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New DNA bill faces opposition
20 December 2009 By Niamh Connolly Political Correspondent
The government’s plans for a DNA database, which will store samples from criminals and suspects, is likely to face opposition from civil liberties groups.
Minister for Justice Dermot Ahern is understood to have taken account of concerns raised by the Irish Human Rights Commission when drawing up the DNA legislation. Despite safeguards in the legislation, some aspects of the plan may raise constitutional concerns.
It is understood that Ahern views the measures as a reasonable balancing of rights between the public interest in fighting crime and the need to uphold standards of privacy.
The bill, which will be published next month, gives gardaí powers to take DNA samples from convicted people and suspects who are detained in garda custody for offences that are punishable by five years’ imprisonment. The measures will also apply to a small number of offences linked to drug trafficking that do not meet the five-year threshold.
The DNA bill is a major departure in domestic law and raises constitutional issues such as privacy rights and bodily integrity rights. For this reason, Ahern revised the bill to introduce further checks and balances following the ‘Marper’ court judgment in Britain, which concerned the practice of indefinitely retaining samples of suspects not charged with an offence.
In its judgment, the British court said the ‘‘blanket and indiscriminate’’ collection of such records was a ‘‘disproportionate interference with the applicants’ right to respect for private life’’, as guaranteed by the European Convention on Human Rights.
The British government subsequently proposed keeping DNA profiles and samples for 12 years, but later reduced this to six years. Legislation will be introduced in Britain to afford people the right to go to court to challenge a police refusal to delete their details.
Ahern’s legislation provides for samples to be destroyed and profiles removed after three years for suspects who are not charged and for those that are charged but acquitted.
The provision would also apply where a conviction is quashed or a miscarriage of justice is declared.
However, DNA profiles taken from people who are convicted of offences carrying a jail sentence of five years or more will be retained indefinitely.
The samples of those convicted under the Sex Offenders Act 2001 will also be retained, with a limited exception for some children who have been convicted.
In other safeguards, the bill includes special provisions for the taking and retention of samples from children and other vulnerable persons.
There will be independent oversight of the sampling and DNA profiling arrangements, and provision will be made for the publication of a code of practice, as well as informing the donor of any issues before a sample is taken.
The bill is expected to be enacted as early as spring next year because Ahern believes that building the database as quickly as possible will result in increased intelligence. The design and planning of a purposebuilt Forensic Science Laboratory at the Backwest on laboratory complex in Celbridge, Co Kildare, is advanced and expected to go to procurement stage shortly.
Samples taken for the database will usually comprise either mouth swabs or plucked head hairs, while medical professionals will take samples of an intimate nature from suspects. Prison officers will also take samples from prisoners where necessary.
The samples provided for in this bill do not include fingerprints and palm prints, which are subject to separate statutory provisions. In the case of missing people, samples may be taken for the purpose of identification from blood relatives with their consent and from the missing person’s belongings.
The DNA database is expected to help in the investigation of the remains of unidentified people.
The DNA database system will have two divisions: the investigation division and the identification division, which will be made up of the missing and unknown persons index.
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