IHREC DESIGNATE CALLS FOR STRONGER HUMAN RIGHTS SAFEGUARDS
IN DNA DATABASE LEGISLATION
The Irish Human Rights and Equality Commission designate (IHREC designate) today published the Irish Human Rights Commission (IHRC’s) observations on the Criminal Justice (Forensic Evidence and DNA Database System) Bill 2013 (2013 Bill). The IHREC designate acknowledges the potential of a DNA Database System as a tool for the Garda Síochána for crime investigation. However, it recommends that the Bill include more safeguards which are essential to ensure that the Bill does not give rise to violations of human rights.
The aim of the Bill is to establish a DNA Database that stores DNA profiles for use in criminal investigations. The draft legislation proposes that bodily samples will be taken from people suspected of committing a serious offence, as well as from people who are in prison or who have previously been imprisoned for having committed serious offences. Members of the public may also be asked to give bodily samples as "volunteers" or as part of a mass screening.
Key Recommendations
– Scope of DNA Database must be limited to crime investigation.
– DNA samples should not be taken arbitrarily to create a DNA profile on the Database.
– Mass screening of ‘classes of persons’ could lead to racial profiling and should be prohibited.
– Retention of ‘volunteers’ DNA profiles should be subject to review and retained for a finite time.
– Electronic video recordings should be made in all cases where bodily samples are taken.
– An Garda Síochána should report every situation where reasonable force is used to take a sample.
Mr David Joyce, Acting Chair of IHREC designate said, "The Bill has implications for human rights, in particular the right to privacy. The guarantee of a person’s right to privacy is fundamentally affected by the taking, retention and storage of their DNA profile on a database and by the use of that profile. Some provisions and safeguards in the Bill are in line with earlier recommendations by the IHRC on the previous 2010 Bill and we welcome that. However, it is vitally important that this legislation is underpinned by rigorous safeguards governing the taking, retention, storage and destruction of bodily samples and DNA profiles. The scope of the DNA Database System must be limited to the primary purpose of crime investigation."
In relation to the taking of DNA samples, Mr Joyce, continued: "the IHRC considers that the power to take bodily samples, solely for the purpose of entering a DNA profile on the DNA Database System, and not for investigating an offence for which a suspect is detained, is too broad. The IHRC is concerned that such a power risks being applied in a disproportionate and arbitrary manner and recommends that samples should be taken only for the purposes of investigating a specific criminal offence."
The 2013 Bill allows for the mass screening of groups of people ("class of persons") defined by certain characteristics to be conducted in situations where there are reasonable grounds for believing that the mass screening of the target group is likely to further the investigation of an offence and is a reasonable and proportionate measure. IHRC Acting CEO Dr Des Hogan said "we are concerned that the identification of a class of persons could potentially be directed, either explicitly or inadvertently, at a racial or ethnic minority in the State. This would be wholly unacceptable and the 2013 Bill should explicitly prohibit such identification".
Dr Hogan continued: "The IHRC also recommends that persons involved in a mass screening should have the opportunity to properly consider their consent to the provision of a sample, have access to legal advice before providing such a sample and be provided with written information explaining the procedures involved in taking a bodily sample. As regards those samples taken from "volunteers" and samples taken for elimination purposes, the IHRC is also concerned by the length of the possible retention periods. The IHRC recommends the 2013 Bill should provide for a regular review of the necessity of the retention of "volunteer" samples/profiles in situations where an investigation has been open for a prolonged period of time. A presumption in favour of automatic destruction should operate after a certain period of time."
In the 2013 Bill, there is a requirement that a non-intimate bodily sample taken with the use of reasonable force should be electronically recorded. Dr Hogan said "While the IHRC welcomes this requirement, the use of force by An Garda Síochána carries with it significant risks, and the IHRC recommends that an electronic video recording be made in all situations in which a bodily sample is taken, whether reasonable force is used or not (unless the person objects to such recording). The IHRC believes that such a recording would be beneficial to both the person from whom the sample is taken and the individual Garda/ authorised person taking the sample, acting as both a safeguard against ill-treatment and as a record demonstrating the integrity of the process."
Concluding, Mr Joyce stated "The IHREC designate recommends that the 2013 Bill implement automatic reporting requirements in situations where reasonable force is to be used in taking a non-intimate sample. Such a requirement would involve An Garda Síochána reporting every incident in which reasonable force was used in order to take a sample and the placing of these reports on a register on a mandatory basis for the attention of the Garda Síochána Ombudsman Commission (GSOC) or other oversight mechanism. This would allow for the proper independent monitoring of the use of reasonable force under the Bill in all Garda stations throughout the country."
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A spokesperson is available for comment.
For further information please contact
Fidelma Joyce, IHRC
Mob: 087 783 4939
Observations available from this link.
Notes to Editor
As Ireland’s national human rights institution, the IHRC has a statutory remit to endeavour to ensure that the human rights of all persons in the State are fully realised and protected, in law, in policy, and in practice. Its functions include keeping under review the adequacy and effectiveness of law and practice in the State relating to the protection of human rights, and making such recommendations to the Government as it deems appropriate in relation to the measures which the IHRC considers should be taken to strengthen, protect and uphold human rights in the State under Section 8(d) of the Human Rights Commission Act 2000 including with reference to the State’s obligations under the European Convention on Human Rights.
In 2011, Alan Shatter TD, Minister for Justice, Equality and Defence announced the merger of the IHRC and the Equality Authority to form a single new body, the Irish Human Rights and Equality Commission (IHREC). The Scheme of the Irish Human Rights and Equality Commission (IHREC) Bill was published in 2012 and the Bill to establish the new body is passing second stage in the Dáil. The IHREC will be tasked with a broader statutory remit to address both equality and human rights issues.
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