I welcome the Minister, Deputy Frances Fitzgerald. It is her first time here as Minister for Justice and Equality and I congratulate her and wish her well in her new portfolio. I have no doubt she will do a great job with her new responsibilities.
Criminal Justice (Forensic Evidence and DNA Database System) Bill 2013: Second Stage
Question proposed: "That the Bill be now read a Second Time."
I thank the Cathaoirleach for those words. The Criminal Justice (Forensic Evidence and DNA Database System) Bill 2013 is landmark legislation which provides for the establishment of a DNA database. The database represents a very significant development in the criminal justice system in Ireland. There are a number of reasons this is the case. The database will assist An Garda Síochána in the investigation of serious crime and in identifying serial offenders across a broad range of areas, including homicide, rape, sexual and other serious assaults and burglary. It will play a crucial role in the investigation of so-called cold cases.
The database will also assist in exonerating the innocent in cases of miscarriage of justice, as has been the case in other jurisdictions. The database will be an important new tool not only in regard to crime but also in finding and identifying missing or unknown persons. This capability should serve to provide significant assistance, reassurance and comfort for the families of people in these situations. In summary, this measure will provide crucial assistance to the Garda and members of the public in vital areas for decades to come.
The experience in other jurisdictions shows what an important contribution DNA databases make to criminal investigations where crime scenes are examined and produce forensic material. For example, the United Kingdom's national DNA database had a match or hit rate of 61% in 2012-2013. While hits simply place a person at the crime scene and are not necessarily followed by prosecutions, such a high rate points to the level of intelligence a DNA database can generate. We should, however, be realistic and not expect such high rates in the early years of our database as the rate is partly dependent on the size of the database and will grow as the database grows.
The UK database was established back in 1995 and contains more than 6.5 million DNA profiles from individuals. The establishment of the DNA database is long overdue. Ireland is almost alone among EU member states in not having such an investigative tool. Crime, in particular organised crime, is an international phenomenon that transcends national boundaries and there is a greater need than ever for co-operation between police forces to combat it effectively. The passage of this Bill will facilitate the State in meeting its obligations under EU law and any international agreements which require the State to maintain DNA and fingerprint databases for criminal investigation purposes and facilitate the searching, on a reciprocal basis and under strict conditions, of other states' databases.
I draw Members' attention to Schedules 2 to 4, inclusive, which contain the texts of the Prüm Council Decision, the agreement between the European Union, Iceland and Norway applying aspects of the Prüm Council Decision, and the Council framework decision on the accreditation of forensic science laboratories. I mention that the Prüm Council Decision is required to be implemented by us by 1 December next.
It is worth recalling that this Bill is the product of analysis, debate, scrutiny and the observations of numerous interested parties over many years. The Law Reform Commission published its report on the establishment of a DNA database in November 2005. The last Government published a DNA Bill in 2010 while this Bill was published by my predecessor last September, and I pay tribute to the work he did on it. During its passage through the other House, a number of new issues were addressed and further changes were made to the Bill. It is now comprehensive legislation which balances the need to have a world class DNA database with the human rights of those whose profiles may be put on that database. The Bill achieves that balance and I am pleased to note the Irish Human Rights Commission, in its most recent observations on the Bill, has acknowledged that many of the issues it had raised in regard to the 2010 Bill have been addressed. I am aware that the Irish Human Rights Commission and the Law Society have raised other points concerning the Bill, and I will touch on some of these issues as I go through it.
The Bill comprises 13 Parts, 172 sections and four Schedules. Given the size of the Bill and the limited time available, I propose to focus on the key elements in the legal framework for the taking, use and destruction of samples. There will be an opportunity on Committee Stage to discuss any other aspects of the Bill which Senators would like to explore.
Part 1 deals with preliminary and general issues. Sections 2 and 3 provide key definitions and interpretations that are central to understanding the overall framework. Section 7 covers the necessary transitional arrangements between the existing regime and the commencement of this legislation to protect, for example, proceedings under way based on biological samples taken under the Criminal Justice (Forensic Evidence) Act 1990 or under common law powers. In essence, samples taken under the 1990 Act may be put on the database but must be removed in accordance with the provisions of that Act. Samples taken with consent under common law powers may continue to be used in regard to the purpose for which they were taken but cannot be put on the database.
Parts 2 to 7, inclusive, contain important provisions as they set out the powers to take samples of various sorts from different categories of persons. Part 2 is concerned with the taking of samples from persons in Garda custody. It is important to note, however, that not all suspects in Garda custody will be subject to the Garda powers to take samples under sections 11 to 13, inclusive. As is the case under the 1990 Act, the powers only apply to those who are in Garda custody under one of the existing detention powers listed in section 9.
Subject to a limited exception, the effect is that only those suspects detained in connection with serious offences, by which I mean offences attracting a maximum prison sentence of five years or more, may be required to provide a sample.
Section 11 provides for the taking of samples from persons in custody for the purposes of the database. There is no requirement that they assist in the particular investigation at hand. Samples taken under this section will be instrumental in populating the database and ensuring its effectiveness as a source of intelligence. Bearing in mind the non-intrusive nature of the procedure for taking the sample, the consent of the suspect is not required. However, children under 14 years of age and protected persons are excluded from the provisions in section 11. Section 11 is the core of the Bill. It is what will give the database the critical mass that will drive its efficiency and effectiveness. We have set a high threshold for the taking of samples for the purpose of the database and we have tightened up the destruction regime considerably. However, it is vital for the functioning of the database as a powerful aid to the investigation of crime that the profiles of those who are convicted of serious offences are retained on the database.
Sections 12 and 13 provide for the taking of intimate and non-intimate samples respectively for use in evidence. Intimate samples include blood, urine, swabs from the genital regions and dental impressions and, due to their nature, require the consent of the suspect and this consent may be withdrawn. In the event that a suspect refuses to give consent or withdraws consent, adverse inferences may be drawn from this in certain circumstances in subsequent proceedings. The Bill makes clear, however, that a person cannot be convicted solely or mainly on the basis of such negative inferences. I am satisfied that these adverse inference provisions are proportionate in all the circumstances.
Section 24 provides for the use of reasonable force where a suspect refuses to allow a sample to be taken under section 11 or a non-intimate sample under the other sections. The use of reasonable force must be authorised by a Garda member not below the rank of superintendent and it must be carried out in the presence of a member of An Garda Síochána of at least inspector rank. The section does not apply to the taking of a sample from a child under section 11 for the purposes of the database but is available for the taking of non-intimate samples from child suspects and protected persons where they are required for evidential purposes. The Bill applies additional safeguards for the use of reasonable force vis-à-vis such persons. Finally, the taking of samples under reasonable force must, in all cases, be video recorded. I am aware that concerns have been raised about the use of reasonable force. As I have explained, these provisions are circumscribed but to my mind must be available to gardaí where required. Reasonable force is not a novel concept in our law. It is well understood by gardaí, the legal profession and the courts. I am satisfied that the provisions in this regard are necessary and proportionate.
Part 3 contains provisions covering the taking of samples by consent from volunteers and for mass screening. Mass screening, or perhaps more accurately, intelligence-led screening, involves inviting a group of individuals, determined by reference to particular characteristic such as age, gender or the geographical area in which they reside or work, to provide samples for the investigation of a particular offence. The decision to carry out such a screening is essentially an operational one requiring authorisation by a chief superintendent. Under no circumstances will the DNA profile of a participant be entered in the database. However, in the event that the screening identifies a potential suspect, he or she may be arrested and detained in connection with the investigation, in which case the sampling powers contained in Part 2 will apply. Similar provisions to these have been of assistance to police forces across Europe in solving crimes where there was no evidence to directly link a suspect to the crime.
Part 4 is an important part of the Bill in terms of populating the database and ensuring that it has the capacity to generate intelligence. It provides for the taking of samples for the database from offenders and former offenders. In the case of offenders the following are required to provide samples: all offenders subject to a sentence of imprisonment for a serious offence on the commencement of the Bill, whether they are in prison or living in the community on licence, temporary release or subject to a suspended sentence; those sentenced to imprisonment after commencement in respect of a serious offence; those transferred to prisons in the State following conviction abroad in respect of a serious offence; and those who, on or after commencement, are subject to the sex offender registration requirements.
This Part also provides for the taking of samples from former offenders, in other words, those who have served sentences for serious offences or have been subject to the sex offender registration requirements and who continue to be of interest to gardaí. The Bill provides comprehensive guidance to gardaí to assist them in identifying which former offenders should be requested to provide a sample for the database. In some cases an application to a District Court judge will be required. The power extends to former offenders who are now ordinarily resident or have their principal residence in Ireland, regardless of where they were convicted. It is important to be aware of the risks posed by mobile former offenders and I believe that giving gardaí the power to require such persons to provide samples for the database goes some way towards mitigating those risks. It is worth saying that these provisions relating offenders and former offenders are expected to be largely transitional as once the Bill is fully operational, the profiles of all persons convicted of a relevant offence will be on the database from the time of their arrest.
The provisions in Part 5 arise from the expansion of the use of DNA technology. It is necessary to provide for the possibility of accidental contamination of a sample by a person who, in an official capacity, attends at a crime scene or who handles a crime scene sample at any stage. If such accidental contamination is not identified it may lead to gardaí wasting time and effort investigating unidentified crime scene profiles which in fact relate to a garda who investigated the scene or a member the staff of the Forensic Science Laboratory who examined items taken from the scene, or perhaps a scientist or pathologist dealing with the case. The Bill therefore sensibly provides for the taking of samples from such persons. The profiles created will then be available to be searched against unidentified profiles from particular crime scene stains for the purposes of elimination from any further consideration in the context of the investigation.
Part 6 of the Bill is somewhat different to the previous parts of the Bill which were focused on the taking of samples for the purposes of crime investigation. This Part is concerned with the use of the database to assist in finding and identifying missing or unknown persons, alive or deceased. Samples may be taken, for identification purposes, from blood relatives of persons who are missing, from the belongings of the missing person, from living persons who are unable to identify themselves due to injury or illness, or from the remains of unidentified persons.
Part 7 deals with the taking of certain samples under Parts 3 and 6 from children or protected persons. It contains detailed provisions relating to the issue of consent in this regard and on the provision of information to children and protected persons prior to the taking of samples from them.
Staying with the taking of samples for a moment, section 157 in Part 13 of the Bill requires those bodies empowered to take samples, namely, An Garda Síochana, the ombudsman commission, the Irish Prison Service, the Irish Youth Justice Service and the Forensic Science Laboratory, to prepare draft codes of practice for ministerial approval. These codes will provide practical guidance as to the procedures for the taking of samples and are intended to ensure proper adherence to the statutory framework and consistency in approach.
I wish to turn now to Part 8 of the Bill which deals with the structure and purposes of the DNA database. Responsibility for the database will rest with the Forensic Science Laboratory, which already has a distinguished record in providing independent expertise in the area of forensics and is well placed to become custodian of the database. The Forensic Science Laboratory is being renamed Forensic Science Ireland or FSI under section 172 of the Bill.
Section 60 stipulates that the database may be used for two purposes only, namely the investigation and prosecution of criminal offences and the finding or identification of missing persons and the identification of unknown persons. The database is accordingly divided into an investigation division and an identification division. These divisions are subdivided into relevant indexes, reflecting the purpose for which the DNA profiles were generated and are held.
The DNA database will clearly be a powerful tool and will contain sensitive personal information. All Senators will, like me, be conscious of the need to ensure the integrity and security of the database is maintained. Part 9 provides for the establishment of an independent DNA database system oversight committee which will oversee the management and operation of the system. The committee will review the practices and procedures employed by Forensic Science Ireland in the operation of the database. It will report at least annually to the Minister and these reports will be laid before the Oireachtas. Schedule 1 sets out in detail the structure and procedures of the oversight committee, which will be chaired by a judge or former judge of the High Court or Circuit Court, and one of whose members will be nominated by the Data Protection Commissioner.
Part 10 deals with the circumstances in which samples and profiles may be destroyed or removed from the database. This is an important part of the legal framework and marks a significant departure from the approach taken in the 2010 Bill. The key changes relate to the retention arrangements for samples and the circumstances in which the DNA profiles of persons who are not proceeded against or are acquitted may be retained on the database. The changes to the proposed retention arrangements for samples and profiles are aimed at ensuring the approach to retention is constitutional and meets the standards of the European Convention on Human Rights, with particular reference to the judgment of the European Court of Human Rights in the case of S and Marper v. the United Kingdom.
Part 10 provides for the destruction of samples taken for the purpose of generating a DNA profile for the database as soon as the profile has been generated or within six months of the taking of the sample, whichever is the later; a presumption in favour of removal from the database of the DNA profiles of suspects who are not convicted subject to the commissioner having the power to authorise retention on the database where he or she determines that this is necessary, this decision is appealable to the District Court, the retention periods allowed will be six years in the case of adults and three years in the case of children; and revised arrangements for the retention of samples taken for evidential purposes, including a presumption in favour of destruction of samples relating to suspects who are not convicted, subject to the commissioner having the power to authorise retention for 12 months, which will be renewable, where he or she determines that this is necessary. This decision is also appealable to the District Court.
A statutory review of these arrangements is required within six years, and subsequently whenever the Minister considers it appropriate. The Bill provides that the six and three year retention periods mentioned earlier may be revised downwards only by ministerial order following such a review. It is welcome that the Human Rights Commission has acknowledged the substantive changes made to this aspect of the Bill when compared with the 2010 Bill.
Part 11 was inserted on Committee Stage in the other House. It deals with the destruction of fingerprints, palm prints and photographs and aligns those provisions with those applying to DNA samples and profiles in the Bill. The main provisions relating to the taking of fingerprints, palm prints and photographs are contained in the Criminal Justice Act 1984. Most of Part 11 is concerned with amending that Act to provide for the new destruction arrangements.
Part 12, dealing with international co-operation, has been expanded to address international obligations in a more comprehensive manner. It provides for the reciprocal searching of DNA databases and automated fingerprint identification systems maintained by states for criminal investigation purposes. In particular, the provisions of this Part are aimed at giving effect to the Prüm Council decision, the implementing Council decision and to the subsequent agreement between the European Union and Iceland and Norway. The Bill also covers bilateral agreements that the State may enter into, as it has already done with the United States.
Part 13 contains several miscellaneous provisions, a few of which I touched on.
The Bill, in establishing a DNA database system, represents a significant step forward in criminal investigation in this jurisdiction. It makes good on the Government's commitment to provide an Garda Síochána with the resources it needs to fight crime and to bring the perpetrators of crime to justice. DNA evidence is only one element in crime investigation but it is potentially a vitally important one. It should also be remembered that not only can the database assist in detecting perpetrators and bringing them to justice but it can also help to exonerate the innocent and lead to better, more targeted use of police resources.
As I indicated, I am acutely aware of the need to strike an appropriate balance between the use of the DNA database in the investigation of crime in the public interest and of the individual's constitutional right to fair process, privacy and his or her good name. I am confident this Bill, with its many safeguards, achieves that balance. This truly is a landmark Bill and this is a historic day to bring it to the House. I am pleased as Minister for Justice and Equality to commend the Bill to the House.
I welcome the Minister and congratulate her on her recent ministerial elevation. I wish her good luck in this difficult brief and hope she will have a successful tenure. It is a proud indication of the Seanad and those who have served here that she was the former Opposition leader in this House. It bodes well for those who serve here that there is a future after Seanad Éireann.
Fianna Fáil supports this Bill which is an important part of creating a strong framework to protect ordinary citizens from re-offending criminals. An effective DNA database forms a critical facet of the modern toolkit for police forces in tackling serious crime. This legislation builds on the earlier Bill laid out by the former Minister, Mr. Dermot Ahern, in 2010. I also want to acknowledge the significant work done by the Minister’s predecessor, Deputy Alan Shatter. Those proposals drew from the work of the Law Reform Commission and input from various stakeholders, notably the Human Rights Commission. The proper use of DNA evidence will help identify culprits but will also assist in confirming the innocence of suspects. DNA evidence will help to exonerate those accused or indeed convicted in the wrong.
The Bill amends the law to authorise the taking of bodily samples from persons suspected of certain criminal offences for forensic testing. It also contains provisions to provide for the taking of certain bodily samples from persons who volunteer to have such samples taken from them for the purpose of the investigation of offences or incidents that may have involved the commission of offences. It will provide for the establishment and operation by Forensic Science Ireland of the Department of Justice and Equality of a DNA database system. It will provide for the taking of certain bodily samples from persons suspected or convicted of certain criminal offences for the purpose of generating DNA profiles in respect of those persons to be entered in the investigation division of the DNA database system. It also provides for the taking of certain bodily samples from certain persons for elimination purposes, as well as providing, in certain circumstances, for the destruction of samples taken under this Act and the destruction, or removal from the DNA database system, of any DNA profiles generated from those samples and to repeal the Criminal Justice (Forensic Evidence) Act 1990.
Laws mean little if there are not the resources to back them up. Fundamentally for this Bill to be implemented in full, it will have to be fully resourced. A poorly resourced and demoralised Garda force will not uphold the law of the land regardless of what databases are available to it. We are well aware of the current low morale in the Garda. I hope the Minister will make it a priority to restore it as well as people's trust in the force. The Minister stated she has adequately prepared the Forensic Science Laboratory for the creation of the DNA database and that it has been allocated substantial resources, as well as the capability to adequately deal with the new database.
It is vital that the laboratory be provided with ongoing support and assistance as the level and scope of the work develops and extends with the new database. If the legislation is in place and there are insufficient resources to operate it on the ground, it will be shackled, despite the significant effort that has gone into this very important Bill.
The creation of a DNA database touches on a number of delicate human rights issues. In the seminal Ryan v. Attorney General judgment of 1965, the Supreme Court found that the right to bodily integrity was among the unenumerated rights in the Constitution, and this significant judgment must be respected. The right to privacy is an internationally recognised human right and is another unenumerated personal right in our Constitution. Therefore, the Bill must tread carefully to respect and uphold the high standards of human rights which we have set ourselves. We must also be cognisant of our responsibilities to the standards set by EU directives on this matter.
In broad terms, the Bill has set a fair balance between the demands of constitutional necessity and the needs of confronting criminality. The time limit on keeping information and restrictions on extracting information from volunteers are adequate safeguards. The Irish Council for Civil Liberties has raised specific concerns on the international exchange of DNA information. It is imperative that we maintain public trust in the new system and the human rights standards we have raised for ourselves. Therefore, it is critically important that we ensure other states with which we exchange information are held up to the same standards we set for ourselves. We cannot allow such highly sensitive information to be exposed and to reduce standards that undermine our efforts to protect the data involved.
This substantial Bill is a significant milestone in criminal justice legislation which I broadly welcome and which I demanded many years ago. From reading the explanatory memorandum, I feel that, by and large, the right balance has been struck, although time will tell. This side of the House welcomes it. The issues I have raised are primarily concerned with resourcing, the unenumerated constitutional rights established in the Supreme Court judgment in the case of Ryan v. Attorney General, and the need to ensure international best practice is maintained when we exchange database information. I hopefully it will be a further tool for the State, An Garda Síochána and international bodies to combat crime. Given that crime has become very sophisticated and criminals sometimes seem to be one step ahead of us, we need such legislation to ensure we have a very modern, scientific database to fight crime, particularly organised crime. It is a great Bill, by and large, and I wish the Minister success with it. Subject to some amendments we may table, I wish it a successful passage through the House.
I, too, congratulate the Minister, Deputy Frances Fitzgerald, on her elevation to the critically important post of Minister for Justice and Equality. As the Fine Gael spokesperson on justice in this House, I look forward to having a very strong, positive working relationship with her regarding what we can do here to make the justice system better for all our citizens. It is ironic that the Minister's first visit to the House as Minister for Justice and Equality is related to this Bill because it will bring our criminal justice system into the modern era in terms of best international practice.
It is appropriate to acknowledge the work done by the former Minister, Deputy Alan Shatter, to ensure this Bill was put on the "A" list of critical legislation. Given that most countries have already established effective DNA databases, we are behind. As has been said, crime is very sophisticated and international, and requires an international response. We need to ensure all methods of dealing with crime, all available information and infrastructure are put in place. While this is long overdue, it will put us in a proper position in terms of co-operation with our international colleagues.
Some of my colleagues have asked me to highlight the importance of ensuring human rights are respected and proper safeguards are in place. I note from the Minister's speech that much work has already been done and many amendments have already been accepted in the Dáil, to such a degree that the Irish Human Rights Commission is satisfied that all necessary safeguards are in place. My colleagues will be very happy to hear that. As this Bill passes through the Seanad, if there are worthwhile amendments that ensure the legislation is even better, I am sure the Minister will be very happy to examine them. Despite recent controversies, An Garda Síochána has been successful in dealing with certain aspects of organised crime. This database will equip it to focus and target its resources on the significant levels of organised crime that still exist.
It is very appropriate that the Forensic Science Laboratory is to be properly resourced because we have seen many pieces of legislation over the years that would have achieved much had the resources been put in place. While Senator Denis O'Donovan's concerns are correct, the Bill is so important that we have little choice but to ensure the resources are provided. I am looking forward to hearing what people have to say on Committee Stage and Report Stage on what else can be added to it. Significant work has already been done. I wish the Minister well with the passing of the legislation and I hope that the infrastructure can then be put in place very quickly.
I welcome the Minister and wish her well in her new appointment. I echo the sentiments of Senators Denis O'Donovan and Martin Conway in welcoming the Bill and the Minister. It is unfortunate that it has taken a long time for this to happen. We received the report on this from the Law Reform Commission in October 2005. As a new Minister with a new broom, the Morris, Smithwick and Guerin reports highlighted issues with how we organise justice in Ireland which we must bring up to date. I wish the Minister well in that regard as I commend her predecessor who was also a reformer.
The measures should help reduce the cost of crime investigation, policing and prosecution and will bring Ireland into line with many of the partner countries, as the Minister mentioned.
I commend the work of the Forensic Science Laboratory. We had a discussion about bodies changing their name. I do not know why the laboratory wants to become Forensic Science Ireland because the word "laboratory" is perfectly acceptable in scientific circles. We had hoped, in regard to some other bodies changing their name, that there would not be a vast number of image consultants and so on involved. Perhaps the Minister might deal with this matter. This may seem a small point but trusted, tried and honoured names should not be changed because of fashion, managerialism or whatever.
There will be difficulties. Mr. Noel Whelan, in his article in The Irish Times in August 2012, referred to the use of forensics to investigate burglaries. Having spoken to people who live in areas that have a high number of burglaries, it seems that the criminals are, unfortunately, well prepared. I do not know if we will have many DNA samples. That said, I appreciate what Noel Whelan had in mind when he wrote his article.
The Bill is wholeheartedly welcome, coming a long time after the Law Reform Commission reported. A DNA profile is a valuable tool in the hands of the Garda and other police forces when dealing with crime. The role of the Forensic Science Laboratory and its director, Dr. Sheila Willis, is held in high regard by the people who work in the field of genetics with whom I have discussed this Bill. The legislation is a valued step forward.
There are concerns about whether the database is secure and that there should be no electronic access from any site which is physically outside the database. All information received by or given out by the database should be carried on devices such as memory sticks. I raise this matter because there is concern about problems with the PULSE system, such as people accessing and changing PULSE. The security of this database is important, as is the recommendation that it should be administered independently by the Forensic Science Laboratory and I hope its security will be protected.
The involuntary taking of samples was mentioned. One would hope that would not be necessary. Perhaps saliva and hair would be sufficient. The intimate and non-consensual taking of samples was also mentioned. It will be interesting to see how much we can substitute in terms of what people would be reasonably expected to comply with and issues where there may be aggression, and between those conducting the investigation and the suspect.
In regard to promoting better relationships between the Garda and the citizen, I am concerned about some UK policing programmes. Some quasi-documentaries from the United Kingdom which have been broadcast in this jurisdiction have shown what appeared to me to be an unnecessary level of aggression by police against citizens when dealing with traffic and public order offences. I am afraid we might suffer from spill-over effects. I hope the old image of the Garda as a friend of the community and valued member of society would not be supplanted by one based on the spill-over of what has frequently appeared to me to be unnecessarily violent behaviour by policemen in other jurisdictions. I would prefer if all the compliance regarding what the Minister has proposed in this welcome Bill were voluntary.
I am assured by the scientists that what we are doing is very reliable and that the DNA profile is a unique identifier, with the exception of identical twins who share a DNA profile. I commend the Minister on bringing the Bill to the House. It seems by all accounts, from human rights considerations and from the amendments taken in the Dáil by the Minister, to be a good Bill which will assist in the investigation of crime. I join other Senators in welcoming the Minister to the House and welcoming her legislation.
I welcome the Minister, Deputy Frances Fitzgerald. This is our first opportunity to welcome her here as Minister for Justice and Equality. We are all delighted that she has the portfolio, particularly me having worked with her in this House under the previous Government. I very much look forward to working with her in the future.
I have already paid tribute to her predecessor, Deputy Alan Shatter, who brought through much reforming legislation and initiated much of it in this House. I very much hope and expect that the new Minister will continue in a reforming vein and will also initiate in this House Bills from the Department of Justice and Equality. We have had some very good debates and good Committee Stage debates, particularly on justice Bills, in this House since 2011 and I hope that we will continue to do so.
The Minister is very welcome, and the Bill is also very welcome. It is long overdue, as others have pointed out, and it has been widely welcomed generally. Others, along with the Minister, have spoken about the genesis of the Bill. It was developed from Law Reform Commission recommendations and is, in effect, a redraft of the Bill introduced in 2010. It is a greatly improved redraft, and this has been acknowledged widely, particularly by the Irish Human Rights Commission. Others referred to the commission's most recent observations on this Bill, which were produced in March 2014, in which it pointed out that many of its recommendations on the 2010 version of the Bill have been incorporated into this Bill. The Irish Human Rights Commission, very importantly, acknowledged the significance of the amendments made, particularly in respect of Part 10 regarding the destruction of samples and the removal of profiles.
The Minister's predecessor commented, when he introduced this Bill, that the really significant change was that the presumption is now in favour of the destruction of samples and profiles where previously it was in favour of retention, and that the onus has shifted from the person from whom samples were taken to the Commissioner in some instances. That is a very important improvement which we all welcome.
We also acknowledge the difficulty in achieving a proportionate balance between the rights of the person who is the source of a DNA profile or the subject from whom samples are taken, their rights to bodily integrity, as Senator Denis O'Donovan has said, and to privacy, as against the wider public interest in preventing crime and in detecting and investigating offences. We acknowledge the difficulty in achieving that balance and also the fact we are doing it in the context of international law and Court of Human Rights judgments, notably the Marper judgment of 2008, to which the Minister referred. We must be mindful of all those factors.
Happily for us, other jurisdictions have moved to legislate before now. The British database has been in place since the mid-1990s. This is something we need to have in place. We need a statutory framework for the Forensic Science Laboratory. I know that Dr. Sheila Willis and other staff from the laboratory are present in the Chamber. The laboratory is going to be renamed Forensic Science Ireland. I acknowledge the great work the forensic scientists have done and will continue to do in the service of the State. They will be very much facilitated in their work with this new statutory framework that they and many of us in the criminal justice system have sought for some time. It is very important to have a framework in place.
I want to look a little more at some of the provisions that are particularly welcome and to comment on some on which we wish to review further. Senator Martin Conway referred to the welcome the Irish Human Rights Commission gave to the framework. It is fair to say it also suggested some changes it felt would improve the Bill even further while acknowledging the changes that have been made, both since 2010 and on Committee Stage in the other House, where a number of changes were made. The commission made other recommendations it would like to see in place and we can discuss them further on Committee Stage in this House.
The complex structure of the Bill is inevitable given the very many different scenarios the legislation tackles. Trying to get an overview of it from a practitioner point of view, it is important to say that Parts 2 and 4 will be of huge practical significance to members of An Garda Síochána and criminal justice practitioners. Part 2 relates to the taking of samples from a person in custody in Garda stations, which refers to anyone who goes into custody from the commencement of the Bill. Part 4 refers to samples from offenders for the reference index of the DNA database system. That refers to people who may already be serving sentences in prison or who have been convicted.
Those are two particularly important Parts, and we must ensure intense scrutiny of the balanced reached in those provisions, particularly sections 11 to 13, inclusive, and sections 31 and 32 relating to the taking of samples.
There are also very different scenarios where samples are taken. Part 3 provides for the taking of samples from volunteers to generate DNA profiles, with the provision on mass screening in section 29. That is one area the Human Rights Commission has pointed out the implementation of which section must be scrutinised carefully to ensure, for example, that it is not used for racial profiling. We all would be mindful of the need to ensure safeguards there.
Part 5 refers to a specific and different scenario, the taking of samples for elimination purposes, largely from members of An Garda Síochána to ensure they can be excluded from suspects at a crime scene. In Part 6, there is an important provision of samples for identification purposes for the DNA database relating to missing persons, etc., which is also a different sort of scenario.
The other Parts relate to how the taking of samples are carried out. I welcome the fact that in Part 7 there are such specific provisions relating to the taking of samples from protected persons and children. I also particularly welcome the provisions in Part 9 on the introduction of an independent DNA oversight committee to be chaired by a judge and which will have the duty of laying annual reports before the Oireachtas. On the justice side, we are already in the practice of hearing from the Minister for Justice and Equality, with the annual reports on the implementation of the provisions of the Offences Against the State Acts. Those reports are always useful because in them we get data as to how many times each provision of the Offences Against the State Acts has been used. I hope we will see that level of detail in the annual reports laid before the Oireachtas from this independent oversight committee. I note one recommendation from the Human Rights Commission which is that the committee would include one member with human rights expertise. One would expect a judge would have that to start with, but it may be that it would be worth looking at some specific provision for that.
Part 10 is hugely significant. This is where, as the Minister stated, the significant changes were made compared to the 2010 Bill. I note that in respect of Part 10 the Human Rights Commission has made few recommendations. I welcome the provisions for review of the time periods for which profiles may be retained because there was concern of the length of time. On the idea of six years and three years, there were questions raised. I spoke with colleagues when the Bill was first introduced and there was a question as to why were the periods this long and should the Commissioner have to seek permission of the court to retain samples, particularly where a person is not convicted. These are some of the questions asked. I understand the review provisions deal with that. It is good to see that section 96 provides, as the Minister stated, for downward review only. The Minister is tasked with looking at the different retention periods, but only with a view to reviewing them downward rather than upward.
The Senator has half a minute left.
I am sorry. We can go into this level of detail on Committee Stage.
As I stated, Parts 2 and 4 are hugely important. In Part 2, there have been important amendments made which have been welcomed by civil liberties groups, particularly in regard to the negative inferences. As a former defence practitioner, I do not like these provisions around the drawing of negative inferences. I am glad to see that convictions cannot be based wholly or mainly on the drawing of such inferences. However, it is something that we may look at in the context of section 157, which deals with the codes of practice. As the Human Rights Commission has said, there may be a case for a specific warning to be given. There are provisions for information to be provided to persons from whom samples are to be taken, but should we go further? Should we look at a code of practice at setting out a wording specific wording? There is a more specific wording provided for where samples are being taken from children and protected persons, but all persons in custody are in a vulnerable position when samples are being taken from them, particularly where there are provisions, as the Minister stated, authorising the use of reasonable force. We need to look at the appropriate safeguards in terms of the language used, particularly where persons may be subject to the drawing of negative inferences at a subsequent trial when samples have been taken from them while in Garda custody. We can deal with all of these issues in much more detail on Committee Stage.
I again welcome that we are at the stage of having this Bill before us. The Forensic Science Laboratory is glad to see as well that the Bill will become law without too much more delay. As to the timeframe, I am sure we will be able to process Committee and Report Stages before the summer.
Cuirim céad fáilte roimh an Aire. Ach an oiread le mo chomhghleacaithe ba mhaith liom gach rath a ghuí uirthi ina ról nua mar Aire Dlí agus Cirt agus Comhionnanais. Tá súil agam go n-éireoidh go geal léi.
Since the early 2000s, a number of attempts have been made to establish a DNA data bank in Ireland and such attempts faced a number of obstructions. For example, in 2008, the European Court of Human Rights held that the retention in England and Wales of DNA samples and profiles in circumstances where there is an acquittal or where proceedings are dropped or not proceeded with, disproportionately violate a person's right to privacy as protected by Article 8 of the European Convention on Human Rights.
Sinn Féin believes the lawful and effective collection and use of forensic evidence from crime scenes is crucial in obtaining sound convictions that are not based on confession evidence. The use of forensic science to solve criminal cases is growing globally. A multidisciplinary field embracing chemistry, physics, botany and zoology, and medicine, forensic science includes the identification of human bodies or traces. Traditional methods, such as fingerprinting and trace analyses, are still used assisted by computers. In addition, forensic dentistry, voice and speech spectrograms, blood analysis and DNA analysis are increasingly applied. A wide range of powers and procedures are now available to enable the Garda and the PSNI to take, compare and retain crime scene evidence, as well as the taking of intimate samples for evidentiary comparison.
Sinn Féin acknowledges the need for collection and analysis of forensic evidence. However, we are also aware that forensic science is constantly evolving and that its accuracy is a source of continued debate. For example, in 2007, Mr. Seán Hoey was acquitted in the Omagh bombing case as a consequence of the judge's rejection of the validity of the LCN DNA profiling technique that has been used in more than 21,000 serious crime cases in the British jurisdiction and internationally, particularly in cold cases. These are two of many situations where the use of forensic science is at the very least uncertain and could potentially lead to perversion of justice.
Sinn Féin is of the view that ongoing research is needed in a variety of areas where forensic methods and definitions, both newly emergent and established, are being used in court with a view to prosecution. However, in spite of this, most methods of forensic evidence gathering are accepted by Sinn Féin as being necessary methods of criminal investigation where applied to the appropriate standard by trained personnel and under appropriate supervision and monitoring.
Sinn Féin welcomes the main thrust of the Bill but we have several concerns which we would like to raise and on which we may seek to include amendments. At the core of this debate, we must remember that any prejudice to the presumption of innocence must be eliminated. We cannot move to a situation where we treat persons without criminal records as potential suspects for future crimes.
One of the main objections I would have to the Bill is the fact that it provides for the taking of samples from former offenders who are no longer subject to sentence. Does this mean the Bill will not have due regard for the Good Friday Agreement and Weston Park Accord, and is it compliant with these?
The Irish Council for Civil Liberties, ICCL, has highlighted another concern in the form of international co-operation, specifically around how samples and-or DNA profiles generated from such samples may be transmitted to other states, including outside the European Union, and we would welcome clarification on these issues. Will the role of the proposed DNA database system oversight committee extend to reviewing the appropriateness of the date protection safeguards in place in the dates to which samples or profiles may be transmitted? I agree wholeheartedly with the ICCL that as a matter of principle profiles or samples should never be transmitted to states that cannot guarantee they will be protected by appropriate privacy safeguards.
On a practical level, I ask the Minister whether the laboratory is built, ready, fully equipped and staffed. There is no point in passing this legislation if the proper resources are not in place. Function creep is another important issue of concern with this Bill. We do not want to see a situation where there is a gradual widening of the database beyond the purposes for which it was originally intended.
I reiterate Sinn Féin's support for the spirit of the Bill. The crux of this debate is to get the right balance between protecting civil rights and liberties without interfering with people's human rights. I will finish by warning that although there are many positives to a DNA database, we must keep in mind that it can put innocent persons at risk also.
This is particularly so as technology has developed to allow the generation of DNA profiles from the tiniest of DNA samples. In the Omagh bomb case, low copy number, LCN, DNA evidence produced a partial match to a six year old schoolboy in Nottingham who was on the British database. While he was quickly eliminated from the investigation, had he been an innocent man in his 20s living in the Border counties, would he have been disregarded so quickly?
Táimid ag tacú leis an mBille i bprionsabal agus tá súil agam go dtiocfaidh sé chun cinn go tapaidh. B'fhéidir freisin go gcuirfimid roinnt moltaí chun cinn ar Chéim an Choiste. Arís, go n-eirí go geal leis an Aire ina ról nua.
I welcome the Minister, Deputy Frances Fitzgerald, and formally congratulate her on her appointment as Minister for Justice and Equality. I look forward to working with her in her new role. This Bill is very important and will greatly aid the Garda in its already sophisticated and important work. A Bill such as this has been a long time in coming and I believe there have been three previous legislative attempts to create a DNA database. While I support the Bill and welcome the assistance it will provide to the Garda in its work, one must be cautious lest we overstep the mark in respect of privacy and individual rights. I am aware of other jurisdictions internationally that have operated a DNA database for some time and how these have evolved from the original set parameters. It is no surprise that the largest DNA database is in the United States and is an example of the evolving role such a database could have in society. I believe its original purpose was to store profiles for serious crimes but profiles now have been created for misdemeanours. Our nearest neighbour, the United Kingdom, also operates a DNA database that has evolved repeatedly.
An important balance must be struck when considering the profiles, the rights of individuals, privacy and the appropriate length of time for destruction of samples. I am keen to hear the Minister's views and further details regarding the consent processes for those with a mental or physical disability. I understand that people who do not have the capacity to understand the general nature of the effect of taking a sample or who cannot indicate consent to the taking of a sample will not be sampled for the database. I seek further details on the process, especially on how capacity will be assessed. I welcome the general principles and the inclusion of this aspect in the Bill but wish to be sure it is not overlooked and that individuals will be afforded the appropriate assessment and level of support in this process.
On a separate matter, I welcome the provision in the Bill whereby the DNA profiles of persons convicted of serious crimes will be held on the database indefinitely. I also welcome that the DNA database will be overseen by an independent committee which will be chaired by a judge or former judge of the High Court or Circuit Court and the membership of which will include a nominee from the Data Protection Commission, which is important. I understand much work has gone on behind the scenes by the Forensic Science Laboratory in preparation for the enactment of this legislation. I believe all Members are in favour of appropriate methods that aid the Garda in preventing crime and making the country safer. As the legislative arm of the State, the Oireachtas has the responsibility to create structures that help to keep citizens safe and their rights intact.
I thank all Members who have contributed to the debate and welcome the support for the Bill across the House. I thank Members for their contributions, in which many important points were made. This unquestionably is landmark legislation that makes good on the Government's commitment in the programme for Government to establish a DNA database system. It is great to see this level of support for the Bill, which as quite a number of Senators remarked, is essential for policing today. It is necessary that An Garda Síochána should have access to the most modern policing tools, techniques and technology. These bring their own challenges, and quite a number of Senators have pointed out the essential need to have the appropriate balance between human rights and having this database and the various techniques its use will determine. This has been a consideration throughout the development of the legislation.
The power of DNA technology is at the forefront of modern policing and can be seen in every country in the world. It is very important to develop the skills that are necessary to manage the database in the most professional way possible. A number of Senators made the point about the exchange of data with other countries and I assure them this obviously will be carefully monitored. Moreover, exchanges will only take place under the mutual assistance provision with countries where the standards are similar to those which obtain here. There is no question in this regard. I am confident that in the years to come, people will be behind bars in Ireland for the commission of serious crimes who would not have been apprehended or convicted but for the DNA database. This legislation under discussion will have a quantifiable and immediate impact on the prevention, investigation, detection and prosecution of crime. I mention prevention because I believe the increased risk of apprehension may itself have a deterrent effect on those who are likely to commit certain crimes.
The Bill addresses the highly restricted statutory framework in place at present on this issue in which the sample is required for the investigation of a particular offence. As I have outlined, the new regime will change this and will mean those convicted for an arrestable offence will be put on the database and will be available for subsequent matching with crime scenes, which is important. I reiterate that as the database grows, the hit rate effectively will grow as well. The Bill places all the State's DNA legislation on a statutory footing, meaning that all the provisions will be found in primary or secondary legislation. This unquestionably will benefit the Garda and brings clarity and certainty to the taking, storing and transmission of DNA data, which is very important. The Garda will be clear as to its powers and duties under the legislation and citizens will know their rights and obligations.
I take the point that has been made by the Senators present in respect of protected persons. As the Bill moves towards Committee Stage, I again will carefully examine precisely the protections that are in place. There may be some suggestions that could be taken on board from the Irish Human Rights Commission regarding further protections of those who are vulnerable, such as children and more vulnerable groups. I will continue to examine this issue as the Bill moves towards Committee Stage. If improvements can be made, I certainly would be open to that because I am aware the proposals contained in the Bill potentially can have quite an impact on the rights of citizens including, as Senator Denis O'Donovan mentioned, the rights to bodily integrity and privacy, which are critical. However, this balance has been very much to the fore and I believe the former Minister, Deputy Alan Shatter, was sensitive to this issue in the development of the legislation when he was taking it through the Dáil. Some amendments that were accepted in that House give stronger and greater protection on that issue.
Senator Denis O'Donovan also mentioned the question of resources, which clearly is important. I welcome Dr. Sheila Willis and Dr. Maureen Smyth who are present in the Visitors Gallery for this debate. Clearly, the question of resources with regard to storing the database and its use is important. A number of Senators, including Senator Sean D. Barrett in particular, spoke on the voluntary taking of samples. Obviously, this is always the preference and it is important that training be made available to the Garda. While samples are being taken in respect of offences at present, in the context of the development of the database, ongoing training clearly will be an important element in the future. Moreover, training on human rights also will be important. I note the point made by Senator Bacik about the recommendation from the Irish Human Rights Commission that someone with expertise in human rights might be appointed to the monitoring committee, and I certainly can examine that proposal. The question of the Good Friday Agreement also was raised by a Senator and while this issue was addressed during the Dáil debate, I certainly will consider any amendments that are tabled on this issue or overall.
I again thank Members for their contributions. I will consider the points made in the debate and will examine them on Committee Stage. I conclude, however, by noting my goal in the Bill is to strike the correct balance between the public interest in the investigation, detection and prosecution of serious crime and the human rights of citizens.
Question put and agreed to.
Committee Stage ordered for Tuesday, 3 June 2014.
When is it proposed to sit again?
Ar 10.30 maidin amárach.