Defence Forces (Evidence) Bill 2019: Second Stage

I move: "That the Bill be now read a Second Time."

I am pleased to present this Bill to the House this evening. This is technical but important legislation which will be of major assistance to the Military Police Corps in its investigations. The Military Police Corps, a service corps within the Defence Forces headed by the provost marshal, conducts criminal investigations concerning persons subject to military law. These investigations can arise both within the State and in other jurisdictions where Defence Forces personnel are deployed overseas. The principal purpose of this Bill is to provide for members of the military police to take and use DNA samples and other evidence for the purposes of their investigations. It will provide for the establishment of a military police DNA database system, to be administered by Forensic Science Ireland, to hold DNA profiles generated from DNA samples taken from persons under this Act.

The investigative capabilities of the military police, which may need to be exercised outside the jurisdiction of the State when military personnel are on overseas service or on State ships, are currently compromised by the lack of a comprehensive statutory basis for the taking of evidential samples. This Bill will remedy this situation and will enhance the capability of the Military Police Corps to carry out its investigations of serious offences. The Bill mirrors the Criminal Justice (Forensic Evidence and DNA Database System) Act 2014, referred to as the Act of 2014, which provides for the taking of DNA samples by An Garda Síochána and for the establishment of a DNA database system with a view to assisting An Garda Síochána in its investigation of crime. Deputies will recall that the Act of 2014 was the subject of detailed consideration during its passage through the Houses of the Oireachtas. That Act, which drew on a Law Reform Commission report from 2005 on the establishment of a DNA database, strikes a careful balance between ensuring there is an effective statutory basis for the operation of a DNA database system along with the need to take account of the rights of individuals whose DNA profiles are placed on the database.

This Bill closely follows the provisions outlined in the Act of 2014 but with adaptations, where required, to take account of the military environment. For example, there was no requirement in this Bill to include the detailed provisions in the Act of 2014 relating to the taking of samples from child suspects. However, the safeguards provided for in the Act of 2014 regarding the taking of samples from persons have been incorporated in this Bill. The Bill also includes some consequential amendments to the Criminal Justice (Forensic Evidence and DNA Database System) Act 2014, the Defence Act 1954 and the Courts-Martial Appeals Act 1983, arising from the provisions of this Bill. The military police will be responsible for the collection of evidence as provided for in this Bill, including samples from which DNA profiles may be generated. The relevant personnel performing these duties will have completed the same course of training as undertaken by Garda Síochána crime scene investigators who perform similar duties.

I now come to the detailed provisions of the Bill. The Bill is divided into 12 parts. Part 1, the preliminary and general part, includes standard provisions relating to the Short Title, sets out the necessary definitions and deals with the application of the Bill to persons subject to military law. In this regard, section 3 of the Bill provides that the application of the Bill to a person subject to military law shall not be affected if any such person is for the time being outside the State or on board a ship or aircraft. This is to clarify that the provisions of the Bill apply to military personnel serving overseas. Similar wording is included in the Defence Act 1954. This Part also includes a number of supplementary provisions relating to the taking of samples and the generation of DNA profiles. Section 5 of the Bill provides for the making of orders and regulations under the Bill.

Part 2 deals with the taking of samples from persons in the custody of the military police for entry onto the military police DNA database system, as well as the taking of intimate and non-intimate samples from such persons. Any samples taken under this Part may only be taken in connection with the investigation of a relevant offence. For the purposes of this Bill, this means an offence for which a person subject to military law may be punished by imprisonment for a term of five years or more, for example for serious assault or murder. Accordingly, I envisage that the powers arising under this Part of the Bill will only be exercised by the military police relatively infrequently. A sample taken under section 9 of the Bill will be for the purpose of generating a DNA profile, in respect of a person from whom the sample was taken, to be entered on the military police DNA database system. It will not be used for evidential purposes.

Section 10 provides for the taking of an intimate sample, while section 11 provides for the taking of a non-intimate sample. The results of the forensic testing of a sample taken under these sections, and a DNA profile generated from any such sample, may be used in court-martial proceedings. The definitions of an "intimate sample" and "non-intimate sample" mirror the equivalent definitions in the Act of 2014. Provision is also made in this Part for the retaking of samples in certain circumstances. This scenario might arise, for example, where the original sample proves to be insufficient or is inadequately labelled. I also wish to draw attention to certain other provisions in this Part regarding the taking of intimate samples. Section 12 specifies the persons who are authorised to take intimate samples, for example medical practitioners or nurses in the case of blood samples or a dentist or medical practitioner in the case of a dental impression. The section also provides that, with the exception of a sample of blood or a dental impression, an intimate sample shall, insofar as practicable, only be taken by a person who is of the same sex as the person from whom the sample is being taken.

In addition, and due to the nature of an intimate sample, the consent of the person in service custody must be obtained before any such sample is taken. Section 13 of the Bill deals with the inferences that a court martial may draw from a refusal to consent or a withdrawal of consent to the taking of an intimate sample. There are similar provisions in the Act of 2014.

Section 15 allows for the use of reasonable force in the taking of a non-intimate sample. However, the use of this power is subject to a number of safeguards as specified in this section. Specifically, the use of reasonable force must be authorised by a member of the military police not below the rank of commandant. In addition, the taking of a sample pursuant to this section must be recorded by electronic or similar means. All of the provisions of this Part are similar to the equivalent provisions in the Criminal Justice (Forensic Evidence and DNA Database System) Act 2014.

Part 3 provides for the taking, by the military police, of samples from Defence Forces personnel and other persons to ascertain whether such persons have contaminated a crime scene sample. This is a necessary power to ensure that the military police can carry out investigations in an effective manner. Again, the wording of this Part is based on similar provisions in the Act of 2014.

Part 4 provides that the military police may request a person to allow a DNA sample to be taken from him or her for the purpose of generating a DNA profile with regard to the investigation of a particular offence against military law. In this context, a volunteer may include a person who is a victim, or reasonably considered to be a victim, of the alleged offence which is being investigated by the military police. The taking of a sample under this Part is subject to a number of safeguards, including a requirement to obtain the written consent of the volunteer. In addition, where a person subject to military law refuses to give consent to the taking of a sample, that refusal shall not of itself constitute reasonable cause for a member of the military police to suspect that person of committing the offence concerned for the purpose of arresting and placing that person in service custody. As before, the provisions in this Part of the Bill are similar to equivalent provisions contained in the Act of 2014.

Part 5 provides for the establishment by the director of Forensic Science Ireland, FSI, of a DNA database system. The system, which will be similar to the DNA database system established under the Act of 2014, will be used to contain DNA profiles generated from DNA samples taken under this Bill. The Part details the structure of the DNA database system, such as the various indexes which will be contained within the system. Section 26 specifies the purposes for which the DNA database system may be used. These are the investigation and prosecution of offences against military law, whether committed within or outside the State. Section 30 sets out in detail the functions of the director of the FSI arising under this Part. Finally, as regards this Part, section 32 outlines the various comparisons that may be carried out by the director of the FSI using DNA profiles entered onto the DNA database system, including comparisons with DNA profiles entered on the DNA database system established under the Act of 2014. This is an important provision which will be of major assistance to the military police in its investigations.

Part 6 outlines the powers of members of military police in respect of the collection of evidence other than evidence collected under Part 2 of this Bill for the purposes of DNA testing, from a person arrested by the military police and placed in service custody. Section 34 sets out the powers that may be exercised by a member of the military police under this Part when a person is placed in service custody. However, with the exception of the power to demand a person's official details and to search him or her, the other powers may only be exercised on the authorisation of a member of the military police not below the rank of captain. The section also provides that a member of the military police may seize and retain for testing anything that the arrested person has in his or her possession.

Debate adjourned.