Criminal Law (Amendment) (Genetic Fingerprinting) Bill, 1988: First Stage.

Tuesday, 25 October 1988

Dáil Eireann Debate
Vol. 383 No. 3

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Mr. Shatter: Information on Alan Shatter  Zoom on Alan Shatter  I move: “That leave be granted to introduce a Bill entitled an Act to amend criminal law and procedure and to provide for genetic fingerprinting.”

Fine Gael believe that the Garda Síochána should be able to avail of all [695] modern scientific techniques in criminal investigations. It is essential that the Garda not only have the necessary back-up facilities but that, in addition, our criminal law reflects and keeps pace with modern scientific developments. Genetic fingerprinting is about to revolutionise the criminal investigative process. It is currently being utilised in some states in the United States and in the United Kingdom and Northern Ireland. At present, the Garda lack both the forensic facilities to use this technique and the necessary enabling legislation to apply it.

It is not possible in the context of a Private Members' Bill to provide for public expenditure. Fine Gael believe however, that it is essential that the necessary funding be provided by Government to establish as a matter of urgency the required forensic laboratory facilities for the Garda to enable them to make use of genetic fingerprinting in the fight against crime. Accordingly, we call upon the Government to do so.

It is possible by way of a Private Members' Bill to provide the statutory mechanisms for the use of this technique in crime detection and the Criminal Law (Amendment) (Genetic Fingerprinting) Bill, 1988, which I moved provides the statutory framework necessary. It is the hope of Fine Gael that we will have the support of all sides in this House for a First Reading of this Bill so that it may be circulated and its detailed provisions debated on Second Stage.

There is little doubt that genetic fingerprinting is the single greatest break-through in the fight against crime since fingerprints themselves were discovered in 1901. Samples of tissue such as blood, skin, hair or semen left at the scene of a crime can be analysed so as to identify the perpetrator of a crime. The technique can result in indisputably accurate evidence of identity being obtained at the scene of a crime in many circumstances in which the identity of the person who committed the crime would otherwise remain unknown.

[696] Genetic fingerprinting can make a unique contribution throughout the whole criminal justice area and, in particular, in the investigation of serious and horrific offences such as murder, rape and physical and sexual assault. It can also play a crucial role in the fight against subversive crime. It is of equal importance that the technique can also be used to ensure that an innocent person is not wrongly accused or convicted of a crime he did not commit.

In the brief time that I am allowed this evening it is not possible to detail all of the cases in which this technique has been successfully used to date. Two examples of its use can be given to illustrate its effectiveness. In January 1988 one Colin Pitchfork was convicted for murder by the English courts. In 1983 he had raped and murdered a teenage girl and another teenage girl was raped and murdered by him in 1986. The wrong person was initially arrested by the English police for these offences and if the new scientific technique of genetic fingerprinting had not been utilised that person could have been wrongly convicted and Pitchfork would have been left at large to repeat these horrific crimes. In Northern Ireland in June 1988 a 21-year-old man was jailed for life for murder in Belfast having sexually assaulted and murdered his neighbour. Without the use of genetic fingerprinting his identity would not have been ascertained.

In June last I attempted to move this Bill for a first reading but it was opposed by the Minister. It is extraordinary that since that time the Minister has been silent as to his reasons for opposing a First Reading and for seeking to prevent circulation of the Bill. In the intervening period legislation has been enacted to provide the use of genetic fingerprinting by the RUC.

Despite the Minister opposing publication of the Fine Gael Bill, no comment has been made by him of any nature whatsoever on the introduction of genetic fingerprinting in Northern Ireland or on the statutory measures relating to its use. I want to emphasise that the Bill prepared by Fine Gael is substantially different [697] from the approach to be taken by the RUC under the statutory provisions relating to genetic fingerprinting in Northern Ireland. In particular, I want to emphasise that essential protections for civil liberties contained in our Bill appear absent in Northern Ireland's legislation.

For example, the power conferred on officers in the RUC to take mouth swabs by the use of physical force from suspects would not be conferred on the Garda. This provision in the North has today been strongly and rightly criticised by the Standing Advisory Committee on Human Rights which acts as an adviser to the Northern Ireland Secretary of State and was criticised by me at the time of the publication of the relevant legislation that subsequently was enacted by the Westminister Parliament to apply to Northern Ireland. In this context, it is curious that the Minister for Justice while opposing publication of the Fine Gael Bill last June has in the past four months remained totally silent on the Northern Ireland measure.

It is my belief that in a democratic Parliament which cherishes its democratic traditions, the Government of the day should not be permitted to prevent the publication of proposed legislation so as to prevent its distribution and render impossible an informed discussion taking place of proposals contained in it. A vote for this Bill this evening is not a vote to accept all of the Bill's provisions unamended. I want to emphasise that Fine Gael wish to see enacted in this area the best possible legislation and we are willing to take on board any constructive amendments proposed to this Bill that would ensure its proper workings. A vote for this Bill this evening is a vote to permit its circulation and to allow a detailed and informed discussion on its provisions to take place. A vote against this Bill this evening is a vote in favour of censorship and a vote to curtail the ability of Members of this House to act as legislators.

Members of this House are too frequently criticised by the general public for their failure to act as legislators. The [698] majority of Members of this House should oppose any attempt made by Government to prevent the publication and circulation of a Private Members' Bill on an issue of public importance. A vote in favour of this Bill is a vote that recognises that each and every one of us in this House is elected to act as a legislator and is a vote to uphold our democratic traditions. A vote against this Bill at this stage is a vote to restrict and curtail the legislative role each and every Member of this House is entitled to play and to censor our ability to debate a major scientific advance in the area of crime detection.

An Ceann Comhairle: Information on Seán Treacy  Zoom on Seán Treacy  I indicated earlier that spokespersons from other parties would be given an opportunity of commenting for five minutes should they so desire.

Mr. McCartan: Information on Patrick McCartan  Zoom on Patrick McCartan  Is it order to offer in advance of the Minister?

An Ceann Comhairle: Information on Seán Treacy  Zoom on Seán Treacy  Yes. Is Deputy Geraldine Kennedy offering?

Miss Kennedy: Information on Geraldine Kennedy  Zoom on Geraldine Kennedy  I am, A Cheann Comhairle.

An Ceann Comhairle: Information on Seán Treacy  Zoom on Seán Treacy  I will call the Minister at the end of the debate.

Miss Kennedy: Information on Geraldine Kennedy  Zoom on Geraldine Kennedy  We support the publication of this Bill and we also believe that the Garda should be provided with the statutory framework to avail of the most modern scientific techniques in the carrying out of their work. If circulated we will put forward a number of amendments to the Fine Gael Bill as proposed this evening. The use of genetic fingerprinting is a very sensitive issue which could affect a person's right to privacy under the Constitution. At the same time, we are supporting Fine Gael and we call on the Minister to allow this important issue to be fully debated in detail in the House.

Mr. Taylor: Information on Mervyn Taylor  Zoom on Mervyn Taylor  The Labour Party would be in favour of the publication of the Bill. [699] We retain an open mind so far as the substance of the Bill is concerned. We will examine it and consult about it when it is published but we believe that it should be published and debated in this House. If it has a role to play in providing additional evidential measures in the courts of justice that is to be welcomed, provided the safeguards which are necessary and appropriate to the rules of evidence are there. It would be a new departure so far as the rules of evidence would be concerned and great care should be taken to ensure that this exercise would be in accordance with the rules of fair play as well as with the rules of the Constitution. The House should agree to the publication of the Bill so that its provisions can be examined in detail on Second and Committee Stages.

Mr. McCartan: Information on Patrick McCartan  Zoom on Patrick McCartan  On behalf of the The Worker's Party I rise again to indicate our agreement in principle with the Bill as made available to the Leaders of the parties by Deputy Shatter in advance of our discussion this evening. It is a great pity that the opportunity to incorporate the major advances of DNA fingerprinting was not availed of when offered to the Government in the course of the debate on the Customs and Excise (Miscellaneous Provisions) Bill, when the availability of this investigative technique was first brought to the attention of the Government by Members on this side of the House. It was impressed on the Minister of the day to examine this issue carefully. Later in the session it was a great surprise to us that the Government indicated their objection to the circulation and First Reading of the Bill. As a party who are considerably dis-advantaged in the operation of the procedures of this House, a party without hope in terms of having many of their legislative proposals debated, at no stage would we seek to inhibit or avoid supporting the circulation of useful, progressive legislation, particularly when all that is being sought is an opportunity to read, circulate and discuss its important provisions.

[700] It should be pointed out that this DNA fingerprinting constitutes a crucial development in police detection providing a 99 per cent accurate method of detection. It is important as a civil liberty issue not only in so far as it is capable of detecting those who are guilty but, equally important, of excluding those who are innocent. If properly developed and utilised it is a detection device which would obviate many major issues surrounding guilt or innocence so tortuously pursued in our criminal courts at present. Consequently, it constitutes an effective detection procedure, when properly employed, which would eliminate a huge amount of cost and delay in the implementation of the provisions of our criminal laws.

However, it is not confined merely to that area. The provisions of this Bill provide an opportunity to debate in principle the whole development of a scheme of DNA fingerprinting identification. If properly developed here it would be a very useful device in civil issues, for example, in relation to those relating to the identity of paternity cases. Its advantages are not confined merely to criminal investigation although the provisions of this Bill address that one aspect only. It is worth making the point that it is in areas of crime against women particularly that this detection device would prove to be so useful. As a Government who have indicated a certain degree of concern, both inside and outside this Chamber, about the protection of women, I must question whether they are serious in that respect. Their refusal to allow even the circulation of this Bill would tend to suggest otherwise.

One aspect dealt with by Deputy Shatter in moving the motion this evening was the suggestion that this Bill is different in principle from the issues now being debated in Northern Ireland and highlighted by Sir Oliver Napier on behalf of the Standing Committee on Human Rights there.

Having said that my party would agree in principle with the provisions of the Bill, I have already indicated a certain lack of satisfaction with regard to the [701] manner in which the Bill was drafted, the manner in which it utilises the provisions of existing legislation. For example, the element of consent is not dealt with in its provisions. I understand that Deputy Shatter would be receptive to the suggestion — and we would put this case to him — that, in this area, it would be important to have a positive declaration specifying that consent was a pre-condition to the taking of a sample necessary to establish identify using the DNA fingerprinting process. That is a matter that could be easily teased out. It does not take from the fundamental point at issue here this evening, that of simple parliamentary democracy and the assurance of the effective operations of this House. We are anxious to ensure that we can deal with useful legislation as frequently as possible. This is one Bill with which we should be dealing and my party support it.

In passing I might say that it is remarkable that a Member of the Seanad told me in the corridors that the Seanad will not be meeting for the next two or three weeks because there is not one Bill to be found in any Government Department to be discussed by them while here——

An Ceann Comhairle: Information on Seán Treacy  Zoom on Seán Treacy  The Seanad should be left out of this debate.

Mr. McCartan: Information on Patrick McCartan  Zoom on Patrick McCartan  ——we endeavour to tolerate a Government refusing to allow even the circulation of this useful Bill. They should rethink this matter so that debate can be initiated.

Minister for Justice (Mr. Collins): Information on Gerard Collins  Zoom on Gerard Collins  I have looked at the Deputy's Bill as published earlier this year in a document describing what is referred to as genetic fingerprinting. While I share the Deputy's concern that the Garda should have the most up-to-date technological advances in their efforts to apprehend the perpetrators of serious crime and while I have no problem with the aims of his Bill I must say that the form and terms of the Bill raise important difficulties for me. In my view the Bill suffers from very serious defects. Most importantly, it fails to deal with important issues such as whether [702] and to what extent consent should be required before a sample is taken and, in that event, what is to happen if consent is refused. We are dealing with a measure which envisages the taking by the Garda of bodily samples such as blood, urine, semen, tissue, hair, swabs from bodily orifices or from the skin. It will be obvious to anybody that the first question that must arise in considering such a proposal is whether, and if so, to what extent, the consent of the suspected person is required. But the Bill makes no mention of this aspect and, on the face of it, the Bill would allow all such samples to be taken by force. This is clearly an aspect that must be dealt with. Deputies will be aware of the outcry in the North of Ireland against recent provisions allowing the police to take mouth swabs by force, a provision which, I note, was not acceptable in legislation in Great Britain. There is also the question of who may take the samples, some of which would be of a very intimate and intrusive nature. This again is not dealt with in the Bill.

Deputies will agree that these matters are much too important to be left to be dealt with in regulations, as proposed by the Deputy, and should be dealt with in the Bill itself.

I am also advised that there is a number of technical drafting defects in the Bill which I need not go into now.

Furthermore, it is my view that, given the importance of the issue, it is preferable that the power to take samples for the purpose of genetic profiling and other forensic testing should be dealt with in a self-contained comprehensive Bill rather than — as proposed in the Deputy's Bill — by inserting new clauses into existing statutory provisions — the Criminal Law Act, 1976 and the Criminal Justice Act, 1984 which were not designed with this technique or with the type of body samples required for genetic profiling in mind. For example, the samples — hair and skin swabs to detect explosives — that may be taken under the provisions of the 1976 and 1984 Acts are types of samples that people would agree could reasonably be taken without consent. Totally different considerations arise in [703] relation to the intimate samples envisaged in the Bill. Therefore mere adaptation of the 1976 and 1984 Acts, as proposed in the Bill, is not the way to deal with the matter. For this reason I believe the Bill is not one that could be usefully accepted on the basis that it could be amended by the Oireachtas. In my view the Bill would require to be totally recast.

As I shall explain, the Forensic Science Laboratory have been clearing the ground for the introduction of genetic testing and expect to be in a position to undertake testing by the middle of next year. In addition, my Department have been preparing proposals for legislation to regulate the taking of samples for genetic and other testing. That work is at an advanced stage. I hope to bring forward a comprehensive Bill on the matter in a matter of weeks. Of course it is my purpose that that legislation will be in place by the time the forensic laboratory are in a position to commence testing.

As far back as last April arrangements were made for a scientist from our Forensic Science Laboratory to be trained in the genetic profiling technique. This scientist will be qualified in the technique by the end of the year and another has commenced training. I have made provision for the purchase of the additional equipment which will be required by the laboratory to carry out these tests. However a further matter which has yet to be resolved before the laboratory can start using the technique is the question of obtaining a licence from ICI who are the holders of the patent. The laboratory are confident that they will be in a position to undertake genetic testing by about the middle of next year. While speaking of the laboratory I should like to take this opportunity to commend the work which is being done by them. While of relatively recent origin the laboratory have achieved a very high professional standing which is widely recognised. I believe they are one of the first forensic science facilities outside of the United Kingdom to be in a position to shortly provide the test. I think I can safely include all sides of the [704] House in expressing appreciation of their valuable work.

To summarise the position, the Deputy's Bill is not adequate to deal with the matter. The necessary technical arrangements are being made to have the genetic profiling test available at the Forensic Science Laboratory as quickly as possible. My Department have also been preparing a Bill to give the Garda powers to take samples for genetic and other forensic tests and I would hope to be in a position to bring forward such legislation in a matter of weeks.

In the circumstances, I would ask the Deputy to withdraw his Bill on the understanding that I will shortly be bringing forward a comprehensive measure.

If Deputy Shatter insists on circulating and publishing a defective and inadequate Bill to deal with the problem, so be it. My comprehensive Bill will be available in a matter of a few weeks.

Mr. Shatter: Information on Alan Shatter  Zoom on Alan Shatter  May I respond to the Minister?

An Ceann Comhairle: Information on Seán Treacy  Zoom on Seán Treacy  The Deputy may not, he is allowed to ask a question.

Mr. Shatter: Information on Alan Shatter  Zoom on Alan Shatter  We welcome the fact that this Bill is acting as a catalyst to the Government taking up this issue——

Mr. Collins: Information on Gerard Collins  Zoom on Gerard Collins  It is certainly not acting as a catalyst.

Mr. Dukes: Information on Alan M. Dukes  Zoom on Alan M. Dukes  Give in gracefully.

Mr. Shatter: Information on Alan Shatter  Zoom on Alan Shatter  I understand that the Minister is not opposing the First Reading of the Bill.

Mr. Collins: Information on Gerard Collins  Zoom on Gerard Collins  If the Deputy insists on circulating the Bill, so be it.

Question put and agreed to.

An Ceann Comhairle: Information on Seán Treacy  Zoom on Seán Treacy  Is it agreed that Second Stage be taken in Private Members' time? Agreed.

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