The Minister for Justice, Equality and Defence, Alan Shatter TD, today announced the publication of the Criminal Justice (Forensic Evidence and DNA Database System) Bill 2013.
The key innovation in the Bill is the establishment of a DNA database to assist the Garda Síochána in tackling crime. The enactment of this legislation will fulfill a key Programme for Government commitment. The database, when established, will have the capacity to link crimes and to identify suspects in relation to unsolved crimes enabling the Gardaí to better target their investigations and make better use of resources. In addition, making use of such database technology in the forensics field has the added benefit of facilitating the searching, subject to strict conditions, of other national DNA databases.
Making the announcement, Minister Shatter said "I am very pleased to publish this long-awaited legislation which provides for the establishment of a DNA database. I campaigned for such a Database for many years in opposition and its establishment is a commitment contained in the Programme for Government. When I became Minister for Justice, Equality and Defence in 2011, I made it a priority to bring forward comprehensive legislation to facilitate the optimal use of DNA in the fight against crime and to enhance cooperation within the EU and with other countries. In doing this, I was also determined that the legislation would fully respect human rights. I am satisfied that we have met all of these objectives."
Minister Shatter continued, "The intelligence generated will be invaluable to the Gardaí in relation to identifying prolific offenders involved in volume crime such as burglary but also in relation to serious offences against the person, such as homicide and sexual offences. It will contribute to the move towards more effective, targeted and smarter policing and will also facilitate cooperation with other police forces in relation to mobile criminals." The Minister also acknowledged that the database would, of course, be of benefit in establishing the innocence of persons suspected or wrongly convicted of offences.
Referring to the substantial changes to the Bill compared to the 2010 Bill of the same name published by the previous Government, Minister Shatter said "The Bill published today is substantially amended in many respects to address issues that gave rise to genuine concerns, including in relation to the sensitive area of the retention of samples and DNA profiles of persons who are not subsequently convicted in order to ensure that any interference with their privacy rights is justified by the public interest in the investigation of crime and is proportionate." The Minister also identified the comprehensive provision in the Bill for international cooperation as another example of major change.
The database will be established and operated by the Forensic Science Laboratory of the Department of Justice and Equality at its current location at Garda HQ, Phoenix Park. Commenting on this the Minister said "The Forensic Science Laboratory already routinely does DNA testing for the Garda Síochána and has established sophisticated scientific expertise in this area making it ideally suited for this role."
The Bill provides for the taking, subject to appropriate safeguards, of biological samples in the form of mouth swabs or hair follicles from suspects and convicted persons including sex offenders from which their DNA profiles will be generated for entry in the database. Crime scene profiles from unsolved crimes whether occurring before or after the new legislation becomes law will also be entered in the database.
In addition to benefitting criminal investigations the database will also be of benefit in identifying missing and unknown persons (including unidentified human remains) whether in individual cases or as the result of a natural or man-made disaster.
Ensuring the database can be used as soon as possible after the legislation is enacted, Minister Shatter said, "I am determined to ensure that the DNA Database is ready for use as soon as the legislation is enacted. To make this happen, the Forensic Science Laboratory has been furnished with resources for the necessary specialist staff, and to allow for the purchase, installation and validation of sophisticated robotic sample handling instruments to cater for high throughput of samples. These are now in use and will be capable of processing the anticipated increased submissions associated with a National Database." The Forensic Science Laboratory was also resourced to purchased an information management system to track all cases and samples from log in at the laboratory, through all examinations to disposal and despatch on completion; the installation of this is at an advanced stage.
The actual data will be held on purpose built software supplied by the FBI to agencies around the world. This software called CODIS (Combined DNA Index System) is used in over 40 countries, including 18 EU member states. It was installed in the Forensic Science Laboratory in 2012. This software installation will allow mutual searching of European databases as defined by the Prum Council Decision.
The Bill also updates the law relating to the taking of forensic evidence generally and places it on a statute-only basis.
The Bill runs to 156 sections and 3 schedules (166 pages). It is available on www.oireachtas.ie
11 September 2013
Note to Editors:
The DNA Database System
The database is an intelligence resource with two purposes:
(i) to match a DNA profile from an individual to an unidentified crime scene profile obtained in the course of a criminal investigation (and where there is no match to eliminate all individuals on the database as potential suspects) and to match crime scene profiles from different crime scenes,
(ii) to assist with identifying missing and unknown persons (severely ill/injured persons who cannot identify themselves or unidentified human remains).
The database will have two divisions, reflecting its functions:
1. an investigation division, and
2. an identification division.
1. The investigation division will comprise a:
a. crime scene index
b. a reference index,
c. and elimination indexes.
a. The crime scene index will contain DNA profiles generated from biological samples lifted from crimes scenes whether before or after the legislation comes into force.
b. The reference index will contain profiles developed from samples taken from
· most suspects (other than children under 14 years and ‘protected persons’) detained by the Gardaí in connection with serious offences - generally offences subject to a sentence of 5 years or more,
· offenders entered on the sex offenders register on, or after, commencement of the legislation,
· offenders subject to a sentence of imprisonment in relation to serious offences on, or after, commencement (whether they are in prison, on temporary release or otherwise),
· some former offenders who are no longer subject to sentence.
While protected persons (persons who do not have the capacity by reason of a mental or physical disability to understand the general nature or effect of the taking of a sample or who cannot indicate (by any means) their consent to the taking of a sample) and suspects under 14 years may not be sampled for the database - they may (as is the case under the current law), be sampled where this is necessary to prove or disprove their involvement in a particular offence i.e. for evidential purposes.
c. The elimination indexes will contain the profiles of those who, in an official capacity, attend at crime scenes or who handle crime scene samples. The purpose of such indexes is to ensure that if accidental contamination occurs that it is identified so as to avoid Gardaí wasting time and resources investigating unidentified crime scene profiles which in fact relate to a Garda who investigated the scene or a member of the staff of the Forensic Science Laboratory (FSL) who examined items taken from the scene.
2. The identification division will contain the missing and unknown persons index which will hold the profiles developed from samples relating to missing persons (for example, clothing), their relatives, from injured / ill persons who are unable to identify themselves and from bodies of unidentified deceased persons.
The Bill sets out the searches that may be conducted between the different indexes.
The Forensic Science Laboratory (FSL) is to be renamed Forensic Science Ireland (FSI) from the passing of the legislation.
Destruction of samples / removal of DNA profile from the DNA Database
In relation to the destruction of samples taken from suspects, prisoners etc for the purposes of the database, the Bill provides that such samples will be destroyed as soon as the profile has been generated from the sample or within 6 months whichever is the later – the destruction of these samples will have no effect on the usefulness of the database as it is only the profile that is required for the database.
In relation to persons who are not proceeded against or are not convicted, the Bill includes a presumption in favour of the removal from the database of the DNA profiles of such persons subject to the Garda Commissioner having the power to authorise retention on the database where he is satisfied that this is necessary – a statutory test is set out by which the Garda Commissioner will make this decision. His decision will be appealable. The retention periods allowed will be 6 years in the case of adults and 3 years in the case of children.
The arrangements governing the retention of samples taken for evidential purposes include a presumption in favour of destruction of the samples relating to suspects who are not convicted subject to the Garda Commissioner having the power to authorise retention for 12 months (which will be renewable) where he is satisfied that this is necessary – a statutory test is set out by which the Garda Commissioner will make this decision. His decision will be appealable.
The Garda Commissioner will have the option of applying to the District Court to retain profiles on the database beyond the periods mentioned above where he has good reason to do so.
The DNA profiles of persons convicted of serious offences will, of course, continue to be held on the database indefinitely.
Safeguards in the Bill - Taking of samples
General safeguards applying to the taking of samples
· The Bill specifies general principals to be adhered to when a sample is being taken. For example, samples are to be taken in reasonable privacy and are not to be taken from a person in the presence or view of a person whose presence is not necessary for the purposes of the taking of the sample or required or permitted under the Bill.
· The Bill sets out in clear terms the information that is to be given to a person before a sample is taken in the case of compulsory samples and before consent is sought in the case of voluntary samples.
· The types of samples that may be taken from persons for the purpose of the database are restricted to the least intrusive samples - mouth swabs or plucked head hair - the hairs are to be plucked singly in so far as practicable and no more are to be plucked that is reasonably considered necessary.
· Draft codes of practice for the purpose of giving practical guidance as to the procedures regarding the taking of samples under the Bill are to be drawn up by the Garda Síochána, the Ombudsman Commission, the Irish Prison Service and the Irish Youth Justice Service for approval by the Minister - the codes are to be published.
Additional safeguards in relation to suspects/offenders
· A high offence threshold for the taking of samples from suspects and offenders applies - generally samples may only be taken for the purposes of the database or for evidential purposes in relation to offences having a penalty of 5 years imprisonment or more (subject to a small number of exceptions).
· While in general it is expected that suspects detained in Garda custody will be sampled for the purpose of the database, in order to ensure that the taking of such samples is justifiable the Minister is required to make an order excluding certain offences, the detection of which, due to their nature, would not be assisted by DNA evidence.
· Where reasonable force may be used to take a sample it requires prior authorisation of an officer of at least Superintendent rank. and its use must also be observed by a senior person who has responsibility for determining how many officers are required. It must be electronically recorded.
Special safeguards for protected persons / children who are suspects
· Protected persons will not be subject to sampling for the purposes of the database - evidential samples may be taken where required.
· Children under 14 years will not be subject to sampling for the purposes of the database - evidential samples may be taken where required - the position with regard to children of 14 years and older is to be reviewed within 6 years.
· Reasonable force may not be used to take a database sample from a child suspect.
· Information is to be given in a language and manner appropriate to the protected person's understanding and is to be age appropriate.
· Provision is made for a person other than a member of the Gardaí to be present when a sample is being taken from a protected person or child - the person may be a parent/guardian/adult relative or a person nominated by the member in charge. Such persons are also to be given the information that is required to be given to the protected person or child.
· Special provision is made in relation to the giving of consent on behalf a protected person/child for the taking of intimate samples (where required for evidential purpose) - in certain circumstances a District Court order may be sought to authorise the taking of an intimate sample.
· In general the consequence of refusing to consent to the taking of an intimate sample is that an adverse inference may be drawn in subsequent proceedings - this consequence does not arise in the case of protected persons or, for the most part in the case of children.
Safeguards in the Bill around the DNA Database itself
· The purposes of the database are set out clearly in the Bill is order to counter any possibility of 'function creep'.
· The searches that may be conducted between different categories of profiles entered in the database are specified to ensure that a profile is used only for the purpose for which it was taken.
· The management and operation of the database is to be subject to independent oversight by a statutory committee for the purpose of ensuring its integrity and security.
· The Committee is to be chaired by a judge or former judge of the Circuit Court or High Court and will include a representative of the Data Protection Commissioner.
· The Committee may make recommendations to the Director of FSI or the Minister as regards the management and operation of the database
· The Committee may, on its own volition, conduct reviews of any aspect of the management and operation of the database
· The Minister can also instruct the Committee to review any matter relating to the database
· The Committee's reports are to be submitted the Minister, and are to be laid before the Houses and published - subject to certain restrictions in the interests of national security, the security of the database, criminal investigations and to avoid infringing the constitutional rights of any individual.
· disclosure of information relating to biological samples or information on the database is a criminal offence triable summarily or on indictment.