JOINT COMMITTEE ON JUSTICE, EQUALITY, DEFENCE AND WOMEN'S RIGHTS debate -
Wednesday, 28 Apr 2010

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

Chairman

The purpose of today's meeting is to have a discussion with the Data Protection Commissioner and the Irish Human Rights Commission on the Criminal Justice (Forensic Evidence and DNA Database System) Bill 2010. I welcome from the Irish Human Rights Commission, Dr. Maurice Manning, president, Mr. Roger Sweetman, senior counsel, and Ms Róisín Hennessy, senior research and policy officer. I welcome also Mr. Billy Hawkes, Data Protection Commissioner. I thank both organisations for their observations on the Bill which have been circulated to members of the committee.

The formula for today's meeting is that each organisation will make a brief opening statement followed by questions from members. Before commencing, I draw attention to the fact that members of the committee have absolute privilege but this same privilege does not apply to witnesses appearing before the committee. I remind members of the long-standing parliamentary practice to the effect that they should not comment on, criticise or make charges against a person outside the House or an official by name or in such a way as to make him or her identifiable. I ask that all mobile phones be switched off during the meeting. I invite Dr. Maurice Manning to make his presentation.

Dr. Maurice Manning

I thank the members of the committee for inviting the Irish Human Rights Commission to present its observations and recommendations in respect of the legislation. With the agreement of the Chairman, I will ask Mr. Roger Sweetman, senior counsel, to outline the specific recommendations of the commission, and Ms Róisín Hennessy, senior research and policy officer, will be happy to answer any questions members may have on specific areas.

The committee will be aware of the origin of the Irish Human Rights Commission as part of the Good Friday Agreement. Our job, so far as legislation is concerned, is to review all proposals for legislation, either when referred to the commission by Government or of our own volition. Our job is largely a technical one. We examine the draft law to see whether it is compatible with the Constitution, human rights standards and any of the international conventions which Ireland has ratified. So far we have looked at approximately 40 items of legislation and appeared before this committee on a number of occasions.

In terms of today's proceedings we are grateful that the Minister for Justice, Equality and Law Reform referred to us the general scheme of the Bill in February 2007. We made a series of recommendations then and some of the proposals we made are contained in the Bill. We are very grateful for that and the fact that the Bill seriously reflects the input of the commission. This illustrates the important value-added quality of the commission's work.

Today we want to contribute further to the debate on this important legislation. We welcome the statement by the Minister of State on Second Stage that the input of the commission will be carefully examined to determine whether the Bill would benefit from further amendment. It is very encouraging for us to know that there is an open-minded approach to the legislation on the part of the Minister. We are deeply appreciative of the opportunity to engage with the committee. As members may be aware, our ambition is to be directly accountable to the Houses of the Oireachtas and to see a special dedicated human rights committee within the Houses of the Oireachtas. Perhaps on another occasion we may have the opportunity to address the committee on that issue because I think it is of fundamental importance. I invite my colleague, Mr. Roger Sweetman, to indicate our concerns.

Mr. Roger Sweetman

I echo Dr. Manning's words by thanking the joint committee for the invitation to appear before it and address members on the Criminal Justice (Forensic Evidence and DNA Database System) Bill 2010. Legislative reforms that regulate the taking of bodily samples and the creation of DNA profiles for the investigation of criminal offences engage important questions of human rights. Given the extreme privacy of one's DNA, any collecting of data from it would be required to respect the right to private life. The organs of the State — the Department and the Forensic Science Laboratory — are required by statute to conduct their business in accordance with the convention and, by implication, its jurisprudence. The convention is very concerned about proportionality where invasions of privacy are concerned.

In respect of a recent case which the Minister referred to in his contribution, S & Marper v. the United Kingdom, the European Court had harsh things to say about the regime in place in our neighbouring jurisdiction. It is of interest to note what can happen where insufficiently constructed and controlled schemes for the gathering of DNA samples or profiles are allowed either to develop by function creep or to be put in place by legislation. The UK scheme has come under severe criticism from the European Court of Human Rights for the excessive length of time that samples may be retained on the database. That is an issue to which I will return later.

The second issue is interesting and should be of concern to us all. It appears from the UK — research has been done on this which we can supply to the committee — that if too wide a discretion is given to the sample gathering agency, which virtually always will be the police force, the database is distorted in that people whom the police traditionally consider bad end up disproportionately on the database. In the UK, there is a hugely disproportionate number of young black males on the database because they are the people who get arrested and are swabbed. Clearly that is undesirable in a democratic state that lives by the rule of law. That is one of the dangers that must always be borne in mind when one is dealing with these kinds of potentially intrusive powers being conferred on agencies of the state.

I do not want to give the impression that the commission is opposed to a DNA Bill. DNA and the associated science is a very powerful investigative tool for the prosecution agencies, but it is essential that its use and the circumstances in which the samples are gathered are carefully thought out and properly controlled. This is the area where the commission has some concerns about the Bill as structured. There appears to be some contradiction in thinking as to whether it is to be a purely investigative DNA database, an intelligence database or both. Quite different problems and criteria arise between setting up an investigative database and an intelligence database. This is an aspect that could be usefully explored when the Bill is further considered by the Oireachtas.

Another problem which can arise and about which the commission is concerned is that the Bill proposes to allow samples to be taken from convicted persons, forcibly if necessary. With some limited exceptions such as sex offenders or, where there is a subsequent conviction, the sentencing judge is given evidence of the previous conviction, the general position and rule in regard to convicted persons who serve sentences is that once they have served their sentence, they have paid their debt to society and should not be answerable again for the offence for which they have served their time and paid their debt. The view of the commission is that if this type of power is to be invoked, if a sex crime occurs and the Garda investigates it, people should not be hauled in willy-nilly and re-sampled. Where that type of sampling is to be done, there should be judicial oversight. The Garda should be required to apply to a District Court judge for an order to bring a person in where he or she is not a suspect but merely because he or she has a previous conviction and has served his or her sentence.

When I was a young lawyer the Vagrancy Act allowed gardaí to arrest people, who had a previous conviction for standing around on the street, and have them jailed. In a famous case, King v. the Attorney General, the Supreme Court ruled that was an outrage and could not possibly survive in any democratic state that lived by the rule of law.

The commission envisages the remote possibility of a similar position arising here in that this type of power could be used a little like Inspector Renault in "Casablanca" used his power to "round up the usual suspects". That is the reason we are recommending that there should be a judicial oversight in the exercise of such power where someone is to be brought in and sampled purely on the basis that he or she has had a previous conviction.

We have some concerns about volunteers. One aspect with which we would be concerned is that if somebody is asked, as a volunteer, to provide a DNA sample in circumstances where, say, the gardaí are conducting an investigation into a crime committed in a certain area and the person refuses, which as a volunteer he or she is perfectly entitled to do, the refusal should not thereby convert them into a suspect who may be arrested and a sample taken from him or her forcibly. We consider that of considerable importance because as matters stand, the power to seek voluntary samples from members of the public is capable of being converted into a coercive power. That is something that would be wholly undesirable, certainly from a human rights point of view.

We are also concerned about the length of time samples are to be held, particularly samples where either the suspect from whom the sample has been obtained has been acquitted or the case has been discontinued due to insufficient evidence. It is the commission's view that in those circumstances the default destruction period, which will be a matter for the Dáil to decide, should be considerably shorter than is currently the case.

I am aware there is a power in the Bill to allow persons to apply in writing to have their bodily samples and DNA profiles destroyed or removed, which is all very well in theory. I wonder how many people would do so in practice because it involves, first, applying to the commissioner and then appealing the request to the District Court if he refuses the applicant. Research in the United Kingdom appears to show that if someone ends up on the DNA database, irrespective of how he or she got on to it, it changes his or her status slightly as a citizen. The person's most intimate personal details are available to any policeman who logs on to his computer. It is the commission's view that the Bill should be careful to only allow samples to be put on the database where it is necessary for the investigation of crime and where it is proportionate.

There are also some concerns about the taking of samples in terms of a power being given for the first time, of which I am aware, in Irish law. The Bill permits the use of reasonable force to take a sample where there is a refusal. That is something entirely new to all of us and something that would want to be carefully thought through. The commission has set out recommendations as to the factors that should be taken into consideration before the use of force is permitted and that the taking of any sample using the use of force should be video recorded, not optionally but compulsorily, and if it is not video recorded, it should be inadmissible. At least then the trial court, which would have to consider whether procedures have been complied with, would have proper hard evidence as to how this new and, in my view, draconian procedure is being put into effect.

The commission also has concerns, particularly in respect of young people, with regard to where the Bill provides that where consent is refused, negative inferences can be drawn from it. In other words, that when a case comes to trial, the jury trying it can be invited to draw inferences, which are adverse to the person on trial, from his or her refusal to provide a sample, but it provides, as all these negative inferences Bills do, that the negative inference on its own cannot convict a person, it can only be corroborative. However, it is still capable of being very powerful corroborative evidence. From the commission's point of view it is important that persons who find themselves in this situation should be properly advised and should make an informed decision as to whether they will consent to the giving of a sample or refuse to do so and face the consequences. The commission would have particular concerns in that the provision in the Bill for access to legal advice is the formula that is used in many such Bills, namely, that reasonable access to a solicitor shall be given. A decision of the former Mr. Justice Keane when Chief Justice in the Buck case — which I am ashamed to say I did not check — effectively ruled that reasonable access to a solicitor means that the gardaí shall make reasonable efforts to get the person one and if they cannot get him or her a solicitor, then that is tough. If a person were to refuse to give a sample, he or she would be subject to these negative inference provisions without getting legal advice, and this can apply to relatively young people. The commission would be very concerned about that and it would be our recommendation that if these types of provisions are to be invoked, they can only be invoked not where this reasonable access formula has been applied but where the person against whom the negative inference provision is to be invoked has had a consultation with a lawyer.

We would be particularly concerned that these negative inference provisions apply to people as young as 14 years of age. What is a 14 year old going to make of some fellow in a blue uniform telling him or her that he or she has to give a sample and if he or she does not, refusal to do so can be invoked as negative inference at his or her trial but that this would only be corroborative evidence. What would a young fellow in his final year in primary school make of that? The commission considers it essential that in those kinds of circumstances the person would not only have reasonable access to a solicitor but that he or she would have seen a solicitor before any of these powers can arise.

We also have some concerns with regard to children or young persons who would be subject to the provisions of the Bill and no parent or relative can be located to come to the Garda station as, unfortunately, happens not infrequently. The Bill provides that a person not a member of the Garda Síochána shall be present while the procedure is being gone through. It would be the commission's recommendation that the person who is to stand-in for the parent or guardian of the child should be somebody who is a qualified social worker, someone experienced in dealing with young people, who would be able to get the young person the necessary help and support to deal with the matter.

I believe I have covered all the various matters the commission wished to address before the committee. We will deal with any questions members have as best we can.

Chairman

We will deal with questions later. I thank Mr. Sweetman for that contribution. I invite Mr. Hawkes to make his opening statement.

Mr. Billy Hawkes

I thank the Chairman and other members of the joint committee for giving me this opportunity to elaborate on the views I expressed in my written submission.

I welcome this Bill. It is only right that the Garda Síochána should have access to the best forensic tools, such as DNA, in its efforts to protect society from crime. It is also important that this country can participate fully in cross-Border efforts to combat crime and help to locate missing persons.

I have a particular interest in the international aspect of Garda activity. I chair the commission for the control of INTERPOL's files, and am a member of the correspondingEUROPOL data protection committee. I therefore fully understand the vital role DNA can play in international police co-operation. I am happy that, in future, the Garda Síochána will have the DNA tools to allow it to participate fully in European and international police co-operation activity.

However, it is because DNA is such a powerful tool that it needs to be subject to strict safeguards. Our DNA profile is unique, or almost unique, to each one of us. It is part of our personal data, which is legally protected at national and European level. It is therefore important that the power of the State to collect and hold this unique identifier should be subject to strict controls.

I very much welcome the detailed and constructive comments put forward by the Irish Human Rights Commission on the Bill, in its written statement and the presentations the committee has just heard. These give a comprehensive view of the Bill's provisions from a human rights' perspective. My comments focus on those aspects which concern more directly an individual's right to the protection of her or his personal data.

The Bill provides for the collection and indefinite retention of the DNA of individuals who are convicted of crimes above a minimum threshold of seriousness. We can accept that retention of the DNA of individuals who have been convicted through the courts is reasonable and proportionate. Where an individual has paid the penalty and not re-offended, there is provision for that individual to apply to the Garda Commissioner to have their DNA sample destroyed and the corresponding profile removed from the DNA database.

However, the Bill also provides for retention of the DNA sample and profile of an individual who has not been convicted of a crime. The retention periods are very long: the default period is three years for the DNA sample and ten years for the profile. No clear justification has been offered for this provision. It is very difficult to reconcile with the recent Marper judgment of the European Court of Human Rights, to which Mr. Sweetman referred. As pointed out by the Irish Human Rights Commission in its submission, it also runs contrary to a clear recommendation from the Council of Europe's Committee of Ministers.

At a more basic level, it is not consistent with the principle of our criminal law that, when one walks free from a court, one does so without any negative consequences. However, having one's DNA retained compulsorily by the State is such a consequence, as Mr. Sweetman pointed out.

To have the State cease to hold one's DNA, the only option offered in the Bill is an application to the Garda Commissioner. The same procedure and criteria apply as in the case of convicted persons. Given that the Garda Síochána will have originally gathered the evidence on which an arrest or prosecution was based, it is difficult to see the Commissioner being disposed to approve such an application. If the Commissioner does not do so, the only option open to an individual is an appeal to the District Court. Given the understandable deference shown towards Garda decisions in such cases, it is also difficult to see the courts overturning the Commissioner's decision on a regular basis.

I therefore join the Irish Human Rights Commission in urging the committee to consider carefully if the significant advance represented by this Bill should be prejudiced by a provision that unnecessarily involves retaining the DNA of individuals who are innocent in the eyes of the law. Instead, the 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. In those limited cases, it should be necessary for the Garda Commissioner to seek a court order permitting retention of the DNA.

I also support three further recommendations made by the Irish Human Rights Commission. First, a person who is designated a "volunteer" should not be asked to consent to the retention of their DNA profile on the DNA database system where this is not necessary for the investigation of a specific criminal offence. Second, it is important that before the Bill's provisions on international co-operation come into effect, the State has given full effect in its laws to the framework decision on data protection in the field of police and judicial co-operation.

Following the Lisbon Treaty, data protection is now a treaty obligation and a fundamental right in the European legal order. It is therefore essential that the State reflects this fact in the manner in which it gives effect to European obligations.

It would be helpful if the Bill provided that the oversight committee established by the Bill, should include, in addition to a representative from my office, an individual with broader human rights experience. I thank the committee members for giving me this opportunity to talk to them. Like my colleagues from the Human Rights Commission, I will be happy to answer any questions.

Chairman

I thank Mr. Hawkes for his presentation. I am quite sure that members of the committee will have some questions for him. I will start with Deputy D'Arcy.

Deputy Michael D’Arcy

I thank Mr. Hawkes for attending the committee. Fine Gael is eager that this measure is passed as quickly as possible. I am a bit concerned following the Marper decision by the European Court of Human Rights. Mr. Sweetman and Mr. Hawkes raised concerns that this legislation may not be fully in keeping with the Marper decision. If that is so, I cannot understand how the legislation is coming before us in that format, given that the European Court of Human Rights has made its determination.

Fine Gael broadly supports the speedy implementation of this Bill. We have been waiting for quite some time, so the directive needs to be incorporated into Irish law as quickly as possible. I am not satisfied with current safeguards in the legislation concerning how a young person is to be dealt with in certain circumstances, including if a relative or other qualified person is not available. Somebody could have a DNA sample taken, perhaps with the use of force, so we must ensure that under these circumstances the safeguards are clear and categorical. We must ensure that nobody will be marked for life following what could be a traumatic experience.

Mr. Sweetman referred to access to advice and the previous case law in this respect, including gardaí making a reasonable effort. I would like to see further clarification on these matters at a later stage as regards advancing beyond "reasonable". Unfortunately, the courts will interpret "reasonable" in a particular way, while a Garda may consider the matter to be subjective or objective. I am not sure if the courts have determined that matter, but I would like to see it tied up.

This legislation is essential. On one of the recent televised debates during the British general election campaign, the Liberal Democrat leader, Mr. Nick Clegg, spoke about the importance of having European-wide availability of information. For example, it has played a role in smashing a sex ring. This legislation will also help in combating such illegal processes.

Mr. Hawkes referred to the destruction of an innocent person's DNA samples. We have to accept that this could be an important tool. Mr. Sweetman queried whether it would be done on an investigative or intelligence basis, or both. I hope it will be both. Only time will tell how well the Irish authorities will use this resource. If a crime is likely, in percentage terms, to have been perpetrated by a male in a particular age category, I hope we will not go through everybody to try to use the investigative aspects of the legislation. I want to be sure that the system is used properly. Following our consideration of this legislation and its enactment, I do not want it to end up in the Supreme Court and subsequently in the European Court of Human Rights and to find we have made a mistake. If we are to do this, we must do it properly in the first instance. Fine Gael wants to help ensure it is done properly.

Deputy Pat Rabbitte

I wish to give my tuppence worth but do not want to go back over what Deputy D'Arcy said. I welcome the Irish Human Rights Commission and the Data Protection Commissioner.

The first point I make is a matter for us rather than our guests. This is a very important Bill which is, in many ways, quite technical. What we have heard and read from the Irish Human Rights Commission and what we have heard from Mr. Hawkes was very helpful and ought normally have a formative influence on the Bill agreed and enacted by the House. However, the manner in which we schedule legislation does not really facilitate that. We usually get notice from this Department, in which there is such a huge legislative workload, when the Whips have their meeting on Wednesday nights. If one has an attentive Whip, one hears that the Criminal Justice (Forensic Evidence and DNA Database System) Bill 2010, for example, is slotted in for the following Tuesday. That provides very little opportunity to consider some of the more complex Bills despite, for example, the expertise available among the speakers today.

We disposed of the immigration legislation in committee in 18 days — I believe the media visited us once or twice during those 18 days — but we have not heard about it since. One hears it has since been changed beyond recognition. One of these Wednesday nights we will hear it is slotted in for the following Tuesday. It makes the job exceptionally difficult in regard to such a landmark and complex Bill as the immigration one. It would be helpful if we had this kind of input and time to reflect on it.

I do not wish to go back over territory covered by Deputy D'Arcy but would like guidance on the question of the destruction of samples. Mr. Hawkes seemed to take DNA profiles and samples together when he talked about a person being acquitted or otherwise and for how long samples might be retained. Will someone correct me if there is not a qualitative difference between the question of how one treats the samples and how one treats the profile?

As I understand it, scientists argue that once the sample is sent to the forensic people, they will have a profile the next day and that thereafter, there is no need for retention of the sample. It is tantamount to genetic invasion to retain the sample for as long as is envisaged in the Bill. I would be glad of guidance on that.

Is it a tenable or a reasonable position to take that as soon as the profile has been banked, the sample should be got rid of? Is the Data Protection Commissioner satisfied about the arrangements in place for the security of samples thereafter?

We seem to have gone for the longest period in terms of the duration for which we may retain samples and so on. I do not believe the Minister indicated on Second Stage that he was especially minded to change that. It is something on which I would like to get a fix in my head. I am not disputing that this could be a very advanced and useful tool available to the Garda Síochána, as the main investigative agency, in terms of the investigation of crime. That is obviously the case and I presume it is as useful in clearing people as it is in helping to convict someone.

It seems the balance of the two imperatives of the investigation on the one side and the human rights of a person on the other, is especially delicate in this Bill. I would like to avail of the opportunity to hear the experts who have expertise in this area on that point.

Chairman

Before I call our guests, I fully agree with the Deputy on the initial point he made. It is very useful to have this discussion before Committee Stage. It will be very helpful for everybody. It has been well-flagged that we will have legislation on the rights of homeowners and we have had a session on that before the Bill has been published. Whenever I get the opportunity, I would like to facilitate the committee by inviting people before a Bill is published. Unfortunately, like the Deputy, I often do not know about legislation until it is too late.

Dr. Maurice Manning

With the Chairman's permission, I would like to ask Ms Hennessy to answer some of the points and Mr. Sweetman to answer the others.

Chairman

That is fine. I will call Mr. Hawkes as well.

Mr. Roger Sweetman

In regard to Deputy D'Arcy's question on destruction periods, this comes back to what I said earlier, that a decision needs to be made as to whether this is to be an investigative database or an intelligence one. If it is to be an intelligence database, presumably one wants to try to keep the information for as long as possible. What must be considered is whether that is a proportionate invasion of the privacy rights of the person whose samples have been taken. Is it for legitimate object? That is really what governs it.

In regard to persons who have been sampled as suspects and have been acquitted or proceedings against them have been discontinued, it is the commission's view that there should be a very short default period for destruction. If I could support very much what Mr. Hawkes said, their presumption of innocence has been restored. The State has no business holding intimate genetic information on them in a criminal context. That is the commission's answer to that.

Deputy Michael D’Arcy

What is the international experience prior to this type of legislation being enacted? Were decisions made as to whether countries would have an investigative or an intelligence database?

Mr. Roger Sweetman

I have not looked into it in any great detail. The UK has clearly tried to create an intelligence database by giving very wide sampling powers to its police and by holding things for long periods.

The commission congratulates the Minister and the Deputies, including Deputies D'Arcy and Rabbitte, who contributed to the debate on the quality of their speeches. We read the speeches and thought they were excellent.

The real problem is which way one wants to go. There are quite different human rights and privacy issues for intelligence databases which are much more intrusive because one tries to gather as many DNA samples as one can on any pretext that comes to mind and then holds them so that when a crime is committed one trawls one's database to see if one can find a suspect. They are quite different criteria. One would need to start the debate all over again if we are to go down that road. That is my answer to that.

Moving on to Deputy D'Arcy's second question about reasonable access to a lawyer, more than 30 years ago the Department of Justice commissioned a report on the criminal legal aid scheme which was chaired by a district justice, Judge Bill Tormey, who is long since deceased — Lord have mercy on him. They looked into this in some detail and the report is in the back of a filing cabinet somewhere, I suppose. They made very interesting recommendations on the Scottish duty solicitor scheme, where it is an obligation, if one is on the criminal legal aid practitioners' scheme, that one does 24 hours a month; one sits by the telephone and if the Garda needs a solicitor, it is you. There is none of this reasonable access stuff and there is always a solicitor available when needed. That was the recommendation by the Tormey committee which was never acted on. It might well be worth inviting the Minister, if the report is still in the back of his filing cabinet somewhere, to pull it out and have a look. That would certainly deal with that real concern, which I adumbrated and on which Deputy D'Arcy picked up.

On Deputy Rabbitte's questions about how the system works, it is developing, like many scientific matters, at terrifying speed. As I understand it, the sample is taken with a cotton bud, which is swabbed on the inside of the suspect or sample-giver's cheek, and is then preserved. That is simply done by a garda in the station.

The generation of the profile is a good deal more complex and demands a good deal more in the way of resources. My understanding is — I am open to correction on this — that in many cases samples taken do not all turn into profiles, but they are still preserved and they have a extremely long shelf life. I am aware of one case in my home county where the laboratory was able to generate DNA samples more than 20 years later from the little stains on the blood sample cards. Samples are usable for a very long time.

At what stage they are converted into profiles is, I would have thought, an operational matter. The question that seems to me to arise applies equally to samples and profiles: is their retention by the State, particularly where innocent persons are involved, proportionate and relevant to some criminal investigation issue so as not to be an improper invasion of their privacy rights. I hope that is of assistance. I will ask Ms Hennessy to deal with the question on children that Deputy D'Arcy raised.

Ms Róisín Hennessy

On children and protected persons, in general the European Court of Human Rights noted in the S. and Marper case that particular attention should be paid to juveniles that no detrimental effect should result from the retention by the authorities of their private data. Therefore, the Irish Human Rights Commission has a few concerns.

We welcome some of the additional general safeguards that have been provided in taking samples, particularly in the case of children. However, where, for a variety of reasons, the parent or guardian cannot attend during the taking of a sample under sections 21 and 22, the commission has recommended that a qualified social worker or other qualified professional who is not a member of the Garda Síochána should be the nominated adult who will be present during the taking of sample in that instance.

On the question of negative inference provisions, the commission is particularly concerned at the proposed application of negative inference provisions to children aged 14 and older. In light of the complexity of negative inference provisions, children of that age may not have the level of maturity and understanding required to fully understand the implications of the refusal to consent to the taking of an intimate sample. This is quite a complex question relating to the rules of evidence. Therefore, the commission considers that, particularly where a person is a child of 14 years or older, inferences should not be drawn from a child's failure to provide an intimate sample and, alternatively, if this recommendation is not accepted, the commission recommends that legal advice should be mandatory for children aged 14 and older.

To reply to Deputy D'Arcy's comments on the use of reasonable force on children, the commission has generally recommended that additional safeguards are needed on the area of the use of reasonable force. The key human rights standard here is that force is used as a measure of last resort and only where it is justified in all the circumstances of the case in light of the specific characteristics of the person concerned. In our presentation, the commission listed a number of additional factors to which the Garda Síochána should have regard in authorising the use of reasonable force to take samples and these would equally apply in the case of children.

Mr. Billy Hawkes

On the issue of what this database is for, what is being provided for in the Bill will be a well-populated database because everybody who is convicted of an offence and all past offenders in prison will have their data on the database. Where I suggest the committee should examine carefully is: should it go as far as also retaining the DNA of persons who have not been found guilty of any crime. Deputy D'Arcy asked if there is a risk that doing so could put us at the wrong side of the S. and Marper judgments. I am not a lawyer, but I suggest strongly that there is. Why prejudice a very good Bill, which will be of tremendous value to the Garda Síochána and will contain on the database the data of those who are usually of most interest to the Garda, by going further and retaining on it the data of persons who have not been convicted of any offence and who, as Mr. Sweetman stated, are innocent in the eyes of the law? Why take a measure which will potentially result in appeals, not only to the Supreme Court but onward to the European Court of Human Rights, and which clearly seems to be a disproportionate measure given the objective of the database?

Ms Róisín Hennessy

To provide further information on that point, in the S. and Marper case it was noted that in the great majority of Council of Europe states samples and DNA profiles are required to be removed and destroyed, either immediately or within a certain limited time period, after acquittal or discharge.

Recently, the Committee of Ministers of the Council of Europe have been examining the Crime and Security Bill in the United Kingdom which is a response to the S. and Marper case. In that Bill, the UK authorities propose to retain samples for six years, including in the case of non-serious offences, and the Committee of Ministers has expressed concern about the proportionality of a six-year retention period. In Scotland, the retention period for DNA samples of suspected persons following acquittal is three years where a person has been convicted of a serious or sexual offence, and in Finland, it is one year. Considering all of the various time periods, if Ireland were to introduce the ten-year default period it seems from preliminary research that it would be one of the longest periods, at least within the Council of Europe.

Deputy Pat Rabbitte

I presume that in the S. and Marper case, where that remark is made about the situation in the United Kingdom, there are particular security reasons that a British Home Secretary might be minded to go for the longer period. If one has a tradition of invading other countries, I suppose that is the kind of thing one can expect. We do not generally reverse into other countries and try to teach them how to live. Why should we be at the outer end of the period of retention? Are we not more akin to the likes of Finland?

Ms Róisín Hennessy

Certainly, the recommendation of the commission would be that in the case of suspects, samples and profiles should be removed as soon as reasonably possible. I note, in addition, that the Law Reform Commission carried out comparative comprehensive research on that issue and recommended that suspects' profiles should only be retained for one year.

Deputy Noel Treacy

I apologise for missing the presentation by the Irish Human Rights Commission. Like colleagues, I was at a series of other meetings. It is just not possible to be everywhere.

I warmly welcome our former colleague, Dr. Manning. It is great to have him back here with us. I also welcome Mr. Hawkes, who has been a long and distinguished public servant in this country. We know Mr. Sweetman by reputation but this is the first occasion on which I have come across Ms Hennessy.

I agree with and endorse what Deputy Rabbitte said. As legislators, we continually operate under time constraints. There have been major changes in the committee system of the Houses. Ireland is a small island nation with a small population and a hugely dedicated legislative system. In that context, massive amounts of legislation have been put in place in recent years. However, I am not in possession of any data which would allow me to make comparisons with other countries in this regard. We do not always have the opportunity to devote the necessary time to the consideration of certain Bills. Under the old system, all Stages of legislation were dealt with in the Dáil and Seanad and all Members were involved in the process. I accept that we did not pass as much legislation but we were in a position to scrutinise it to a far greater degree.

I apologise for missing the earlier contributions but I heard what Mr. Hawkes had to say. As far as I am concerned, the purpose of the legislation under discussion is to ensure that we have the most scientific, accurate, focused and sustainable system in place to ensure that only those who are guilty will be proven to be so. It will also be the case that, based on the information presented by gardaí through the legal process, the courts will ensure that the proper decisions will be made.

I note what the Irish Human Rights Commission and Mr. Hawkes have said. Recommendations, which we have a serious duty to consider, have been made. I hope the Minister and his Department will also give them due consideration.

There is a serious problem nationally and internationally with regard to habitual offenders. I refer to those who are often able to evade the law for long periods. These people may eventually be apprehended in some other jurisdiction. There are also those who are able to evade the law here for long periods and, ultimately, they may or may not be caught.

As regards volunteers, the presentation of data or whether a person is a suspect or otherwise, the Garda has a duty of care and responsibility. Irrespective of whether a person is a volunteer or a suspect, if he or she co-operates in the provision of data, he or she should immediately be given a document which lists their rights and responsibilities and the criteria under which said data is being procured. As legislators, we are obliged to deal with this situation and I hope we receive the best advice possible. We make decisions and transpose them into law and it is then a matter for the court to interpret and make the final arbitration on those decisions.

In many cases, ordinary citizens have no knowledge of the impact of the legislation under which they are being apprehended, questioned or otherwise. In such circumstances, it is important that those to whom I refer should be presented with documents which they can take to their lawyers, families or friends for immediate adjudication. In the context of the presentations and comments that have been made, a person under 18 years of age should have his or her parent or guardian present when he or she is being questioned. If that parent or guardian requests the presence of a lawyer, then one should be made available in circumstances where data has been produced.

Data relating to DNA can be retained and stored for a period and the proposed legislation provides that a person may make an application to the Garda Commissioner in respect of the destruction of such data. A finite period following which DNA data should be automatically destroyed should be clearly set out in the legislation. If a volunteer or an innocent person has provided data which has no relevance to a case, which, in the interim, has been brought to a conclusion and adjudicated on by the courts, he or she should be in a position to make an application to have it considered for destruction. It is important that we should set down clear parameters.

We must take account of the advice we receive and the views of the Council of Europe. From an international perspective, the latter stands as the last bastion with regard to sustaining and preserving the rights of individuals and ensuring that their human rights are guaranteed under the law. We are fortunate that this form of recourse, as well as the law, is available to our citizens.

Mr. Roger Sweetman

It is the Irish Human Rights Commission's view that it would be preferable if the Bill included time limits relating to the destruction of samples that are taken. We accept that different time limits may apply and that these will depend on whether a person is a suspect or a volunteer. It should not be the responsibility of citizens to be obliged to badger the Garda Commissioner to have their DNA profiles removed from the database. It is the commission's view that once there is no reason for the retention of DNA data, it should be removed and destroyed.

Deputy Treacy referred to providing documents to persons from whom DNA samples are sought. From experience, I am in a position to state that many of those who end up as suspects in Garda stations are either illiterate or very poorly educated. Their understanding of legal terminology, no matter how simplified it may be, can often be very slight. That is why the commission is of the view that where samples are taken, particularly from young people, there is no substitute for the presence — if a parent or guardian is not available — of a concerned adult such as a social worker or some similar individual.

A similar situation occurs in circumstances where young people are being questioned under section 4 of the Criminal Justice Act and where parents or guardians are not available. During my years in practice, some very strange people have been brought in as concerned adults and asked to observe as questioning proceeded. Where something as intimate and so potentially invasive of privacy as DNA is involved and where the person being asked to provide a sample is young, it is the commission's view that a parent or guardian and a lawyer should be present. If a parent or guardian is not available, the responsible adult who stands in should be someone with a qualification in working with children and not a barman from a local pub or some passerby from off the street. The responsible adult must be someone who is suitably qualified to make a useful contribution.

Deputy Joe Carey

To what sort of qualification is Mr. Sweetman referring?

Mr. Roger Sweetman

The commission suggests — this may be a big ask in the context of the staffing constraints that currently apply — that the substitute for a parent, guardian or family member should be a social worker. I cannot imagine that the HSE would receive that proposition with any great joy, particularly when one considers its staffing levels. The person who acts as a substitute must be in a position to make a contribution and must understand what is happening and also the thinking processes of young people. He or she must have an appreciation of the dilemma the person faces and be able to provide him or her with real assistance. He or she must not merely constitute another warm body in the room.

Deputy Pat Rabbitte

How frequently would a minor be subject to request for a sample?

Mr. Roger Sweetman

It would be better if that question were put to the Garda Commissioner or the Minister. I am aware that a significant number of legal minors — that is, those who are under 18 years of age — come through the criminal justice system. These people are either arrested, detained, or interviewed. I would think that now, as night follows day, they will be requested for a DNA sample also. The number detained would be significant, but I am not in a position to give the percentage.

Chairman

Take me as an example of an ordinary citizen who has never had any trouble with the law and, hopefully, is never likely to have. Why should it concern me if the system had my DNA profile and it kept it beyond ten, 20 or 30 years. It seems to me that would not be a great concern.

Mr. Roger Sweetman

I will propose two possible scenarios. DNA can prove tissue exchange. I will take what may be a ludicrous example. If a forensic team was sent in after we leave this room, it would find the DNA of all of us. I have drunk from this glass and my DNA would be there. Deputy Treacy touched the microphone in front of him and his would be there and so on. The team would find the DNA of all of us, but it would not prove anything apart from the fact that we were all in the room. However, if one was unlucky enough to pass through a crime scene, such as a bank, perhaps five minutes before a robbery occurs, one's DNA would be there, perhaps on the counter. That is not a pleasant situation to be in. This is a situation we would face if our DNA was on record all the time.

Also, and I take up on something Mr. Hawkes said here, given the poor state of international regulation of exchange of this type of material, one might find oneself going on holiday to Greece and being stopped at the border.

Chairman

It is unlikely one would go to Greece at this time.

Mr. Roger Sweetman

If one had a big bag of money, one would be very welcome. The point I am making is that how this information is used is what must be regulated. If we had ad lib exchange with all kinds of places of our DNA database, we would find that we would have no control over how that information was used and could find ourselves in all kinds of embarrassing situations. These are just two examples of how the old belief that the innocent have nothing to fear turns out not to be true.

Deputy Noel Treacy

Based on what Mr. Sweetman has said, he suggests this could be a microcosm of the Birmingham six situation, where being in the wrong place at the wrong time could put the person in danger of being questioned and under suspicion. There might not be proof one was guilty, but one could be a suspect.

Mr. Roger Sweetman

That is always a problem where information is available to the State on a generalised basis. This is why the balance between the State being given the tools it needs to investigate and prosecute crime and the protection of the ordinary citizen's privacy must be drawn in the right place. What we are here to do is to assist the committee, and ultimately the House, to draw that line in the right place.

Deputy Noel Treacy

To return to Mr. Sweetman's point regarding the presence of a social worker, while that is desirable, the chance of it being feasible is slim because of the shortage of social workers.

Mr. Roger Sweetman

I understand that.

Deputy Noel Treacy

There are serious demands on social workers, they work unsocial hours and have to deal with many traumatic cases. It might be reasonable to suggest that either a social worker or a qualified teacher be present. That might be a solution, as teachers are used to dealing with young people and would be able to make a reasonable judgment.

Deputy Michael D’Arcy

A minor is considered to be somebody under the age of 18. I suggest that the younger the person, the more necessary it is to have a professional available and if the person is of a certain age, the information should not be taken until a family member is available. I do not suggest a particular age, but there is a big difference between a 14 year old and a minor of 17 years and 9 months.

Mr. Roger Sweetman

Yes, exactly. The difficulty that arises from an operational point of view is that the Bill gives no power to the Garda to detain somebody for the purpose of obtaining a DNA sample. The person must already be in custody or in contact with the Garda. Any period spent in custody without trial is always time limited. The reason the Garda must get in a substitute when the parent or guardian is not available is that the clock is running against them. This applies to any situation where a young person is in custody and being questioned with regard to something. The clock is running and the person cannot be held for more than a limited time, depending on the Act under which they are held. The maximum time limit is usually 24 hours.

Chairman

I thank Dr. Manning and his colleagues and Mr. Hawkes for their attendance and for their contributions, which will assist committee members when we commence consideration of Committee Stage of the Bill.

The joint committee went into private session at 3.50 p.m. and adjourned at 3.55 p.m. until 10 a.m. on Thursday, 20 May 2010.