This contribution is from our regular blogger Dr. Yvonne Daly, of the Socio-Legal Research Centre and the School of Law and Government at Dublin City University. You can learn more about Yvonne on our Authors page.

In the Irish Supreme Court case of Dunne v D.P.P. Hardiman J. made the following statement:

We are long habituated to the idea that technology and science can snare the criminal … A suspect may be fingerprinted, photographed, compelled to give up his clothing and possessions for testing and to supply samples of his hair, tissue or bodily fluids under a variety of statutes … None of this is controversial.

Despite the claims of the honourable judge, the collection, retention and use of forensic evidence at trial in Ireland and elsewhere continues to give rise to significant controversy, both in political and judicial spheres. Hardiman J. is correct that we have become habituated, or accustomed, to the idea of using science and technology to prosecute criminal offenders; indeed much of the current impetus for the establishment of a DNA database in Ireland at present comes from a political desire for the advanced use of technology in the investigation of criminal offences.

Some of our knowledge of forensic technology and the potential impact of forensic evidence on a case has surely been influenced by tv dramas such as CSI, Law and Order, Dexter (blood-spatter analyst by day, serial killer by night!) along with their merchandise and franchise expansions – for example CSI: The Experience which ran in the Ambassador Theatre Dublin for 2 months last year! But, despite our acclimatisation to the general concepts, concerns about the balance between personal privacy and public prosecution of crime still bubble under the surface. Current consideration of the Criminal Justice (Forensic Evidence and DNA Database System) Bill 2010 offers us an opportunity to bring those concerns out in the open and to consider whether or not a proper balance is likely to be achieved by the proposed legislation in this jurisdiction.

Following a brief overview of the proposed legislation as it relates to criminal suspects, this article outlines what I see as one positive aspect of the Bill and two worrying aspects thereof.

Brief Overview of the Proposed Legislation – as it relates to criminal suspects

Forensic samples may only be taken under the proposed legislation from persons arrested and detained on suspicion of involvement in offences to which the following apply:

s.30 of the Offences Against the State Act, 1939;

s.4 of the Criminal Justice Act, 1984;

s.2 of the Criminal Justice (Drug Trafficking) Act, 1996;

and, s.50 of the Criminal Justice Act, 2007.

Most of the relevant offences, with some exceptions, carry potential sentences of 5 years or more.

There are three possible situations in which a sample may be taken from a suspect detained under the outlined provisions:

(i) a sample, authorised by a garda not below the rank of sergeant, may be taken in order to generate a DNA profile which will be added to the DNA Database System (s.11);

(ii) an intimate sample, authorised by a garda not below the rank of inspector, may be taken for the purposes of forensic testing, and may also generate a DNA profile to be added to the DNA Database System (s.12); and,

(iii) a non-intimate sample, authorised by a garda not below the rank of inspector, may be taken for the purposes of forensic testing, and may also generate a DNA profile to be added to the DNA Database System (s.13).

A sample taken under s.11 on the authorisation of a sergeant for the purposes of creating a DNA profile to enter on the DNA Database System, can be used for evidential purposes in the instant investigation if authorised by an inspector or garda of more senior rank.

The default destruction time for samples taken under the proposed legislation is 3 years while the default destruction time for profiles generated from such samples is 10 years. A person from whom a sample has been taken may apply in writing to the Commissioner of An Garda Síochána prior to those time limits, requesting destruction of the sample and removal of the profile from the DNA Database System. Such an application will only be considered where no proceedings have been instituted against the person within 12 months of the taking of the relevant sample, or that person has been acquitted at trial, had the charges dismissed or the proceedings discontinued, or, in certain circumstances, been given probation. An appeal to the District Court is available against any decision of the Commissioner.

Rolling back Boyce

The proposed legislation can be praised for what appears to be a legislative reversal of the Supreme Court decision in People (D.P.P.) v Boyce . In this case, which I have mentioned here previously, both the Court of Criminal Appeal and the Supreme Court held that the legislative regime for the taking of forensic samples which was provided for under the Criminal Justice (Forensic Evidence) Act, 1990 co-existed with the power of the gardaí to take samples with the voluntary consent of individuals, even where such individuals were detained suspects. There was some dissent in the courts on this matter, with Fennelly J., in particular, stating that it was “absurd” to suggest that the carefully thought-out legislative regime could be set at nought by the decision of the majority of the Supreme Court which allowed for the specific safeguards and requirements of the legislative scheme to be side-stepped. Fennelly J. noted the significance of the distinction between taking a forensic sample from a volunteer non-suspect and taking such a sample from a person held in garda custody. He suggested that

The key fact is that the person from whom the sample is taken is in custody.

There are many interactions between the gardaí and citizens which can be allowed by way of consent or under specific legal powers – entry onto private property being a clear example. However, once one becomes a suspect, the game changes to some extent, and consent is generally not enough in itself to justify garda actions. One obvious example of this relates to the law on arrest and detention. A person who has voluntarily arrived at a garda station to provide the gardaí with certain information must be formally arrested the moment he becomes a suspect. As Hanna J. held in Dunne v Clinton [1930] I.R. 366, there is no such thing as a “halfway house” between liberty and arrest. Once reasonable suspicion exists against an individual, they must be placed under arrest and cannot consent to ongoing detention short of an arrest. Similarly, when the legislative detention period comes to an end, an individual cannot consent to ongoing detention. Another example might be the Custody Regulations: there is still a breach of the regulations where a detained suspect consents to more than 2 gardaí questioning him at any one time. His consent does not mean that the Regulations have not been breached.

The judgment in Boyce seemed largely to go against all of this. It provided that the gardaí could avoid the provisions and protections of the legislation and take forensic samples, including, on the facts of Boyce, intimate samples such as a blood sample, with mere consent.

This position appears to be altered by the proposed new legislation. Section 26 of the Bill states that

…a member of the Garda Síochána shall not, following the commencement of this Part, take, or cause to be taken, a bodily sample for forensic testing from a person who is detained under [the specified legislative provisions] other than in accordance with this Part.

Thus, it appears, a detained suspect to whom the legislation applies can only have a forensic sample taken from him if the provisions of the legislation are properly complied with. This ensures that the safeguards specifically built in to the legislation apply whenever a sample is taken.

Some of the relevant safeguards are as follows:

– samples are only to be taken under the authorisation of a garda of the rank of sergeant or above (under s.11) or a garda of the rank of inspector or above (under ss.12 and 13);

– where a sample is to be used for forensic analysis in a specific case, it is only to be taken where the authorising garda suspects, on reasonable grounds, that the person from whom the sample is to be taken has been involved in the commission of the offence in respect of which he or she is detained and that the sample will tend to confirm or disprove such involvement;

– no inference is to be drawn from refusal to consent to provide an intimate sample unless the detained suspect was given a reasonable opportunity to consult with a solicitor prior to such refusal and, unless the seeking of such consent by a member of the Garda Síochána is video-recorded or the person consents in writing to it not being so recorded.

Rolling Out Section 11

Section 11 of the Bill, as noted above, provides for the taking of samples from detained suspects solely for the purpose of creating a DNA profile to be entered into the DNA Database System. “Samples” under s.11 refer to samples of hair, other than pubic hair, or a swab from the mouth. Section 11 may only be operated with the authorisation of a garda not below the rank of sergeant, and a relevant sample may be taken thereunder with reasonable force if the detained suspect refuses to co-operate.

If s.11 allows only for the taking of samples in order to generate a profile for the DNA Database System, then what is its real purpose? It seems to me that the purpose of s.11 is to allow for something of a fishing expedition. There is no specific crime scene DNA or other forensic evidence to link the detained suspect with the offence currently under investigation therefore ss.12 and 13 which allow for a sample to be taken for the purpose of forensic analysis do not apply. But, if the gardaí can get a sample from this suspect and add his DNA profile to the DNA Database System, something of interest might show up now or in the future. Section 11 is therefore somewhat worrying and the Irish Human Rights Commission (IHRC) has recommended its removal from the Bill.

The IHRC has raised concerns in relation to the compatibility of s.11 with the jurisprudence of the European Court of Human Rights (ECtHR). The IHRC pointed, for example to the case of Maslov v Austria, wherein the ECtHR made it clear that any interference with the right to private life, protected under Art.8 ECHR, must be in pursuance of a legitimate aim, such as the prevention of disorder and crime, and must be proportionate to the aim pursued. The IHRC considers that s.11 is too broadly drawn to fit within this criteria.

Another danger with s.11 is that it could lead to a situation whereby gardaí arrest individuals solely in order to operate its provisions and fill up the DNA Database System with profiles, which have a default shelf-life of 10 years. As noted here previously, it has been claimed that a situation such as this currently operates in England and Wales and it would be truly worrying if we were to provide legislation under which similar conditions could be fostered in this jurisdiction.

Sharing of DNA Database System Data

One final brief word of caution relates to the provisions of the Bill which allow for the sharing of the Irish DNA Database System with police forces within the European Union. This was provided for under European Council Decision 2008/615/JHA (the “Prum Council Decision”) which allows for the exchange of information between EU Member States in the area of criminal justice by granting access to the automated DNA analysis files, amongst other things, of other Member States. Searches of the Irish DNA Database System in order to find a match with an unidentified DNA profile gathered in another Member State will be allowed in accordance with the Council Decision and the terms of the 2010 Bill, and a reciprocal arrangement will exist with other Member States. The newly named Eolaíocht Fhóiréinseach Éireann (EFÉ) (formerly the Forensic Science Laboratory) will be the national contact point for this exchange.

While it seems necessary in an ever more open European Union that mutual co-operation and assistance between Member States on matters of policing and criminal justice should be fostered, some caution in this regard has been urged by the Irish Human Rights Commission. The IHRC has pointed to the fact that there is a lack of protection in place for personal data in the area of police and judicial co-operation in criminal matters. This has also been noted by the European Fundamental Rights Agency and the European Data Protection Supervisor. The IHRC recommends that until Ireland has transposed and implemented Council Framework Decision 2008/977/JHA on the protection of personal data in the field of police and judicial cooperation in criminal matters, any provisions relating to the exchange of DNA Database System data with other Member States ought not to be commenced.

Conclusion

While the Criminal Justice (Forensic Evidence and DNA Database System) Bill 2010 may be praised for reversing the somewhat disappointing decision of the Irish courts in Boyce, there are yet many dangers involved in the enactment of this legislation. This article has only highlighted two such potential pitfalls. Others might also be noted, including the dangers of “DNA request surveillance” surrounding requests for samples to be taken from volunteers (and indeed surrounding the somewhat institutionalised concept of drawing inferences from failure or refusal to provide an intimate sample); the length of time for which samples and profiles of non-convicted suspects may be held in default; the need for garda training in relation to relevant human rights issues; and so on.

DNA and forensics are now an integral part of modern policing, but their use should go only so far as is necessary and no further. This Bill seems to have gotten some things right, but it is submitted that it could yet be refined, to the benefit of a more proportionate balance between personal privacy and the prosecution of crime.