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Minister For
Justice, Equality and Law Reform:
As the Deputy is aware on 24 January last, the Government agreed that
work should get underway on the preparation of a general scheme of a
Bill to provide for the establishment on a statutory basis of a DNA
database. I expect to publish the Bill later this year.
The Criminal Justice (Forensic Science) Act 1990, which provides the
statutory basis for the taking of DNA samples only permits the
examination of samples with regard to particular offences. The value of
a DNA database, over and above our current system, is that it will allow
profiles derived from samples taken from individuals to be analysed
against all crime scene samples, regardless of when the crime took
place. By doing so it will offer greater possibilities to identify
perpetrators of crime. It will also contribute to the more efficient use
of Garda resources. I am therefore satisfied the establishment of a
database will make a significant contribution in the fight against
crime. This has been the experience in other jurisdictions where
databases are already in operation.
I am on record in this House as favouring the establishment in this
State of as extensive a DNA database as possible subject to
constitutional and ECHR obligations. However, having regard to the
complexity and sensitivity of the issues involved, I considered it
appropriate to await the outcome of the Law Reform Commission’s
examination of this issue, including the level of safeguards to be
included before proceeding with plans to establish the database. As the
Deputy is aware, the Law Reform Commission published its report in
November last year.
I have paid close attention to the Commission’s recommendations, but
there are areas in which I will go further than what was suggested by
the Law Reform Commission. In particular, these will relate to the
category of offences for which DNA samples may be taken. I have
consulted with the Attorney General and I do not agree there is a human
rights dimension to a policy of destroying samples taken after a
particular period of time. This is not justified, for example, with
regard to the Criminal Justice Act 1984 and the issue of fingerprints.
Similarly, it should not be the case for DNA samples to be destroyed
after a period of time. That is an example of the State disabling itself
in the proper investigation of offences.
Additional information not given on the floor of the House.
I have paid close attention to the commission’s recommendations when
preparing the proposals that have now been approved in principle by
Government. I am sure the Deputy will understand that certain matters
are still subject to detailed scrutiny. However, I assure him that my
proposals will incorporate the following key safeguards. The database,
while being extensive will be subject to certain operational
restrictions to take account of civil rights issues. By that I mean it
will include the DNA profiles of persons convicted of serious criminal
offences, including those placed on the sex offenders register. It will
also include profiles from samples taken from persons who have been
detained on suspicion of involvement in serious offences. In addition,
it will include profiles generated from samples provided by “volunteers”
as well as those taken for the purposes of identifying missing or
injured persons.
With the exception of profiles relating to missing and injured persons
taken for identification purposes, it will only be possible to use DNA
samples taken in connection with criminal investigations in the context
of the investigation of crime - they will not be used for or made
available for other purposes, such as the determination of paternity or
in the assessment of health risks by, for example, the insurance
industry.
With regard to the provision for the giving of samples by volunteers,
their informed consent will be required. Profiles taken for the purpose
of identifying injured or missing persons will be held in a separate
index on the database and will not be speculatively searched for the
purpose of criminal investigation against the profiles from crime scene
samples held on the database. It will be an offence to disclose
information or to receive information about samples or profiles other
than in accordance with the legislation.
The storage of a person’s profile on the DNA database will have no
implications for a person in terms of employment, travel and so forth.
This is because access to the database with be restricted and controlled
and the information stored on it will not be generally available or
known other than to those needing to know in the context of a criminal
investigation. Anyone whose profile is stored on the database will have
a right to make an application to have it removed and destroyed together
with the sample from which it was generated.
The DNA database will be operated by the Forensic Science Laboratory.
The laboratory operates under the aegis of my Department. My proposals
will include provision for statutory oversight arrangements by suitably
qualified persons to provide assurance, in the interests of transparency
and public confidence, that the highest standards are being maintained.
These statutory oversight arrangements will include independent
accreditation and the development of codes of good practice.
While my proposals for the most part closely reflect the recommendations
of the Law Reform Commission they do depart from those recommendations
in certain respects, particularly the retention of samples taken from
suspects and the establishment of an independent statutory agency to
operate the database. The commission’s report recommends that samples
and profiles should be destroyed where they relate to persons who are
detained on serious offences but who are released without charge, or
who, if charged, are subsequently acquitted or otherwise discharged.
The Attorney General has advised that retaining indefinitely samples and
profiles taken from suspects in these circumstances is not unreasonable
and does not constitute a violation of any legal rights, once clear and
strict safeguards are provided against the misuse of the samples and
profiles. I share that view and, as I have already indicated, I will
ensure that comprehensive safeguards and limits on access will be
provided for. Accordingly, my proposals will provide for the indefinite
retention of all samples subject to the right of every individual, as I
have already mentioned, to apply to have his or her profile and sample
destroyed.
With regard to the Law Reform Commission’s recommendation that an
independent agency be established to operate the database, I consider
that the Forensic Science Laboratory, which, as I have said, operates
under the aegis of my Department, is well placed to undertake the task
of operating and managing the database. I do not, therefore, propose
that a new agency should be established for that purpose. I accept, in
the interests of transparency and public confidence, that oversight
arrangements by suitably qualified persons are desirable to provide
reassurance that the highest standards are being maintained. Therefore,
as I have indicated, I intend to provide in statute for an independent
oversight body. I believe this approach will meet the need for
independent verification of the work of the laboratory and will
facilitate the early commencement of the new arrangements.
Mr. Cuffe: The Minister’s reply appears to be at odds with his
views on the protective role of the State in other spheres.
The Law Reform Commission stated specifically that the database should
be limited in its scope and that there should be clear and strict time
limits on the retention of the data. Does the Minister agree there is
real concern that if these samples are held for an indefinite period,
and if they apply to any crime within the State, there is a danger they
would be used for incorrect purposes?
This may occur if a Minister for Justice, Equality and Law Reform put
out information that has not been through the law courts. I can think of
a recent example of this. In essence, does the Minister not believe
there should be some time limits on the retention of DNA samples? Does
he believe that clear guidelines should be put down with regard to what
type of crime would result in DNA samples being taken and retained? Does
the Law Reform Commission recommend that safeguards similar to those
recommended by the Human Rights Commission be put in place in the form
of guidelines or a code of practice for the use of DNA samples?
Mr. McDowell: I do not advance the view that every offence, no
matter how trivial, carry the onus to extract DNA from a suspect. With
regard to parking or other summary offences, I cannot imagine any reason
why it would happen. There are other categories of offences that should
not be the subject of a compulsory power to take such a sample.
Generally, in the case of indictable crime, a person arrested should be
obliged to provide a DNA sample. Although I am grateful to the work
carried out by the Law Reform Commission, I respectfully disagree with
it on the following point. I do not believe civil liberties are enhanced
by the destruction of a sample of DNA, for example, two, three or four
years after it has been obtained. It would be a case of the State
disabling itself in the battle against crime to carry out such an
action. Recently I became aware of a case where a person was convicted
of a serious crime using old evidence, many years after the offence and
after the trail had apparently gone cold.
It is not simply a matter of getting convictions on DNA evidence
tendered in court. One major advantage of DNA and the dramatic manner in
which the technology is changing is that it gives gardaí leads almost
immediately at the scene of a crime. People leave traces of DNA if they
use a door handle to get into a building, if they carry a briefcase or
if they go over objects in a bureau, for example. Traces of DNA left
behind are very helpful to An Garda Síochána in such circumstances when
they are able to match samples to those of known offenders and those who
have been arrested previously for serious offences.
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