In this post guest contributor David O’Dwyer from the University of Limerick and regular contributor Vicky Conway for Queen’s University Belfast, provide an overview of the legislation which is currently passing through the Dáil on Forensic Evidence and DNA Databases.

In January the Minister for Justice, Dermot Ahern published the Bill which, in addition to developing the law on the taking of forensic samples, provides for the first time, a national DNA Database. The concept of these databases is simple – they store DNA profiles and on any occasion where a DNA sample is found (at a crime scene etc) these can be run through the Database in the hope of securing a ‘hit’.

This move has been on the cards for some time now. The Law Reform Commission had suggested this legislation in a consultation paper of 2004 and a report of 2005. The original scheme of the Bill had been published in 2007. It had been anticipated that the full Bill would be published in the Autumn of 2008 however a number of factors such as the Marper case, a Council of Europe Decision on cross-border co-operation and the constitutional concerns inherently arising from such a move. Indeed, the original scheme of the Bill had provided for the indefinite retention of suspect profiles, as per the UK legislation, which was struck down by the European Court of Human Rights in Marper. The legislation, therefore, had to be significantly redrafted to fall in line with this case law.

The Bill has three main functions;

–          to replace the existing statutory and common law arrangements governing the taking of samples (excluding fingerprints or palm prints) for forensic testing from suspects for use as evidence in criminal investigations and proceedings with an updated statute-only regime;

–          to regulate the taking of samples from volunteers (not suspects nor offenders);

–          to provide for the establishment of a DNA Database system for use by the Garda Síochána, which would perform functions as both an intelligence source for criminal investigations and assist in finding missing and unknown persons.

A lengthy Bill, it is divided into twelve Parts. Part 1 provides for general and preliminary matters including renaming the Forensic Science Laboratory of the Department of Justice, Equality and Law Reform Forensic Science Ireland. It further repeals the Criminal Justice (Forensic Sampling and Evidence) Act 1990.

Part 2 of the Act provides for the taking of bodily samples from persons in Custody of Garda Síochána. It outlines that a member of the Garda Síochána shall not obtain a bodily sample from a detained person other than in accordance with the Bill. The purpose of this section is to abolish the common law power to take samples from a suspect in custody with his or her consent notwithstanding the existence of a statutory regime. As will be discussed by Yvonne in greater detail , this would seem to reverse the recent Supreme Court decision in DPP -v- Boyce, where the court held that the common law tradition of the Gardaí asking suspects to volunteer a sample ran in conjunction with the statutory power to take bodily samples under the 1990 Act. Sections 11 and 12 maintain the distinction between the taking of intimate and non-intimate samples, the former of which may be without the consent of the suspect using reasonable force, while the later requires the written consent of the accused (though an adverse inference may be drawn from a refusal).

Part 3 regulates the taking of volunteer samples. A member Garda Siochana, not lower than a Superintendent, may ask an individual to volunteer a sample as part of an investigation. An individual must be informed that they are under not obligation to submit a sample and consent must be obtained in writing. Such samples will not be entered on the database and will only be used regarding that particular investigation. Separate consent, again in writing must be gathered to place the profile on the database. The Bill also regulates the circumstances in which a DNA mass screen may be conducted. There will be examined further by David, in his post today.

Part 4 covers the taking of samples from offenders, children, former offenders and deceased persons who are suspected of committing an offence. Part 5 provides for the taking of samples for the purpose of elimination. Part 6 regulates the taking of samples of identification purposes. Additional measures for the taking of samples from children or protected persons are provided in Part 7.

Part 8 creates the national DNA Database to be run by Forensic Science Ireland. The Database system will consist of 2 divisions: the investigation division and the identification division.  The investigation division will consist of:

–           the crime scene index (s.58 – DNA profiles generated from biological samples found at crime scenes),

–          the reference index (s 59 – profiles of suspects, volunteers who have consented), offenders and former offenders and deceased suspects and

–          the elimination indexes ( s 60/61 – profiles of Garda Siochana, crime scene investigators and prescribed persons).

The identification division will solely contain the missing and unknown persons index.

The Bill proposes that everyone who is arrested in connection with a serious offence will be required to give a DNA sample, from which a DNA profile will be taken which can be matched with the DNA profiles that are contained on the crime scene index (on the investigation database). The theory is that the profile may include or exclude a suspect from a particular offence or that the profile may match a profile from a previously unsolved offence, which is known as a “cold hit”. Linking the power to take samples with the detention powers means that in general the offence threshold for the taking of a sample is a maximum sentence of imprisonment of 5 years or more subject to limited exceptions (discussed further in Yvonne’s entry). The Bill also requires everyone in prison on temporary release, everyone serving suspended sentences for serious offences and anyone on the Sex Offenders Register to give a DNA sample.

Part 9 creates an oversight committee that will be headed by a senior judge. Its function is to oversee the management and operation of the DNA Database System for the purposes of maintaining the integrity and security of the System. It will publish an annual report.

Addressing perhaps the most controversial aspect of the area is Part 10, which deals with the destruction of samples of profiles. The Bill provides that only those convicted of serious offences will have their samples and profiles retained indefinitely. Suspects who are not charged or those who are acquitted will have their samples and profiles removed either on application (by writing to the commission after 12 months) or where there is no application, after 10 years for a profile (5 for children) and three in the case of a sample. Although it is worth noting that s80 outlines certain circumstances when DNA samples and profiles that would otherwise be destroyed are indefinitely retained; e.g. if proceedings have failed to be instigated because the individual has absconded or if the individual has been charged or convicted with another relevant offence.

Part 11 deals with co-operation with other EU member states in sharing and exchange of DNA database information. Cross border cooperation, particularly in combating terrorism and cross border crime was outlined in The Prum Council Decision in 2008. Finally, Part 12 covers any miscellaneous matters arising.

The establishment of the system is estimated to cost in the region of €3 million with  consumables costing in the region of €1.5 Million in year 1 and a similar amount annually thereafter. Staffing needs will depend on demand for testing of DNA samples and will be evaluated as the needs arise. The Kopp Report , which provided a review of the resource needs of the Forensic Science Laboratory, published in 2008, identified a staffing requirement of 64 in the first year of operation of the system (this would include the existing staff complement of 35, a net increase of 29). Kopp also suggests an increase in the staffing requirement over the first five years. The Garda Síochána has identified some additional staffing needs (9 additional personnel) for its Forensic Liaison Office.

Conclusion

Mr. Ahern stated that the database represented “a major step forward in the fights against serious crime” and that it would give Gardai “access to intelligence on a scale and of a quality that has never been available in this country”. In line with the ECtHR recommendations decision in Marper only those convicted of serious offences will have their DNA held indefinitely. Everyone else including suspects who are not charged or who are acquitted of an offence will have their samples destroyed and their profiles removed on application to the Commissioner or after the expiry of the fixed default period.

The Bill has been welcomed by Garda Commissioner Fachtna Murphy who described it as a major step forward in helping to bring to justice the perpetrators of what he called “heinous crimes”. Despite the potential human right infringements a DNA database is internationally recognised as a legitimate tool in the fight against crime as the Irish Council for Civil Liberties (ICCL), Mark Kelly stated “there is an entirely legitimate public interest in the creation of a DNA database that makes it easier to catch criminals; however, the sampling, retention and sharing of DNA requires special safeguards to ensure that the private lives of innocent people are protected”. The key therefore is to ensure that any legislation in relation to a database has the necessary safeguard provisions.