Thursday, 1 March 1990
Dáil Éireann Debate
Minister for Justice (Mr. Burke): The purpose of this Bill is to provide the Garda Síochána with power to take for forensic testing bodily samples such as blood, urine, saliva etc. from persons suspected of serious criminal offences. As the law stands the Garda have only very limited powers to take such samples. In the case of persons detained under the Offences against the State Act, 1939, and the Criminal Justice Act, 1984, they may take swabs from the skin or samples of hair for testing for contact with firearms or explosives. Other than this and limited powers under the Road Traffic Acts they have no power to take bodily samples.
As the value of the evidence which can be obtained by forensic tests becomes ever greater and particularly with the advent of DNA profiling, or genetic fingerprinting as it is more commonly called, I believe it is essential that the Garda should have greater powers to obtain samples from persons suspected of serious crimes for forensic testing.
The Bill will empower the taking of samples for any type of forensic test. It does not refer to any particular test or  tests. However, it is undoubtedly the case that it was the recent advent of the DNA profiling test which largely highlighted the need for this legislation. DNA profiling is considered to be the single biggest advance in the field of forensic investigation since the discovery of fingerprints at the turn of the century. It involves a technique whereby DNA — deoxyribonucleic acid — which stores and transmits genetic information within the body, can be extracted from blood, semen, tissue or other bodily fluids and broken down into distinctive patterns or profiles which can be used to identify the individual from whom they come. With the exception of identical twins it would seem that every person has a unique genetic code which can be used to identify that person.
Since DNA is present in every part of the human body and in the blood stream, it provides a unique means for the positive identification of tissue and fluids found at the scene of a crime. Examples of this would be semen deposited during a sex offence and blood spattered and smeared during a wide range of crimes of violence such as rape, assault, murder, house and shop breaking, crashing stolen vehicles, hit and run accidents etc.
The DNA profiling test has already been used in this country in ten cases involving serious crimes, including murder and rape. Significantly, in one of those cases the DNA test was able to establish the innocence of the person who had been identified as the rapist by the victim. The testing in these cases was carried out in Britain under arrangements made by the Forensic Science Laboratory.
DNA is still a very new technique and it has the potential for further refinement and development. For example, I understand that work is being done on a process known as “replication” whereby the DNA in very small traces of human tissue or fluids which may be left at the scene of a crime and which might not now be adequate for testing can be grown to form sufficient DNA for the test. This could mean that saliva which contains a few skin cells, now too little for DNA testing,  could also be positively identified as to origin. This is very significant from the point of view of criminal investigation. Saliva occurs in bite marks, sex offences, on the back of stamps, on gummed envelopes in, say, threatening letters, on cigarette ends left at crime scenes. Similarly head and pubic hairs transferred during a crime will carry some skin cells with them and would be identifiable by this new “replication” technique.
Our Forensic Science Laboratory expects to be in a position to undertake DNA profiling in the autumn and I am fully committed to ensuring that the laboratory is provided with the resources they need therefor. Staff have already been trained in the technique and additional scientists are being recruited to enable DNA testing to be carried out. The specialised equipment needed for the tests is also being purchased. Negotiations have been concluded successfully with ICI, the holders of the patent, for a licence to use the vital chemical probes which form the basis of the technique.
Before leaving the matter of DNA profiling I would like, however, to make one point clear. The purpose of this Bill is to empower the Garda to obtain bodily samples for forensic testing in general. There is no reference in the Bill itself to DNA profiling or any other type of forensic test. The value or weight which should be attached to evidence derived from such tests is a matter to be determined by the courts in the light of expert opinion. I mention this because of the recent publicity which arose out of a case in the US throwing doubt on the accuracy of DNA testing. I believe what happened in the United States was a result of faulty procedures and not any basic flaw in the test itself. Be that as it may, I think it worth stating that this Bill does not represent an endorsement of any particular testing procedures. It is the courts, as I have said, who will be sole arbiter of the value of any test.
Turning to the provisions of the Bill, I do not propose to go through it section by section as it is a relatively short Bill and not, I think, overly technical. That  type of detailed examination can best be left to Committee Stage. Rather, what I propose to do is to say something about the substantive issues which arise in the context of the powers being conferred on the Garda in this Bill and the manner in which these have been addressed. I think it is important to do this because it was evident from contributions made during the passage of the Bill through the Seanad that there were certain fundamental misunderstandings about both and the purpose and the substance of the Bill.
The first thing to be clear on is that this Bill is intended to give the Garda power to take samples from persons they reasonably suspect of involvement in serious crime. Forensic evidence, particularly a test like DNA profiling, can play such an important part in establishing the guilt or indeed the innocence of a suspect that it is in the public interest that the Garda should be able to obtain samples for that purpose even if this does mean some interference with personal rights or freedoms.
First, on the question of compulsion, the Bill places an obligation on suspected persons to give or allow samples to be taken. It does not provide for persons to be given a free choice in the matter. Depending on the type of sample which is required, the Bill either empowers the Garda to take the sample using reasonable force if need to be or obliges a suspect to allow a sample to be taken if he is to avoid the possibility of an inference being drawn against him at a subsequent trial. I am quite satisfied that if the Bill were to provide otherwise it would be very unlikely that a person suspected of a serious criminal offence, and knowing himself to be guilty, would voluntarily supply a sample to the Garda which might establish his guilt. To be effective, therefore, there has to be this element of compulsion in the Bill.
Certainly the Bill provides that an intimate or intrusive sample can only be taken with written permission from the suspect. However, the primary purpose of this provision is not to give a suspect freedom to refuse to give a sample but  rather is it a recognition that intimate or intrusive samples can only be taken with a suspect's co-operation if force of a degrading nature is to be avoided. If a suspect refuses without good cause to give consent then the “sting in the tail” as it were is that his refusal may be taken as an inference of guilt at a subsequent trial.
I agree fully that everybody, including persons suspected of criminal offences, have a right to bodily integrity and privacy and that such rights should not be lightly infringed. However, it is an unfortunate fact that some curtailment of individual rights and freedoms has to be endured in the interests of providing society with an effective criminal justice system. For example, many police powers with which we are familiar and which we have long accepted as necessary — such as powers of arrest, search and detention for questioning — curtail to some extent rights of privacy and freedom. The powers proposed in this Bill, in my view, to the extent that they may impinge on individual rights do so in a relatively minor way, and, to counterbalance this, the Bill contains very strict safeguards to ensure that a suspect's interest are protected and that the powers conferred on the gardaí in the Bill are not abused. I will outline these briefly.
First, the Bill provides that the taking of samples which would involve a significant interference with bodily integrity such as blood, urine, saliva, pubic hair or swabs from the mouth or other body orifices or from a genital region or a dental impression will require the written consent of the person from whom they are to be taken which, as I have explained, means that they cannot be taken by physical force. In the case of persons under 17 years, written parental consent will be a prerequisite to the taking of such samples.
Other safeguards provided in the Bill which ensure that the power being conferred is used only in appropriate cases and with full regard to human dignity are as follows: the taking of a sample must be authorised in writing by a superintendent or officer of higher rank; the  suspected person must be informed before a sample is taken why it is being taken; intimate or intrusive samples may only be taken by a doctor or by a dentist in the case of a dental impression; where proceedings are not instituted within six months from the date the sample is taken or where a person is tried and acquitted or the charges against him are dismissed or withdrawn, the samples taken and any records identifying them must be destroyed.
The reason I introduced that amendment to the Bill was because I was advised that, from time to time, cases arise where a person who is in prison becomes the suspect of an offence unrelated to that for which he is in prison and where the gardaí would like to be able to obtain samples from him for forensic testing.
For example, suppose a man is on remand or has been sentenced for, say, burglary and now, because of some evidence which has lately come to hand, he is suspected of a murder committed before his incarceration, a bodily sample for comparison with, say, blood stains found at the scene of the murder might provide important evidence of his guilt or, indeed, innocence. I think it is reasonable that the gardaí should be able to obtain samples in such circumstances and this was the purpose of the amendment.
The effect of that amendment is to put persons who are in prison, whether following sentence or on remand, in exactly the same position vis-á-vis the powers exercisable under the Bill as they would be in if they were not in prison. Suggestions made about this amendment that it was for the purpose of taking advantage of the fact that a person was in prison to obtain samples not otherwise obtainable or to give the gardaí “a second bite of the cherry” are totally unfounded. They have no substance whatsoever. The purpose is, as I said, to put persons in  prison in exactly the same position vis-à-vis the obligation to provide body samples as everybody else and nothing more.
In summary, let me say that a great deal of care has been taken in drafting this Bill to provide only those powers which are essential for the gardaí if they are to be enabled to take full advantage of the forensic science techniques which have been developed. The provisions of the Bill are, in my view, necessary, reasonable and balanced. If any Deputy can show me that this is not so I will certainly listen to his views with care.
Finally, I have not, as I said, dealt with the detail of the Bill because I think this can be better teased out on Committee Stage. However, if there are points on which Deputies are not clear I will endeavour in my closing remarks to deal with any issues raised.
Mr. Flanagan: On behalf of the Fine Gael Party I should like to welcome the Bill as reforming legislation which was promised by the Government some time ago. It is, I believe, a direct response to the substance of a Fine Gael Private Members' Bill that was before the House in 1988. Every right thinking member of society must agree that the Garda Síochána must have at their disposal the most modern scientific methods and techniques to deal with criminal investigation with a view to bringing the many offenders in our society to justice. It is essential that our criminal law keeps pace with modern scientific developments and the Bill is an advance in that direction.
It is not an exaggeration to say that the concept of genetic fingerprinting is the single greatest breakthrough in the fight against crime since fingerprinting was discovered at the turn of the century. By the use of this technique it is possible that the samples of tissue such as blood, skin, hair and semen left at the scene of a crime can be analysed in order to identify the perpetrator of the crime and, on the other hand, to ensure the innocence of an accused in certain circumstances.
However, the fundamental thread that runs through the basis of our criminal  law must always remain that people are innocent until they are proven guilty. I would be concerned, therefore, at the need to take bodily samples for forensic testing from persons suspected of certain criminal offences in order to establish their innocence. I should like to refer to an article in the issue of the Garda News of July/August 1988 on DNA finger-printing. That article referred to the powerful means of the process in determining a person's innocence. It referred to two rape murders committed in England in 1983 and 1986. Certain factors led police to believe that the murders were the work of the same person, a 21 year old youth, who was arrested after the 1986 attack. Original tests showed that both murders could have been committed by the same person but that they also could have been perpetrated by 10 per cent of the male population. However, the youth remained a strong suspect for quite some time. Post-mortem liquid blood samples had been taken from both victims and stored at 5ºC until the time of the DNA analysis. Dried bloodstains, semen stains, pubic hair and vaginal swabs were all kept at -20ºC. Tests carried out in 1986 by Dr. Jeffreys, whom I understand was the pioneer of the whole process, on the stored samples and a blood sample taken from the suspect conclusively excluded the youth as the rapist. He was freed and investigations led to the successful conviction of another person.
I would be somewhat concerned about the need for people to undergo these tests in order to prove their innocence having regard to the golden thread that runs through our system which is that a person is innocent until proven guilty. Overall, it is very important that the gardaí are provided with the necessary facilities in legislation to deal with the increase in crime of a very serious nature. The growing interest in genetic fingerprinting began when a man charged with rape was convicted in Wales in 1987 on the basis of evidence from the genetic tests. The technology soon spread across the Atlantic, labelled as being the “law enforcement tool of the future”. As well as aiding  the forces of law and order in the fight against crime, as the Minister stated, DNA fingerprinting represents a major breakthrough in identification techniques and experts to date have pointed to it as carrying virtually absolute proof.
Apart from cases of murder, rape and assault it is also useful in determining paternity cases and, therefore, is of tremendous importance in maintenance and family law cases. Similarly, as far as immigration disputes are concerned, the British Home Office have recently adopted the procedure with some success where citizens wish to prove their relationship with persons living outside that jurisdiction. In rape cases where a man claims he had nothing to do with the woman, a sample of blood or semen can be tested to give identification that the authorities state to be absolute.
However, I would be quite concerned about the matter of training and I hope the Minister will elaborate on that issue when replying to the debate. It is essential that we should have adequate training facilities to work the legislation effectively. I trust that the Minister will assure the House he is satisfied that the forensic science laboratory is sufficiently equipped with the technology and the professionalism to carry out the task having regard to the serious consequences resulting on conviction. I should like to ask the Minister to be specific as to the nature of the training programme in which gardaí have already participated, in particular where the training took place, the number of hours involved and the number of personnel involved.
I note that ICI have a patent on the technique and I would ask the Minister is he is satisfied that a sufficient detailed level of discussions have taken place with that company with a view to establishing a centre of operation in this State. I would ask the Minister to state the exact relationship that the Garda Síochána will have with ICI, a private company, and whether or not there is any other company worldwide with a patent from which we might develop our technique in this  country, or, are we bound to a long lasting relationship with ICI on this technique?
Experts in DNA fingerprinting maintain that the tests are practically foolproof and with the exception of identical twins, no two genetic fingerprints are the same. The chances of science being wrong are scores of millions to one. Dr. Alec Jeffreys, to whom I have referred earlier, is of the opinion that blood is the key and that in criminal trials in the future the DNA molecules extracted from blood cells will decide a person's guilt or innocence. However, a contrary opinion has appeared and I would like the Minister to give the House reassurance in so far as it has been stated that specific samples of blood contain a very small amount of DNA and that perhaps conclusive evidence is best achieved by matching samples other than blood, such as urine, pubic hair, saliva, hair or material found under fingernails or dental impressions. It would appear that in fact blood would be the least reliable of sources on which to base a conviction. This being the case, I would counsel caution that, perhaps, the breakthrough in murder investigations that we feel this legislation will lead to, may not be as real in practice as we would hope. There is a difficulty as far as that is concerned, I know it is very technical and I do not profess to have a monopoly of wisdom or knowledge in that regard and perhaps the Minister does not have either. Perhaps it is a matter which we could deal with at greater length on Committee Stage.
Further, I would be concerned about the speed with which the samples having been taken are processed. How long can a particular sample remain fresh— for want of a better word? How long can the sample be regarded as useable? These are matters that, perhaps, would be more applicable to the regulations, which I understand the Minister is empowered to make under section 5 of the Bill. I believe these regulations are of extreme importance and it is a pity that we do not appear to have an opportunity of discussing them prior to the enactment of this Bill. I note that section 5 (3) states:
 Every regulation made under this section shall be laid before each House of the Oireachtas as soon as may be after it is made and, if a resolution annulling the regulation is passed by either such House within the next twenty-one days on which that House has sat after the regulation has been laid before it, the regulation shall be annulled...
I accept that this is, perhaps, the practice of the Executive in many items of legislation but in dealing with legislation which has such far-reaching consequences I would hope that the Minister might consider placing the regulations by means of affirmative resolution and that we would have an opportunity of discussing the very important aspects of the legislation.
I referred at the outset to a Fine Gael Bill along the lines of what we have here today. It must be noted that it was envisaged that the regulations would have been taken at the same time as the Bill rather than passing the Bill first and then allowing the regulations to go through without adequate and detailed discussion.
I hope the Minister will elaborate on the matter of medical supervision in respect of all examinations, but my particular concern would be on the question of time. How soon would the sample go? Where would the sample go? How long would it take for the sample to be processed? Does the Minister envisage a situation that while this timescale is elapsing the accused would remain in custody if that is the case? It is probably fair to say that that will be the case. In that event it is very important that the sample process would take place with the minimum amount of delay. Scientists and other experts who have commented on the technique over the last couple of years have formed the opinion that the evidence produced by matching the genetic material is indisputable. The chances of many matchings occurring at random, may be one in 100 millon. However, while we might accept that the technology is foolproof, we must certainly  question the proficiency and expertise of the tester. I note that the Minister referred to a case in the United States, involving one Joseph Castro, a 38 year old janitor, accused of killing a neighbour and her two year old daughter. Perhaps the Chair would permit me to quote from an article in the international magazine Time of June 1989——
According to the prosecutors, a portion of DNA extracted from a spot of blood on Castro's watch matched DNA taken from the murdered mother. The chance of such a match occurring at random, said scientists called by the prosecution, was 1 in 100 million.
But the defense enlisted scientists of its own to review the evidence. A panel of experts from both sides eventually agreed that the evidence presented was “not scientifically reliable enough.” They did not say the DNA analysis was invalid but asserted that in this case it was not nearly so precise as the prosecution claimed. One expert calculated that there was a 1 in 78 chance that the blood on Castro's watch was not from the victim. That may be a small chance, but to the defense it constituted a distinct shadow of a doubt.
Unlike traditional finger-printing which is done by police experts in official laboratories DNA testing is carried out by many private firms who specialise in the  technique and the courts have no direct control over the quality of their work. The tests in the Castro case were performed in 1987 by the oldest and largest company in the business, Lifecodes of Valhalla, New York. The techniques envisaged by the Minister in this legislation are broadly similar in so far as the determining process will be undertaken by a private company. Because of that we may have some justifiable fears.
I wish to refer to the famous Australian case in 1989 where a member of the police force was brought up on a number of charges: violent rapes and assaults in the Sydney area. He was submitted to a number of blood sampling tests. I am looking at an article, not in Time magazine but in the Garda Review about which I hope Deputy McCartan would not harbour the same reservations.
Mr. Flanagan: As far as this particular case was concerned the prosecution did not proceed and it was noted that the evidence on which they were originally relying was not sufficient to warrant a conclusion. I understand that all charges were dropped. While I would say that the experts are telling us on the one hand that the evidence is indisputable and conclusive, nevertheless, I feel, as the Minister has stated in the course of his contribution, that the accuracy is still advancing. I quote from the Minister's contributions as follows:
It is important that we keep a close eye on this further refinement and development and that we would still have some reservations in that regard. Both the United States case and the Australian case raise a number of questions. There is a need for an official set of regulations and strict standards in respect of laboratory procedures. I hope that these strict standards would apply to ICI and other private companies with which our Government would be dealing. I ask the Minister,  therefore before concluding the debate, to provide us with his views on whether or not these regulations provide for satisfactory standards.
Can the Minister tell us if provison will be made to enable an accused to have an independent laboratory test carried out and if such a test would have to be paid for by the accused? I wish to refer to a document which has come into my possession entitled “Genetic Fingerprinting — Republic of Ireland” produced by Cellmark Diagnostics and ICI dated 1 January 1989 which outlines the fees payable for this service. For example, it will cost £165 to have a blood sample tested in a paternity case and in forensic cases a fee of £115 will be charged for the extraction of DNA from each specimen of forensic evidence other than a standard blood sample. Expert witness fees for any court appearances that may be required will be charged at £350 per day and scientific examination of genetic fingerprints produced by other laboratories will be charged at £65 per hour. What relevance can be attached to this? I also ask the Minister to tell us if provision will be made to allow for an independent laboratory test to be carried out and, if so, dare I bring in this process and if the accused is in receipt of legal aid, which is quite common, will there be a responsibility on the Government to extend the scheme so as to allow the accused to have an independent test carried out?
This legislation grants considerable powers to the Garda Síochána which I have no doubt will be exercised with extreme care and caution. I am glad to note that human rights groups, such as the Irish Council for Civil Liberties, are not opposed to this legislation. I hope that samples, allowable under subsections (1), (5), (6) and (7) of section 2, will only be taken in connection with very serious crimes. The legislation does not make provision for this but I hope in practice that such samples will only be taken in cases involving murder or rape.
I am also concerned about the manner in which an interview might take place with an accused with a view to taking a sample under section 2. I again refer to  the provisions of the Criminal Justice Act, 1984 and to the importance of providing video and taperecording facilities in all Garda stations not only to protect an accused but also the Garda. We have been somewhat tardy in providing the necessary facilities in Garda stations as envisaged under the Criminal Justice Act. Unfortunately, the Government have not addressed this matter.
I welcome the safeguards which have been included in the Bill. A sample may only be taken if a member of the Garda Síochána not below the rank of superintendent authorises it to be taken. In certain circumstances samples may only be taken with the appropriate written consent and in others only by a doctor or a dentist in the case of dental impressions. These safeguards are to be welcomed. Section 3 (1) relates to the inferences that may be drawn from a refusal to give a sample. Without this section the legislation would be flawed.
Overall, I welcome this legislation and am confident that the Garda Síochána will be able to avail of modern scientific techniques in criminal investigations to identify perpetrators of serious criminal acts. It is essential that not only do the Garda Síochána have the necessary backup facilities but that, in addition, our criminal law reflects and keeps pace with modern scientific developments. My one major reservation relates to the regulations which will be made. I would like the Minister to comment before this Bill completes its passage through this House on the detailed procedures which must be followed in the taking of a sample having regard to the fact that criminal law will never be the same again and juries will convict solely on the basis of scientific evidence. It would not be good if the House were to allow regulations to be put in place without debating them. I hope the Minister will have a re-think and lay the regulations before the House when we would have an opportunity to debate them to ensure that the best interests of all parties are taken into consideration.
Mr. Kavanagh: The Labour Party support this Bill and the other initiatives taken by the Minister in his fight to apprehend wrongdoers. Since I have become Labour Party spokesperson on Justice a large amount of legislation has been brought before the House by the Minister. While we may have some reservations we welcome the initiatives he is taking to ensure that the Garda Síochána have the necessary powers to apprehend criminals. There has been a huge increase in crime in recent years, particularly in the Dublin metropolitan area which takes in, as I have said on several occasions, not only the Dublin area but areas along the east coast. The rise in crime in my constituency is a source of concern for all of us. There is an obligation on us to support any Government who take steps to deal with the most difficult problem.
As I said, this legislation is welcome. It was the subject of a very detailed and excellent debate when introduced in the Seanad last year. Many of the concerns voiced there have been answered by the Minister today. It is not necessary to express those concerns again today as the Minister has widened the section dealing with safeguards to ensure that the need to protect civil rights is uppermost in the minds of Ministers when introducing legislation. In the fight against the perpetrators of serious crime the Garda Síochána should be able to avail of all the modern scientific technology and be in possession of the most modern equipment in order to apprehend criminals.
During the debate on the Larceny Bill, 1989 a short time ago I complained that the Minister was not attacking the modern criminal who is able to avail of the most modern up-to-date advances in technology to such a degree that the Garda Síochána are not able to cope as they lag behind. The Minister is obviously accepting that there is a need to keep pace with developments in technology in supporting the Garda Síochána. When fingerprinting was introduced back at the turn of the century and accepted by the courts many questions were asked. I am sure that in the debate which took place in the House of Commons at that time —some of us found ourselves back there this week — the same concerns were brought forward about safeguards as we will repeat here today. The acceptance of fingerprinting has advanced the capability of solving serious crime over the last century. There is now a more modern, more acceptable, more foolproof way than has been in practice, in other countries around the world and is now being introduced here. Genetic fingerprinting is something that should and must be introduced because it takes the advantages of modern technology into the area of crime detection. Its introduction in this Bill as being acceptable as proof before our courts is something we all welcome. It is very timely.
The facilities which I am sure are scarce, if not totally absent, at the moment in this country for processing this method of fingerprinting are being provided by the Minister in his estimate and there will, of course, be a cost. There are always costs involved when new methods are introduced. I am glad to see that the Minister is making provision for them so that these facilities can be provided as soon as possible.
Each individual is genetically unique. With the possible exception of twins, triplets and the like, this uniqueness means that the methods that are being introduced in the fight against crime are far ahead in their accuracy than the slightly cruder normal fingerprinting. Nevertheless regulations must be there for the taking of samples whether of blood, semen, hair or whatever. This introduces problems for the individuals who may be suspected of a crime. The Minister has endeavoured to answer this problem. He said that the refusal of consent of a person might compromise their case. That caused me a little bit of concern because there are individuals who despite being in sufficient pain may feel it an indignity to present themselves for inspection to a dentist or a medical practitioner, and with regard to giving samples in a Garda station, such individuals might find themselves prejudicing their case by refusing to give such samples. There are other individuals like haemophiliacs, who  might want their doctor to be present before any type of sample is taken. I hope the Minister will provide for exceptional cases that are well founded.
I am also concerned about the spread of AIDS throughout the world and this country in particular. I did not hear the Minister make any mention of it. I hope the Minister would be aware that members of the force and the staff that have to carry out the taking of samples in their investigations are at particular risk where AIDS might be transferred through the taking of these samples. I hope the Minister can assure the House that nobody will be at risk due to lack of knowledge of whether or not people are HIV positive, because this new technique might accidentally involve people who are totally innocent in contracting the AIDS virus. It is a point that the Minister might refer to when he is replying.
I am satisfied that all of us in this House want to see modern advances being introduced to apprehend criminals. I welcome the Bill on behalf of the Labour Party. Because of the level of debate in the Seanad I, as a layman, do not need to explain why I accept the Bill or go into all the concerns we might have, but I believe that after several years of use this method will be accepted as fingerprinting was accepted in the past as the safest, most accurate method of identification.
In the past, clever legal brains have managed to get offenders off charges of drunken driving and the like on a technicality. It would seem that this area will be a whole minefield of technicalities for our clever legal people to latch on to in an effort to beat the new technology. I hope the Minister will be able to reduce that possibility when new technology, which will obviously depend on scientific evidence to a great extent, is introduced. It would be pointless to introduce this if there were methods to frustrate the whole concept. I would ask the Minister to comment on that.
I am in favour of this. It is a development that is not overdue but necessary. It has been proved and accepted in civilised and democratic countries. Its introduction here is timely. I commend the  Minister for introducing it and I can assure him of our support with perhaps a few queries on Committee Stage.
Mr. McCartan: I rise on behalf of The Workers' Party to welcome the debate on this important issue not just of genetic fingerprinting but the whole question of enabling the Garda with better and more comprehensive powers to deal with the taking of genetic samples. In the context of developments of science and technology it is obviously a timely and important debate to undertake.
Having said that, I want to indicate that The Workers' Party have very grave reservations about the structure and provisions of the Bill and I hope that the Minister will have regard to the points we have to make and seriously address them. In the event that there are no improvements introduced into the structure of the legislation in the context of the wider powers for the Garda in the taking of samples and also in regard to genetic fingerprinting as a process of identification, I regret to say that The Workers' Party will have no hesitation in opposing the Bill on Second Stage and, indeed, on Committee Stage.
There is general agreement with the principle that the Garda should have powers to detain in certain circumstances and to obtain samples for the purposes of forensic testing. There is no difficulty with that as a principle. It already exists and there are many areas of Garda investigation where under the law they have done so and will continue to do so. A topical area, which will perhaps be far more topical by the time the day is out, is that of blood testing and the taking of samples of blood from persons who drive cars when they should not. Fraud is another area where there is clearly a need for the expansion of our law to keep abreast of developments so that the Garda can equip themselves to deal with crime as it emerges and develops in a modern society. A glaring example is that of the Bailieborough Co-op investigation where a squad of Garda sat in there for many long months investigating the records and goings-on in that co-op and  came out with nothing; yet within weeks of their investigation the “Today Tonight” programme could illustrate it to us all on the screen. The big question is, are we equipping the Garda to keep abreast of developments, with the devices to deal with the computerised, technological society in which we live so that they can address the more sophisticated criminal of the modern day. The “Today Tonight” programme on Gallagher again illustrates this difficulty for us, when in one jurisdiction that arch criminal was brought before the courts, prosecuted and made to answer for the huge fraud that he visited upon many people in this community, yet he can walk the streets in Dublin and elsewhere free from any imposition of justice after a long period of time; and when that programme could illustrate vividly the extent of his crimes and frauds. It is a great pity. In any event in this legislation we are beginning to recognise that society is becoming much more technically sophisticated and that the means available to the Garda, not just in the area of genetic fingerprinting but elsewhere, are expanding daily. It is proper that we address the central issue and codify, bring under one Act, the powers available. In general therefore, there are no difficulties.
However, I am concerned about some other aspects. First there is the question of inferences. My worries here are very much exemplified in the Minister's comment when describing the sting in the tail phenomenon it represents. He said a refusal may be taken “as an inference of guilt”. I am concerned that we are going too far when we say the only inference to take from a refusal or a failure is one of guilt. That is the difficulty I see in legislating into our law the right to draw inferences from certain events.
Deputy Kavanagh has mentioned the problem of haemophiliacs. We have the problem of people who, perhaps, have reservations for religious or other reasons about submitting themselves to certain examinations. The Bill as circulated does not suggest that the only inference we can draw in those circumstances is one of  guilt. The Bill is drawn wider and suggests it is a matter for the judge at the return for trial order or the jury or judge at the trial stage, to drawn an inference and that is all, but it is the Minister's declaration that that inference is one of guilt that worries me and helps to illustrate the problems that can arise about relying upon this type of legislative approach to inferences. We should consider whether it is not better simply to leave it for the jury to consider and adduce it in evidence. Tell the jury that when the person in the police station was confronted with the request he or she refused, and leave it there. Why then go to the next step of trying to impose a diktat on the jury, by telling them they can draw an inference? They can do that on all facts presented to them. Their duty is to try the issue of guilt or innocence according to the evidence and the facts. I wonder whether we want to legislate for this at all. The sanction or sting in the tail is there. In this context where we have legislated for this kind of inference to be drawn under the 1984 Act, has the Minister any information what extent the drawing of inference, refusing to give information or failing to comply with certain inquiries have been relied upon in subsequent criminal prosecutions? My impression — it is only that — is that it has not been relied upon very often because it is considered at times to be an effort to direct and juries often tend to recoil from the diktat being imposed.
There is another matter that has to be addressed but maybe it cannot be dealt with in a Bill. There is a clear pattern in the use of section 30 — and I have no doubt in time section 4, once the Garda have come to grips with the full complexities under the 1984 Act — for detention purposes as an information gathering exercise. That is the only inference that can be drawn from the statistics which show that a very small proportion of people detained under section 30 are subsequently charged. It is clearly an indication that time and time again the powers available to the Garda, coupled with powers to take samples or to seek account of movements, have been used  merely as information gathering exercises.
There is a very important civil liberty issue here. It arose in the Charles Self murder investigation where the Garda had a very explicit and absolute — if one can use that term in the area of evidence — piece of evidence, that of the thumbprint left at the scene in the blood of the victim and the only person who could have left that there was the person who perpetrated the horrible murder. Subsequently the line of investigation followed included assembling all those persons in the Dublin and wider community who were considered by the Garda to fit into a general category, the gay community. That example is illustrated by the very high flown brochures presented by Cellmark Limited, a subsidiary of ICI, when they talked about the Leicestershire case where the police, in order to conclude their investigations, required over 5,000 male members of the two villages in the area where two girls had been brutally murdered to submit to DNA sampling and examination. It is a point. To what extent will these technological facilities and powers be an invitation and an opportunity for the gardaí to engage in information gathering as opposed to serious crime investigation?
The authorisation for the taking of samples is another matter of concern and it works into the consideration of existing experiences under section 30 where again the extension order can be signed by the Superintendent of the Garda Síochána and certain samples can be taken from the person in detention at the authorisation or direction of the superintendent or higher officer. Again I have reservations about that power being exercised within the remit of the Garda.
The Minister should consider whether the power of direction or authorisation should emanate from a member of the Judiciary, that is, a member of the District Court. That is the position at the moment with regard to the taking of fingerprints in many cases, such as fraud; the same applies to writing samples. The Garda officer must resort to the court on  sworn information for the power to get the warrant to take the sample. The Garda must go to the court when it is time to seek a search warrant to enter and search a person's house. Indeed, to arrest in some instances the officer must on sworn information, put on written record his or her belief or reasons for acting or seeking the power to proceed. There is no reason that we cannot rely on this.
There is a general availability of judges of the District Court. The person who is to be challenged with the request for the sample will be in Garda custody under section 30, if needed, for 24 hours at the start and 48 hours subsequently. Under section 4 the person can be detained in certain circumstances for longer than the six hour period. Therefore, in terms of opportunity or convenience, there is no reason the officer could not and should not be asked to go to the District Justice on sworn information for authority to take the sample. The importance of that is that the record will be lodged with a court; a judge will have the opportunity to supervise the issuing and can ask questions of the officer if necessary — in practice it does not happen — but even the simple procedure of going to an independent authority in open court or indeed in the office of a judge, lodging information sworn on oath and explaining the reasons that the powers need to be exercised and then lodging the document as a matter of record, is an important safeguard of civil liberties not provided for in the Bill. The concept that the authorisation can be given orally as provided for and subsequently and as soon as possible after ratified in writing is a disaster. It will simply be retrospective authorisation. The officer will proceed for convenience or speed and with the assistance of the superintendent get the written record subsequently. Who is to say whether the superintendent had been contacted to give oral authorisation in the first place? If they are not prepared to go to the District Court for the authority the notion that the authority can be given orally and subsequently ratified in writing  does not have regard to or respect for the notion of safeguarding or protecting the individual. I urge the Minister to look at that matter before Committee Stage.
The question of the destruction of records is also raised in the Bill. I am curious to know why the records of a person who is made answerable to the courts for an offence and found under the 1907 Probation of Offenders Act to have committed the offence in such circumstances as not to warrant a conviction but marking the fact that the person is placed on probation will be retained for three years whereas the records of a person who is arrested and detained on suspicion of a serious offence will be destroyed in a far shorter period if there is no charge within six months and the court proceedings are completed within 21 days — if my memory serves me right. I wonder why an extraordinary lengthy period is retained for somebody dealt with under the 1907 Probation of Offenders Act?
Deputy Flanagan dealt with the question of regulations and I wholeheartedly support him on the idea that regulations should be in the affirmative form requiring action by the Houses of the Oireachtas before they are passed into law. It is important that we have a debate on the regulations before they are put in place because they are important issues. I know there is the omnibus introductory clause to the regulations but they should be expanded to deal specifically with the reception, retention and storage of samples taken and their ultimate destruction when that has been decided on. On Committee Stage I will be asking the Minister to expand the regulations to cover grounds that are not covered but more particularly to allow this House to play an active role in reviewing the regulations once drafted as was the experience in the 1984 legislation when the regulations of 1986 were circulated and were made available for comment not just in this House but generally.
The Bill provides us with the opportunity to debate again the whole question of police station oriented investigation.  There is absolutely no doubt that as we make advances in technology and enable the Garda to take samples right across the board to assist them in their investigations of crime, there will be an inevitable drift towards the police station becoming, if it has not already done so, the centre of criminal investigation generally. The idea of gardaí out on the street knocking on doors interviewing members of the public, being footsore and weary, is a concept of the past. We are moving towards the process of investigation that is concentrated in the police station. Again this forces us to address the issue of the rights of persons once detained in Garda custody on suspicion of crime.
During the debate on the Labour Party's Private Members' Bill dealing with the need to review those rights I made the point, and I want to repeat it again, that as we move towards the concentration of investigations at the police station, we must invade the same place with protections and rights for the person detained. Let us remember that he or she is at all of those stages an innocent person and should remain so until otherwise proven. Consequently it is essential that video and tape recordings of all transactions involving suspects in police stations be established. We provided for this in the legislation of 1984. The Barra Ó Briain committee recommended it in the seventies and I understand this matter is under active consideration by the Martin committee. While not seeking in any way to anticipate the final recommendations of that committee, if video and tape recordings are re-emphasised by them in their recommendations it is essential that those recommendations be acted on without delay and that they be instituted and established as early as possible throughout the country. All samples taken by the Garda from persons in custody must be recorded on video and audio tape. We must extend the obligations on the Garda under regulations not simply to questioning and answering but to the taking of samples under this Bill or indeed any other legislation and that should be done in full view of a video  tape and within the reception of an audio tape recorder. That is the basic requirement.
We are currently considering the video recording and video taping of interviews and questions as a means of addressing the potential for a dishonest garda. Look at the opportunities that must be available to that person if he or she is thwarted in questioning procedures to then interfere, meddle or abuse any samples that may be taken or relied upon in subsequent prosecutions. What is to stop the officer, having taken the samples, from stepping out of the interview room out of the view of the detained suspect and do whatever is necessary to infect the sample, exhibit or interfere or tamper with the evidence? Not only should the sample be taken in full view of the video recording and in the full reception of audio recording but the sealing of the sample should take place in the same circumstances so that whatever is taken should be put into bags or other receptacles and then sealed there. Again I recommended to the Martin committee that evidence taken outside of these standards should not be relied on or allowed in evidence unless the prosecution can establish extraordinary circumstances or excuse. If there are technical or other reasons or problems arising that we cannot agree on in this procedure, I contend that a sample should not be taken from the suspect detained other than in the presence of his or her solicitor. Again there is no reason that this cannot be achieved, given the availability of lawyers and modern communications and the fact that the suspect may be detained for any number of hours necessary under the provisions of section 30 and section 4 of the 1984 Act. I do not see any difficulty with this provision. I have been present in Garda stations many times over the years when samples were taken from suspects. It is far different from being present when a suspect is being questioned. I do not argue that a solicitor should be present during questioning. It is an invidious task to be there because of the likelihood or potential of interrupting or interfering with the line of questioning or inquiry but  that does not arise where the issue is the taking of sample or a swab and observing that they are put into a sealed receptacle where they cannot be subsequently interfered with. Equally it should be provided for in the legislation as under the Road Traffic Acts that, where possible, a sample should be divided and made available to the suspect's representative, guardian or legal adviser. I acknowledge and respect that in many instances this may not be possible, for example, the taking of a sample of saliva is difficult to do but in virtually all other instances, for example, the taking of a dental impression, two should be taken and one handed to the defence. Likewise, in relation to a sample of hair, adequate should be taken and some handed to the defence. A sample taken of blood or any other matter should be divided and handed to the defence or his representative. That should be the standard provided for in legislation.
The second major issue is the security and safeguarding of samples once taken and who should retain them. It should be a thing of the past that a police officer would put samples into the locker in the police station or bring them home or, like the unfortunate Professor Harbison, given the circumstances and pressures under which he has to work, carry them around in his motor car for days or even weeks, as emerged in the Kerry babies inquiry. The sample, once sealed in the presence of the suspect under scrutiny of the video recording or of the suspect's legal representative, should as soon as possible be conveyed and stored in a central registry of exhibits which should be established at the State Forensic Laboratory. That should be a prerequisite to the introduction of any of these powers. There the samples should be logged and held in a registry. Access to them by officers for the purpose of further examination should be logged and the exhibit should be supervised by a designated person of the laboratory who is to be considered the examination officer for that case. This is a basic requirement for proper procedures in this area.
These proposals are eminently sensible  and reasonable, having regard to the fact that we have a small island population. We are not dealing with a vast range of requirements. We have one police force, not multiple police authorities which might make the establishment of a central registry complicated. We have a single State Laboratory centrally located in Dublin. I see no difficulty in the implementation of these proposals, which are essential if not indispensable. The more we develop forensic science in the process of criminal investigations, the more essential it is to ensure a clinically controlled and safeguarded procedure for all persons subjected to these processes.
In the context of genetic finger printing it becomes more essential. Often a court will be asked to accept the findings of a forensic scientist in regard to genetic finger printing and in other contexts where the evidence is practically incomprehensible, not only to the judge and jurors but to the lawyers employed in the prosecution and defence of the case. Often the evidence will be invisible for all practical purposes because of the minuteness of the sample involved. In many instances the evidence will be based upon a sample which was effectively destroyed in the process of its examination in the laboratory. In those circumstances it is essential that whatever is taken from the suspect be delivered, sealed and uninterfered with, to the forensic science laboratory, where it then comes under the control of forensic experts.
Currently in the criminal courts there are investigations into such matters as firearm residue. Policemen in the course of their duties may handle their firearms and often discharge them. They then take swabs from the hands of suspects to establish whether they may have had contact with firearms. While they use plastic gloves while taking these swabs, the subsequent handling of the samples can cause huge problems of cross-contamination. We must guard against that with the greatest diligence.
The proposals I am making as essential prerequisites to the implementation of  this legislation are practicable and will not involve any great expense. Even if some expense is involved, it will be a cheap price to pay in the cause of fair procedure and ultimately fair trial. Unless there are some assurances from the Minister that the Government and the Minister, in consultation with the Garda and the State Laboratory, are working towards this type of clinical, fair procedure, The Workers' Party will not be happy to allow this kind of law to be put in place and we will oppose it.
A related question concerns the destruction of the sample. Very important issues arise. We would argue that a store must be established at the Central State Laboratory for all samples taken in the course of criminal investigation by the police and that the people in charge of the laboratory should in good time be charged with the destruction of the record. This raises the issue: who has the property of the sample once taken? This is not an unreal argument. Under the 1984 Act there is provision for the destruction of fingerprint photographs and other records. I have been involved as a practitioner in a row between a district superíntendent's office and the special detective unit in Dublin Castle. The district superintendent's office were quite happy to abide by the law and destroy the records if necessary but the special detective unit said they wanted to keep them for their records and ongoing investigations. The issue of ownership and control of samples is crucial. It is vital that the law should not be thwarted in regard to destruction by inter-unit rivalries within the Garda Síochána and by people who think they are above and beyond the law simply because they are called the special detective unit or some other crack name.
The question is whether we are to endorse in the long term, if not sooner, a central bank of information. Is there an argument from the Garda, as is the case in Britain, that we should be building up a deoxyribonucleic acid profile of our population? I am utterly opposed to that concept. We should not even contemplate it. I have no doubt the Garda  will be arguing that this is an effective way of keeping records and tabs on the so-called criminal community. It is a dangerous invasion of civil liberty if that is the road we are to go down. Unless we have a centrally appointed responsible person for the reception of these exhibits who is equally charged with their destruction in due course the samples can ultimately be abused. That brings in the question of duplication of results and their retention. There is a general suspicion that even where samples are destroyed, copies are available in sections of the Garda for ongoing investigations. This situation can be strongly guarded against if my proposals are implemented in some shape or form. For that reason it is important that the Minister gives some response to this before we pass the Second Stage of the Bill.
In relation to authorisation, I made the point that it must only be a judge of the District Court who can authorise the taking of these samples, recognising that there needs to be a balance between the needs of the Garda to investigate and the rights of an innocent person in custody to be protected. That formula is important in the context of the amendment introduced by the Minister in the Seanad on powers to deal with a person in prison. A person in prison is there under order of the court and is technically in the custody of the court through the authority of the High Court handed down in the Constitution. That is a way of drawing the balance. Currently a member of the Garda Síochána cannot have access to a person in prison without order of the court in certain circumstances or without the authority of the Governor and the consent of the person. Often a garda goes to see a prisoner and as soon as the prisoner realises he is to be investigated by a member of the Garda he walks out. It is important to empower the Garda to take samples from persons in custody. There is nothing wrong with that in principle but the way to respect the legal status of the person who is technically still in the custody of the court is to go to the judge of the District Court and ask for authority to proceed.
 I do not accept as central what is perceived to be the central issue of this Bill. I have dealt with some of the more important issues in relation to taking samples. The other great issue relates to genetic fingerprinting. We have given far too much regard to the deoxyribonucleic acid, or DNA process. It has been heraided by ICI and its subsidiary, Cellmark Diagnostics as the breakthrough of the century. It is far too soon to give it that great plaudit.
I was concerned when I heard a Deputy refer to the thumbprint impression as being slightly crude, something much less sophisticated than the DNA process. As things stand the thumb impression is a far more sophisticated identifying process than the DNA process. The thumbprint is and has been proved to be unique to every individual. In the history of police investigation two people have never been found to have identical fingerprints. The fingerprint can be photographed in situ before it is lifted. The process is clearly understood by lawyers, defendants, jurors and judges. The thumbprint can be presented in the form of an enlarged photograph with comparison charts and it is clearly understood. The fingerprint is eminently challengeable. It is open to the defendant to come to court and, through and expert, at least have an opinion on what is being presented. The fingerprint is the benchmark of the approach we should take to forensic evidence and its reception into trial procedures in our jurisdiction.
We must try to achieve the same balance in the DNA process. Balance is singularly absent in the current procedures presented to us from the DNA process. In this regard I acknowledge the assistance I had from practitioners in England and the US who have worked the DNA process and the few in Dublin who have been involved in cases where DNA evidence has been presented. In January the Garda News talked about five cases where it has been used. The number of cases has now increased to ten and the number where it is being used is rapidly increasing. I also acknowledge assistance from academics in Nottingham  and from the National Council for Civil Liberites in London who have investigated generally in this area.
There is nothing wrong with the idea of progressing the DNA process. We are close to accepting that we all have genetic uniquenesses which can be detected in the DNA process. However, we have not yet established the scientific process to deliver absolutely certain results that can be relied on. That is the basic problem. Sticking one's thumb into ink and putting it onto paper is a very simple and straightforward process. Photographing the print, enlarging it and putting it up on a chart leaves little room for error. That is nothing like the process involved in genetic fingerprinting which is an incredibly intricate and often unchallengeable process. For that reason it is perhaps a little too early for us to give the huge plaudits that have been inherent in some of the earlier remarks made by Deputies here and by Cellmark diagnostics in their hugely vaunted procedure and documentation.
The fallibility of the process is identified by the Leicestershire double murder case where the suspect realising that he was in trouble, because the community was being press ganged into submitting a sample, contrived to deliver a fasle sample subsitituted by a workmate. The suspect got away with it until the workmate let it slip in a public house and the person to whom he let it slip relayed the story to the police. It was after that, that the suspect was apprehended. That case helps to illustrate that unless there are strict standards of application in the use of the DNA process, even at the investigative stage, things can go radically wrong. Initial tests in that investigation had exonerated the perpetrator of the crimes simply because he had been skilfull enough to substitute samples from a workmate.
Even in their literature, trying to sell this process worldwide, they accept that there are fallibilities in the process and that Garda and police investigators should not simply rely on DNA but that it must be fitted into a broad investigation. It must also be recognised that the first patent in the DNA process was taken out in 1987 in England. They are now establishing a worldwide patent for the process. It is a relatively new concept and we have a long way to go before we are satisfied that we have an infallible process which can give us the results they claim. For example, it is estimated that between brother and brother and brother and father 62.5 per cent of the bands that can appear in the process are shared. It is suggested that in paternity cases it is important to test the brother and/or the father in certain instances to ensure that there is no possibility of error. How does that apply to the suspect defendant who is detained for the purposes of criminal investigation? Are we also to detain his brother and father to ensure that there is no risk of an error arising, given the high rate of the share of banding that can arise in close relationships?
It is also thought in the single and multi-probe investigation tests that the probability of similarity arising run to odds as low as 250:1 where there are only four bands and to one in one million against with more bands. There can be instances where the genetic finger-printing will establish very few bands on the sample available where the odds are that much more reduced.
It is also suggested — and this is best put in an article by the leader of the attack on the system — in The Sciences, the journal of the United States National Academy of Sciences. The molecular biologist, Simon Ford, attached to the University of California and Irvine, in the issue in January said:
That is a very dramatic statement from a scientist who recognises a problem which is peculiar to the DNA examination process and it simply cannot be ignored. The issue has been raised time and again by scientists in the field who say that there are huge question marks over the whole issue. It has been pointed out, for example, in an article written by Robin McKie, science correspondent with the Sunday Observer, on Sunday, 28 January last, that questions remain. He said:
Nevertheless, some nagging questions remain, such as how genetic fingerprint bands among various populations and groups differ. In some areas, certain bands may be more common, perhaps due to slight inbreeding over centuries, or because of racial variation in a village or town. In such cases, there could be a higher than expected occurrence of two samples being identical purely by chance. False convictions might then result.
That highlights the need for sample examination to establish a proper statistical probability basis for the introduction of the test to our courts. Will the Minister say to what extent our forensic science personnel carried out those tests from a sample of our population? To what extent have we satisfied ourselves on issues of probability because it is not just a question of carrying out the process and indicating the bands? There is a further statistical base indicating probability opportunities contained in this whole process that must be satisfied before we can implement it. We must acknowledge that we are an island community and because of that — and the drop in our population since the 1840s — there is a far more significant, closer inbreeding process in this island than there would be, for example, in Britain, mainland Europe or America. It is a problem that must be fully addressed before we can process the matter further.
As a general principle, problematic issues may arise. I want to deal with the  concept of when or at what stage we accept that a scientific process is no longer in the investigative stage and has developed to being accepted as a given principle. This has been dealt with in American law since the 1923 case of the District of Columbia Frye v. The United States. The court held in that case that proof of the general acceptance of the scientific technique is a condition precedent to the admission of scientific testimony. Have we yet arrived at the stage in our law that allows us to proceed with the use of the DNA process on the basis that there is general acceptance of the scientific technique? I do not believe that we have because of particular reservations imposed by the Cellmark organisation on the independent testing and evaluation of the genetic fingerprint process. It was said in that case:
Just when a scientific principle or discovery crosses the line between the experimental and demonstrable stages is difficult to define. Somewhere in this twilight zone the evidential force of the principle must be recognised and, while the courts will go a long way in admitting expert testimony deduced from a well recognised scientific principle or discovery, the thing from which the deduction is made must be sufficiently established to have gained general acceptance in the particular field to which it belongs.
There is no difficulty in the whole area of civil investigation if couples in paternity or emigration issues wish to submit themselves to DNA fingerprint genetic examination an are happy to bind themselves to the outcome. If that is the case let the process proceed but it is a vastly different thing to incorporate it in our criminal law in the circumstances in which it is currently being introduced and to say that it is an acceptable standard in the way it is being administered and made available because so much debate and controversy have arisen in recent times about the process. It is too early to put  all our eggs into the DNA process and to say that that is the end of the matter.
In this regard the point has been illustrated by the history of the Greiss test in relation to establishing traces of nitroglycerine on a person's hands or body. That is a very important point in the context of what is acceptable. We all know about the Greiss test because it was employed by the British authorities at the time of the Birmingham Six bomb investigation. That test led to charges being laid against the six people playing cards on their way to a funeral in Belfast, having been taken from the boat-train.
Subsequent investigation and debate has shown that the Greiss test, which was unchallenged in 1976 and 1977 when those people were put in prison for life, has become extremely suspect if not entirely discredited. It is a good illustration of the point that has to be made that we are very much in the infancy of genetic fingerprinting. Unless it is available to us to ensure the strictest of standards, access to all information available and independent challenge, we have a long way to go before we can be entirely happy that we have a process that can be universally accepted here.
I would end my reservations in general about the process by quoting from an article entitled “DNA Fingerprints — black box or black hole”, written by Andrew Hall in the new law journal of 16 February. Mr. Hall is a person of good standing in the area and understands the issues involved. I will quote from him as a person who best puts the issue once and for all. Under the paragraph entitled Evidential black box, he states:
the technique appears to have been embraced with enthusiasm by those charged with investigating crime and the number of cases in which DNA analysis is applied seems ever increasing. In a limited but important number  of cases, the identification of a perpetrator by DNA finger-printing may be the sole evidence in the possession of the Crown. That in itself may not present a threat to civil liberty so long as the scientific basis of the technique, and the rigour of its application in the laboratory, is subject to informed scrutiny and stringent controls. The question is whether the technique has gained its scientific credentials in this way or, indeed, whether its application is subject to proper control.
The uniqueness of the procedure, I would argue, may hold unique dangers in the absence of a critical approach by both lawyers and forensic scientists. The risk is that it becomes a black box into which the scientific evidence is placed at one end and the verdict in a criminal case is produced at the other.
We have to explore the area of the black box and ensure that we are dealing with a process at the end of the day that is sound, universally understood and universally challengeable in the balance of adversarial jurisprudence that is the hallmark of our criminal law procedure and jurisdiction.
There are issues even more damning of the process as it currently stands than the problems of whether it represents a single area of darkness for us, that is the whole regime and administration of the process at the moment. Again, in the same article Mr. Hall deals with the matter succinctly. He says:
Another unique feature of the technique is the virtual monopoly over testing procedures. The Jeffreys testing system is subject to patent and, so far as the writer is able to discover, only the police scientific laboratories and Cellmark Diagnostics, a private company, are able to apply the procedure in the United Kingdom.
Blood testing using traditional techniques, by contrast, is a procedure which is universally available and any number of independent experts are available to the defence who wish to examine or to challenge prosecution scientific testimony. Since the same procedures are used by the police forensic laboratories and by Cellmark, if laboratory techniques are less than perfect, or if the underlying science is flawed, there may simply be a replication of the same inaccurate result. Where a scientific process is unregulated, and the procedure is essentially a “trade secret”, what protection is there in this vitally important area?
There is no forensic or other proof relied upon in the prosecution of cases standing in the unique position in which genetic fingerprinting is currently standing. The process discovered by Professor Jeffreys in the mid-eighties, as I have said, is subject to worldwide patent, first taken out in Britain in 1987. All tests are controlled directly by Cellmark, a subsidiary of ICI, for good commercial reasons. They do not want competitors in the field; they want a worldwide network of revenue creating profit enterprise and the best of luck to them but I do not want that process to be incorporated into the investigation of serious crime that will decide issues such as whether a person is guilty of the most heinous murders or rape.
It is a remarkable feature that you cannot get an independent agent to carry out an examination of the results achieved by Cellmark or their agents in the different laboratories. They hold a patent and they hold direct control of the examination, a condition of which is no independent outside investigation. There is no other area of the forensic law in which this exists. As a defence lawyer one can have recourse to a ballistics expert, a chemistry expert, to all the range of experts in the field of forensic testing and one can send them into the laboratory of the testing authority. The Forensic  Science Laboratory in Dublin on a weekly, if not more frequent, basis is visited by forensic experts, professors of chemistry and of all the sciences in the different universities to examine, test and if necessary, take samples either within the control of the laboratory or elsewhere, and carry out independent tests to see if the same results are achieved.
Genetic fingerprinting is the one area where this cannot be done. We are told that this is the breakthrough of the century in terms of criminal investigation, that it will cut out so much other time-consuming work of the police investigating authorities, that it will be a short cut and an easy access to identifying the perpetrators of crime and that it will be an absolute answer to the question of who commits the crime. If that is so, it is all the more reason it should be susceptible to independent scrutiny and examination. It is not acceptable that the company who are trading worldwide with the process are maintaining such secretive control of the tests.
This is a problem that must be addressed. The standards of justice and fair play in this jurisdiction require that. There must be access to independent challenge by experts on behalf of defence if needed. The case may arise where the accused will say “I accept the results”, as has been instanced here in regard to the five cases reported in the January issue of the Garda News. Two of the defendants pleaded guilty, one was exonerated, one withdrew an appeal in the interim process and the other probably has come to hearing by now. There are many more cases where a defendant will want to query or challenge and everything must be available to him or her in those circumstances to act. The position is completely unacceptable.
There are major problems surrounding the introduction of the testing here. The difficulty is illustrated in part by the fact that in May last year when Minister of State, Deputy Leyden, was introducing the Bill into the Seanad he forecast that the State Laboratory in Dublin would be carrying out genetic fingerprinting testing in the autumn of last year. That has not  happened and today the Minister told us that that will not take place until the coming autumn. The problem is related in part to the trouble of negotiating the terms upon which Cellmark will make the process available and the probes usable by the State Forensic Laboratory in Dublin. I am asking the Minister to indicate the terms of the contract and the restrictions placed upon the State Laboratory in Dublin against allowing independent forensic scientists employed by defendants access to the tests and the process on the one hand, and the availability of the techniques to carry out their own examinations or tests where that is advised, appropriate and necessary.
I have referred to Mr. Hall's comment on this monopoly as being unique. It is not only unique, it is invidious and has to be addressed because it will prove to be unconstitutional in any defence. I cannot see how the prosecution could ask a judge to receive evidence in a criminal trial where the defence have effectively been denied the opportunity to independently challenge, assess or understand what is being presented. I foresee great difficulties in regard to that. In discussions with practitioners, and members of the Bar, on the matter my fears have been confirmed. That must be investigated and dealt with.
Equally, the whole question of the standards to be applied raise important issues. If we are to continue to rely on the standards by relying on Abingdon as the source of our tests then we will have problems of evidential proof. If, on the other hand, we successfully establish a DNA laboratory here the problem may not arise. Again, we must ask what terms or requirements have been written into the Cellmark contract with the State Laboratory in regard to the process and standards to be applied.
The chain of evidence is an important concept in our criminal law. It is certainly not so forceful a concept in the British legal system. Any person who was ever involved in or watched any of the Criminal Law Jurisdiction Act cases where  policemen from our neighbouring jurisdiction came here to present evidence will have noticed that they were completely confounded by the fact that they would have to bring experts or witnesses to indicate what happened the sample once taken or the exhibit once received and taken into police custody, how they were cared for and who had control over them during the time they were retained in police custody before being presented to court. Those issues will have to be addressed in the context of this evidence.
The qualification of the person carrying out the test is another matter that will have to be dealt with. In regard to the Greiss test in the Birmingham Six case it emerged in evidence that those tests were carried out by a junior member of the staff who had just qualified and who was unsupervised. It emerged that the samples were subsequently destroyed. Will those standards be applied by direction of Cellmark under the contract that has been ironed out between the Forensic Science Laboratory here and the parent multinational company in England? That is a matter of immense importance.
The process involved is illustrated in the documents produced by Cellmark and circulated to the legal professions worldwide. Those documents explain briefly what is involved in the profiling process. The sample, blood in this instance, is taken and the DNA component must be extracted. The DNA component, by a chemical process, is cut into fragments by a restriction enzyme. The DNA fragments are then separated into bands during electrophoresis in an agarose gel. The DNA band so extracted is then placed in a gel and is transferred to a nylon membrane by a technique known as Southern Blotting. The radioactive DNA probe is then prepared for examining. The DNA probe binds to specific DNA sequences on the membrane and the excess DNA probe is washed off. At this stage the radioactive probe is bound to the DNA pattern on the membrane. The X-ray film is then placed next to the membrane to detect the radioactive pattern. At the end of it all, the eleventh stage of the process, one  begins to get the pattern that is used for comparative purposes between the samples in question.
It is estimated that the process in all its complexity can take up to three to four weeks in any one case to be completed. We are not just talking about a simple lifting of a hair and looking at it through a microscope or looking at a fabric strand or at a finger mark lifted in ink. We are talking about an incredibly intricate process that takes weeks to complete. In any one case there could be multiples of samples to be investigated before conclusions can be drawn. Are we equipping our laboratory to deal with the complexities of this process? Are we training our policemen in all of the important intricacies about how to preserve samples once taken?
A whole range of guides must be followed. The kinds of substances, solutions and containers are crucial to the proper reception and retention of the exhibit. The temperature varies depending on the time the exhibit must be retained, anything ranging from 4º Centigrade for something dealt with within a matter of hours to —20º Centigrade for something that has to be retained for days. How does Professor Harbison hope to maintain a —20º condition in the boot of his motor car as he shoots around the country from one crime investigation to the other before he returns to his laboratory or the State Laboratory at John's Road?
The complexity has been mentioned in the documentation I have referred to. It was mentioned in many commentaries by scientists in the field underscoring that, again, DNA fingerprinting is almost unique in the complexity and intricacies involved. We must deal with the concept of trial by expert. We have to guard against simply presenting the black box testimony and expecting the verdict to emerge automatically at the other end. That is something that must be fought against. Consequently, the introduction of the independent assessor, and the facilities for that assessor, are essential and must be respected.
The cases involved in this process that have introduced debate illustrate the  worries we have. The Leicestershire case, the Crown V. Pitchfork, the name of the unfortunate defendant, disclosed that the taking of samples was not properly supervised at police investigation level. As a result the perpetrator of those two horrendous murders was exonerated in the process of investigation.
There is no point in relying upon the notion that DNA is infallible; it is not if the proper standards are not applied and if the proper policing process is not relied upon. The Joseph Castro case referred to by Deputy Flanagan is another example of where, in a pre-trial ruling, under the principle in Frye, to which I have already referred, the court not being satisfied then set up a tribunal of inquiry of experts appointed by both prosecution and defence. It was only at that stage it emerged that the company involved——
Mr. McCartan: ——in America at the time had not applied the proper standards. The same company, Lifecodes emerged subsequently in a second case in South Portland, in Maine in 1988. The facts in that case are related in an article in the English newspapers as follows:
In 1988 a five-year-old girl was sexually assaulted in South Portland, Maine, USA. The police identified a suspect within hours. He matched the description of the attacker, he was in the vicinity at the time and carried paper tissues similar to one left at the scene. To support this circumstantial evidence, genetic fingerprinting, was conducted to see whether the genetic profile of a semen sample was identical with that of the suspect's blood. To everybody's dismay, the tests appeared to show that the suspect was not the source of the semen.
However, blood from a second suspect, a well-known child molester living in South Portland, was also compared with the semen and found to match. This was surprising, since he did not fit the description of the  attacker. Nevertheless, on the basis of the genetic evidence, prosecution procedures against him were set in motion. Last December [that was 1989] in a pre-trial hearing to consider the admissibility of various lines of evidence, the prosecution dropped all charges because of doubts about techniques used by the Lifecodes Corporation, the company which did the fingerprinting.
The failures of the South Portland case, the Maine case and the Castro case in New York have been commented on in the article which was written by a senior lecturer in the Department of Life Sciences at the Bromley College of Technology in England. His comment was as follows:
These two failures point to the need to regulate the organisations carrying out these tests. Genetic, or DNA, fingerprinting is barely five years old. The term “fingerprinting” was an unfortunate choice. The technique is good at exluding a suspect from association with a crime, if DNA patterns do not match, but less conclusive in proving a suspect positively linked, because of the possibility that two or more people share DNA “fingerprints”. The procedure has been renamed “DNA profiling” to try to avoid the confusion with traditional fingerprinting which can always positively identify a suspect.
That passage raises questions for us in this House and for the Minister to respond to at the conclusion of this debate. Does the Minister's Department intend introducing standards of regulations to control the people carrying out the tests? Will those regulations provide for access by independent forensic scientists employed by defence where necessary? Will the cost of such forensic examinations be fully covered and provided for under the legal aid schemes as exists. Deputy Flanagan's figures are more up to date than those which I have. The figures I have from Cellmark range back to 1988 and are  not as costly. Obviously, they have been updated. The indications are that to involve an expert from Abingdon — which will be the only place available to us if the State laboratory is the only authority working here — would cost in a trial running for some days in our criminal courts several thousands of pounds. The 1988 figures for attendance of an expert witness at court would be £304, including VAT. I have no doubt that with the reliance on inflation we must now be talking about a figure in the region of £400 to £450 at this stage plus travel and subsistence. We are talking about bringing in an expert from England at a cost of several thousands of pounds. Is the State prepared to stand over such expenses and allow for it? I note in an article in the Irish Independent dated 17 January 1990 entitled “Costs limit to genetic fingerprint testing”. Noirin Hegarty indicated that there was little likelihood that we would continue to rely on bringing in experts from abroad and that it was unlikely that the State would advance the cause of developing a relationship with laboratories in England because of the costs involved. The related worry arises as to what the State will do even if they do establish a unit here to enable defence lawyers and defendants to seek the assistance of experts who will, of necessity, have to come from abroad — Abingdon apparently to be the one final and only source of court jurisdiction in this area.
These are reservations I have, having listened to the debate which is now taking place. While genetic fingerprinting may, in time, prove to be the discovery of the century and prove to be an effective and useful mechanism for debate for crime investigation it is far too early to make such a declaration or plaudit to the process. This process is no longer than five years in operation. It is working and being used under circumstances of control and secrecy that are unique for that process only. It is a process that will not receive the benediction of our courts, where challenged actively in a trial. From our own point of view as safe keepers of the common good and as custodians of the rights and liberties of the individual we  cannot allow a regime that is being presented as so absolute and infallible to be introduced into our criminal investigative process without proper safeguards being built in, in the way I have described. Those are the remarks I wish to make in the context of this very important legislation about genetic fingerprints. Many more questions have to be answered before we can be ultimately satisfied that we have everything that Cellmarks want us to believe they have put more importantly in the wider context of the Bill, because the Bill can progress whether we rely on DNA finger-printing. In the wider context I urge a favourable consideration from the Minister of very important issues of control and development of security of forensic samples generally, not just of DNA. With those assurances our party will certainly support the provision of this Bill; without such assurances we intend to be less co-operative than we might otherwise have been.
I thank you for allowing me the opportunity of a short intervention on this very important Bill. I see this Bill as part of the whole concept of civil liberties and almost under the heading of “human rights”. There is an almost unchallenged view abroad that people brought into custody for alleged offences are guilty even before a trial is held and that anything is good enough for them. It is that kind of loose thinking that we as Members of this House must protect against. No matter how bad a man or woman appear to be democracy demands that they be given the right, which they may not understand, to have their bodily integrity protected. The Minister in his speech said:
Certainly the Bill provides that an intimate or intrusive sample can only be taken with written permission from the suspect. However, the primary purpose of this provision is not to give a suspect freedom to refuse to give a  sample but rather is it a recognition that intimate or intrusive samples can only be taken with a suspect's co-operation.
I may be reading it entirely wrong and if I am I apologise to the author of the script but I understand this to mean that, if in the event, certain conditions are not fulfilled force of a degrading nature, no matter how minimal, may be used. I would entirely reject the principle or concept that any prisoner, no matter how bad, evil or heinous they may be should be taken into custody by servants of the State, the Garda Síochána who have my very strongest support, and subjected to ill-treatment. I would be most grateful if the Minister could console and assure me and clarify to my satisfaction what appears to be an ambiguous statement, in advance of Committee Stage. It is on the foot of that assurance that I will adopt my position.
One other matter in relation to the Criminal Justice (Forensic Evidence) Bill, 1989 which concerns me is the cosy assurance given by the Minister in his speech that everything in the DNA profiling or genetic garden is rosy. In the long number of years I have had the privilege and honour to be a Member of this House it has been brought to my attention, if not in this jurisdiction, in another, that assurances had been given that forensic tests, such as the Greiss test which was referred to by the previous speaker, were infallible. However, it has been proved that it is less than fallible, is in fact flawed and unsatisfactory and no longer an acceptable forensic test. Another test which, with that cosy warmness which their masters are inclined to assure us from time to time was infallible, was the TLC test which again was used in another jurisdiction. That of course is the thin layer chromatography test which has been proved to be fallible to say the least. That is the response I would like to hear from the Minister for whom I have  the greatest respect. He has distinguished himself as Minister for Justice. I ask him when responding to give us the assurances which, as a backbencher on the Government side I see as being necessary.
If the catechism which has been handed to us is to be believed and the test is as good as it is meant to be it should be accepted. However, it is an acid test in the real meaning of the word. It is a test dealing with the acidity of various parts of the body and as such if it is everything it is meant to be everything will be all right. However, we should bear in mind that it is going to be used in this country for the first time and, therefore, I urge the Minister when he comes to set up the laboratory where this profiling test will be carried out that he be very careful with the equipment. I do not think any money should be spared in providing the best equipment in this laboratory to ensure that the test proves as infallible as human kind can make it. I also appeal to him to ensure that individuals employed in the laboratory have the highest qualifications and integrity. I have no doubt about the latter but I am not fully competent to engage in any testing examination of the former.
I have the greatest respect for the Garda Síochána who have a dreadful job to do but which they do well. As I have often said to the point of cliché, they have never been found wanting in the service of this State. At the same time, like this or any other institution, there are certain weaknesses in the system brought about by its structure and the fallibility of the personalities who operate it. For that reason I am pleased that the Minister has given an assurance that when this Bill becomes law the judges will be the final arbiters. That is as it should be. I hope that when reports are given on the test or tests, — DNA is not specifically referred to in the Bill, other aspects of the test are also dealt with — the chain of evidence and the link with the taking of the swab, hair, skin and so on, will be very carefully monitored from the moment it is taken  to the time it is produced in court in evidence against the individual charged with an offence.
Having expressed those concerns I would like to be a little more positive in the sense that the safeguards in the Bill serve to ensure that, while the taking of samples of blood, urine, saliva, public hair or swabs from the mouth or other bodily orifices or from the genital region or the taking of a dental impression would involve a significant interference with bodily integrity, they would require the written consent of the person from whom they are to be taken which, as the Minister explains, means that they cannot be taken by physical force. That may be the answer to the first query I raised. I presume then that if written permission is not given the failure to give it must be persuasive before a judge in the prosecution of that individual. It is rather like the breathalyser test or the urine test under the road traffic legislation where, if one refuses to give samples, there is a presumption of guilt and the burden of proof shifts from the prosecution to the defence; I do not altogether disagree with that.
The Minister goes on to mention other safeguards provided in the Bill which ensure that the powers being conferred are used only in appropriate cases and with full regard to human dignity and are as follows: the taking of a sample must be authorised in writing by a superintendent or officer of higher rank; the suspect must be informed before a sample is taken and while it is being taken; intimate or intrusive samples may only be taken by a doctor or by a dentist in the case of dental impression; where proceedings are not instituted within six months of the date the sample is taken to where a person is tried and acquitted or the charges against him are dismissed or withdrawn, the sample taken and any records identifying them must be destroyed. The last of those provisions is fundamental, that if proceedings are not taken within six months the samples or records are destroyed. I hope there will be safeguards to ensure even that that happens and that the person to whom  that particular safeguard is directed understands that what is being said there has taken place.
Like all tests intended to be introduced here, I would ask the Minister to introduce the test slowly, to ensure that there are qualified persons to operate laboratories and that they are people of proven merit.
The other side of DNA and other tests is that in some cases the DNA test specifically was able to establish the innocence of the person who had been identified as the rapist by the victim. That was a case where the victim identified a rapist, obviously mistakenly, on the basis of the DNA test. That is the reverse. My only concern, and I have no doubt the Minister will answer this, is that there should be no element of compulsory physical force being used in obtaining samples. If the failure to give a sample is seen, as it is under the relevant Road Traffic Act, as almost an admission of guilt, so be it.
They are my concerns. I look forward to the Minister's response and to any amendments he may propose on Committee Stage arising from the various contributions that have been made to the Bill. It is a Bill that could go wrong if improperly operated, but I always take a positive view of life. I think that people are good until they prove themselves to be less than good. Probably I am naive in that regard but I see the better side of human nature rather than the bad. Human nature can be fallible and for that reason we should have a concern for human life and civil liberties and must see a Bill of this nature with a concern that should be articulated here in the full light of day. For the opportunity to do so, a Cheann Comhairle, I would like to thank you.
Mr. Dempsey: I take the opportunity to join with other Members of the House in generally welcoming this Bill. It will make an enormous impact on the investigation of serious crimes. It is a good example of the best scientific and most up to date methods being used by  the Garda in their quest to catch criminals, detect crime and prosecute those guilty. From that point of view I certainly give it a very warm welcome. It will make the chances of prosecutions and conviction of criminals much more likely and it is an extra weapon in the fight against crime.
My legal friends who have so far spoken on this Bill have been very concerned about the person who may or may not be charged with an offence and the evidence that might be produced in support of the case. However, I would have to look at the other side of the coin. There is very little consideration given to the victims of crime in many cases. There is a general belief among the public that the law is more on the side of the criminal than the victim. This Bill will help to restore the balance in favour of the victim.
Recent statistics that I received in regard to cases of rape, for instance, showed that there was a very low rate of conviction for that crime. In many of the Garda districts from which I got figures there was no conviction in about two thirds of such cases. I have spoken to doctors, one of whom is a Member of this House, who do the medicals on alleged rape victims and they said that one would want 125 per cent proof to be able to convict a person. That certainly seems true from the conviction rate in this part of the country. What I am basically saying is that I welcome anything that helps the Garda to detect and prosecute crimes and bring people to justice.
So far there has been an emphasis on the negative side of the method of convicting criminals by the use of DNA fingerprinting or profiling as it is called but there are positive aspects. The last speaker mentioned a case across the water where a person was able to clear himself of a crime by the use of this system. That is the positive side of what we are discussing; it is not all negative. Another positive example is in the US where some states have set up civil files containing voluntary furnished samples from individual citizens which can be and  are used to identify human remains at sites of disaster and so on. They can be very useful in paternity and incest cases in the legal arena, so this is more than just trying to get criminal convictions from DNA profiling.
A number of speakers have raised questions about the validity of the test. There are some very well established, well documented cases and the Garda Review of November 1988 gives quite a number which I will not go into in detail. There are cases which have proved this method very positive and successful. The Bill contains the safeguard, and I welcome the Minister's commitment that the forensic science laboratory will be given the resources necessary to use this facility to the full, and that in regard to criminals and those under prosecution, the process will be monitored properly. In the US some doubt has been cast on the validity of DNA profiling, but from the investigations I have read about, it is not so much a question about DNA profiling but about the laboratory procedures used in each case.
I am satisfied that the safeguards the Minister outlines in this Bill will protect fully the civil rights of all our citizens. The Bill will enhance the chances of prosecution very substantially. It would be wrong for the message to go out from this House, as some people seem to be implying, that this is a risky method of convicting people and we should wait another eight or ten years before we put it into force. One of the criticisms of this House is that it has always done too little too late. In this case the House is responding to the most advanced techniques and introducing them in a Bill so that the Garda will have adequate powers to pursue cases and investigate them fully, and increase the number of convictions they secure. Over a long period we have all been critical in this House about the levels of crime detection by the Garda. This Bill will redress that, but I have one concern. If at this early stage we make DNA profiling an absolute proof of some person's alleged guilt, methods of investigation  which are less then thorough may be used by the Garda and they will depend solely on DNA profiling. For that reason I counsel caution in that area.
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