We will now have a briefing on the proposed Criminal Justice Bill 2003. Members have been circulated with a copy of the proposed Bill and press release. They have also received copies of the Minister's remarks on the Bill.
Criminal Justice Bill 2003: Ministerial Presentation.
I am pleased to be here before the committee to present details of the general scheme of the Criminal Justice Bill. It is important that rather than simply publish a Bill I should give Members of the Oireachtas who are interested in the criminal justice area as much advance notice as possible of what is likely to emerge during the drafting process. I want to give an opportunity to express their views to those who wish to become involved in the drafting process.
The scheme builds on that previously approved by the Government, which was based on the recommendations contained in the report of the expert group, chaired by the late Eamon Leahy, Senior Counsel. It was appointed to consider changes in the criminal law as recommended in the steering group on the efficiency and effectiveness of the Garda Síochána. I would like to pay tribute to Eamon Leahy for all the work he has done on behalf of the Irish State in many different spheres, particularly in this regard. He was a much admired colleague of mine and a man noted for his devotion to ensuring that the criminal law got it right. His untimely death was a tragedy for his family and friends but also a great loss to all of us who are committed to making sure the criminal law is improved and made effective.
On behalf of the committee, I would like to be associated with the Minister's remarks and express our regret at his untimely death.
When I took up office last year, because of the importance of the issues being covered by the Criminal Justice Bill, I decided to re-examine the proposals. As a result of that examination I sought and received in July this year Government approval for a revised scheme. While the revised scheme is in substance very similar to that previously approved, I made some amendments, additions and deletions which I will discuss, as appropriate.
The main provisions of the scheme are, first, to establish a statutory power to preserve a crime scene; second, a general power on the issue of search warrants; third, increased detention powers of up to 24 hours for arrestable offences; fourth, some amendments to the Criminal Justice (Forensic Evidence) Act 1990 on reclassifying saliva, that is, mouth samples of saliva, as a non-intimate sample; fifth, extending the power of the prosecution to appeal in certain limited cases on points of law and general other provisions to improve the efficiency of the prosecution of offences. The main purpose of the scheme is to improve the efficiency with which criminal offences are investigated and prosecuted.
Head 5 relates to search warrants and a general power of search. The nearest we have is the Criminal Justice (Miscellaneous Provisions) Act 1997 which provides for the issuing by a District Court judge of a warrant authorising a garda to search a place for evidence of certain serious offences, indictable offences involving death or serious bodily harm to a person, false imprisonment, rape and other sexual offences.
I agree this lacuna in our law should be rectified. Accordingly, I propose to accept the recommendation of the expert group and extend section 10 of the Criminal Justice (Miscellaneous Provisions) Act 1997 to provide a general power to the District Court to issue a search warrant in respect of all arrestable offences, and also to provide that in exceptional circumstances of urgency, a senior member of the Garda, not below the rank of superintendent, will be empowered to issue a warrant which would expire after 24 hours.
On powers of detention, under section 4 of the Criminal Justice Act 1984 a maximum of 12 hours detention, made up of six hours initial detention with scope for a further six hours extension on the authority of a senior member of the Garda, is provided for arrestable offences. These are offences that carry a maximum penalty of five years imprisonment. The next category is specifically designed for drug trafficking offences. There is provision for detention of up to seven days of a person arrested for a drug trafficking offence, made up of an initial detention of six hours with scope for extensions of up to 48 hours on the authority of a senior member of the Garda and further extensions of up to five days on the authority of a judge of the District or Circuit Court.
Finally, section 30 of the Offences Against the State Act 1939 provides for a 48-hour detention period, made up of an initial detention of 24 hours, which can be extended on the authority of a chief superintendent for a further 24 hours, with a further extension provided on the authority of the District Court.
The committee can see the overlaps, which lead to anomalies - some offences fall within the rubric of one particular Act, and others do not. The expert committee suggested that there should be a 48-hour period of detention for all offences punishable by ten years imprisonment or more. That may sound reasonable but, on examination, a mugging, for instance, amounts to a robbery in Irish law and the offence of robbery or assault with intent to rob carries a maximum life sentence. Therefore, a relatively innocuous mugging such as snatching someone's mobile phone - and I do not condone muggings - could in theory attract a 48-hour detention period. Bearing in mind the need to have proportionate powers of investigation, it was my view that extending the period from 12 to 24 hours was sufficient. I am not making a distinction between ten years and lesser penalties because some penalties over ten years could be imposed in cases that are relatively less serious.
The scheme in head 12 proposes to amend the Criminal Justice (Forensic Evidence) Act 1990, in line with the recommendations of the expert group. The 1990 Act provides for the taking of certain samples such as blood with written consent, which are referred to as intimate samples. Certain other samples may be taken without consent such as hair, other than pubic hair, and are referred to as non-intimate samples. In line with the recommendations of the expert group, I propose to re-classify saliva from an intimate to a non-intimate sample. In other words, at present one's head hair may be taken without consent, therefore, a saliva sample, which involves putting a cotton swab between one's cheek and teeth in order to take a DNA sample, may be done without consent. I am prepared to go further, depending on the wishes of the Oireachtas, down the road of saying that, in certain circumstances, a court can order a blood or other intimate sample to be taken from somebody if it is a reasonable request.
At the very least, it seems that the proper use of DNA investigative techniques requires that reliable samples can be taken from people in circumstances in which they do not consent. It is strange that if one had a sample of blood at the scene of a crime which, on the face of it, is likely to have been left by the perpetrator that a person arrested has no obligation to consent to a sample of his or her blood being taken in an investigation. One must reflect on whether that is right or wrong. In order to get DNA to compare a saliva sample with a blood sample, it does not seem to me to be a huge invasion of privacy to require someone to provide a saliva sample against their will or even if their lawyers advise them against consenting.
I thought it was easy to get a DNA sample; that a strand of hair, or material from under one's fingernails and so on, could give reliable samples. Is that not the case?
I will come back to that.
Reasonable force can be used at present in order to take a hair sample or to make a person take his or her hand out of his or her pocket in order to give a fingerprint. The question is, should reasonable force be usable in order to take a saliva sample in order to identify a person's DNA?
Why should saliva be needed, if hair would suffice?
Saliva is preferable to hair for DNA samples since cells from inside the cheek lining are collected with the saliva sample.
At present, there is no provision in the draft scheme on the creation of a DNA databank. However, DNA profiling is an invaluable tool in the investigation of serious crime. It has already established itself in Ireland as an important and effective tool in the on-going fight against crime. Although the most obvious application of DNA is the investigation of assaults and sexual offences, the technique is equally applicable to violent crimes such as robbery, burglary and car theft, as trace material will often be left behind by offenders in the course of their illegal activities. The time has now come for us to ensure we make as extensive use as possible of the DNA techniques by ensuring that gardaí have access to a comprehensive DNA database for use in the investigation of serious crime.
This issue is the subject of a request by the Attorney General to the Law Reform Commission to consider civil liberties and privacy implications. I do not believe that everyone in Ireland should be forced to give a sample to a central register, although some responsible people believe it would be a sensible way of going about our business. I do not propose that at present but I am waiting for the Law Reform Commission to analyse whether we should have a DNA database. Deputies will be aware that there is an obligation to destroy fingerprints taken under the 1984 Act and DNA samples taken under the 1990 Act after a period of time. I often wonder what the rationale behind that is. Would I rest easier in my bed knowing that my fingerprints, which were taken six months or a year ago, had been shredded? Is it a great increase in my privacy that my fingerprints have been shredded? I do not know. I wonder if it makes sense.
If the Minister was a criminal it might.
That is the point. If one is an ordinary law-abiding citizen, how are one's rights infringed by one's fingerprints being left in a bottom drawer somewhere just in case one ever strayed from the path of righteousness?
The issue of prosecution appeals does not arise directly from the expert report furnished under the chairmanship of Mr. Eamon Leahy. Rather, they arise from issues raised by the Director of Public Prosecutions. I do not wish to go into detail on head 15, however it seems important that, when a point of law is held against the prosecution in certain cases, they should be entitled to have the correctness or otherwise of that decision tested by appellant courts without prejudice to whether the outcome of the trial was correct or not.
There are cases where even if the prosecution wins and a point is decided against it in the course of that victory, which, if it stands as a legal principle which is binding, as far as the DPP is concerned it is a point of law against him or her wrongly decided against the office, and the DPP may wish to have the point argued out. Likewise, in cases where the prosecution is defeated, a statement, say, having been ruled out, and the case goes the whole way to the jury, at the end of the day, the prosecution does not want to reverse the jury's verdict, but wants the correctness of that finding by a court that a particular interpretation of the detention powers under the 1984 Act decided one way or another in order that future cases will not be decided in the same way, if it is an incorrect application of the law.
I mentioned earlier in the text, although I did not labour the point orally, my dual approach to considering the issues surrounding the scheme of this Bill - how to balance the rights of the prosecution and the accused. One issue that was addressed to the expert group was the further restriction on the right to silence. Under our criminal law, the general rule is that a person is not required to answer any questions in connection with an offence of which he or she is suspected. It is not correct to say that there is an unqualified right to silence. Irish case law suggests that while the right to silence is a constitutional one, it can be abridged by the legislature if the abridgement is proportionate to the objectives to be achieved. An example is that under the Road Traffic Acts one can be required to say whether one was driving a car at a particular time or place. As far as we know, that is not an infringement of one's constitutional rights.
There are some exceptions to that rule, however. The previous Minister proposed to Government in February 2000 that a provision similar to that contained in section 7 of the Criminal Justice (Drug Trafficking) Act 1996, which concerns inferences being drawn against one due to one's failure to mention any fact which is subsequently relied on in one's defence, should be introduced more generally into criminal law. My view is that provisions such as this significantly water down the right to silence. A policeman could tell a suspect that under the Constitution and the judge's rules he is not obliged to say anything, and that anything he says will be considered a voluntary statement, but ten minutes later, if this proposal were to become law, the same policeman could take out another piece of paper and warn the suspect that he could avail of the right to silence if he wished but if he failed to mention now something on which he later wanted to rely on in his trial, it could go against him. A person in detention under those circumstances would be receiving conflicting signals. On one hand he is being told he is not obliged to say anything, while on the other he is being told that he could be seriously prejudiced if he avails of this right to silence.
One of the problems I have with facilitating this proposal is the difficulty that arose in the context of the Offences against the State Act 1939, which contains a provision under which one is obliged to give an account of one's movements. A person detained under the Act would be warned, religiously, that they were not obliged to make any statement, while a couple of hours later a different policeman would come in and tell him that if he did not reveal what he was doing that morning, he would be considered guilty of a criminal offence, prosecuted and would go to jail for six months. Either we do believe in a right to silence or we do not. It would be undesirable to confuse things by allowing conflicting messages to be given to a person in detention. I have decided, therefore, not to go down that road and to vary the previous Minister's scheme by not introducing that.
There are safeguards, as we know. The Criminal Justice Act 1984 has custody regulations. Audio-visual systems are now being introduced in Garda stations and are being extended widely throughout the State. The network of facilities for recording suspect interviews in Garda stations is now virtually complete and is in use with broad national coverage. In the context of the new Garda Síochána Bill, which we discussed some time ago, the introduction of an inspectorate or ombudsman will be an important new provision to ensure that powers are not abused on detained persons.
With those few thoughts, I present this Bill to the committee in its general scheme form, not really for its members' instant reaction but also for their considered reflection. If there is any measure that members think should be contained in the Bill but is not, I would be interested to hear about such a proposal. It is not often that one brings a Criminal Justice Bill before the Dáil. If there are other matters that Members of the Houses feel we should be dealing with, I would be only too happy to consider any constructive and worthwhile suggestions.
The changes proposed to the criminal justice system are not minor ones; they are quantum changes that will have a huge effect on the ODC - the ordinary decent criminal - who probably comes from a constituency such as those represented by Deputy Costello and me and even the Minister. It is to be hoped that if these measures are introduced, there will also be measures to address the social and economic reasons people get involved in crime in the first place.
That is a good point on which to start. Visiting Mountjoy prison any day one can see that 95% of the inmates come from certain postal areas throughout the city and country.
The Minister's final point was about safeguards, about which I was glad to hear. As the Chairman said, these are quantum leaps into new powers. Can we take it that safeguards will be put in place first and that the ombudsman legislation - the Minister seems to be coming around to that word - will be introduced, dealing with complaints procedures and so on?
The drafting process for this Bill will not be finished so the other one will be introduced first, or so I hope.
We have been rather lackadaisical in providing audio-visual recording equipment in Garda stations. Can I take it that the Minister's intention is that every Garda station in which interrogations are likely to take place will have that equipment installed and that its use will be a mandatory part of the process when dealing with people who are being detained and questioned?
I have particular concern about the system of search warrants the Minister is proposing. At present, only a judge or a peace commissioner can issue a search warrant. Some months ago I tabled a question about the number of search warrants that had been sought over a period of time either through the justice system or through the peace commissioner system and the numbers that were actually granted. The system operates very loosely and limited arguments are mounted when a search warrant is sought. We need to consider that because if it is regarded as a safeguard we should ensure that it operates effectively, so that when a garda comes along saying that he wants to search a premises, he must put forward a coherent argument so that the request is not merely rubber-stamped by a peace commissioner or district justice.
We should be beefing up the procedure rather than weakening it. There is an inherent danger in a system under which every Garda station with a superintendent can initiate its own search warrants, so that the Garda station itself becomes the location from which search warrants emanate. As we know, people tend to take the easy option, which in this case means that the superintendent will simply sign a search warrant for 24 hours and that will be the end of it. There should be protection for the citizen. A person's home is his castle and we should not allow that privacy to be interfered with unless there is very good reason. There should be a requirement for third-party confirmation of the search warrant before the gardaí actually search someone's home. Currently, the requirement is for a district judge or a Garda commissioner to sign the document and we should boost that system instead of undermining it as is suggested.
The Minister states that there are "anomalies" in the powers of detention but in my view there are variations. There are checks and balances in the powers of detention that determine the length of time a person can be held. It is amazing that the maximum period considered at the time of the Offences Against the State Act was 48 hours, which was regarded as a lengthy period of detention. This is now the average recommended by the expert group which is an indication of how far we have gone when it comes to detaining people in custody. The Minister said he has not gone for that maximum option but for 24 hours, that is a night and a day, a considerable period of time and very different from an eight or 12-hour detention with an extension granted by a senior Garda officer or a court. There are benefits in the shorter detention period instead of a catch-all 24 hours. It could be subject to abuse and I would prefer the description "variations" to be used instead of "anomalies".
Saliva is being designated as a non-intimate sample. There are very few citizens, particularly women, who would accept intrusion in the mouth for a saliva sample as non-intimate. It is difficult to see that taking place without some degree of embarrassment. The Minister can say that if that is all that causes a problem, it is a small matter but, unless there are significant benefits to be gained from taking a sample from a person's mouth, we should not consider that option. The Minister should outline to us the difference in the value of the sample of hair taken from a persons head and a swab taken from that person's mouth. By whom and under what circumstances would that swab be taken? So many safeguards would be necessary that the game would not be worth the candle. Unless there are significant scientific benefits from the swab, it would be regarded as an intrusion of privacy and an intimate matter.
I have no problem with a DNA data bank if it can be kept within the boundaries laid down by the Constitution and civil liberties concerns are addressed. There is always the difficulty that something stored away in such a fashion can be abused. What precautions is the Minister putting in place? DNA has proved a valuable tool in tackling crime.
I commend the Minister for not going down the path of withdrawing the right to silence. He is right in his analysis.
I am confused about DNA. I understood a hair sample could provide accurate DNA identification and I do not understand why something other than that is needed. Is the hair sample unreliable? Why should there be a change? Can DNA be taken from a urine sample? That could be an option to consider instead of a saliva swab; it is less intrusive and used for other purposes as well.
I am confused by what the Minister said about the right to silence. He said that if a person remained silent, it could be perceived as non co-operation with the gardaí and an inference can be drawn from that. As it is set out, there are two standards - a person is informed of his or her right to silence and, later, under different legislation, he is told that if he does not co-operate, an inference can be drawn from that. Did the Minister say he is not going to do anything about that? Having established the case that there is a major problem with it is the Minister going to leave the confusion in place or is he introducing a remedy for it?
Can the Minister confirm how many Garda stations have video and recording facilities? Will people be taken only to those stations for questioning? Is there a protocol in place to deal with the operation of those facilities and the retention of tapes?
I am concerned about the proposal for mouth swabs, particularly when it comes to what reasonable force entails. If an individual does not want to have a swab taken, it could lead to difficulties with force being applied to get one. I agree with Deputy Costello that this is an intimate action and I ask the Minister to think again about this.
A DNA data bank would be a useful tool that should apply only to those whose DNA had already been taken. Has this facility been used in other countries and what benefits accrued from it?
Is closed circuit television evidence of an assault acceptable as evidence in the courts? If a homeowner used video equipment to film a burglar, would that be acceptable as evidence?
My apologies for missing the Minister's presentation but I have read the document he prepared. The proposal for a DNA data bank is of interest. I have supported this proposal wholeheartedly for some time. I am aware that the Minister referred it to the Law Reform Commission to flesh out its numerous implications but in the public interest it should be fast-tracked. Its efficacy has been proven worldwide and the technology is available. It is an invaluable tool in the fight against crime. Will the Minister please outline what type of data bank he envisages; for example, from whom would he take samples and to what extent would the data bank be built up? At one end of the spectrum there are those who suggest that everyone almost from birth should give a sample and regard it as the ultimate tool in the detection of crime. At the other end there are those who see it as the ultimate violation of human rights. How does the Minister envisage introducing the scheme?
In my constituency I have heard complaints from people about gardaí bursting into houses. I am not certain whether the gardaí had search warrants and I do not have the full story from them or the constituents but it raises the question of whether the amount of force and the attitude adopted are in line with the best practices that should be applied in a case. How can legislation ensure that the search system is not abused? Deputy Costello made the point that every Garda station has a superintendent. I would not like to see a proliferation of searches. The issue of exceptional circumstances of urgency needs to be considered in great detail and an ombudsman or inspectorate would be necessary to ensure that the search process is conducted in a way that has the respect of the community.
Is DNA taken only for offences that are punishable by a certain number of years or for any offence?
Some peace commissioners have expressed concern about the possible erosion of their powers and role. As I understand it the fining procedures can be diverted directly to the superintendent under this Bill. I would like the Minister to comment on the role of the peace commissioner in the community. Are such people right to be concerned that the introduction of this Bill may erode their role?
I echo the point made by the Chairman and by Deputy Costello that we cannot live in an increasingly repressive society. We have to recognise that social deprivation, marginalisation, educational under-achievement and so on are significant contributory factors in an emerging pattern of juvenile delinquency which leads to adult offending. As Tony Blair said, we must be tough on crime and tough on the cause of crime. We have to remember the second part of that equation because sometimes it is possible to make blood-curdling claims for what one is going to achieve by repressive laws without adequately balancing them.
Some of the strongest advocates of further repressive powers, such as newspapers calling on me to declare a crime crisis or demanding that keys be thrown away, have never visited a jail or met the people who come from this postcode lottery. Without in any way romanticising or engaging in undue leniency of thought, the simple fact is that very high levels of criminal behaviour are located on a statistical basis in certain areas of the country, in certain communities and portions of the community, and not in others. We should always bear in mind the phrase, "There but for the grace of God go I" because many children grow up in circumstances where, due to parental disharmony and absence of parenting skills and motivation, or the scourge of drugs, particularly among the adults bringing them up, their chances of surviving as normal constructive members of society are significantly reduced. We must be conscious in all of these measures that we are not simply reactive and repressive in response to the crime problem. That is why I have sought to balance this legislation and to make it as fair and reasonable as I can.
Various members here have mentioned audio-visual recording. There are about 730 Garda stations in the country in 130 of which - eventually about 150 or 160 - there will be audio-visual suites. It is not practical to put audio-visual equipment into a one-room cabin in some rural village but the compensatory factor has to be that there is a requirement, other than in exceptional cases, that evidence of interviews be done on the basis of audio-visual recording. The onus will be on the gardaí to show why they did not use the facilities provided. That will require new regulations to be put in place. It would not be practical to provide formal interviewing suites in every Garda station. Some people argue that we have too many Garda stations. If they are used as places where people get their dog licences and such like on a Saturday morning, are open for a few hours a day, or in some cases a few hours a week, it would be wasteful to kit them up with a mini-studio for detentions. I saw one while I was on holidays this summer which opened for a few hours one day a week
Trials should be about evidence and not arguments about what people did or did not say when in detention and audio-visual recordings are the best guide to what they did say. I am very conscious that the proposed new exception is that in urgent and exceptional cases, a superintendent should be entitled to authorise a search warrant. That is a step that must be carefully considered. I understand that under the Act concerned with the misuse of drugs, senior Garda officers can issue warrants. It is certainly the case under the Offences Against the State Act.
However, will what was regarded originally as an exception in urgent cases, become a pattern or a norm? That is what we have to be vigilant about. In looking at that particular exception, I have it in mind to ensure that it is so heavily circumscribed that it would only be for truly, exceptional urgent cases. If, for instance, a Garda superintendent has reliable information that someone is in a place at a particular time, at three o'clock in the morning, at the scene of a crime or in hot pursuit and a warrant is required to search a place, then the idea that everybody should stop everything and look for a judge may in certain circumstances be unreasonable. We have to be careful before we make some new exception which could become an informal norm. I welcome the note of caution that has been struck at the committee about such a proposal.
With regard to the DNA issue, when hair samples are taken——
On the question raised by Deputy Hoctor about peace commissioners, does the Minister wish to continue their role?
Following a number of legal challenges - I was involved in one, the State v. Clarke and Roche - the power of peace commissioners to make judicial decisions in the criminal process has been heavily circumscribed. The duties and powers of a peace commissioner in section 88 of the 1924 Act were for signing summonses, except against a garda; signing warrants; administering oaths and taking declarations, affirmations, information, bonds and recognisances and signing certificates for the registration of clubs. They are also empowered to sign certificates for food unfit for consumption under food hygiene regulations.
The peace commissioners are therefore no longer requested in general terms to exercise the power to issue summonses, warrants for arrest or to remand persons in custody or on bail. The requirement that search warrants be issued by a District Court judge was based on specific legal advice which was made available in March 2000. That advice is to the effect that the search warrant should be issued by a judge as it applies to offences which carry five year sentences or more. That requirement is in line with the general policy on search warrants which has been pursued from time to time with regard to other legislation. Currently, the powers and duties of peace commissioners consist primarily of taking statutory declarations, witnessing signatures on documents and for various authorities and signing certain certificates. They are largely out of the criminal justice process.
They are non-PCs.
They are quasi-judicial personages who were appointed in 1924 to take over some of the functions of the Justices of the Peace who existed under the British regime up to that point. Largely speaking now, they are confined to civil and administrative processes. People still like the honour of being appointed a peace commissioner.
I am sure we have a number present today.
Deputy Costello raised the point of what is the proportion of applications for warrants which are refused. That probably is not the most pertinent of questions. The real question is that if one goes into a District Court judge, one has to have proof in order. It is not how many times they are refused; it is that one does not simply get an automatic "Yes". One knows that documents and sworn depositions will be examined and face questioning about them. Some are skeptical as to whether that happens. I have seen it happen on many occasions. When I practiced at the Bar, I saw gardaí seeking warrants. It is usually done on the basis that sworn information is presented to the District Court judge, he or she reads it, frequently they ask if the garda is sure, and then the judge issues a warrant. What is in the information is a sworn document of suspicion. Sometimes, the District Court judge will ask if this is personal knowledge or information. There are checks and balances. However, one cannot have a mini-trial in the District Court every time somebody's house is proposed to be searched for stolen goods. The world does not work that way.
In the United States, the granting of a search warrant is taken seriously. There is an in-depth cross-examination once a warrant is requested because of the enormity of what can happen when the powers of a warrant are conferred. I simply wanted to know what the statistics are. The reply I got when I tabled the question to the Minister was that it was a rather onerous matter to get the statistics for the years I asked. However, the Minister said he would refer back to me. That was six months ago.
I believe "due course" is longer than six months.
I wonder how one could find out the answer. Would one ask every garda in the country to fill out a questionnaire asking how often they were refused a warrant? It would take some time.
Are there records in the courts?
Not necessarily.
If there are not, then there should be.
Perhaps the Courts Service will consider it in the future?
Maybe they do, maybe they do not. I do not know whether they do. In the US they have different laws from us on exclusionary rules. I spoke with an American lawyer recently who told me of someone growing pot in the attic of their house. The police became aware of this and erected a heat detector in a van on the public roadway. This was to detect whether there was much heat used in the attic. They zeroed in on the house with an enormous hot roof space. However, an American court held that such surveillance required a warrant. In the absence of a warrant, a search based on unauthorised surveillance was unlawful.
Was it cannabis or a Jacuzzi?
It was cannabis. That would not happen here. If the gardaí, for whatever reason, noted that Deputy Costello's attic was very hot, I do not think the court could manage to refuse a search warrant on the basis that they should not have been scanning his roof for heat.
They would have found a Jacuzzi.
On the subject of DNA, I am interested in the points made and in members' reservations. The category "intimate and non-intimate" is slightly misleading. Let us look at the Road Traffic Act, whereby one can be asked to provide a specimen of blood or, at one's option, a specimen of urine. That is pretty invasive, and that applies for suspected driving over the alcohol limit.
One has a choice between blood and urine samples.
There is a choice, but to provide either of those samples is quite an invasive procedure. Compared with something like putting a cotton bud into one's mouth, I wonder which of these procedures is more or less invasive. I do not know. I am told that hair samples are most valuable in a DNA context where some of the hair root, the follicle, is also taken. With vigorous combing on someone less follicly challenged than I am——
What if someone is bald?
That is a point. I do not know why it is, but on some occasions, door staff seem to have heads like billiard balls in terms of the amount of hair on their heads. I hope it is not because they chew steroids all day. The question arises in those circumstances as to how one might take a DNA sample. I will look at the matter again. I am not currently in a position to offer technical evidence in support of saliva samples being superior to hair samples but I will return to the committee on that subject.
I take Deputy Power's point on the importance of the Law Reform Commission coming forward with a view on the implications of a data bank. The Deputy asked me to express my views on the subject. My views are not very rigidly formed at this stage. I believe that destruction of samples which are lawfully taken is something which in the interests of privacy or civil liberties is an unconvincing activity. I do not think that one increases someone's civil liberties by shredding samples or fingerprints in any circumstances. Were a database to be kept, the Law Reform Commission might well consider that some degree of independent control of it, and of access to it, and of the purposes for which it is used, might be necessary. Whether that is a judicial control or independent expert control, it should not simply be possible for anyone to check out without control any of the characteristics of a person who has a sample in the system.
Does the Minister have any views on how extensive the database should be?
Professor McConnnell of Trinity College Dublin wrote me a very strongly argued case for universality. His view is that one could separate the innocent from the guilty and prove innocence so often that there is a very strong case for universality. By the same token, there is a touch of Big Brother in having everyone's data stored somewhere simply because of the possibility that they could be involved in crime. My mind is open on this subject. I fully accept Professor McConnell's point that one could prove one's innocence in many cases, or the Garda could in many cases stop chasing the wrong people at an early stage. How would one go about assembling such a database? Would one call people to the local Garda station and demand a sample?
One could start off using samples in the hospitals.
That would take a long time to come to fruition. Probably the less I say about the issue in advance of the views of the Law Reform Commission, the better. It is nevertheless a real issue. Rather than start some scare story, I prefer to say that my mind is open on the issue and that I am mindful of the Big Brother implications of a universal or comprehensive database being held.
I raised a question about the use of video equipment as evidence.
The product of a video camera is in principle real evidence, as long as it is established that it was a video camera which was functioning at the relevant time and that it was in working order. It is real evidence which, as I understand it, does not require any special statutory basis in order for it to be introduced as evidence. Taking a typical example, if there is a fight in a disco, and a videotape is produced, all that is normally required to justify the introduction of the videotape in evidence is the evidence of someone saying that a particular video camera was working at the time, and that person obtained within perhaps 24 hours the cassette or DVD from it. That person would then tell what the cassette or DVD was showing. It is real evidence just as much as a fingerprint left at the scene, because it is purely a factual process. It does not have to have some statutory benediction to make it admissible. It is admissible just as much as if one left a DNA sample or one's fingerprints at a crime scene. Some criminals have on occasion left their fingers behind them. The video cassette or DVD is real evidence and can be introduced as such if one can show beyond reasonable doubt that it is what it purports to be.
I thank the Minister and his officials for attending.
The joint committee went into private session at 4.28 p.m. and adjourned at 4.29 p.m. until2.30 p.m. on Tuesday, 14 October 2003.