under other statutory frameworks, such as the Road Traffic Acts, for the investigation of offences carrying lesser penalties. These will not be concerned by the Bill unless they fall within the offences defined in the four sections listed. An example would be the offence of dangerous driving causing death, which carries a maximum penalty of ten years.

Under the Bill, offenders include those who are still serving a sentence before the commencement of section 30, who are sentenced after commencement and those prisoners transferred to the State under relevant legislation in respect of an offence that corresponds with a relevant offence under the Bill. Also included are all those on the sex offenders register. A similar regime is to be put in place in the case of child offenders, although the word "child" is to be understood in light of the fact that section 155(2) of the Children Act 2001 allows certain offenders detained in child detention schools to remain there for a period of up to six months after attaining the age of 18 years.

Former offenders are those persons who are no longer subject to a sentence for a relevant offence or are no longer on the sex offenders register. This definition is subject to a number of exceptions, as some categories of person who have served a sentence are not categorised as former offenders for the purposes of the Bill. This includes someone whose DNA profile is already on the reference index of the DNA database and in respect of whom the Garda or a District Court judge is not satisfied that it is appropriate for a sample to be taken. In this instance, the number of relevant factors to be taken into account are listed in section 32(2)(b). Another category applies to people who are not ordinarily resident or have a principal residence in the State. Another exception applies if a period of ten years has elapsed since the expiry of the last sentence for a relevant offence or since the last notification period in the case of sex offenders. In the case of child offenders, only those convictions handed down that were triable in the Central Criminal Court are eligible for consideration, as well as any other offences prescribed having regard to their nature and seriousness. Failure or refusal to comply with the provisions of Part 4 constitutes an offence.

Section 34 of the Bill allows a garda of at least superintendent rank to apply to a District Court judge for an order to take a sample from a deceased person where the garda has a reasonable belief that the person committed a relevant offence and that creating a DNA profile for comparison would further the investigation of that offence. However, this section does not authorise the exhumation of the body of a deceased person relevant to section 34(15). While the profiles of volunteers are gathered only in respect of a particular investigation, volunteers may specifically consent to the entry of their profiles on the reference index.

The elimination index provided for in Part 5 of the Bill consists of profiles generated from samples collected from persons who, in the execution of their duties, are considered to be at risk of inadvertently contaminating crime scene samples with their DNA. There are three strands to the elimination index, those being, gardaí, crime scene investigators and prescribed persons. The crime scene index will contain profiles generated from samples found at or recovered from crime scenes, including samples generated before the commencement of the Bill.

The identification division will consist of the missing and unknown persons index of the DNA database, as provided for in Part 6 of the Bill, and refers to profiles generated from samples collected from missing persons, seriously ill or severely injured persons who are unable by reason of illness or injury to identify themselves and from unknown deceased persons. Under the 1990 Act, where a person is detained in Garda custody in the circumstances mentioned, a garda or medical practitioner, complying with appropriate safeguards and procedures, may take a bodily sample for the purposes of forensic testing. The Act draws a distinction between samples that require consent to be taken and samples that do not require consent. Section 2 of the 1990 Act lays out the requirements to be met by the Garda before they take a sample. Following amendments to the 2006 Act, taking samples of saliva or mouth swabs no longer require consent.

Part 2 foresees the collection of samples in respect of detention on a similar statutory basis to the 1990 Act, with the addition of a person detained under section 50 of the Criminal Justice Act 2007, which generally carries a maximum sentence of five years or more imprisonment.

The Bill, similar to the 1990 Act, differentiates intimate from non-intimate samples and imposes differing consent and authorisation regimes to each category. Intimate samples refer to samples of blood, pubic hair or urine, a swab from a genital region or a body orifice other than the mouth or a dental impression. Non-intimate samples on the other hand, refer to samples of saliva, hair (other than pubic hair), a nail or a skin impression, such as a footprint or a fingerprint. In addition, specific authorisation and consent regimes are envisaged for protected persons, who by reason of a mental or physical disability lack the capacity to understand the general nature and effect of the taking of a sample or to indicate consent. In the case of non-intimate samples information is to be given in a manner and language that is appropriate to the level of understanding of the protected person or child concerned and is age-appropriate in the case of a child. In the case of intimate samples distinctions are drawn among minors according to their age. For a child aged 14 or older the child's consent is required, along with that of a parent or guardian, or upon an order from a District Court judge, if required. For a child below the age of 14 consent of a parent or guardian or an order from a District Court judge is required.

Section 15 provides for a number of exceptions under which a parent or guardian may be excluded from giving consent, including where he or she is the victim of the offence, has been arrested in respect of the offence, is suspected of being complicit in the offence or is likely to obstruct the course of justice. Resort to an order of a District Court judge is provided for in the event that a parent or guardian cannot be located, refuses to attend the Garda station within a reasonable time, is excluded from giving consent under section 15 or refuses to give appropriate consent. The judge must take into account, where applicable, the reason for the parent's refusal, the nature of the offence, the best interests of the person concerned, the interests of the victim and of the protection of society. Non-intimate samples, that is hair or mouth swabs only, can also be taken from volunteers. The Bill also allows a sample of biological material to be taken from human remains to generate a DNA profile.

Section 19, similar to the 1990 Act, provides that a refusal to consent to the taking of a sample without reasonable cause may give rise to an adverse inference being drawn in subsequent criminal proceedings, which may in turn be treated as corroborating any evidence to which it is relevant. It cannot, however, be the sole or main basis of a conviction. However, the inference does not apply to protected persons or to a child under 14. Equally, it cannot apply to a child over 14 who gave consent but whose parent or guardian refused consent. Such inferences constitute an exception to the general principle that a suspect ought not to be obliged to provide evidence which may incriminate him or her.

Section 24 provides that in the case of a non-intimate sample, reasonable force may be used to collect a sample if authorised by a garda not below the rank of superintendent when the detained person is informed in advance of the intention to use reasonable force and the taking of a sample in such circumstances is video-recorded. Special provisions apply to the use of force on protected persons and children over the age of 12. Use of force is not allowed in the case of children under 12. Provisions are also set down for re-taking a sample in the event that it proves insufficient for forensic testing.

Sections 121 to 123 amend the Criminal Justice Act 1984 with respect to taking fingerprints and palm prints from persons arrested for the purpose of a charge.

I am concerned about taking a sample from a child between the ages of 12 and 18. Would the Minister consider prescribing a very clear schedule of exactly what this will entail? We must ensure that taking of a sample from someone between the ages of 12 and 18, where force is allowable, is very clearly prescribed.

I appreciate the need for the delay in introducing the Bill. The Garda have called for this legislation since the late 1990s and the Law Reform Commission paper dates to 2005. It was correct and appropriate not to advance the Bill until there was a determination by the European Court of Human Rights. It was appropriate to await the judgment on the methodology used in England and Wales.

Fine Gael broadly supports the Bill. Our greatest concern is with the use of reasonable force to take samples from people aged between 12 and 18. While the penalties are reasonable and necessary, severe penalties should be applied to those who use information gained from the DNA database incorrectly. If those two matters are appropriately dealt with, the Government will have significant support from Fine Gael.

Balancing the competing imperatives of preventing or solving crime and ensuring the protection of human rights is a perennial challenge for legislators, especially in the criminal justice area. At times of high emotion generated by a particular atrocity or controversy, it is difficult to find a sympathetic audience for articulation of the necessity to balance these competing imperatives. It is all the more difficult when standards in our society have plumbed the depths where violence is commonplace, the vulnerable are exposed and unlawful killings are a regular feature. We may add to this explosive cocktail the impulse of justice ministers to be seen to do something, to introduce tough legislative measures and to be presented as standing up to the criminal fraternity. Often, there is little substance in these measures other than the licence to rhyme off actions taken by the minister, even if they are futile, unenforceable or simply ignored.

The Bill is a meaningful innovation that will permit gardaí to take full advantage of DNA technology in the detection of crime. In the matter of creating a DNA database which will contain DNA profiles generated from biological examples, this question of balancing the competing imperatives I have spoken about is especially relevant.

Forensic science can use DNA in blood, semen, skin, saliva or hair found at a crime scene to identify a matching DNA of an individual, such as a perpetrator. The process is called genetic fingerprinting or, more accurately, DNA profiling. In DNA profiling the lengths of variable sections of repetitive DNA are compared between people. This method is usually an extremely reliable technique for identifying a matching DNA.

DNA can be collected from any of the cells mentioned above and from that DNA sample, a DNA profile can be established. DNA profiling is a biological identification system. It is based on showing a particular sequence of DNA being repeated a number of times. For example, "9" means the sequence is repeated nine times, "7" means it is repeated seven times and so on. The expansion of this system allows the build up of a full sequence which is then placed on a database. Samples can then be compared on that database and identical DNA samples can be detected. This would allow the relationship to be determined between a sample from a crime scene and that of a person suspected of being involved in the crime. Many cases are recorded where DNA has been a very useful tool in connecting a crime scene to the perpetrator of the crime. The chance of two unrelated individuals having matching DNA is reported to be of the order of one in 1 billion.

The Labour Party agrees that, in line with the primary objective of preventing and detecting crime, the gardaí should have at their disposal the benefits of modern science and technology. DNA profiling was developed as relatively recently as 1984 and the potential benefits of a DNA database are awesome. In this context of DNA science, the potential of this crime control technique is constrained by the absence of a permanent collection of reference profiles to which samples obtained at a crime scene can be compared.

The purpose of this Bill is to replace the existing statutory and common law arrangements governing the taking of bodily samples for forensic testing from suspects for use as evidence in criminal investigations and to provide for the establishment of a DNA database system for use by the Garda Síochána as an intelligence source for criminal investigations. A DNA database enables a person, not previously suspected of committing a crime, to be identified as the possible perpetrator of an offence or to exclude a person from further investigation.

It is also true that identification can be complicated if the crime scene is contaminated with DNA from several people. DNA samples are, therefore, capable of being compromised. Although the probability of two persons having the same DNA profile are very small, it is an important point of principle and for that reason conviction based solely on DNA should not be considered sufficient. Additional corroborating evidence should be required.

Internationally, the practice now is that people convicted of certain types of crimes may be required to provide a sample of DNA for a database. On the one hand, this has helped investigators to solve old cases where only a DNA sample was obtained from the scene. On the other hand, some convicted people in the United States have been released from prison on the basis of DNA techniques which were not available when a crime had originally been committed. Sometimes the guilty have been convicted; sometimes the innocent have been acquitted.

Human rights advocates have argued that storing the DNA of innocent persons is a disproportionate invasion of privacy when weighed against the actual convictions using DNA. The European Court of Human Rights, in the case referred to by the Minister of S and Marper in the UK, found that the law as it existed in England and Wales, under which DNA samples of people who are arrested but not charged or convicted can be retained indefinitely, constituted a disproportionate interference with the right to respect for private life and, therefore, violated Article 8 of the European Convention on Human Rights.

In regard to the above point, the issue referred to by Deputy D'Arcy of function creep is an important one. This means that gradually the DNA database might be used for additional reasons other than those originally intended. This needs to be carefully monitored — for example, if DNA could be used to determine health risks or genetically determined diseases, this might have implications for getting life insurance cover or for obtaining a mortgage, although the banks are able to determine this at the moment without the benefit of DNA.

It is beyond question that the technology will continue to develop and evolve and more sophisticated systems will emerge for analysis of the DNA, providing more and more detailed information which has the potential to discriminate or exclude certain categories of people in a most unfair manner.

There is no question about the intrinsic value of DNA in the solving of crime, clearing a person's name, aiding identification, tracing a missing person and so on. It is a question of striking a balance between the values outlined above and ensuring the right to privacy of the individual.

The right to privacy was first recognised by the Supreme Court in Kennedy v. Ireland where the unlawful tapping of the telephones of two journalists was held to be a violation of the individuals’ right to privacy. The privacy commissioner of Canada, for example, has observed that, “No surveillance technology is more threatening to privacy than that designed to unlock the information contained in human genes”.

The right to privacy is implicated in a number of ways by the establishment of a national DNA database. First, by the taking of samples and second, by the retention of samples and the profiles derived from them which, in some circumstances, may be for an indefinite period of time. Also, the exchange of DNA samples or information based upon them between the original custodians of the DNA sample or profile and law enforcement agencies in other jurisdictions.

There are a number of important judgments handed down by the European court in the area of privacy and, as the Minister said, the most important of which is S and Marper v. UK. As a result, the importance of having clear detailed rules that govern the scope and application of measures that allow for the taking of bodily samples and the creation of DNA profiles as well as minimum safeguards concerning duration, storage, usage, access to third parties and procedures for preserving the integrity and confidentiality of data and procedures for its destruction.

Sections of the Bill that will require focus on Committee Stage include the provisions for the taking of samples from various categories of persons — for example, those in Garda custody — a person in prison, the taking of intimate samples for evidential purposes, taking a sample from a child and the need for the presence of a parent or guardian, taking samples from a protected person, the use of reasonable force, the retaking of a sample, taking samples from volunteers, mass screening of persons — for example, by time, age, sex, geographic basis and so on.

I welcome the provision for the appointment of a committee to oversee the management of the database system. However, I cannot see any definition of what category of person might be appointed to such a committee in terms of, for example, what qualifications they might have. The Minister referred specifically to the fact he intends to include a person from the Office of the Data Protection Commissioner, which I welcome. However, given the technical nature of the process, there should be some indication of the competences required for membership of that committee.

The establishment of a DNA database is expensive and requires careful management. Oversight of the collection, storage management and so forth is critical and should be rigorous. In this context it is worth noting the comments of the European Court of Human Rights in the S and Marper case. In particular, the court stated that "bearing in mind the rapid pace of developments in the field of genetics and information technology, the Court cannot discount the possibility that in the future the private-life interests bound up with genetic information may be adversely affected in novel ways or in a manner which cannot be anticipated with precision today".

In its remarks on the Bill, the Minister's favourite civic society organisation, the Irish Council for Civil Liberties, ICCL, acknowledges that the Data Protection Commissioner and Irish Human Rights Commission were consulted on the Bill and "many human rights benchmarks have been incorporated". The ICCL, however, raises raise a number of concerns which will require to be teased out on Committee Stage.

I refer to two such concerns. The first relates to the retention and destruction of samples, on which the ICCL states:

At certain stages, a person whose data has been retained in the database system may apply to the Garda Commissioner requesting its removal and the Commissioner must give reasons why this request cannot be facilitated. Notwithstanding that, the Bill also contains default periods for the removal of DNA data. Under Part 10 of the Bill, the default retention period for samples taken for evidential purposes is 3 years and 10 years for profiles which are entered in to the database system. However, under s. 8, the Commissioner can apply to the District Court to retain a sample beyond the default period. The samples of convicted persons can be retained indefinitely except for child offenders whose details may be removed after 10 years.

However, the samples retained relate to a range of offences, some of which, although they may potentially attract a prison sentence of 5 years or more, are not of a violent or sexual nature. Sampling applies to offences where a person can be detained under s. 4 of the Criminal Justice Act 1984. The ICCL questions the compliance of this provision with the ECtHR judgment in S and Marper given that the system most favoured by the ECtHR was the Scottish framework. In Scotland, DNA samples are only retained in respect of unconvicted persons where there was suspected involvement in violent or sexual crimes.

I ask the Minister to respond to this point.

I share Deputy D'Arcy's concern regarding the position of children, an issue we will have to address on Committee Stage. The second concern raised by the Irish Council for Civil Liberties relates to mass screening and volunteers and concerns the provision in Part 3 under which volunteers may be approached by a garda or authorised person for DNA sampling in the investigation of a particular offence. These samples will not be entered into the DNA database system unless consent of the volunteer is provided on request. The ICCL argues that the Bill does not incorporate sufficient safeguards in relation to this consent. I ask the Minister to respond on this point.

A more detailed and comprehensive critique of the Bill has just now come to hand from the Irish Human Rights Commission. Committee Stage may be the more appropriate forum for teasing out a number of matters raised by the commission in its submission.

I thank the Library and Research Service for its work on the Bill. The service continues to do good work in making legislation accessible in technical areas such as this. I also thank the Minister and his officials for the detailed presentation on the Bill. It is an intelligible and accessible explanation of the purpose of the Bill and what it seeks to obtain under the different divisions. It will be helpful when we try to frame amendments for Committee Stage.

The establishment of Ireland's first ever national DNA database, as proposed in the Bill, is a positive development, on which I commend the Minister. It will provide a powerful tool to gardaí in their fight against crime by giving them access to unprecedented levels of intelligence. It will enable them to quickly identify offenders, make earlier arrests, secure more convictions and identify critical leads for investigations. As well as leading to greater efficiency in the use of Garda time and resources, it is expected that the database will also act as a deterrent to offenders and re-offenders.

To examine the functions of the DNA database in more detail, it is important to know exactly what it will do and who it will affect. The database will contain DNA profiles generated from biological samples. These samples will be taken from various categories of persons, including offenders, former offenders and those detained on suspicion of committing a serious offence, as well as volunteers and missing or unknown persons. For elimination purposes, samples will also be taken from persons involved in crime prevention such as members of the Garda Síochána.

A DNA profile generated from the sample will be placed on the database with samples collected from the crime scene. These profiles will primarily be used in the investigation and prevention of crime. The analysis of the material on the database will produce "hits" that may indicate a link between the person and crime scene or other offences in which the individual was previously involved but with which no link had previously come to light. This means that not only will these samples be used to solve current investigations but they will also go a long way towards solving cold cases.

Another important function of the DNA database is that it will help identify deceased and missing persons. Every year countless people go missing in Ireland. Anything that helps shed some light on these disappearances and assists the families of missing people should be welcomed.

As any episode of "CSI" will show — I do not know if the Ceann Comhairle watches the programme — DNA testing is a staple of modern crime investigations. Described as the single greatest advance in the search for truth since the advent of cross-examination, DNA testing has revolutionised criminal investigations the world over. Deputies will have noted the major role DNA testing has played in our criminal justice system in recent years. We were reminded of its importance during the high profile trial of Eamon Lillis who was convicted of the manslaughter of his wife Celine Cawley earlier this year. As a result of DNA testing, forensic scientists were able to offer a detailed interpretation of the way events unfolded on the fateful morning in question. DNA testing also played a major role in the successful conviction of Brian Hennessy of Windgap, County Kilkenny, for the murder of Sharon Whelan and her two daughters on Christmas Eve in 2008.

To fully evaluate the debate on DNA testing and the establishment of a database it is first essential to gain a basic understanding of what is a DNA sample. The terms "samples" and "profiles" are often bandied without many of us understanding the main differences between them. A DNA sample is a sample taken from an individual, such as a mouth swab, plucked hair roots or blood, which contains the DNA of the individual for analysis. The sample is retained by the laboratory in secure, sterile conditions and bar coded to enable the sample to be matched to the profile if necessary. A DNA profile, on the other hand, is defined as a numerical representation following analysis of a DNA sample.

In examining the benefits of establishing a new DNA database, it is worth looking across the water to see how the database in the UK works. The United Kingdom National Criminal Intelligence DNA Database, most commonly referred to as NDNAD, was the world's first national DNA database and was, until recently, the largest. The majority of the active criminal population is now believed to have its DNA recorded and in turn, profiled. According to recent figures, the UK database holds 5.6 million profile records from approximately 4.8 million individuals, a figure which equates to roughly 7.8% of the population.

Police forces across Britain use DNA profiles to successfully solve thousands of cases every year. The overall hit rate for 2008-2009 is almost 60%. The match rates are highest in the case of burglaries, criminal damage and theft from vehicles, and of vehicles, more than 75% of crime scene to subject matches in 2008-2009 arose from these categories of offences. By all accounts, the establishment of a DNA database has revolutionised the way in which police work is conducted in the UK. There is no reason we cannot expect the same kind of success here.

There has been much discussion, even here today, in the context of this Bill of the rights to privacy of the individual. Article 1 of the UNESCO Universal Declaration on the Human Genome and Human Rights, 1997 states:

The human genome underlies the fundamental unity of all members of the human family, as well as the recognition of their inherent dignity and diversity. In a symbolic sense, it is the heritage of humanity.

It is, therefore, important that this Bill strikes the right balance between the rights of the individual to privacy and the wider interests of society in preventing crime and disorder. This requires that we give due consideration to the retention periods proposed for both profiles and samples.

In drafting this Bill, it was initially intended that all samples and profiles would be retained indefinitely, but I note what the Minister stated today and what Deputy Rabbitte stated in his contribution. The position has been changed following a high profile case to which the other speakers referred, S & Marper v. UK in 2008 at the European Court of Human Rights. This case is critical to understanding the legal parameters of this Bill. As such, it is worth looking at it in some detail.

In S & Marper v. UK the European Court of Human Rights in Strasbourg ruled on the issue of DNA evidence and in particular, on the retention of DNA samples and profiles of those arrested but not subsequently convicted. At the age of 11, “S” was arrested for attempted robbery. Even though he was subsequently acquitted of the charge, his fingerprints and DNA samples were still taken. The other applicant, Marper had been arrested for harassment, and his fingerprints and DNA samples also taken, although the prosecution was subsequently discontinued. Both Marper and “S” applied to the English courts for their fingerprints and DNA samples to be destroyed but their requests were refused. This decision was upheld on appeal, both by the Court of Appeal and the House of Lords. The applicants then took their case to the European Court of Human Rights, where it was unanimously held that there had been an interference with the right to private life guaranteed by Article 8 of the European Convention on Human Rights and that such interference was disproportionate and unjustified by the competing interest of crime prevention.

This judgment has implications beyond the immediate issue of retention. It places the burden on the State authorities of demonstrating that a particular breach of Article 8 is justified. It introduced considerations of proportionality and tests such as necessity as well as consideration of the needs of particular groups, for example, children.

For further information on this — Deputy Rabbitte already referred to it — I recommend also that Members of the House refer to the excellent research done by the Oireachtas Library and Research Service. This can be found in its Bills digest series.

The European Court of Justice judgment has been examined closely by the Office of the Attorney General. It found this judgment can be relied on by the Irish courts. In light of this, it is now necessary to differentiate between samples and profiles. It is also necessary to differentiate between those who have been convicted and others. Finally, it is necessary to take account of particular concerns relating to specific groups such as children.

Reflecting this, the Bill now proposes a mixture of retention periods. In the case of convicted persons, samples will be destroyed after three years and profiles will be retained indefinitely. The profiles of child offenders will be destroyed ten years after the end of the sentence.

The situation surrounding the retention of suspects' samples has understandably garnered much attention. This Bill sets out that where suspects have not been charged or have been acquitted, their samples will be destroyed after three years. Profiles may be held for ten years or five in the case of children. The person in question, however, is permitted to apply to the Garda Commissioner before the expiry of the default periods for removal and destruction.

There is no doubt that these retention periods should be kept under constant review. I welcome that the Minister is required by the Bill to review the destruction/retention arrangements for samples and profiles within seven years, and at any other time which he considers appropriate.

Another issue which has come to my attention and must be looked at is the risk that the DNA profiles stored on the new DNA database will be used for purposes not originally envisaged. This is known as "function creep." It is important that we guard against any future erosion of individuals' privacy in this regard. Taking account of this, the Bill provides for the establishment of a DNA database system oversight committee. It will be the committee's task to ensure the database will only be used for the purposes for which it is intended — the investigation and prevention of crime and the identification of missing persons. It is the committee's job to ensure that this function creep is not allowed to take hold.

This Bill sets out that the oversight committee will be chaired by a former or sitting judge of either the Circuit Court or the High Court. Ex officio members will include the director of the Forensic Science Laboratory as well as a nominee of the Data Protection Commissioner.

The new national database will be operated by the Forensic Science Laboratory, which will be renamed and carry the Irish initials EFE. It will carry out the DNA analysis and communicate the results to the Garda.

I take this opportunity to commend the work of the Forensic Science Laboratory. Since its establishment in 1975, it has delivered world-class forensic services. It is involved in the investigation of murders, assaults, sexual offences, armed robbery, firearm offences, drugs offences, criminal damage, arson, explosives, hit-and-run traffic accidents, fraud and any other offences where physical evidence occurs. In 2008 alone, the laboratory examined more than 16,000 cases. I pay tribute to Dr. Sheila Willis, the Director General of the laboratory, Dr. Louise McKenna, the director of science, and Dr. Seán McDermott, the director of operations, for their contribution to forensic science down through the years.

It is also worth mentioning at this point that work is in progress on providing a new facility for the Forensic Science Laboratory. Notwithstanding current budgetary constraints, the project is being advanced as expeditiously as possible by the Office of Public Works. Having considered various options, it has been decided to locate the Forensic Science Laboratory to a new purpose-built facility on State land at the Backweston Campus in Leixlip, which is already the location of the State Laboratory and the Department of Agriculture, Fisheries and Food laboratories. This will maximise synergy between the expertise and resources of the various laboratories.

Naturally, the new laboratory will have the capacity to maintain and operate the new national DNA database. It is also important to note that despite the current downturn, Budget 2010 has provided €4.1 million for the development of the new DNA database. This, coupled with the fact that the Garda Síochána remains well resourced with a budget of €1.5 billion this year, shows that Government is fully committed to the prevention of crime in all its forms. The benefits of establishing an efficient and effective DNA database are manifold. It will help in the prevention and investigation of crime, provide critical leads in cold cases, help identify missing and deceased persons and will act as a deterrent to criminals. I have no doubt it will help to put Ireland at the forefront of forensics for the next number of years.

When this Bill was first announced by the Minister, I received a letter from a graduate of Cork University who graduated in chemistry and forensic science in May 2009. She pointed out in her letter that she had to travel to London to do a masters in forensic medical science as there were no postgraduate courses available in forensic science in Ireland. Members may be aware that forensic science related courses are being introduced here every year. University College Cork, Dublin Institute of Technology, the Institute of Technology Sligo, Institute of Technology Tralee, Institute of Technology Waterford and Institute of Technology Tallaght have all introduced such courses in recent years — I hope Deputy Charlie O'Connor is listening as I mention Tallaght. The introduction of these courses leads students to believe jobs will be available in the forensic science area. However, that is not the case. The young lady who wrote to me stated:

I recently researched jobs for forensic science graduates in Ireland and found that only one forensic science laboratory exists in Ireland, (in the Phoenix Park, Dublin) and they are currently not recruiting. I then proceeded to email them, and requested information on the type of qualifications and graduates they require and when would they be likely to be recruiting again. To date, I received no response.

I will not mention the name of the person who sent this letter to me, but she is from west Cork. I will e-mail this letter to the director of this project and I am sure she will be more than happy to forward information to this young graduate. We have no business running courses on forensic science if positions will not be available for them. The Minister told me that 50 people were recruited within the past 12 months for this project.

The national DNA database system in the United Kingdom is the leader of the world's databases, with those of the United States and Europe closely following. The UK's database is the largest of any country, with approximately 7% to 8% of the UK population on the database, compared to 0.5% in the USA. In the United Kingdom, the national DNA database has proved to be one of the most effective tools for the prevention and detection of crime. Maintenance and development of the database is one of the British Government's top priorities and the government and police have invested over £300 million in the system over the past five years. As well as an individual's DNA profile, information such as name, date of birth, gender, ethnic appearance, etc., is also inputted.

The database in the United Kingdom was set up in 1995 to store data derived from DNA profiles. It operates on the basis that identifying offenders more often and more quickly should lead to increased detection of crime and bring more offenders to justice. The DNA database is also intended to act as a deterrent to offending and re-offending. This, in turn, helps to raise public confidence by ensuring that those guilty of offending can be found and dealt with by the criminal justice system. The setting up of the database has revolutionised the way in which the police work to help protect the public. The majority of the active criminal population is now believed to have their DNA recorded and profiled. Police forces across Britain use DNA profiles to solve successfully thousands of cases every year. All in all, the United Kingdom operates an excellent and successful national DNA database system. This, in turn, puts the UK at the top of the list when it comes to solving crimes, catching criminals and clearing the innocent. Confidence in the DNA database in Britain is, therefore, understandably at an all time high. I have no doubt that once we establish our database, we will experience the same success. Therefore, I commend the Minister on bringing forward this legislation.

I welcome the opportunity to speak on this important legislation. I thank the Oireachtas Library and research service for, once again, producing an excellent digest on the Criminal Justice (Forensic Evidence and DNA Database System) Bill 2010 that is before us today. The topic covered by this legislation generates much interest and debate. We in Fine Gael have long called for the introduction of DNA related legislation. The subject of DNA and forensic evidence and its application to crime has captured the imagination of the public, with numerous television programmes, films and novels portraying a system where criminals are eventually made to pay for their crimes thanks to the application of scientific methodology. We started with the "Scooby Doo" cartoons but these have now evolved into the "CSI" series currently on our televisions. We have seen this interest in forensics manifest itself through our education system, with an ever increasing demand by students for courses at university and third level colleges in this field. However, this portrayal of forensics does not really reflect the more mundane reality.

I would like to deal first with the issue of funding for the operation of the DNA database. I note that the Minister has set aside €4.1 million of his 2010 capital budget for the development of the DNA database. If I were the Minister, I would review some of this State's more recent forays into the world of information technology. The Minister, Deputy Dermot Ahern, should take a good look at our record on electronic voting, PPARS and various other IT initiatives. These very quickly ran out of control from a cost point of view and ultimately were scrapped, providing none of the advantages to the Irish public they were supposed to bring.

The fact that the database system is electronic means that the Minister must take the point of view that the system is corruptible. I would welcome it if the Minister indicated whether he has considered this and invite him to address the issue in his response to the debate. Has he put in place the relevant safeguards to optimise the performance of the DNA database? The subsequent annual costs of maintenance and oversight must also be nailed down at this early stage. It is somewhat ironic that we are embarking on this interaction of science technology and the law when representative associations inform us that many of our Garda stations are not yet e-mail enabled. This is difficult to believe.

I would prefer that in publishing this Bill the Minister placed more emphasis on the area of juvenile justice. Statistics and data, as published by the Irish youth justice service and backed up by the Garda, show a marked drop off in criminal behaviour once a youth reaches the approximate age of 16 or 17. I would like to see a change in the period of time for which data is held for people of this age. There is a strong body of opinion that our juvenile justice system should be distinct from the adult criminal justice system. The Minister, in establishing similar sample retention times for those under and over 18, is flying in the face of the reforms his Department is pursuing in the area of juvenile justice. I hope this anomaly is addressed on Committee Stage. Deputy Rabbitte also referred to this.

The historical international experience in the use of DNA databases seems to have been one of establishment, followed by expansion, followed by review and then, to a certain extent, row-back. The operational systems of many countries have changed over the years. I understand that in this legislation the Minister has taken due cognisance of the ruling by the European Court of Human Rights in the case of S. and Marper v. United Kingdom. The results of this case are interesting in that the initial evidence for the original UK DNA database was provided when both S. and Marper were juveniles. I repeat my request to the Minister to create more of a distinction between juveniles and adults in the legislation.

The contentious element of the Bill is no doubt the retention of information on the DNA database from people who have not been convicted of or charged with any crime. The Minister must tread carefully, and the Bill requires more work in this regard. No matter how many times the Minister states there is no implication of guilt, when a person's details are maintained on a database as proposed in this Bill, this will not always be the case. The interaction between science and the law can be interpreted as an undermining of the basic tenet of innocent until proven guilty.

The review mechanisms proposed by the Minister need more scrutiny. Section 69(6) provides that in publishing any report or laying a copy of a report before each House of the Oireachtas, the Minister may

omit any matter from the copy of the report that is so laid or published if he or she is of opinion that the disclosure of the matter—

(a) would be prejudicial to the security of the DNA Database System, the security of the State or the investigation of criminal offences, or

(b) may infringe the constitutional rights of any person.

Paragraph (a) could ultimately be interpreted as allowing for the prevention of any questioning of the system or the manner in which it operates. As I have already stated, we cannot make such an assumption with regard to something that is by nature electronically based. I would like to see this aspect of the review mechanism discussed further on Committee Stage.

I welcome the publication of the Bill, which will, on balance, be an asset to the State in the fight against crime. It is a contentious Bill and still requires some work during its passage through the Houses of the Oireachtas.

Deputy Peter Kelly has up to 20 minutes.

I will use ten, a Cheann Comhairle.

I am delighted to have the opportunity to speak on the Criminal Justice (Forensic Evidence and DNA Database System) Bill 2010. The establishment of Ireland's first ever DNA database marks an important step forward in the State's fight against crime. Giving the Garda access to intelligence on a scale that has never before been available in this country, will revolutionise the way criminal investigations are carried out. The DNA database will be used mainly in the prevention and investigation of crime. However, it will also be used to identify missing, ill or unknown deceased persons. Therefore, not only will it help to provide leads in current investigations but it will also be invaluable in solving cold cases.

The importance of DNA testing in criminal investigations cannot be underestimated. It has helped boost conviction rates across the world and is without doubt one of the greatest investigative tools available to police forces today. When talking about DNA testing, it is important to be clear about the difference between a DNA sample and a DNA profile. A DNA sample is taken from an individual via a mouth swab or a plucked hair, and is then stored in the lab for analysis. A DNA profile is the numerical representation of the DNA sample obtained by analysis. In this Bill, it is proposed to store DNA profiles generated from biological samples in a national database.

Armed with this understanding, let us consider how the DNA database will actually work. It is at the pre-trial stage that the greatest scope exists for the role of a DNA database in the context of the investigation and prosecution of crime. Profiles generated from samples gathered at crime scenes or from volunteers, such as victims of crime, are stored in the database and then compared to profiles already on file. The comparison of unknown crime scene profiles with known reference profiles, such as those of offenders, former offenders or arrestees, will produce hits that help the Garda to generate suspects and also eliminate other known profiles from suspicion. Similarly, matches generated by comparing crime scene profiles may indicate the existence of a serial offender and provide investigative leads.

Given that there has been some debate over whose DNA samples will be taken and how long they will be for kept for, let us consider this question. When this Bill becomes law, samples will be taken from offenders, former offenders and those detained on suspicion of committing a serious offence, as well as volunteers and missing or unknown persons. Prisoners on temporary release, persons who have received suspended sentences for serious crimes and those on the sex offenders' register will be required to provide samples. For the purpose of elimination, some members of the Garda and laboratory staff will also be required to give samples. It originally had been envisaged that all samples and profiles would be kept indefinitely. However, this position was changed following a high profile case at the European Court of Human Rights in 2008. In response to this, the Bill now proposes a range of retention periods.

Samples taken from convicted persons will be destroyed after three years and their profiles will be retained indefinitely. The profiles of child offenders will be destroyed ten years after the end of the sentence. In the case of suspects who have not been charged or have been acquitted, their samples will be destroyed after three years. Profiles may be held for ten years or five years in the case of children. It should be noted that the Bill includes a provision for a donor to apply to the Commissioner for the destruction of profiles and samples prior to the expiry date. In addition to this, the Bill requires that the Minister review the retention arrangements for samples and profiles within seven years.

In view of these arrangements, I believe the Bill strikes the right balance between the rights of the individual to privacy and the wider interests of society in terms of crime prevention. To best serve the interests of the public and the individual, it is clear that the new DNA database will need to be closely monitored and its functions kept under constant review. I welcome the fact that this Bill provides for the creation of an oversight committee. The task of the committee is to ensure the database is only used for the purposes for which it is originally intended. The committee will be chaired by a former or sitting judge of either the Circuit Court or the High Court.

It is hoped that this new database will emulate some of the success that other jurisdictions have had with similar systems. The UK operates one of the largest national databases in the world, containing profiles for almost 5 million individuals. The British police forces use this to solve thousands of crimes every year. It is clear that the establishment of a new national database has many benefits. Most important, it will provide gardaí with a much-needed, powerful and sophisticated tool to prevent and investigate crime. I commend the Bill to the House.

Fáiltím roimh an deis labhartha, i dtaca leis an mBille seo. Mar atá sé dréachtaithe faoi láthair, ní féidir liom tacaíocht a thabhairt don Bhille. Cosúil le móran rudaí eile i dtaobh ceisteanna dlí agus cirt, caithfear iarracht a dhéanamh cothromaíocht a shroicheadh,idir cearta dóibh siúd atá á gciontú agus cearta na sochaí agus an íobarataigh atá tar éis fulaingt de thairbhe cibé coir atá i gceist.

Go minic is deacair an chothromaíocht sin a fháil i gceart agus sin an dúshlán dúinn mar pholaiteoirí ná iarracht i gcónaí a dhéanamh an chothromaíocht sin a fháil agus córas dlí agus ceart foirfe a bheidh cothrom agus a dhéanann i gcónaí iarracht, a bheith cothrom a chruthú.

Bíonn sé deacair nuair atáimid ag déileáil len a leithéid de reachtaíocht nuair atáimid ag déanamh ionsaí de shórt ar chearta íobartaigh nó cearta siúd atá á gcúiseamh againn. Níos luaithe inniu, bhíomar ag trácht ar ghné eile den chóras dlí agus cirt agus bhí fadhbanna agam sa mhéid agus a bhí sa Bhille ach d'fháiltigh mé roimhe don chuid is mó.

Tá fadhbanna agam leis an reachtaíocht seo. Ní féidir liom tacaíocht a thabhairt di mar atá sí dreachtaithe faoi láthair. Tá súil agam go mbeidh an tAire in ann athruithe a chur isteach ar Chéim an Choiste nó ar Chéim na Tuarascála a athróidh an meon atá agam agus atá ag mo pháirtí ina leith.

Sinn Féin believes the lawful and effective collection and use of forensic evidence from crime scenes, victims and suspects is crucial for obtaining sound convictions that are not based on confession or witness evidence alone. Basing a conviction on confessional evidence alone was a practice which was widespread and led to abuse of due process rights in the past in some jurisdictions. It has led to the conviction of many an innocent person in this and our neighbouring jurisdiction.

In some cases forensic evidence can also be crucial to avoiding wrongful conviction where the true culprit evades justice but that said, the potential of forensic evidence and DNA databases should not be presented to the public as anything more than what it is. Forensic evidence and associated databases may assist in the detection and prosecution of some offences but they will not ultimately reduce crime. Crime prevention requires a well resourced and holistic response to its individual and systemic causes, something which this Government has failed to implement, despite all its tough talking.

Even when it comes to the detection of criminals, the potential of a DNA database should not be oversold. It is not the be all and end all and it will not solve everything. The overall "hit" rate of crime scene matches was quoted by the last speaker and others who read from the Oireachtas Library-produced Bill digest in some length.

The hit rate of crime scene matches to suspects on the database in England and Wales for 2008 and 2009 stands at 60%. This sounds fantastic and any crime detection force in the world, including An Garda Síochána, would love that to be true. However, upon further investigation we see that the match rate is only for cases where DNA is actually obtained from a crime scene, the number of which is extremely low. Only 17% of cases ever have a full crime scene investigation and even fewer yield accessible forensic material. The match rate also includes DNA belonging to individuals whose presence can be innocently explained away.

This means the process is not the be all and end all and gardaí and members of other police forces should be aware of that. Ultimately, it is good and strong investigative techniques and proper Garda and police work that often yields better results than dependence on DNA or forensic evidence. It is a useful tool and should be used as such.

It must not be forgotten that forensic evidence is ultimately presented as opinion evidence to the court. Expert opinion, such as that of the scientific community, in this field is often diverse and divided. It is not an exact science, if there is any such thing as an exact science. For example, low copy number DNA is inadmissible in many jurisdictions, yet it has been used as the basis for prosecutions in others. Low copy number DNA was at the centre of controversy in Ireland during the Wayne O'Donoghue trial and in the Omagh bombing case. There are dangers in blindly accepting DNA, as some people would like us to do.

Blind and unthinking enthusiasts of DNA databases will often argue that "if you have nothing to hide then you have nothing to fear", but that simply is not the case. DNA databases can put innocent people at risk. This is particularly so as technology has developed to allow a generation of DNA profiles from the tiniest of DNA samples. In the Omagh bombing case, low copy number DNA evidence produced a partial match to a six year old schoolboy in Nottingham who was on the British database. He was quickly eliminated from the investigation, but what if he had been an innocent man in his twenties living in the Border counties? Would he have been quickly disregarded, or would the police have relentlessly circled in on him? Would he be in the dock by now? We do not know.

The link between the presence of DNA at a crime scene and involvement in that crime is far from straightforward. There is a danger that entirely innocent individuals will find themselves the targets of "eager beaver" prosecutors. For example, the Minister of State here today might shake the hand of the Minister for Justice, Equality and Law Reform, who might then go and commit a crime, leaving his skin cells at the scene. If the Minster of State's DNA was on the database, he might be drawn into a criminal investigation into something about which he knew absolutely nothing. The Garda might be prompted to come kicking his door down instead of the Minister's door. That could be a consequence of total dependence on DNA. It is a developing science and we need to bear that in mind.

Public education is also needed to limit the inflated and false expectations of forensics raised by popular television programmes such as "CSI Miami". The virtually infallible, precise technologies and unlimited resources depicted are generally not available to the Garda, nor to the State Laboratory. I remember asking the then Minister for Justice, Equality and Law Reform, former Deputy Michael McDowell, about the situation with the State Laboratory in 2002. He told me that the money was budgeted for it and that it would be built within four years on the site in the Phoenix Park. There is neither sight nor sound of it at this stage. The sod has not been turned and now it is being located elsewhere. It looks like it will be part-privatised to allow the private sector to deliver a service that was protected within the public service. We will try to ensure on Committee Stage that there is no privatisation of our justice system. Other jurisdictions have discovered that the influence of programmes such as “CSI Miami” has led to widespread misconceptions and expectations. Programmes such as “CSI Miami” put expectations on gardaí that once they get to a scene, they will be able to find evidence and get a quick conviction. We need education to ensure that not only the public, but jurors and victims question the misconceptions out there. The truth about the ability of forensic laboratories and the lack of resources in a small country like Ireland needs to be explained to the public.

Education and training for investigative and prosecuting authorities is also essential. There is a real danger that a forensic hit on a database will blinker an investigation, causing the Garda to disregard other important but non-forensic leads. Detectives in England used DNA from a hair caught in a rape victim's jewellery in 2007 to charge and prosecute a man for rape. The case fell apart when it came to court. The man in the dock was white, small and slim, but the victim had described her attacker as black, large and tall. That was a basic error, yet the police thought they had the right man based on DNA evidence. Somebody obviously forgot to read the victim's statement. I hope that never happens in Ireland, but it is part of the challenge we face when we produce a database and begin to depend on forensics.

It is also possible for a person's DNA to be placed at a crime scene, either by corrupt gardaí, by rival criminals, or by innocent transfer. False DNA traces can be planted. For example, a cigarette butt can be lifted and left at the scene of a crime. It is a bit more difficult, but Ben Goldacre of The Guardian has shown that fingerprints can also be planted at crime scenes.

Find a fingerprint on glass, paint it with Super Glue to make it more visible, photograph this with a digital camera, print it off on a transparency sheet, etch this with a beginners etching kit, use that as a mould to make a fake finger out of a fruit pastille and hey presto, you can plant someone else's finger print and eat the evidence once you're done!

This sounds far fetched, but is has been done. We can go back to those programmes that show how fingerprints have been used to gain access to computers and the like, and how some of the most expert criminals in the world can reproduce the fingerprints of people who do not know those criminals.

DNA can assist in proving a case either way. It can help to establish innocence as well as guilt. Will the Minister of State confirm whether this Bill establishes a right of access to DNA evidence post-conviction? Can those who have been wrongly convicted appeal based on the availability of DNA? This right was at the centre of a recent legal challenge in the US, where Alaska and six other states did not allow such access. The Innocence Project took a case on behalf of a convicted rapist who was convicted on the basis of DNA testing which showed that semen found at the scene of the crime was consistent with his own, but also consistent with that of 16% of the African-American population. After being convicted, he sought to pay for more exacting DNA testing which could have proved more conclusively whether the semen was his or not, but the Alaskan state refused his request. This was somebody who tried to prove his own innocence by using material held by the state on a database, yet he did not receive that access.

Having made some general cautionary comments about the use of forensic evidence and DNA databases, I wish to address the precise retention regime contained in the Bill before us.

It is my opinion that the regime is disproportionate and that it appears to have been arrived at arbitrarily. In that context, I remind the House that the European Court of Human Rights, in its judgment in the case of S. and Marper v. the United Kingdom, slammed the retention regime in England and Wales, particularly as it relates to those who have not been convicted of an offence. I am of the view that, if tested, the legislation before the House will also fall foul of that judgment. After the ruling to which I refer, the British Government considered changing its regime from one which principally involves indefinite retention of all profiles to one which retains the profiles of those who have not been convicted for six years. England’s Equality and Human Rights Commission evaluated that proposal and indicated that six years did not represent the balance required by the judgment in S. and Marper v. the United Kingdom. Such a period is too long.

The Minister for Justice, Equality and Law Reform is proposing in this Bill to retain the DNA profiles of those who have not been convicted for ten years. Some of these people will actually have been acquitted or will even have been proven to be the victims of miscarriages of justice in that time. In addition, he is also seeking to retain the actual DNA samples of those who have not been convicted for three years. Surely the retention times in these cases should be linked in some way to whether they are required for a prosecution.

In S. and Marper v. the United Kingdom, European Court of human rights pointed to the Scottish retention regime as being preferable. In Scotland, DNA samples and profiles must be destroyed in cases where a prosecution results in an acquittal or where no prosecution occurs. In the case of sexual or violent crime, DNA may be retained for up to three years and the authorities may then apply for an extension beyond three years on a case-by-case basis. Such requests are subject to judicial oversight.

The relevant offences included in the Bill before the House may be narrower than those that come into play in England and Wales. However, they are not exclusively limited to sexual or violent crimes. At the very minimum, the Bill, and the retention timeframes and relevant offences, should be amended to bring it closer in line with the Scottish regime.

There is an international component to the Bill, which implements the Prüm decision which allows for the automatic searching of the databases of other member states. Article 3 of that decision provides that "Searches may be conducted only in individual cases and in compliance with the requesting Member States national law". However, the relevant laws, particularly those relating to privacy safeguards, are not harmonised across member states. On numerous occasions I have stated that harmonisation of the protections relating to databases and access relating thereto is required. I refer, in particular, to justice databases held by police forces.

The Government's primary responsibility is to the citizens of this country. The Bill should be amended to ensure that the national law of our State should apply to searches on our databases. Is the Minister aware of a note from the Presidency of the European Council to the ad hoc group on information exchange last December? This note states that the databases of smaller states are being damaged by overwhelming searches carried out by the authorities of larger states. Germany, Spain and Italy were identified as the culprits in this regard.

The Department of Justice, Equality and Law Reform's regulatory impact assessment predicts this legislation will give rise to €3 million in capital costs and that there will be an annual cost of €1.5 million in respect of its implementation. This is an underestimation, particularly in view of the fact that intensive and refresher training courses will be required for all those involved in administering justice throughout the State. There will also be a financial impact in the future in respect of the construction and fitting out of the State's forensic laboratory. I am not complaining about such expenditure, I am merely stating that the amounts involved have been underestimated.

Whatever amount of money is required should be spent in order to ensure that we have the best possible forensic laboratory in order to properly assist An Garda Síochána in its work. The State Laboratory cannot keep up with the number of requests for analysis submitted to it at present in respect of drug seizures. The Minister for Justice, Equality and Law Reform will be aware that the State Laboratory cannot analyse quickly enough the drugs which are being found in shipments and confiscated by An Garda Síochána, customs officials, etc. As a result, delays are being experienced in the context of processing cases.

Unless we take a decision to properly fund and resource the existing State Laboratory and the new forensic laboratory, there will be no point in passing the legislation because a disservice will be done to those who believe that the forensic and DNA database will be of benefit. If we do not provide sufficient funding or if we fail to put in place the safeguards to which I refer, we will do a disservice to the cause of justice in the State.

Does the Bill provide protection against the potential damage caused by the authorities in other countries continually requesting searches of our databases? How much time will be set aside in respect of such searches? How much access will be granted? Will the relevant databases have the capacity to accommodate numerous requests from abroad? Will the necessary personnel be available to monitor or assist the searches to which I refer?

The Bill should require that states may not request a search of our database until they have first searched their own databases. We should require that the offence under investigation be serious in nature and that a state should be obliged to demonstrate that an existing line of inquiry points in the direction of our State. It should not be the case that other states be permitted to carry out trawling exercises in respect of our databases.

The Human Rights Commission and the Irish Council for Civil Liberties, ICCL, have put forward a range of recommendations, which I wish to endorse. I urge the Minister to consider these recommendations to discover whether they can be taken on board in order to ensure that when we have completed our deliberations we will be left with legislation which is comprehensive and which will deal with the issues at hand. In other words, we should end up with a DNA database system that will stand the test of time in the context of ensuring that data will be safeguarded, the innocent protected and criminals prosecuted.

In its recommendations, the Human Rights Commission stated:

The 2010 Bill should provide that except in limited cases, bodily samples and DNA profiles should be destroyed and removed as soon as reasonably possible in circumstances where no proceedings have been instituted against a person, they have been acquitted, the charge has been dismissed or proceedings discontinued.

The power to take intimate and non-intimate bodily samples solely for the purposes of the entry of a DNA profile on the DNA Database System and not in furtherance of a specific criminal investigation should be removed from the 2010 Bill (section 11).

The proposals in the 2010 Bill in relation to negative inferences to be drawn from an accused person's failure to consent to the taking of intimate bodily sample should be removed from the 2010 Bill.

If the above recommendation is not accepted, a person should be entitled to have full access to legal advice as a matter of course before they can be requested to consent to the provision of an intimate bodily sample so that they can fully understand the implications of refusal to consent to the provision of intimate bodily samples where negative inference provisions apply.

Where it is not possible to ensure the presence of a parent or guardian, the "nominated adult" who is present during the taking of a sample from a child or protected person should be a social worker or other qualified professional who is not a member of the Garda Síochána. (Sections 21 and 22 should be amended accordingly.)

Bodily samples and DNA profiles of children and protected persons should be removed and destroyed as soon as reasonably possible in circumstances where no proceedings have been instituted against a person, they have been acquitted, the charge has been dismissed or proceedings discontinued. In the context of children, bodily samples and DNA profiles should always be removed as quickly as possible.

The parts of the 2010 Bill that allow for the search and comparison of DNA profiles amongst EU Member States should not be brought into force until the Irish Government has implemented the EU Council Framework Decision on the protection of personal data in the field of police and judicial cooperation in criminal matters into its domestic law.

The ICCL recommends that:

Under Part 3 of the Bill, volunteers may be approached by a Garda or authorised person for DNA sampling in relation to the investigation of a particular offence. These samples will not be entered into the DNA Database system unless consent of the volunteer is provided on request. However, the Bill does not incorporate sufficient safeguards in relation to this consent. The person should be told in ordinary words, in a language that he/she understands, of the consequences of agreeing to inclusion of the DNA database system. He or she should also be afforded the opportunity to seek advice on the matter.

The ICCL welcomed the establishment of an independent oversight committee and the inclusion on it of a representative from the Office of the Data Protection Commissioner. The Minister for Justice, Equality and Law Reform will appoint the members having regard to their qualifications and experience, but the ICCL considers that an independent appointment process should be established and that it should be mandatory to include a member with human rights expertise.

I thank Deputies who contributed to this debate. Many important and useful points were made and they have all been noted. In particular, Deputies Joe Carey and Ó Snodaigh stated that they intend to use Committee Stage to tease out a number of issues and table a number of amendments. I note that many of the points raised which people want to tease out on Committee State relate to Part 10 of the Bill, which covers the destruction of samples and the removal of DNA profiles and the timescales and categories for this.

I was taken by the point made by Deputy Ó Snodaigh about the Minister, Deputy Dermot Ahern, and I shaking hands.

I did not expect him to commit crimes.

It was the manner in which you said it.

The Bill does not specify test methods. In any event, DNA results can be challenged under normal rules of evidence. Court procedures are not solely about DNA evidence. Normal rules of challenging evidence will apply. Deputy Ó Snodaigh also mentioned the Human Rights Commission and the Minister received its observations on the Bill. It acknowledges that many of the recommendations it made on the general scheme of the Bill have been taken into account. The Minister welcomes the input of the commission and he will ensure that the recommendations it made are carefully examined to determine whether the Bill would benefit from further amendments.

I was encouraged but not surprised to see a significant degree of support on the other side of the House for the Bill. I know all Deputies want our police force to be in a position to take full advantage of technological developments, be it in the field of forensics or elsewhere, in bringing criminals to justice and preventing crime. The Bill contributes significantly to the achievement of that goal.

The Garda Síochána, like the best police forces internationally, is engaged in a continual process of development and improvement. Its major programme of reform in recent years has included greater use of technology. An unprecedented level of investment in IT and technology projects has put the force on a par in many respects with the best equipped police forces in the world. Some of the projects completed or being rolled out include a state-of-the-art automated fingerprint identification system, which has led to a significant increase in the number of hits detected from prints taken at scenes of crime; a new automated ballistics identification system to aid in the fight against gun-crime; an in-car automated number plate recognition system which will help deprive those intent on criminal behaviour of access to our roads; and rollout of the new national digital radio service which has already been implemented in the Dublin metropolitan and eastern regions and is scheduled to be fully operational in all regions by the end of 2011. As the Minister stated, the establishment of a DNA database will be another significant milestone in our efforts to maximise the use of resources and ensure that the Garda Síochána is equipped to a standard to rival any other police force in the world.

While the Garda Síochána will be the main beneficiary of the intelligence produced by the database, the responsibility for the establishment and maintenance of the database will rest with the forensic science laboratory. The 2007 review of the laboratory's resource needs, commissioned by the Minister's predecessor, and carried out by the former head of the Swedish forensic science laboratory, Professor Ingvar Kopp, will assist the laboratory in planning for the implementation of the Bill. The review found that the laboratory compares well in terms of productivity with similar forensic science laboratories and that effective quality control mechanisms are in place. However, Professor Kopp identified specific aspects of the laboratory's activities and structures which needed to be improved.

The review has been of immense value to the laboratory's modernisation process. It has also contributed greatly to the mapping out of the future development of the State's forensic analysis service, especially in the area of DNA analysis. Most notably, following the report the laboratory's staffing cohort was increased substantially. In 2008, an extensive recruitment campaign led to 12 additional forensic scientists and 14 additional laboratory analysts being recruited. Further administrative staff were also provided, bringing current authorised staff numbers for the laboratory to 102.5. This is an increase of more than 30 posts since 2006, which represents a considerable expansion in the laboratory's capacity.

The implementation of the report's recommendations continues, particularly in the context of planning for the establishment of the DNA database. Although the database cannot be established until such time as the legislation is enacted, preparatory work has already commenced, and this year the Minister has secured €4.1 million to facilitate the development of the database.

Work is also under way to provide as a priority a new purpose-built facility for the forensic science laboratory. Deputies will be aware that it will be located at the Backweston complex in Leixlip. The State laboratory and the Department of Agriculture's laboratories are already located there. The new facility will be capable of facilitating the medium to long-term operational requirements of the forensic science laboratory, including the capacity to maintain and operate the DNA database. The Minister is advised that the Office of Public Works, which is managing the delivery of the project on behalf of the Department of Justice, Equality and Law Reform will be in a position in the coming months to proceed to tender for construction stage with a view to work starting on the site later this year. Taking everything into consideration, the Minister is satisfied that the necessary funding, resources and facilities continue to be provided to the forensic science laboratory, not only to ensure that the laboratory has the capacity to operate the systems being introduced by the Bill, but also to meet future operational forensic analysis demands in general.

The Minister has stressed several times that the purpose of the database is to produce quality intelligence that will be of assistance to the Garda. Its effectiveness in this regard will depend on the population of DNA profiles stored in it. He is satisfied that, with that purpose in mind, the Bill targets the appropriate persons, namely, persons suspected of committing serious offences, offenders convicted of serious offences and all persons subject to the sex offender registration requirements. The Minister is also pleased that the Bill allows unidentified historic crime scene stains to be entered in the database. This may, in time, help to bring long-standing investigations to a successful conclusion and bring some belated comfort to the victims and their families.

In addition to the intelligence capacity of the database, the Bill also provides for the taking of samples from suspects in custody for use in evidence. Bearing in mind the difficulties in some cases, particularly gangland cases, in obtaining evidence from witnesses due to high levels of intimidation, the collection of other types of admissible evidence takes on even greater importance. This was also partly the reason that last year the Minister introduced two other major pieces of legislation in the Criminal Justice (Surveillance) Act and the Criminal Justice (Amendment) Act.

We must remember that samples constitute sensitive personal data. Powers to take and retain samples must, therefore, be carefully circumscribed to safeguard against abuse and disproportionate interference with individual freedoms. The Minister drew attention in his opening remarks to some of the safeguards in the Bill and I emphasise again those provisions. They include safeguards around the taking of samples, with additional safeguards applying to children and other vulnerable persons. For example, samples will be taken by the relevant bodies, whether it be the Garda or the Irish Prison Service in accordance with published codes of practice. Other important safeguards include independent oversight of the management of the database to ensure its integrity and security. Such oversight will ensure that the public can have confidence that it is being operated in accordance with the legislation and in the reliability of the intelligence that it produces. I also emphasise that, apart from the many specific safeguards in the Bill the very fact that the purposes, structure and operation of the database are set out clearly in primary legislation will act as an enduring safeguard against misuse.

A number of Deputies referred to the retention arrangements, particularly those that apply to persons who are not convicted or persons whose convictions are quashed or declared to be a miscarriage of justice. Deputies will have noted that the arrangements in the Bill take account of recent jurisprudence emanating from the European Court of Human Rights. Although that court found a particular retention regime to be in breach of the privacy rights in the convention, it nevertheless indicated that the retention of DNA data relating to such persons pursues the legitimate purpose of the detection and prevention of crime. The judgment also gave some guidance as to what features a proportionate retention regime might include such as an independent review of decisions to retain data, time limits on retention, and different treatment of convicted persons and those who are not convicted, children and adults and samples and profiles. All of these elements have been reflected in the Bill. Deputy Carey referred in particular to the provisions of Part 10. They will be teased out further on Committee Stage.

In providing for a DNA database the Bill breaks new ground in this jurisdiction. The proposals in the Bill will give us a system that is proportionate and balanced and does not interfere with private rights any more than is necessary for the public good. That was the Minister's aim during the drafting of the Bill and he is confident that the end result achieves that balance. I am pleased to commend the Bill to the House.

Question put and declared carried.