Head 2: Permitted Analysis of Samples Taken Under the Bill

Observations on the General Scheme of the

Criminal Justice (Forensic Sampling and Evidence) Bill 2007

Table of Contents

Page

1. Introduction 3

1. Executive Summary 6

1. Relevant Human Rights Standards14

1. Analysis of Bill30

1.Introduction

On February 14th 2007, the General Scheme of the Criminal Justice (Forensic Sampling and Evidence) Bill 2007 was referred to the Irish Human Rights Commission (IHRC) for examination and to report on its implications in consideration of prevailing human rights norms.[1] These observations set out the main relevant human rights standards and analyse the provisions of the Bill against these standards.

At the outset, the Commission wishes to make clear that, in line with the primary objective of preventing and detecting crime, the gardaí should have at their disposal the benefits of modern science and technology.[2] In the context of DNA science, it has been argued that the potential of this crime control technique in Ireland is currently limited by the absence of a permanent collection of reference profiles to which samples obtained at a crime scene can be compared.[3] A DNA database enables a person, not previously suspected of committing a crime, to be identified as the possible perpetrator of an offence or to exclude a person from further investigation.[4]

While appreciating the important contribution a DNA database can make to crime investigation, the IHRC believes that any legislative initiative in this area must find a proportionate balance between the rights of the person who is the source of a DNA sample and the wider societal interests such as the prevention of disorder and crime. The principle of proportionality further requires that the more intimate the data retained, the more important the competing interest has to be. Thus, while the legitimate interest in the prevention and detection of crime may justify the establishment of a DNA database, the need for human rights protections in relation to the examination of the function, scope and operation of the database is essential.

A core principle of human rights law is that classification and differential treatment of persons must not be discriminatory or arbitrary in application. Such differentiation must be justified on some objective criteria based on reasonableness and proportionality. These factors must be considered when addressing the scope of persons whose profiles are stored on the database. The IHRC is also aware of the inherent intrusiveness of forensic sampling and the particular sensitivity of personal genetic information; genetic data contained in DNA represents the most intimate medical data an individual may possess.[5] In addition, the IHRC appreciates that the use of DNA evidence in criminal trials in Ireland is still in its infancy.[6] A further important aspect of any technology of this nature is the interplay between the role of an expert witness and the interpretation of DNA evidence by the jury, which has a fundamental impact on the determination of guilt or innocence.

It is clear, therefore, that legislative reform in relation to the taking of DNA samples and in relation to their immediate and long-term use, retention and destruction, will engage with important questions of individual rights, particularly in relation to bodily integrity,[7] privacy[8] and fair trial.[9] In particular, the observations herein will focus on the following areas of concern:

(i) Establishment of a DNA Database

• Function of the DNA database
• Retention of DNA samples from suspects
• Removal and destruction of DNA samples

(ii) Regulation of the DNA Database

• Designated laboratory
• Role of the oversight committee
• International co-operation

(iii) Taking DNA samples

• General safeguards
• Vulnerable persons
• Mass screening and volunteers
• Consent and use of reasonable force

(iv) Evidential issues and due process values.

The IHRC is additionally concerned that the potential human rights impact of the proposed legislation may be underappreciated by the wider public due to the technical complexity of DNA. The IHRC believes a widespread inclusive debate as a prelude to the introduction of effective regulatory controls is therefore essential and it would welcome any initiative that would foster informed debate on this issue.[10]

Executive Summary

The Criminal Justice (Forensic Sampling and Evidence) Bill 2007 aims to establish a DNA database in Ireland. The Commission welcomes the potential a DNA database can offer as an effective crime control technique to An Garda Síochána. It can enable a person, not previously suspected of committing a crime, to be identified as the possible perpetrator of an offence. It can also exclude a person from further investigation.

While appreciating the significance of this contribution to criminal investigation, the Commission is concerned that the potential human rights impact of the proposed legislation may not be fully appreciated by the wider public. A DNA database stores and retains the most personal information an individual may possess, the implications of which should be understood by each individual. The Commission believes a widespread inclusive debate as a prelude to the introduction of effective regulatory controls is therefore essential.

The Commission considers it imperative that rigorous safeguards underpin the legal framework governing the taking of DNA samples and the operation of a DNA database. The fundamental integrity of DNA as evidence in a criminal trial is dependent on adherence to such standards. In this way, safeguards should be explicit in legislation to avoid miscarriages of justice which can and do take place in the pursuit of finding those guilty of a crime. The necessity of having stringent safeguards in place is further heightened in the context of vulnerable persons, such as children and those with a mental illness. In the Commission’s view, protection in the proposed legislation is not adequate.

The Commission also considers it essential to highlight that there can be little, if anything, more private to an individual than information on his or her genetic make-up. The guarantee of a person’s right to privacy is therefore fundamentally affected by the retention and storage of their DNA sample on a database. What is objectively reasonable and proportionate must be considered in the examination of the parameters of the DNA database. By way of example, the indefinite retention of DNA samples from persons who remain innocent before the law is an unacceptable invasion of a person’s right to privacy. In addition, carrying out mass-screenings of groups of persons should not be used as an ordinary investigative tool, but should be restricted in their use where other less intrusive and less expensive means have proved unhelpful.

Exchanging personal information, such as a DNA sample, to other bodies internationally raises serious concerns for the privacy rights of individuals, particularly those who ‘freely’ consent to DNA sampling. In volunteering a DNA sample, an individual may or may not appreciate the pool of potential persons who may have access to their sample. There is thus an onus of responsibility on the State to provide such information so that the consent given is actual and real.

The following is a summary of the main recommendations of the Irish Human Rights Commission in its examination of the General Scheme of the Criminal Justice (Forensic Sampling and Evidence) Bill 2007 and its adherence to prevailing human rights standards.

1. Function of the DNA Database

• It must be acknowledged that the potential uses of DNA samples are likely to expand in the future. It is therefore essential that domestic law lays down with sufficient precision the circumstances in which authorities can store and make use of information relating to an individual’s private life.

 The IHRC recommends the proposed legislation should be amended to specify in explicit and exclusive terms the purposes for which the information in the DNA database can be utilised.

1. Retention of DNA samples from suspects

• It must be highlighted that the indefinite retention of suspect’s samples on DNA databases is the exception rather than the norm both in Europe and internationally. The IHRC considers the current proposal to indefinitely retain samples taken from suspects, who remain innocent, is an unacceptable invasion of a person’s right to privacy.

 The IHRC recommends removal and destruction of a suspect’s sample and profile should occur as soon as practicable once legal proceedings have been discontinued or concluded and the person has been discharged or acquitted.

• In line with recommendations made by the Law Reform Commission, the IHRC acknowledges there may be circumstances where a sample should not be destroyed.

 The IHRC recommends inclusion of a saver provision to give the DPP authority to make an application to the court allowing the retention of the sample or profile in certain circumstances.

1. Removal and destruction of DNA samples

• The IHRC considers the provision that an applicant must appeal the Garda Commissioner’s decision regarding removal and destruction of DNA samples to be within two months, very restrictive. This may allow limited opportunity for the applicant to seek legal advice. There is no requirement for the Garda Commissioner to supply reasons for its position and thus the applicant may not easily appreciate whether an appeal is likely to be granted or refused.

 The IHRC recommends an onus should lie on the Garda Commissioner to supply reasons for his or her position regarding removal and destruction of DNA samples. The time period within which a person can make an appeal on the decision should be extended from two months to four months in order to allow sufficient time for preparation of his or her case.

 In the context of those persons who have freely consented to give a sample, persons who are classified as volunteers under the Bill, the Commission believes they should be entitled to withdraw their consent without difficulty. In addition, guidance should be given to the court in making the decision to grant or refuse the application. Given the particular sensitivity of personal genetic information contained in a DNA sample and the volunteer status of the individual, the IHRC considers that such an order should only be granted in exceptional circumstances.

 The IHRC recommends that the factors to be considered by the court and the grounds upon which a Superintendent has authority to make a request for retention of the sample should be laid out in legislation. An order requesting the retention of the sample should only be granted in exceptional circumstances.

1. Designated Laboratory

• The IHRC believes the potential for reassignment and delegation of responsibility of work carried out by the Forensic Science Laboratory to another body inside or outside the State raises a number of concerns for the privacy of personal information stored on a national DNA database. International human rights jurisprudence has indicated that a number of important safeguards should be in place to ensure that information concerning a person’s private life does not reach the hands of persons who are not authorised by law to receive, process and use it, and is never used for purposes incompatible with domestic law. Every individual should have the right to ascertain what personal data is stored about them and for what purpose.

 The IHRC recommends accountability provisions should be intrinsic in any framework allowing the transfer of personal information such as DNA. Safeguards should be provided by legislation so that designation of responsibility of work to a third party only occurs in exceptional circumstances. There should be an undertaking on the Director or Commissioner to provide the Minister with a detailed explanation for proposing the reassignment of responsibility.

1. Role of the oversight committee

• The IHRC believes that the oversight committee established to oversee the operation of the DNA database will have a crucial role in ensuring effective protection of human rights.

 The IHRC recommends that the committee should have the power to publish reports concerning issues of urgent interest to the public. As an independent agency, the method of publication of its reports should not be at the Minister’s discretion. Queries raised by the committee should have the right to receive a reply from the relevant body within a specified period of time. Access to documentation and records should be open to the oversight committee on a non-restricted basis.

• The IHRC considers the appointment of the members of the oversight committee must have regard to the knowledge and experience that would be of assistance to the committee in the performance of its functions. While the Commission welcomes the legislative proposals stating that a representative of the legal profession, a person with appropriate scientific or medical qualifications, and a nominee of the Data Protection Commissioner should be members on the committee, the Commission considers the important human rights issues with which a DNA database engages necessitate a human rights perspective to be represented on the committee.

 The IHRC recommends in line with the Law Reform Commission’s stated recommendations that the committee should include a representative from a human rights organisation.

 The IHRC recommends added protection should be inserted in statute so as to avoid the risk of a conflict of interest between members of the oversight committee and the designated laboratory.

 The IHRC recommends membership on the committee should attract absolute privilege so as to ensure independence, impartiality and security of position for its members.

 The IHRC recommends independent external reviews of the database should be carried out by the Irish National Accreditation Board (INAB).

1. International co-operation

• Ensuring effective compliance with safeguards is problematic when sensitive information is transferred between different states and between agencies with different access, use and privacy provisions. The current state of co-operation between national authorities in respect of DNA profiles is at an early stage of development. The IHRC considers it essential that a detailed framework be established at a European and international level that incorporates procedural protections to ensure compatibility with human rights obligations. Allowing the exchange of personal information in the absence of a framework is a cause for concern.

 The IHRC recommends an agreement between the Irish authorities and other states or agencies concerning the transfer of such personal information as a necessary safeguard to ensure protection for the privacy and the fundamental rights and freedoms of data subjects. In the absence thereof, no exchange should be authorised.

 The IHRC recommends legislation should make it explicit that non-public bodies are precluded from capacity as recipients of such information.

 The IHRC recommends individual notification of the transfer of a person’s DNA data internationally should be mandatory and individuals should be allowed to make a challenge to the use of his or her data.

• The IHRC contends that the initial consent of a volunteer to the availability of the sample on the Irish database should not be taken as authorisation for the transfer of the sample internationally.

 If there is a possibility that the sample taken from a volunteer could be exchanged internationally, the IHRC recommends An Garda Síochána should be required, when seeking consent, to inform the individual of this possibility.

1. Taking DNA Samples

 The IHRC recommends the Bill should be amended to stipulate that codes of good practice in relation to the taking of samples should be developed with due regard to international best practice and international human rights standards. Consultation should be mandatory between the gardaí, the designated laboratory, Data Protection Commissioner and the Irish Human Rights Commission before such codes of good practice are developed.

 The IHRC considers the safeguards in relation to the taking of samples laid out in the proposed Bill are inadequate. The following general safeguards should be included in relation to the taking of bodily samples:

(i) the taking of bodily samples should be carried out in circumstances affording reasonable privacy to the person;

(ii) the taking of bodily samples should not be carried out in the presence or view of a person whose presence is not necessary for the purposes of the forensic procedure;

(iii) there should be no questioning during the taking of bodily samples;

(iv) the taking of bodily samples should not involve any cruel, inhuman or degrading treatment;

(v) the number of members of the Garda Síochána present during the taking of bodily samples must not exceed that which is reasonably necessary to ensure that the procedure is carried out effectively;

(vi) the taking of bodily samples must be video recorded in all circumstances unless the person objects to the video recording and the person must be informed of the reasons for the video recording;

(vii) the person should have the right to an interpreter where he or she does not speak English fluently;

(viii) the person should have the right of access to legal advice to decide the implications of refusing to give a bodily sample.

1. Vulnerable persons

 In line with the importance of respecting the rights and vulnerability of children, the IHRC recommends the presence of a parent or guardian should be a condition of consent when taking a sample from persons under 18 years of age. The IHRC also recommends the taking of samples from persons of this age should be limited to those convicted of a serious offence and to suspects for serious offences, but not volunteers or more generally. This should be made explicit in legislation.

 In the event that the safeguard, requiring the presence of a parent or guardian during the taking of bodily samples from a minor, is not included in legislation, the IHRC recommends no use of force should be allowed.

• There are no additional safeguards in place for vulnerable persons with reduced capacity due to for example, a mental illness.

 The IHRC recommends that the presence of an independent person who is not a member of An Garda Síochána should be required during the taking of bodily samples from persons with reduced capacity.

 The IHRC recommends that a person from whom a sample is taken should have the right to an interpreter where he or she does not speak English fluently.

1. Mass screening and volunteers

 The IHRC recommends mass screening should only be considered an option for the gardaí where consideration has been given to alternative less intrusive and less costly means of criminal investigation methods.

 Before consent is given for the giving of a sample, the IHRC recommends volunteers and persons involved in a mass screening should have a reasonable opportunity to communicate or attempt to communicate with a legal practitioner. In the event that the person does not communicate with a legal practitioner, access to such information, for example in the form of a leaflet, should be supplied in advance of giving his or her consent.