Seanad Éireann debate -
Wednesday, 24 May 1989

Vol. 122 No. 19

Criminal Justice (Forensic Evidence) Bill, 1989: Second Stage.

Question proposed: "That the Bill be now read a Second Time."

Minister of State at the Department of Health (Mr. Leyden)

This Bill will provide the Garda Síochána with power to take bodily samples such as blood, urine or saliva from persons suspected of serious criminal offences for forensic testing. The Garda have very limited powers to take such samples at present. In the case of persons detained under the offences against the State Act, 1939, and the Criminal Justice Act, 1984, the Garda may take swabs from the skin or samples of hair for testing for contact with firearms or explosives. Other than this and limited power under the Road Traffic Acts, they have no power at present to take bodily samples.

Notice taken that 12 Members were not present; House counted and 12 members being present,

Mr. Leyden

With the increasing sophistication of forensic testing procedures and particularly with the advent of DNA (Deoxyribonucleic Acid) profiling, or genetic fingerprinting as it is more commonly called, it is vital that the Garda should have the necessary powers to obtain samples from persons suspected of serious crimes for forensic testing.

The DNA profiling test is considered to be the single biggest advance in the field of forensic investigation since the discovery of fingerprints at the turn of the century. It involves a technique whereby DNA, which stores and transmits genetic information within the body, is extracted from blood, semen, tissues or other bodily fluids and broken down into distinctive patterns or profiles.

With the exception of identical twins, every person has a unique genetic code which can be used to identify that person. Since DNA is present in every part of the human body and in the bloodstream, it provides a unique means for the positive identification of tissue and fluids found at the scene of a crime. Examples of this would be semen deposited during a sex offence and blood spattered and smeared during a wide range of crimes of violence such as rape, assault, murder, house and shop breaking, crashing stolen vehicles, or hit and run accidents.

Semen is particularly rich in DNA. Blood and tissue is less so. Urine, hair and saliva are essentially devoid of DNA unless skin cells occur in them, such as hair follicles attached to hair or skin cells from inside the mouth mixed with saliva. Every part of the human body has the same type of DNA so that DNA in semen deposited on a victim of an assault can be compared with the DNA in the blood taken from a suspect.

I should mention that DNA profiling has already been used in this country in three cases involving serious crimes, one of murder and two involving rape. In the murder case and one of the rape cases pleas of guilty were entered so evidence resulting from the tests did not come before the courts. Significantly, in the other rape case the DNA test was able to establish the innocence of the person who had been identified as the rapist by the victim. The testing in these cases was carried out in Britain under arrangements made by the Forensic Science Laboratory. In Britain, I understand, some few dozen cases involving DNA profiling have come before the courts and the test has been used to obtain convictions.

DNA is still a very new technique at the forefront of molecular biology with the potential for further refinement and development. Already work is being done on a process known as "replication" whereby the DNA in very small samples of human tissue can be grown to form sufficient DNA for the test. This would mean that very small tissue samples left at the scene of a crime will be identifiable as to their human source.

Notice taken that 12 Members were not present; House counted and 12 Members being present,

Mr. Leyden

This could mean that saliva which contains a few skin cells, now too little for DNA testing, could also be positively identified as to origin. This is very significant from the point of view of criminal investigation. Saliva occurs in bite marks, sex offences, on the back of stamps, on gummed envelopes in, say, threatening letters, on cigarette ends left at crime scenes. Similarly head and pubic hairs transferred during a crime will carry some skin cells with themselves and would be identifiable by this new "replication" technique.

Our Forensic Science Laboratory expects to be in a position to undertake DNA profiling in the autumn and the Minister is fully committed to ensuring that the laboratory is provided with the resources they need therefor. Staff have already been fully trained in the technique and additional equipment needed is being purchased. Negotiations are in progress with ICI, Imperial Chemical Industries, the holders of the patent, for a licence to use the vital chemical probes which form the basis of the technique, and a satisfactory outcome is expected.

Our Forensic Science Laboratory has been very much on the ball in preparing themselves to undertake DNA testing. When the laboratory embarks on this technique in the autumn it will be one of the first forensic science facilities outside the United Kingdom to be in a position to provide this test. This is an achievement of note. Indeed, I would like to take this opportunity to publicly congratulate the Director of the Laboratory, Dr. Jim Donovan, and his staff for the tremendous work they are doing and for what they have achieved in the relatively short time since the laboratory was established.

The Minister for Justice visited the laboratory in the course of the preparation of this Bill. He was struck by the range and sophistication of the testing being done there and the vital role it plays in crime detection. He was also impressed by the dedication and professionalism of the staff and would recommend a visit to the laboratory to Senators and other public representatives with a particular interest in the crime area.

Turning now to the Bill itself, its purpose, as I said at the outset, is to provide the Garda with the power to take bodily samples from suspects for forensic testing. Because forensic tests, particularly DNA profiling, can provide almost incontrovertible evidence of guilt and, it should not be forgotten, of innocence, it is essential that the Garda have the extended powers proposed in the Bill. I fully accept, however, that such power must be measured against the need to avoid any undue or unwarranted interference with the individual's rights to privacy and bodily integrity. In fact, one of the Minister's major concerns when drafting this Bill was to limit incursion on these rights to the absolute minimum which would be consistent with the provision of an adequate power to take samples.

This concern is reflected in the format of the Bill. Section 2 (1) provides the necessary power for the Garda to obtain samples from persons detained in custody on suspicion of having committed offences to which section 30 of the Offences Against the State Act, 1939, or section 4 of the Criminal Justice Act, 1984, relates: that is, crimes the serious nature of which has already been recognised by the fact that powers of detention have been provided in relation to them. The rest of the Bill is largely concerned with the provision of conditions and safeguards to ensure that the power being given is used only in appropriate cases and then only in a manner which takes full account of personal rights and human dignity.

Most importantly in this regard, the Bill provides that the taking of samples which would involve a significant interference with bodily integrity such as blood, urine, saliva, pubic hair or swabs from the mouth or other body orifices or from a genital region or a dental impression will require the written consent of the person from whom they are to be taken. Also, in the case of persons under 17 years, written parental consent will be a prerequisite to the taking of such samples.

This does not mean that persons reasonably suspected of involvement in serious crimes will be totally free to refuse to allow such samples to be taken. It is a recognition of the fact that the taking of such samples from a person against his will, perhaps with the need to use force, would be a dehumanising act and something which the Minister certainly would not propose or support.

Notice taken that 12 Members were not present; House counted and 12 Members being present,

Mr. Leyden

However, if the Bill is to be at all effective, it cannot, as I said, leave suspected persons totally free to refuse a sample. If such were the situation, a person suspected of rape, for example, knowing himself to be guilty, would be most unlikely to provide a sample for DNA profiling knowing that it would almost certainly establish his guilt. There has to be an adequate sanction to deter the withholding of consent to the taking of a sample. Accordingly, the Bill enables an adverse inference to be drawn by a court where consent is refused without good cause. This means that a court or jury, as the case may be, if it is satisfied that a person had no good reason for refusing consent, may, provided there is other supporting evidence, regard the refusal as indicative of the person's guilt.

This sanction was included in the Bill only after very careful consideration. The Minister is satisfied that it is the only form of sanction which is capable of deterring guilty persons from withholding consent. Merely to make it an offence to withhold consent with a monetary, or even a custodial penalty, attaching would not be sufficient. A person knowing himself to be guilty of an offence carrying maybe a life sentence would not be persuaded by such a sanction.

The adverse inference provision will not apply where parental consent to the taking of a sample is refused in the case of an under 17-year old. In the case of intimate or intrusive samples, which I mentioned earlier, I believe it is right that they should only be allowed to be taken from a child or young person under 17 years with the consent of a parent or guardian as the Bill provides. Given this, it would be wrong to provide that parental refusal should provide a basis for drawing an adverse inference as to the guilt of the child or young person involved.

I will now outline briefly the other safeguards provided in the Bill which ensure that the power being conferred is used only in appropriate cases and with full regard to human dignity. They are as follows:

the taking of a sample must be authorised in writing by a superintendent or officer of higher rank;

the suspected person must be informed before a sample is taken why it is being taken;

intimate or intrusive samples may only be taken by a doctor or by a dentist in the case of a dental impression;

where proceedings are not instituted within six months from the date the sample is taken or where a person is tried and acquitted or the charges against him are dismissed or withdrawn the samples taken and any records identifying them must be destroyed; and

the Minister for Justice must make regulations providing for the detailed procedures to be followed in relation to the taking of samples including provision for the recording of necessary authorisations, consents etc.

The Minister has taken a great deal of care in this Bill to provide only those powers which are absolutely necessary if the Garda are to be enabled to take full advantage of the techniques which forensic science can provide in helping them to apprehend and prosecute criminals. I was, therefore, somewhat surprised at comments, attributed in the press to certain party spokesmen when the Bill was published, suggesting that the scope of the powers proposed in the Bill are too wide and that the safeguards are insufficient. I hope that what I have said about the Bill and its purpose will satisfy Senators that this is not so.

That being said I will, as always, be pleased to have Senators' views on the measure and I am certainly open to constructive comments and suggestions for improvements.

As the Bill is short, and I think reasonably clear, I do not propose to comment on the sections individually. I think this can best be done at Committee Stage discussion. I will, of course, endeavour in my closing remarks to deal with any questions which Senators may wish answered.

Before concluding, I would like to mention one final matter. In the Bill, power to take samples is confined to the situation where a person is detained under section 30 of the 1939 Act or section 4 of the 1984 Act. I have been advised that from time to time cases arise where a person who is in prison becomes the suspect for an offence unrelated to that for which he is imprisoned and where the Garda would like to be able to obtain samples. The Bill as drafted at present would not provide a power to take samples in such cases and I am considering this matter with a view to the possible introduction of an amendment on Committee Stage. I commend the Bill to the House.

Mrs. Bulbulia

I welcome the Criminal Justice (Forensic Evidence) Bill, 1989. It is a view, which I am sure is widely held by all thinking people, that the Garda Síochána should be able to avail of all modern scientific techniques in criminal investigations and in the identification of the perpetrators of serious criminal acts. It is essential that the Garda not only have the necessary back-up facilities but that, in addition, our criminal law reflects and keeps pace with modern scientific developments. This measure before us this afternoon is an indication that governmental thinking has moved in that area.

Genetic fingerprinting is about to revolutionise the criminal investigative process. At present the Garda lack both the facilities to utilise this technique and until now the back-up legislation required to apply it.

Notice taken that 12 Members were not present; House counted and 12 Members being present,

Mrs. Bulbulia

As I was saying, genetic fingerprinting is the single greatest breakthrough in the fight against crime since fingerprinting which was discovered in 1901. Samples of tissue, such as blood, skin, hair, semen left at the scene of a crime can be analysed in order to identify the perpetrator of a crime or, as the Minister remarked, to ensure the innocence of somebody being accused of a crime. The technique can result in indisputably accurate evidence of identity being obtained at the scene of a crime in many circumstances in which no ordinary fingerprint provides the means to ascertain the identity of the person who carried out the crime.

DNA is the material that makes up genes. Genes are the units that are responsible for the resemblances between parents and offspring and which determine the inherited characteristics of each individual. Ultimately, two-thirds of our genes are the same in almost all individuals but the rest vary from person to person. There are between 10,000 and 100,000 genes in each human being and about one-third are variable, making the number of possible genetic combinations inconceivably large. Each individual, apart from identical twins, is genetically unique. Each individual's genes are composed of DNA. Modern science has determined that a pattern of chemical signals with the DNA molecule is unique to each person. Using a laboratory process, this personal pattern can be visualised as a series of bands on an auto-radiography film, somewhat like the bar code found on supermarket items. Half of the bands in a persons' genetic fingerprint are inherited from the mother and half from the father. Because there are so many possible combinations the chances of the bar code of two unrelated individuals being identical is less than one in five billion. The chances of brothers and sisters having the same profile are larger, about one in 100 million. Thus, the patterns that appear on the film are effectively unique to individuals, except as I have already said, in the case of identical twins.

Genes are present in virtually all cells of the body. Consequently, it is possible to identify a person's genetic profile from any sample of organic material from a person's body. Samples of organic materials, such as blood, skin, hair or semen can be matched and tested to determine whether they come from the same person. The sample used need not be fresh. Blood and semen stains up to at least two years old have provided good DNA or genetic fingerprints. As the Minister said, even the tiniest speck of sample can be grown to determine whether the outcome of the tests reflect the genetic make-up of the individual involved.

I would alert the Minister to certain concerns that I have doubt about the legislation. I note the fact he indicated that he had an open-minded approach to the legislation and that he would take on board constructive suggestions that appear to him to be appropriate. I am concerned that the regulations regarding the taking of samples are not contained in any detail in the Bill. These regulations should be both comprehensive and detailed and contain specified protections and safeguards because the Minister stressed in his presentation of the Bill that the degree of safeguards involved is important in that this gives new and additional powers to the Garda.

The Minister will remember that this Bill was first mooted by a member of the Fine Gael Party in the Dáil, Deputy Shatter. It is on foot of his introduction of a Private Members' Bill that the Government agreed to bring forward their own legislation. Under the terms of the Fine Gael Bill the regulations were to be laid before the Houses of the Oireachtas for approval. It would appear that under the Bill before us there is to be no possibility of debate on the regulations and I see this as a major weakness in the legislation. I will listen very carefully to what the Minister has to say at the conclusion of Second Stage on that point which I consider is a valid one.

People's fears and concerns in relation to this Bill need to be allayed. Certainly bringing forward the regulations and making them the subject of approval by the Houses of the Oireachtas would go a long way towards meeting legitimate concerns of people who are anxious and who protect civil liberties in this country and who fear a "heavy gang" style approach coming from the forces of law and order.

My overriding concern is to point out that we must not allow a situation to develop in which people could get off on technicalities because this Bill had major weaknesses in the area of regulations. The Criminal Justice Act, 1984, laid down regulations on Garda conduct. The Act was not operative until the regulations were debated and approved in the Dáil and the Seanad. In fact, the then Opposition Justice spokesman, Deputy Michael Woods, agreed with the provision that the regulations should be debated and approved by the Oireachtas. That is why it is singularly strange that such a provision is not included in this Bill.

I wonder if the Minister would clarify whether the Garda can use force in the taking of samples? In section 2 there is no reference to this aspect of force. I know the Minister made some references to it but it is terribly important that this should be clarified unambiguously and unequivocally. The constitutional right to bodily integrity is surely an issue in this section. There are very fine lines between what is and what is not permissible. It is not difficult to envisage a scenario where there could be unjustified allegations of assault and where the accused could get off on technicaliites.

In the Fine Gael Bill it was an offence to refuse to co-operate with the Garda in the taking of samples. I am surprised that this provision is not contained in the Bill before the Seanad today. In this connection I would like to raise the issue of the recording of Garda interviews with suspects. This is obviously an important element in ensuring the protection of all concerned. In fact, it was a provision enacted under the Criminal Justice Bill.

Notice taken that 12 Members were not present; House counted and 12 Members still not present,

Acting Chairman (Mr. McGowan)

I suspend the House for ten minutes.

Sitting suspended at 3.55 p.m. and resumed at 4.5 p.m.

Senator Bulbulia

I was talking about the issue of the recording of Garda interviews with suspects which is an element in ensuring the protection of all concerned. This was a provision enacted under the Criminal Justice Bill and I wonder if the Minister in his reply can indicate if the recording mechanisms are in place yet, if this is not the case, when will they be in place and if he sees the additional technology as having an important role to play in the area of genetic fingerprinting. I think that is something that could be usefully addressed in the context of this Bill.

I am also keen to be informed what training programmes are in place or are about to be put in place for gardaí who will be using this new concept — new technology. What forensic or laboratory facilities are available to the gardaí? I understand that ICI have a patent on the technique of genetic fingerprinting. What discussions — either preliminary or detailed — have taken place with this group, or indeed any other group, the Department and ICI with a view to establishing the particular models that will be put in place here?

I have a very interesting illustration here of very dramatic results of genetic fingerprinting. I think it is very useful to read one short example of how genetic fingerprinting was successfully used and put that on the record of the House. It is taken from The Times of 23 January 1988. The report says:

A teenage girl had been raped and murdered in a Leicestershire village in 1983. Another teenage girl from a neighbouring village was raped and murdered only half a mile away in 1986. A 17 year old youth was arrested, charged with the second murder and detained in custody. He was suspected by the police of having committed both crimes. However, genetic fingerprint evidence demonstrated that while the same person had been involved in both crimes it was not the accused since the DNA fingerprint obtained from his blood did not match that obtained from the semen found on the bodies of victims. The police, believing a local man to be responsible, took the extraordinary step of asking all male inhabitants in the area between the ages of 13 to 30 to give a blood sample for DNA fingerprinting. Approximately 5,500 people did so. Two men refused to give a sample. One is reported as having a "genuine reason", another tried to persuade a work mate to stand in for him. This was subsequently discovered by the police and Pitchfork was convicted of the two murders. If the new scientific technique of DNA fingerprinting had not been used the wrong person could have been convicted of both murders and the perpetrator of both murders would have been left at large to carry out further horrific crimes.

In the context of the wish of the Independent group to have debated here the issue of capital punishment I think this issue of genetic fingerprinting is of the utmost importance. It is horrendous to think that in the Irish Republic, which still has on the Statute Book capital punishment, an innocent party could find himself sentenced to death. I suspect that the Independents who placed this topic for discussion on the Order Paper will avail of the opportunity to speak at length on the consequences, given that they have been denied the opportunity on the Order of Business to debate what they understood they would be allowed to debate.

I welcome the legislation. One of the things I would like to draw to the Minister's attention is that I understand genetic fingerprinting is now in use in Northern Ireland. I would recommend that direct discussions take place between the Garda authorities and the RUC to coordinate the introduction of this reform in the context of subversive and terrorist crime and that such discussions should take place under the aegis of the Secretariat at Maryfield established under the Anglo-Irish Agreement. It seems a very obvious thing to do and I hope the Minister can give an assurance that that is what will happen.

Largely, this is a Committee Stage Bill in that we in Fine Gael believe that we spearheaded the introduction of this legislation, that we would not be debating it here in the Seanad today had Deputy Alan Shatter and the Fine Gael Party not published their legislation. We see some weaknesses as I have indicated in this legislation and I look forward to a more detailed examination of it and indeed hearing the contributions of other speakers.

Mr. McEllistrim

I welcome this Bill which is very important. It is timely that we now have it introduced in the Seanad. The purpose of the Bill is to provide the Garda Síochána with power to take bodily samples, that is, samples of blood, urine, saliva, hair, etc. from persons suspected of certain offences for the purpose of forensic testing, including the genetic profiling test or, as it is more commonly known, genetic fingerprinting.

In the past the Garda were prohibited from taking those samples. Because of the increased sophistication of forensic testing procedures, and particularly with the arrival of DNA profiling or genetic fingerprinting, it is important that the Garda should have greater power to obtain samples from persons suspected of serious crime for forensic testing. The DNA profiling test is considered to be the single biggest advance in the field of forensic investigation since the discovery of fingerprinting at the turn of the century. It involves a technique, whereby DNA, which stores and transmits the genetic information which is in the body is extracted from the blood, semen, tissue or other bodily fluids and broken down into distinctive patterns and profiles. Since DNA is present in every part of the human body and in the bloodstream, it provides a unique means for the positive identification of tissue and fluid found at the scene of the crime.

Examples of this would be semen deposited during a sex offence and blood spattered and smeared during a wide range of crimes of violence such as rape, assault, murder, house and shop-breaking, crashing of stolen vehicles and hit-and-run accidents. DNA profiling is still a new technique and is being developed to make the test more effective. I am delighted that our Forensic Science Laboratory is adapting itself to the new technique, that the staff have been trained and that additional equipment is being purchased.

The Bill provides that the taking of a sample would require the consent of the person from whom it is being taken. It will be an offence to obstruct the taking of a sample. The offence is punishable by a substantial fine or up to a 12 months jail sentence. Samples may be taken only by a doctor or, in the case of a sample taken from the teeth or dentures, by a dentist. A person must be told verbally that it is an offence to refuse a sample.

I also note it is mentioned in the Bill that the evidence must be destroyed after 21 days if the person is acquitted or discharged. Also, in the case of a person who has a sample taken from him and proceedings taken against him, the sample must be destroyed after six months. The taking of samples must be authorised by a superintendent or officer of higher rank.

Acting Chairman

The Minister has to leave the House for a moment. Do you wish to continue?

Mr. McEllistrim

Yes. I welcome this Bill, and I would like to thank the Minister for Justice for drafting it as I feel it was very necessary. I think it will help very considerably in the detection of crime.

Acting Chairman

Is Senator Robb willing to proceed in the absence of the Minister?

Mr. Robb

I am happy to do so as I might not get the opportunity to do so at all, as things are going. I take note of the presence again of Senator Ross. If I may go on while there is a thinly spread subquorum, I would like to reiterate the fact that this DNA finger printing or DNA replication of evidence is a magnificent advance in the whole area of crime detection. I have got some worries about what happens when a young person arrives in a Garda station for questioning in the very imposing and quite threatening atmosphere, which I am sure, with the best will in the world the Garda may try to avoid creating, is nevertheless felt by perhaps an inarticulate member of society who is being accused of something, particularly if he feels he is not guilty. I would like to feel that there will be reassurance from the Minister that what is actually stated in the Bill will, in effect, be the practice.

For example, let us take the case of someone either as a matter of principle or as a matter of outrage-because they feel they are not guilty of what they are being accused of — who refuses samples and that refusal is taken to imply guilt. If the crime is, say, the murder of a member of the Garda Síochána, a prison officer, or a murder done in the course of the furtherance of an offence under sections 6, 7, 8 or 9 of the Offences Against the State Act, 1939, or a murder committed in the State for a political motive of the head of a foreign State or of a member of the Government or a diplomatic officer of a foreign State, the implications could be considerable. That man is guiltless but his refusal to provide a specimen could be used in evidence against him and he could be found guilty of murder. As all Senators know, the offences which I have just read out are subject to the death penalty.

With that reservation I will conclude and hope the Minister will give me the necessary reassurances in the course of his reply.

Debate adjourned.