Criminal Justice (Forensic Evidence and DNA Database System) Bill 2013: Report and Final Stages

I move amendment No. 1:

In page 12, line 6, after “persons;” to insert the following:

“to amend the Criminal Justice Act 1984 and other enactments to provide for the destruction of fingerprints, palm prints and photographs taken from or of certain persons in certain circumstances;”.

This amendment is to amend the Long Title of the Bill. I thank Deputies for their continued support for this very important piece of legislation which will provide invaluable support to the Garda Síochána in the investigation of crime. I mentioned on Committee Stage that I would be bringing forward some further amendments on Report Stage to deal mainly with historic samples and profiles and to ease the burden on the Forensic Science Laboratory in proving continuity of the chain of evidence for forensic exhibits in criminal trials. I am bringing forward these amendments along with some mainly technical drafting amendments.

The first amendment is one such drafting amendment to amend the Long Title of the Bill to take account of amendments made on Committee Stage to Part 11 relating to destruction arrangements for fingerprints, palm prints and photographs.

Amendment agreed to.

Amendments Nos. 2, 5, 7 to 11, inclusive, 16, 18 and 19, are related and may be discussed together.

I move amendment No. 2:

In page 12, between lines 20 and 21, to insert the following:

“ “Act of 1990” means Criminal Justice (Forensic Evidence) Act 1990;”.

The purpose of this group of amendments is to set out the arrangements for dealing with historic samples and DNA profiles that were taken prior to the commencement of this legislation. Biological samples can currently be taken in either of two ways. The Criminal Justice (Forensic Evidence) Act 1990, provided for the taking of samples and the creation of DNA profiles but did not provide for the establishment of a statutory DNA database system, as does this Bill. Samples can currently also be taken by consent under common law powers. This Bill replaces the legal framework for the collection of forensic evidence and puts it on a statute-only footing. It is necessary, however, to set out the transitional arrangements between the existing regime and this legislation in order to protect, for example, proceedings under way based on bodily samples taken under the 1990 Act or under common law powers. The main amendment in this regard is to section 7 of the Bill, which is replaced and expanded by amendment No. 5. Subsections (1) and (2) remain largely the same and subsections (3) to (5) are being added.

Subsection (3) provides that a DNA profile that was generated from a sample taken under the Act of 1990 may be entered in the reference index of the DNA database system, irrespective of whether it was generated before or after commencement of this legislation. Subsection (4) qualifies this, however, by providing that profiles generated from samples taken under the 1990 Act shall not be entered on the DNA database system if the sample is required to be destroyed under that Act. Samples are required to be destroyed in cases where, for instance, the person whose sample was taken is acquitted or not proceeded against. Subsection (4) also provides that if the DNA profile has already been entered on the DNA database system when the sample from which it was generated is required to be destroyed, then it shall be removed from the database within a period of three months.

Subsection (5) deals with the manner in which historic samples taken with consent, and DNA profiles generated from them, will be required to be treated. These samples and profiles can be retained for use in respect of the offence in respect of which they were taken or generated, subject to the persons concerned having been detained under a statutory provision referred to in section 9(1), which generally relate to offences attracting a maximum prison sentence of five years or more. As at present, those who had their samples taken by consent can apply to have them, or profiles generated from them, destroyed. Subsection (5) provides that, if a sample taken with consent, or a DNA profile generated from it, is required for any purpose other than that for which it was taken, the Garda Commissioner must inform the person concerned in writing and obtain his or her consent to its use for that purpose. Otherwise the sample or profile may not be used for that purpose. This is considered a proportionate approach and an appropriate safeguard in order to protect the rights of individuals who voluntarily gave samples in the context of a particular investigation but not for any other purpose. Furthermore, DNA profiles generated from samples taken by consent cannot be put on the DNA database system.

The remaining amendments in this group of amendments are consequential or related to the main amendments in section 7 which provides for the manner in which historic samples and profiles are to be treated on a transitional basis.

Amendment No. 2 inserts a definition of the "Act of 1990" into section 2, clarifying that such reference in the Bill is to the Criminal Justice (Forensic Evidence) Act of that year. Amendment No. 11 amends section 62 to provide that the reference index of the DNA database system can also contain DNA profiles generated from samples taken under the 1990 Act, as provided in section 7(3), to which I referred earlier. Amendment No. 18 amends the Criminal Justice (Mutual Assistance) Act 2008 so as to cover, where appropriate, destruction arrangements for samples and DNA profiles taken or generated under the 1990 Act. Amendment No. 19 likewise amends the International Criminal Court Act 2006 in this regard.

Amendments are also being made to the Bill in relation to the use of historic samples for identification purposes. Deputies will be aware that the Bill not only provides for the establishment of a DNA database to assist the Garda Síochána in the investigation of serious crime but also to assist in finding and identifying missing or unknown persons. It is important that historic samples, and DNA profiles generated from them can be used for these purposes.

Amendments Nos. 7 and 8 to section 48 of the Bill ensure that DNA profiles generated from samples taken from missing persons or blood relatives of missing persons before commencement of this legislation may be put on the DNA database system. The other provisions of this section will apply to these samples and profiles, as appropriate. Likewise, amendments Nos. 9 and 10 to section 50 have the effect of providing that samples relating to unknown deceased persons that are in the possession of the Garda Síochána, the Forensic Science Laboratory or the State Pathologist's office before commencement may be entered on the DNA database system. If no provision was to be made for such historic samples it would not be possible to use the DNA database system to assist in the identification of the person without exhuming the remains and taking another sample. I presume Deputies would agree it is important to retain such samples for the purposes mentioned.

Amendment No. 16 revises section 92 so as to provide that the destruction arrangements that apply in relation to samples and DNA profiles of missing persons or their blood relatives, or unknown deceased persons, taken or generated following commencement of this legislation will also apply, as appropriate, to historic samples or profiles of such persons. That completes the description of the intention of the amendments which are fine-tuning aspects of the Bill because these aspects are very important. The amendments are proportionate and balanced to ensure that people's rights are adequately and properly protected.

Amendment agreed to.

I move amendment No. 3:

In page 13, line 3, to delete “section 155(2)” and substitute “section 155”.

Amendment No. 3 is a minor, technical drafting amendment to the reference to the appropriate provision in the Children Act 2001. It has no impact on the definition concerned. In view of anticipated changes to section 155 of that Act to be made in the children (amendment) Bill, it is considered preferable to refer to the appropriate section only, rather than to a subsection of it.

Amendment agreed to.

Amendment No. 4 is consequential on amendments Nos. 21 and 22. Amendments Nos. 21 to 23, inclusive, are related. Amendment No. 4 and amendments Nos. 21 to 23, inclusive, may be discussed together.

I move amendment No. 4:

In page 13, line 15, after “sample” ” to insert “, other than in sections 168 and 169,”.

The aim of these amendments is to provide a more efficient means of proving the continuity of the chain of forensic exhibits in criminal trials. A review of the resource needs of the Forensic Science Laboratory carried out in 2008 identified that a significant proportion of administrative and scientific time is taken up meeting documentary requirements relating to the chain of evidence and, in particular, attending court to certify as to the chain of evidence.

The purpose of these amendments is to avoid the need for oral evidence to prove continuity to be given in criminal proceedings routinely. They provide for evidence to be given by way of certificate and are intended to be tailored to the work of the laboratory by availing of the inherent benefits of tamper-evident containers in which samples taken from persons or recovered from crime scenes are inserted for the purpose of transmission for forensic testing. Inserting the sample in a tamper-evident container and storing it in that container until such time as it is opened for the purpose of forensic testing should, in view of its security features, effectively render redundant the question of who handled it in the intervening period.

The new sections 168 and 169 that are being inserted into the Bill by amendments Nos. 21 and 22 are concerned with the two critical points in the chain, namely, the point at which the sample is placed in a tamper-evident container and the point at which that container is opened for the purpose of conducting forensic tests on the sample that has been obtained.

Section 168 sets out the procedures that may be used for the transmission of samples for forensic testing. These are self-explanatory and describe the process to be followed where samples are being placed and transmitted for testing in tamper-evident containers. These containers, which are defined, usually take the form of specially manufactured bags which come in different sizes and, most important, all have a unique identifying number. It will be noted that this is an enabling rather than a mandatory provision. This means that while this process may be used for the storage and transmission of samples, it does not have to be used for such purposes. It is possible, for instance, that crime scene samples may be too large to fit in tamper-evident containers and, as such, verifying the chain of evidence in this manner may not be possible in every case.

Section 168(2) does not specify who should place a sample in a tamper-evident container. This is because a variety of persons can take samples, as detailed under Part 2, for example, a garda, doctor, dentist or nurse. A variety of persons may also be involved in finding or recovering crime scene samples, such as a garda, State pathologist or doctor. Section 168(4), however, specifically refers to a member of the Garda Síochána as, irrespective of who takes the sample, it will be for a member to ensure that it is sent for forensic testing.

Section 168(6) provides key definitions relating to the operation of this overall section and section 169. The definition of the term "crime scene sample" in this section is, by necessity, broader than that given under section 2, as it is proposed that this system of proving continuity of the chain of evidence will cover all forms of samples found at crime scenes, not just biological material with which the Bill is primarily concerned. Amendment No. 4 makes a small revision to the definition of the term "crime scene sample" in section 2 to take account of this distinction.

The approach adopted to crime scene samples follows from the fact that the Bill is not seeking to specify all of the functions of the Forensic Science Laboratory in statute. The only functions of the laboratory that the Bill is concerned with are those relating to the DNA database system. However, the laboratory provides analysis of a wide range of substances found at or recovered from crime scenes, for example, paint and glass. As the burden of proving continuity equally applies to these samples as to samples of biological material, it is proposed that sections 168 and 169 will apply to all crime scene samples other than controlled drugs, which are to be dealt with separately. I will address that issue shortly.

The definition of the term "forensic testing" in section 168(6) is also broader than that given under section 2, which does not include a crime scene sample. Such samples are specifically required to be covered under sections 168 and 169 for the purpose of proving continuity of the chain of evidence but not elsewhere in the Bill where the focus is on biological samples only and on the generation of DNA profiles from them for the database.

A related but separate amendment is also being made to section 10 of the Misuse of Drugs Act 1984 relating to certification evidence for controlled drugs. Amendment No. 23 inserts a new section 170 to revise section 10 of the 1984 Act. This amendment is being made to allow the chain of evidence for exhibits received, handled, transmitted or stored by the Forensic Science Laboratory to be proved by certificate in evidence in court and to obviate the need for laboratory staff to give oral evidence. Section 10 of the 1984 Act already provides for certificate evidence relating to the examination, inspection, test or analysis, as the case may be, of a controlled drug. The Forensic Science Laboratory and the Director of Public Prosecutions are both in favour of this amendment, which aims to enhance and streamline the use of certification evidence in high volume cases involving controlled drugs.

Amendment agreed to.

I move amendment No. 5:

In page 21, to delete lines 1 to 11 and substitute the following:

“Transitional provisions

7. (1) Subject to this section, nothing in this Act shall affect the operation after the commencement of this section of—

(a) the Act of 1990 in relation to bodily samples that were taken from persons under that Act, or

(b) any other arrangement under which bodily samples were taken from persons by, or on behalf of, the Garda Síochána, before such commencement.

(2) Subject to subsections (3) and (4) and notwithstanding the repeal by section 6 of the Act of 1990, that Act shall continue to apply to bodily samples that were taken under it before its repeal as if it had not been so repealed.

(3) A DNA profile of a person generated from a bodily sample taken from the person before the commencement of this section under the Act of 1990 may, subject to subsection (4), be entered in the reference index of the DNA Database System, irrespective of whether the DNA profile of the person is generated from that sample before or after such commencement.

(4) The DNA profile of a person generated from a bodily sample taken from the person under the Act of 1990 shall, if that sample is required to be destroyed under section 4 of that Act—

(a) not be entered in the reference index of the DNA Database System, or

(b) if so entered, be removed from that System not later than the expiration of a period of 3 months from the date of that requirement.

(5) If—

(a) a bodily sample (other than one taken under the Act of 1990) that was taken from a person under any arrangement under which bodily samples were, before the commencement of this section, taken by, or on behalf of, the Garda Síochána from persons who were detained under any of the provisions referred to in section 9(1), or (b) the DNA profile of the person (if any) generated from the sample, is required for any purpose other than the purpose for which that sample was taken from the person, the Commissioner shall, before using that sample or DNA profile for that other purpose—

(i) inform the person by notice in writing of that other purpose, and

(ii) obtain the consent in writing of the person to the use of that sample or DNA profile, as the case may be, for that purpose.”.

Amendment agreed to.

I move amendment No. 6:

In page 52, between lines 21 and 22, to insert the following:

“(2) Excluding for consideration under this section any conviction covered by the terms of the Good Friday Agreement 1998,”.

As I indicated, Sinn Féin welcomes the thrust of the Bill, albeit with some concerns. The purpose of the amendment is to obtain clarity on the provision on the retention of samples of those who are innocent or not under suspicion and not wanted by the State. The amendment provides that samples taken from those who were released from prison under the terms of the Good Friday Agreement will not be retained. For this reason, I seek to have the text inserted in the section.

When this amendment was tabled by the Deputy on Committee Stage, I explained the reasons I could not accept it. I pointed out that the former offenders' regime in sections 33 and 34 of the Bill is not a blanket provision covering all persons who fall within the ambit of the definition of former offenders in section 33. The Garda Síochána will have to identify individuals who are covered by section 33 and in respect of whom a garda not below the rank of superintendent is satisfied that "it is in the interests of the protection of society, and it is desirable for the purpose of assisting the Garda Síochána in the investigation of offences, to have a sample under section 34 taken from the person" for the purpose of generating and uploading the person's DNA profile to the DNA database. This is the first consideration before a request is made to a person to provide a sample.

There are then a number of further safeguards. In the event that the person fails to comply with the request, the Garda Síochána may apply to the District Court for authorisation to send a notice to the person requiring him or her to attend for the taking of a sample. Even if the person still fails to co-operate, he or she cannot be forced to provide a sample, although the Bill provides that such persons may be prosecuted.

The former offender provisions are also subject to the ten year rule contained in section 33(3). Broadly speaking, under this rule, a former offender may only be requested to provide a sample up to ten years after the sentence for the relevant offence concerned expired. The likelihood is that most former offenders covered by the Good Friday Agreement will be covered by the ten year rule given the passage of time since their release.

That is the manner in which I have previously outlined the position from a practical standpoint. From a strictly legal standpoint, it would not be possible to make the amendment the Deputy proposes as it would result in the unequal treatment of two similarly situated individuals. As a result, the amendment may be unconstitutional. This contention is supported by the manner in which prisoners were released in this jurisdiction under the Good Friday Agreement. While the Criminal Justice (Release of Prisoners) Act 1998 established a commission to advise the Minister regarding the release of prisoners by reference to that Agreement, no new power of release was provided in the Act. Rather, it enabled the Minister and Government to treat the release of qualifying prisoners in the same way as the generality of the prison population. I do not, therefore, see any particular reason for treating persons released under the Good Friday Agreement differently from other former prisoners in the context of the Bill.

I am, in any event, satisfied that few, if any, of the cohort of former offenders with which the Deputy is concerned are covered by the provisions of sections 33 and 34. Even if they are so covered, they cannot be compelled to provide a DNA sample. I do not propose to accept the amendment.

Amendment put and declared lost.

I move amendment No. 7:

In page 73, line 36, after “person” to insert “taken before the commencement of this section”.

Amendment agreed to.

I move amendment No. 8:

In page 73, after line 41, to insert the following:

“(12) A sample taken before the commencement of this section from a person who is a relative by blood of a missing person that is in the possession or control of the Garda Síochána or the Director of FSI arising from the investigation of the disappearance of the missing person (whether or not taken by a member of the Garda Síochána or an authorised person) may, subject to the following, be regarded as a sample taken from the person under this section:

(a) where the person from whom the sample was taken is deceased, subsections (1) to (4) shall, with any necessary modifications, apply to the sample;

(b) in any other case, this section, other than subsection (8), shall, with any necessary modifications, apply to the sample.”.

Amendment agreed to.

I move amendment No. 9:

In page 75, between lines 33 and 34, to insert the following:

“(7) A sample taken before the commencement of this section from the body of an unknown deceased person that is in the possession of the Garda Síochána, the Director of FSI or the State Pathologist, or the person acting as such, in the State Pathologist’s Office of the Department of Justice and Equality may be regarded as a sample taken from the body of that unknown deceased person under this section and this section shall, with any necessary modifications, apply to the sample.”.

Amendment agreed to.

I move amendment No. 10:

In page 75, line 34, after “taken” to insert “, or regarded as having been taken,”.

Amendment agreed to.

I move amendment No. 11:

In page 82, lines 29 and 30, to delete all words from and including “and” in line 29 down to and including line 30 and substitute the following:

“(c) generated from samples taken from persons referred to in section 7(3), and

(d) received and entered in that index under Chapter 7 of Part 12.”.

Amendment agreed to.

Amendments Nos. 12 to 15, inclusive, are cognate and may be discussed together.

I move amendment No. 12:

In page 96, line 29 before “and” to insert the following:

“whichever is the later,”.

Amendments Nos. 12 to 15, inclusive, are minor technical amendments to section 81 which are being made for the purposes of clarification. Their inclusion eliminates any doubt that the longer period of retention is to apply in each instance.

Amendment agreed to.

I move amendment No. 13:

In page 96, line 33 to delete “her.” and insert the following:

“her,

whichever is the later.”.

Amendment agreed to.

I move amendment No. 14:

In page 97, line 4, before “and” to insert the following:

“whichever is the later,”.

Amendment agreed to.

I move amendment No. 15:

In page 97, lines 8 to delete “her.” and to insert the following:

“her,

whichever is the later.”.

Amendment agreed to.

I move amendment No. 16:

In page 109, between lines 15 and 16, to insert the following:

“(11) This section shall, with any necessary modifications, apply to a sample that is regarded under subsection (11) or (12) of section 48 as having been taken under that section.

(12) This section shall, with any necessary modifications, apply to a sample that is regarded under subsection (6) or (7) of section 50 as having been taken under that section.”.

Amendment agreed to.

I move amendment No. 17:

In page 127, between lines 31 and 32, to insert the following:

“Transfer of DNA samples or profiles to other jurisdictions

110. (1) A DNA sample or profile may not be transferred to another jurisdiction for the purposes of it being used against an individual who has already stood trial and been acquitted in this jurisdiction.

(2) The transfer of DNA samples or profiles to other jurisdictions must be limited to jurisdictions with which the Irish State has extradition treaties in place.

(3) Once a DNA sample or profile has been transferred to another jurisdiction there must be a guarantee in place that the sample must be destroyed no later than 6 months after it has first been received.”.

The Minister will be aware that several human rights non-governmental organisations had concerns about the transfer of DNA samples or profiles to other jurisdictions. This amendment is to ensure the jurisdictions to which data or profiles might be transferred would be compatible with our standards and that there would be extradition agreements in place with them. There is a logic in protecting the civil rights of citizens in the State. This is important legislation in assisting the authorities to have the full armoury available to them to investigate crimes. There is also a need, however, to get the balance right in protecting the civil rights of citizens. That is the intention of the amendment which we hope the Minister will accept.

I do not propose to accept the amendment which addresses the issue of the transfer of DNA samples or profiles to other states. The Deputy is seeking to ensure there would be appropriate safeguards with such transfers. I am happy, therefore, to assure him that, in so far as the amendment purports to address the issue of mutual assistance, there are such safeguards which, in fact, go further than what he has proposed.

On the proposed subsection (1), I understand the amendment would apply to a person acquitted of an offence in the State in terms of a sample or profile being sought by another state for the purposes of investigating or prosecuting the person for the offence for which he or she has already been acquitted. The wording of the amendment does not make this clear and that of itself would prevent my accepting it.

Aside from that, however, I draw the Deputy’s attention to section 132 which amends section 79 of the Criminal Justice (Mutual Assistance) Act 2008. Section 79 of the Act sets out the action to be taken when a request for identification evidence is received by the State. Among other matters, a request can only be complied with where the evidence sought could be obtained if the investigation or proceedings in question were being conducted here. In the circumstances put forward by the Deputy relating to a person who has been acquitted, the prohibition against double jeopardy ensures a person cannot be prosecuted in the State for an offence for which they have been previously acquitted. Consequently, it would not be in accordance with section 79(1) of the Criminal Justice (Mutual Assistance) Act 2008 to transfer the evidence for similar purposes. Simply put, if evidence cannot be sought for a particular purpose in the State, it will not be provided for a similar purpose in another state.

Subsection (2) of the amendment proposes to limit the transfer of DNA samples or profiles to other jurisdictions with which the State has extradition treaties in place. The basis on which the State engages with other states for the purposes of mutual assistance is the mutual assistance Act 2008, prior to that the Criminal Justice Act 1994. As it stands, assistance in the provision of identification evidence which will include DNA profiles is only available if the evidence is in the possession of the Garda. If the evidence is not in its possession, the person from whom the evidence is sought must consent to it being taken and transferred. However, on foot of the Council’s Prüm Decision, to which the Bill is giving effect, the mutual assistance Act is also being amended to provide assistance for another EU state where the request relates to a DNA profile which is not in the possession of the Garda. Under Article 7 of that decision, we will be required to obtain from a person a sample with a view to generating a DNA profile and transmitting that profile to the requesting state. To provide for this requirement, section 133 inserts new sections 79A to 79C, inclusive, into the mutual assistance Act. These sections set out in detail the steps which must be taken in the State in obtaining a DNA sample from a person who does not consent to the taking of that sample, including, importantly, obtaining a court order. However, as these provisions arise from an EU instrument, they apply only to EU member states.

Subsection (3) of the amendment concerns the obtaining of a guarantee that samples or profiles will be destroyed within six months of being transferred. Again, the Bill amends the mutual assistance Act to ensure the necessary safeguards and destruction provisions are in place. Section 132(g) amends section 79(10) of the mutual assistance Act. This subsection requires the Minister to receive an assurance from the requesting state that the evidence and records relating to it will be destroyed when no longer required. Evidence must also be destroyed within three months of the date on which 12 months have passed since the taking of the sample and proceedings have not commenced. Evidence must also be destroyed within three months of an acquittal, dismissal or discontinuation of the proceedings. Destruction of evidence is also required within three months following proceedings which concluded with an order corresponding to a probation order or where subsequently a conviction is quashed or declared a miscarriage of justice.

I am entirely satisfied with these and the many other safeguards contained in the Bill. For these reasons, I will not be accepting the amendment.

Amendment put and declared lost.

I move amendment No. 18:

In page 147, line 7, after “with” to insert “section 4 of the Criminal Justice (Forensic Evidence) Act 1990,”.

Amendment agreed to.

I move amendment No. 19:

In page 165, line 8, after “with” to insert “section 4 of the Criminal Justice (Forensic Evidence) Act 1990,”.

Amendment agreed to.

I move amendment No. 20:

In page 180, between lines 8 and 9, to insert the following:

“(k) the purposes of compliance with section 8 or 9 of the Europol Act 2012;”.

This amendment corrects an omission made when the Bill was published. Section 4(3) provides that a DNA profile of a person generated from a sample taken under Part 2 may be provided for Europol under section 8 or 9 of the Europol Act 2012. Section 159 which deals with the disclosure of information requires to be amended to include this reference to the Europol Act to correct the earlier oversight.

Amendment agreed to.

I move amendment No. 21:

In page 183, between lines 33 and 34, to insert the following:

“Procedures that may be used for transmission of certain samples for forensic testing

168. (1) A relevant sample may be placed in a tamper-evident container.

(2) Whenever a relevant sample is placed in a tamper-evident container under subsection (1), the tamper-evident container shall be sealed immediately.

(3) The person who, under subsection (2), seals a tamper-evident container containing a relevant sample shall—

(a) ensure that a unique number for the purpose of facilitating the identification of the sample is marked on the tamper-evident container,

(b) ensure that particulars regarding the type of sample concerned are recorded on the tamper-evident container or on the relevant sample or anything attached to or enclosing it, and

(c) record his or her name, and the date of sealing the tamper-evident container, thereon.

(4) Where the procedures referred to in subsections (1) to (3) have been completed, a member of the Garda Síochána shall forward, or cause to be forwarded, the sealed tamper-evident container containing the relevant sample concerned for forensic testing.

(5) In any criminal proceedings, it shall be presumed until the contrary is shown, that subsections (1) to (4) have been complied with in relation to a relevant sample.

(6) In this section and in section 169—

“crime scene sample” means any substance or material (or a sample thereof) found at, or recovered from, a crime scene with a view to having it forensically tested;

“forensic testing”, in relation to a relevant sample, means the examination and analysis of the sample and the carrying out of biochemical or other scientific tests and techniques used in connection with the detection and investigation of crime or the identification of persons or bodies, as may be appropriate, on the sample and, if appropriate, includes the generation of a DNA profile from the sample in respect of a person;

“relevant sample” means—

(a) an intimate sample,

(b) a non-intimate sample, or

(c) a crime scene sample;

“tamper-evident container”, in relation to a relevant sample, means a container, whether comprising a tube, envelope, bag or other receptacle, into which the sample is placed and which—

(a) is marked with a unique number for the purpose of facilitating the identification of the sample,

(b) is sealable after the sample is placed in it without interfering with the integrity of the sample, and

(c) once sealed cannot be opened, whether by cutting, tearing or other means, without leaving visible evidence of having been opened or of an attempt having been made to do so.”.

Amendment agreed to.

I move amendment No. 22:

In page 183, between lines 33 and 34, to insert the following:

“Provisions relating to evidence in proceedings regarding certain samples

169. (1) In any criminal proceedings, a certificate purporting to be signed by a member of the staff of FSI and stating, in relation to a relevant sample—

(a) that the sample was contained in a tamper-evident container marked with a unique number that is specified in the certificate,

(b) that he or she conducted a thorough examination of the tamper-evident container immediately before opening it and that the container displayed no sign of anyone having opened or attempted to open it,

(c) that he or she opened the tamper-evident container in which the sample was contained and removed the sample from it for forensic testing,

(d) the date of opening the tamper-evident container and removing the sample from it,

shall, until the contrary is shown, be evidence of the matters stated in the certificate without proof of any signature thereon or that any such signature is that of such member of staff of FSI.

(2) In any criminal proceedings, the court may—

(a) if it considers that the interests of justice so require, direct that oral evidence be given of the matters stated in a certificate under this section, and

(b) adjourn the proceedings to a later date for the purpose of receiving the oral evidence.

(3) The Minister may prescribe the form of a certificate under this section.”.

Amendment agreed to.

I move amendment No. 23:

In page 183, between lines 33 and 34, to insert the following:

"Amendment of Misuse of Drugs Act 1984

170. The Misuse of Drugs Act 1984 is amended by the substitution of the following section

for section 10:

"10. In any proceedings for an offence under the Principal Act or section 5 of this Act, notwithstanding section 169 of the Criminal Justice (Forensic Evidence and DNA Database System) Act 2014 the production of a certificate purporting to be signed by an officer of Forensic Science Ireland of the Department of Justice and Equality and relating to—

(a) the receipt, handling, transmission or storage, or

(b) an examination, inspection, test or analysis,

as the case may be, specified in the certificate of a controlled drug or other substance, product or preparation so specified shall, until the

contrary is proved, be evidence of any fact thereby certified without proof of any signature thereon or that any such signature is that of such

officer.".".

Amendment agreed to.
Bill, as amended, received for final consideration.
Question proposed: "That the Bill do now pass."

The completion of this Bill is a landmark moment in the area of criminal justice. It is of the utmost importance that An Garda Síochána has available to it all of the most up-to-date technical resources in the investigation of crime. This legislation is in the public interest, the interest of the victims of crime and the interests of the Garda force. The Bill will now progress to the Seanad and will, I hope, be enacted prior to the summer recess. It is my intention to bring it rapidly into force.

This is an important measure that will facilitate the Garda Síochána for many years to come in identifying the perpetrators of serious crime and bringing to justice those who commit homicides, serious and aggravated assaults and rapes and other sexual offences and a broad range of other individuals engaged in serious criminality, including subversion. This is an important step in our criminal justice system. A substantial amount of legislation has been passed in the past three years to modernise our criminal law and to assist and facilitate the Garda Síochána in its work, including enabling gardaí to bring before the courts individuals who have been found guilty of a myriad of different serious crimes. The Garda Síochána has in recent years been very successful in this regard.

In the context of the investigation of crime and bringing people to justice, this Bill will, at the end of the lifetime of this Dáil, prove to be the most important of all criminal justice measures introduced by it. While not wishing to diminish the importance of some of the other Bills enacted or those currently in the pipeline, this is a crucial measure. I have for many years been of the view that we should have a DNA database. Many countries across the world, including most EU countries, have such databases. The putting in place of a database here will facilitate our engaging domestically in the investigation of crime and, also, greater co-operation with other states, particularly EU states, in the exchange of information about those engaged in international crime and those who use the free movement that is part and parcel of the European Union to engage in cross-national criminality. In that context, I am thinking in particular of those engaged in substantial fraud, drug gangs and others who have committed appalling homicides and who do not confine their activities to this State but are engaged in organised crime on a European-wide basis, some on a broader global basis.

As I said, this is an important measure, one that I hope will be welcomed by victims of crime and the Garda organisations. When appointed Minister I set as my goal not simply to enact this legislation during the lifetime of this Government but to ensure that the forensic science laboratory had all the facilities it required to make the DNA database a reality. On taking up office I was presented with a Bill in this area which had been published by my predecessor. However, that Bill required substantial amendment and made no provision for the needs and requirements of the forensic science laboratory. During the development of this Bill and debate on it in this House, we liaised closely with the forensic science laboratory. I am informed that following enactment of the Bill and our being in a position to make commencement orders, the laboratory should be fully resourced to establish the DNA database. There will be no question of a substantial time having to pass while further works are undertaken within the laboratory. I thank all of those who work in the forensic science laboratory for the incredibly good work they do, in respect of which they receive little public notice. Their work is crucial in the investigation of crime and the assistance they provide to the Garda Síochána is essential. The laboratory will now play an additional vital role with regard to the DNA database.

It is important also - I am sure Deputies will recognise this - that I refer to another aspect of the Bill which, as the Bill progressed through the House, received little public notice - namely, the important role of the DNA database in, as I mentioned earlier, assisting in the discovery of the whereabouts of missing persons. That is an important issue. There are many families in this State affected by the tragedy of loved ones who have been missing for many years. There are concerns as to whether their whereabouts will ever be discovered. Some individuals go missing for a variety of reasons and many years later reappear. There are other individuals who tragically lose their lives and in respect of whom many years may pass before their remains are discovered. The DNA database will make an important contribution to assisting the Garda in this particular area. Some of the amendments we dealt with earlier were relevant to this area.

All told, in the context of our criminal jurisprudence this is a historic and landmark day in this Chamber. I thank members of the Opposition for their constructive engagement on the Bill. I also thank the various individuals and organisations who made submissions to us on the Bill. We received a variety of submissions on the Bill during the course of the legislative process. We have taken seriously all of the submissions received. I hope those who went to the trouble of making submissions to us recognise that we have done this. My objective is to have the best possible legislation. We have in recent times received further submissions. It appears there are always additional insights in this area. It is helpful and constructive that we get those. Without upsetting anybody, I wish to mention in particular the contributions from the Irish Human Rights Commission and the Law Society, which also made a further submission recently. I note that the Irish Human Rights Commission also made a submission on the Bill introduced by my predecessor. I reference these organisations because we have received some new submissions from them. Any further issues identified can be addressed during the passage of the Bill through the Seanad. I wish to assure those bodies that made further submissions relatively recently that the submissions are being constructively examined. While some of the issues raised therein have already been adequately addressed, one or two require further consideration, which may result in further amendments to the Bill during its passage through the Seanad. The Bill, if amended by the Seanad, will then make a brief return to this House.

The main body of the Bill is now in place. It is substantial legislation.

It is one of the longest Bills I have been engaged in since becoming Minister. It is 217 pages long and has just under 170 sections and is one of the most important pieces of legislation on the investigation of criminality we will enact during the lifetime of this Dáil. I thank all Members on all sides who contributed to the debate during Second Stage. I thank the Chairman of the Joint Oireachtas Committee on Justice, Defence and Equality, Deputy David Stanton, for the manner in which he conducted Committee Stage, which we dealt with a while ago.

Question put and agreed to.
Sitting suspended at 11.30 and resumed at 12 noon.