The Minster for Justice, Equality and Law Reform, Mr. Dermot Ahern T.D., has today published the new Criminal Justice (Forensic Evidence and DNA Database System) Bill 2010 that will see the establishment, for the first time, of a national DNA database in Ireland.
The establishment of a database represents a major step forward in the fight against serious crime. It will give the Gardaí access to intelligence on a scale and of a quality that has never before been available in this country. This Bill will also enable the taking of samples that can be used as evidence in a criminal trial.
When the Bill becomes law, everyone who is arrested for a serious offence can be required to give a sample. A profile generated from that sample will be placed on the new database, along with samples collected at crime scenes. The analysis of the material on the database will produce 'hits' that may indicate a link between the person and other offences where he was previously involved but no link had previously come to light. A separate part of the database will be available to help trace and identify missing or unknown persons.
Minister Ahern said: "Everyone serving a sentence for a serious offence when this new law comes into force will be required to give a sample for the database. This will include people in prison and anyone on temporary release or on suspended sentences, as well as anyone on the sex offenders register.
The combination of these two major sources of samples (suspects and convicted persons) will ensure that, within a short time, a significant proportion of the criminal community will have their samples on the database. It is my hope that this fact would, of itself, act as a deterrent for some."
Throughout the drafting process, consideration was given to issues such as rights to privacy and as a result steps have been taken to ensure that sampling will be restricted to serious offences. Account has been taken of the position of vulnerable people (including children), and restrictions have been placed on the time periods for which samples and profiles can be retained on the system. Only those convicted of serious offences will have their materials held indefinitely. Everyone else who is sampled but who is, for example, not charged or is acquitted, will have their materials removed either on application or, where no application is made, after the expiry of a fixed default period.
The database will be established and operated by the Forensic Science Laboratory (to be renamed EFE or Eolaíocht Fhóiréinseach Éireann / Forensic Science Ireland). It will carry out the analysis and communicate the results to the Gardaí.
Minister Ahern continued: "I am keen to ensure the integrity of the database and have therefore provided that an oversight committee, to be headed by a senior judge, will carry out assessments and will evaluate the Laboratory's systems and procedures. Its reports will be published.
I hope to see this legislation progress through the Oireachtas in the coming months and, in view of its complexity and importance, sufficient time will be allowed for a full debate on its content."
The Bill is available on the Oireachtas website - www.oireachtas.ie
19 January 2010
Note to Editors
1. The Law Reform Commission issued a report in October 2005 recommending the establishment of a DNA database, with two main functions (i) criminal investigations and (ii) identification of persons. The Government decided to proceed with that general recommendation.
2. In the case of criminal investigations, samples may be taken for the database from
anyone (other than a child under 14 or a 'protected' person) arrested under the statutory powers in section 9 (i.e. suspects). These powers apply (with just a few exceptions) to offences having a maximum penalty of at least 5 years imprisonment.
Anyone in prison and who is serving a sentence in relation to an offence to which the powers in section 9 apply, or who is still subject to the sentence at that time (e.g. on temporary release). This will apply mostly in the case of those in prison when the legislation comes into force but may be used also if a prisoner had not been sampled when arrested).
Samples may be taken from anyone on the sex offenders register.
3. Samples taken to assist in the identification of missing or unidentified persons (both dead and alive), can be taken from relatives or from the person. The samples may not be used for criminal investigations.
4. The database will have two divisions, each division will comprise indexes. In the criminal side, there will indexes containing profiles from crime scene samples, as well as an index based on samples from suspects and convicted persons. The indexes will be run against themselves and against one another.
5. Gardaí and Laboratory staff with access to crime scene samples will be on an elimination index, to be used to eliminate them in the event of a sample from a crime scene becoming contaminated. Their profiles will be examined in cases where there is an unidentified trace from a crime scene (where the officer attended the scene or at some point handled the sample), in order to eliminate that trace being caused by contamination.
6. The European Court of Human Rights delivered its judgement in the case S and Marper v. UK in December 2008. The Court held that the indefinite retention of DNA samples and profiles and fingerprints taken from persons who are not charged or are acquitted is an infringement of the ECHR's privacy provisions. The Court distinguished between samples and profiles, noting that samples could potentially provide much more information than was captured by the DNA profile. The judgement therefore supported shorter retention periods for samples as opposed to profiles. It also supported allowances being made for groups such as children. The Bill reflects all of these issues.
7. Samples will generally be destroyed after three years. Profiles from convicted persons can be held indefinitely. Profiles from suspects who are not charged or who have been acquitted, etc will generally be held for 10 years (5 years for children). However, there is a procedure to allow the donor to apply for earlier destruction. There is also provision for the Garda Commissioner to seek a court order to extend the retention period in particular cases.
8. The oversight committee will oversee the operation of the database by the Laboratory. It will be headed by a judge of the High or Circuit Courts. In terms of the remaining membership, the Minister shall have regard to the desirability of their having obtained qualifications, experience or expertise in science, human rights or any other field which the Minister considers appropriate having regard to the functions of the Committee under the Act.
The committee will be required to ensure the integrity of the database is maintained and towards that end it will examine procedures, general systems, etc. Its reports will go to the Oireachtas.