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Seanad Éireann debate -
Wednesday, 11 Jun 2014

Vol. 232 No. 2

Criminal Justice (Forensic Evidence and DNA Database System) Bill 2013: Committee and Remaining Stages

I welcome the Minister for Justice and Equality.

Sections 1 to 32, inclusive, agreed to.
SECTION 33

Amendment No. 1 has been tabled in the names of Senators Cullinane, Reilly and Ó Clochartaigh.

I move amendment No. 1:

In page 53, between lines 13 and 14, to insert the following:

"(2) Any conviction covered by the terms of the Good Friday Agreement 1998 is excluded for consideration under this section.".

Go raibh maith agat, a leas Chathaoirligh. Tá céad fáilte roimh an Aire. On Second Stage we said that we were generally in favour of the Bill but a couple of amendments have been tabled for Committee Stage.

The rationale is that the Bill allows for DNA samples to be taken from former offenders within the past ten years. This should mean that former prisoners are excluded but the Bill specifically states that sentences must have expired. As a number of prisoners have been released under licence, that is why we are seeking to amend the section. This is very important in the broader political context. I am sure the Minister is well aware of the concerns about full implementation of the Good Friday Agreement and all the commitments made heretofore. We have been quite vocal on the fact that a number of political events have taken place in the North in recent months that have brought into question the full commitment to implementing the Good Friday Agreement and the position of some of the former combatants in the North and in the Troubles. It is important to copperfasten the position of the former combatants and the former prisoners in the legislation and, therefore, that is the reason we are pushing this amendment. I look forward to the Minister's response.

I thank Senators for their support for the Bill. As I said on Second Stage, it is excellent that we are at this point in respect of the Criminal Justice (Forensic Evidence and DNA Database System) Bill. We have to ensure the legislation is on the Statute Book. There is an EU directive, the terms of which we have to meet by 1 December. I am aware this amendment was tabled on Committee and Report Stages in the Dáil where a good discussion took place and my predecessor explained the reasons he was not prepared to accept it. I do not intend to accept the amendment either but I would like to reiterate the reasoning here to deal with some of the concerns outlined.

The first point is that the former offenders' regime in sections 33 and 34 is not a blanket provision covering all persons who fall within the ambit of the definition of former offenders in section 33. The Garda Síochána will have to identify individuals who are covered by section 33 and in respect of whom a Garda not below the rank of superintendent is satisfied that "it is in the interests of the protection of society, and it is desirable for the purpose of assisting the Garda Síochána in the investigation of offences, to have a sample under [section 34] taken from the person" for the purpose of generating and uploading the person's DNA profile to the DNA database. This is the first consideration before a request is made to a person to provide a sample.

There are also a number of further safeguards. In the event that the person fails to comply with the request, the Garda Síochána may apply to the District Court for authorisation to send a notice to the person requiring him or her to attend for the taking of a sample. Ultimately, if the person still refuses to co-operate, he or she cannot be forced to provide a sample, although the Bill does provide that he or she may be prosecuted for failing to comply with a notice to attend to have the sample taken, but that is all.

The former offender provisions, which are relevant to the points the Senator has made, are also subject to the ten year rule contained in section 33(3). Broadly speaking, under that rule a former offender may only be requested to provide a sample up to ten years after the sentence for the relevant offence concerned expired. The likelihood is that most so-called former offenders covered by the Good Friday Agreement would be covered by this ten year rule, given the passage of time since their release, although I appreciate there may be some exceptions to that.

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

I believe that few, if any, of the group of former offenders with whom the Senators are concerned are covered by the provisions of sections 33 and 34 and, even if they are, they cannot be compelled to provide a DNA sample. I do not propose to accept this amendment but I hope that my response will enable Senators understand the reason I am taking this approach.

I welcome the Minister to her new role and I appreciate that she is picking up where her predecessor left off. That is the reason we tabled this amendment once more. My understanding, I am subject to correction, is that the Bill specifically states that sentences must have expired, but the prisoners under the Good Friday Agreement were released under licence and that is the reason we are pushing the amendment. There is that significant difference between the groups of people the Minister has described.

Is the amendment being pressed?

Amendment put and declared lost.
Section 33 agreed to.
Sections 34 to 109, inclusive, agreed to.
NEW SECTION

I move amendment No. 2:

In page 128, after line 41, to insert the following:

“Transfer of DNA samples or profiles to other jurisdictions

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

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

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

We proposed this amendment on foot of concerns expressed by the Irish Council for Civil Liberties and several other NGOs about the extent to which samples and DNA profiles generated from such samples might be transmitted to other states, including those outside the European Union. We are not arguing that data should never be transferred but want to set out a guide on how they should be treated by ensuring that the requesting jurisdiction treats them under Irish law. This new section deals with the transfer of DNA samples or profiles to other jurisdictions. We are arguing that people should be treated as they would be treated under Irish law if the samples are disseminated abroad.

This amendment addresses the transfer of DNA samples or profiles to other states. I understand that the amendment seeks to ensure there are appropriate safeguards with regard to such transfers. I assure the Senator that in so far as the amendment purports to address mutual assistance such safeguards do exist and in fact go further than what has been proposed. In regard to subsection (1), I understand the amendment would apply to persons acquitted of an offence in this State where a sample or profile is sought by another state for the purpose of investigating or prosecuting the person for the offence for which he or she has already been acquitted. I am stating this as the wording of the amendment does not make that clear. I draw the Senator's attention to section 132 of the Bill, which amends section 79 of the Criminal Justice (Mutual Assistance) Act 2008. Section 79 of the 2008 Act sets out the action to be taken when a request for identification evidence is received by the State. Among other matters, a request can only be complied with where the evidence sought could be obtained if the investigation or proceedings in question was conducted here. The request cannot go outside of Irish law. There may be concern that a country could make a request that is not permissible under Irish law but the aforementioned section is clear in that regard.

In the circumstances put forward by the Senator relating to a person who has been acquitted, the prohibition against double jeopardy ensures that a person cannot be prosecuted in this State for an offence for which he or she has been previously acquitted. Consequently, it would not be in accordance with section 79(1) to transfer the evidence for similar purposes. To put it simply, if evidence cannot be sought for a particular purpose in this State, it will not be provided for a similar purpose to another state. That is an important safeguard.

Subsection (2) of the amendment proposes to limit the transfer of DNA samples or profiles to other jurisdictions with which the Irish State has extradition treaties in place. The basis on which this State engages with other states for the purpose of mutual assistance is the Mutual Assistance Act 2008 and prior to that the Criminal Justice Act 1994. As the matter stands, assistance in the provision of identification evidence, which will include DNA profiles, is only available if the evidence is in the possession of the Garda. If the evidence is not in the possession of the Garda, the person from whom the evidence is sought must consent to it being taken and transferred. However, on foot of the Prum Council decision, to which the Bill is giving effect, the Mutual Assistance Act is also being amended to provide assistance to another EU state where the request relates to a DNA profile which is not in the possession of the Garda. Under article 7 of that decision, we will be required to obtain from a person a sample with a view to generating a DNA profile and transmitting that profile to the requesting state. To provide for this requirement, sections 133 to 135 of the Bill insert new sections, 79A to 79C, into the Mutual Assistance Act. These sections set out in detail the steps which must be taken in the State in relation to obtaining a DNA sample from a person who does not consent to the taking of that sample, including obtaining a court order for the taking of the sample. However, as these provisions arise from an EU instrument, they apply only to EU member states.

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

Amendment put and declared lost.
Sections 110 to 172, inclusive, agreed to.
Schedules 1 to 4, inclusive, agreed to.
Title agreed to.
Bill reported without amendment and received for final consideration.
Question proposed: "That the Bill do now pass."

This is landmark legislation and I wish to take the opportunity to thank Senators for their support for it. I also pay tribute to everybody who has been involved in the development of the legislation over a long period, including the Law Reform Commission which did a report on this matter. In addition, the previous Government published a Bill. In particular, I pay tribute to my predecessor, the former Minister, Deputy Alan Shatter, for the huge amount of work he did in ensuring this Bill, which was a commitment in the programme for Government, was brought to the Dáil. Quite a number of amendments were made to it which took account of a range of human rights concerns and other detailed issues.

I feel privileged to have had the opportunity to bring this important legislation to this House. It is a landmark Bill in dealing with such issues. It will be a major help to the Garda Síochána given the technology it offers. It puts our DNA legislation on a statutory basis, which is extremely important.

I also thank the officials from the Department of Justice and Equality who have worked on this legislation over a period of three years. From the painstaking level of detail in the Bill, one can see just how much work was involved in producing it.

The legislation will have a quantifiable and immediate impact on the prevention, investigation, detection and prosecution of crime. I thank all Senators for their support in ensuring we now have this legislation in place.

I note that Dr. Sheila Willis from the Forensic Science Laboratory and Dr. Maureen Smyth, who has recently retired, are in the Visitors Gallery. I wish Dr. Willis the very best in the application and administration of this database and the development of the work involved. A range of work is required to be done by the Department in preparing for its implementation. I want to inform the House that the work is under way and a departmental committee is working on it.

I thank the Minister for concluding this legislation that was initiated by her predecessor. Fianna Fáil has fully supported the Bill which is not before time. I hope it is a further string to the bow for the State, the Government and the Garda Síochána, particularly in the fight against organised crime which is too prevalent. In that regard, I am glad this legislation has been passed. I am reassured by the Minister's comments that appropriate funding will be there to ensure all the necessary parts of this legislation, including setting up and maintaining the database, will be fully implemented. The sooner the better because, in my view, this Bill is probably being initiated 15 years too late.

Nonetheless, I welcome the Bill and wish the Minister and all those involved every success in trying to prevent crime, particularly organised crime, in the State.

Ba mhaith linn tréaslú leis an Aire as ucht na reachtaíochta seo a thabhairt chun cinn. Sinn Féin welcomes this legislation, although we raised a number of concerns on Second Stage and Committee Stage.

Those concerns remain and my party will keep an eye on how things pan out when the legislation is implemented.

Sinn Féin's main concern is to ensure that convictions are sound. With many convictions achieved primarily on the basis of confessions, the collection of DNA should ensure more sound convictions in future. We continue to be concerned about the possibility that the presumption of innocence will be eliminated. That scenario must not be allowed to arise. We are also concerned about the taking of samples such as mouth swabs or hair follicles from former offenders who are no longer the subject of a sentence. This is an issue we have raised in previous debates. In a general sense, however, Sinn Féin welcomes the Bill as a step forward. I congratulate the Minister on completing its Final Stage in the House.

I commend the Minister and her officials on having this landmark legislation passed in the House. Other speakers, including the Minister, noted the long gestation of the Bill. While there is no doubt the legislation is overdue, it has been greatly improved since the original version was published in 2010. This has been acknowledged by all speakers. Given that the Bill has secured strong cross-party support, it may have been worthwhile waiting for a proper, vigorous and adequate system of governance.

I welcome Dr. Willis and Dr. Smyth who are present in the Visitors Gallery. The Bill, when enacted, will make a significant difference to their work, the work of Forensic Science Ireland, the general criminal justice system and criminal justice practitioners as well as all other stakeholders in the criminal justice system. We all welcome the passage of the Bill. I again thank the Minister.

I thank the Minister and her predecessor, Deputy Alan Shatter, for the work they have done on this legislation. I also thank all the officials in the Department who were involved in drafting the Bill for the manner in which they have dealt with it. This comprehensive legislation illustrates the progress that is being made in the use of science and DNA evidence. The Bill, when enacted, will support the authorities in dealing with crime, while offering the necessary protections to citizens.

It is appropriate that Senators thank the Law Reform Commission for the work it has done in this matter and everyone else who was involved in producing the Bill. Its enactment will achieve major progress in this area. It is a great day to have the Bill pass in the House.

Question put and agreed to.
Sitting suspended at 1.45 p.m. and resumed at 3 p.m.
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