IHRC calls for Stronger Human Rights Safeguards in DNA Database Legislation

IHRC calls for Stronger Human Rights Safeguards in DNA Database Legislation

The Irish Human Rights Commission (IHRC) today published its observations on the Criminal Justice (Forensic Evidence and DNA Database System) Bill 2010. The IHRC calls for stronger human rights protection for people who will be affected by its provisions.

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.

The IHRC acknowledges the potential of a DNA Database System as a tool for the Garda Síochána for crime investigation. However, the IHRC is recommending that the Bill include more safeguards which are essential to ensure that the Bill does not give rise to violations of human rights.

Dr Maurice Manning, President of the IHRC said, "The Bill has implications for protecting human rights standards, in particular the right to privacy. A DNA Database stores and retains people’s most personal information. 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. Some provisions and safeguards in the Bill are in line with earlier recommendations by the IHRC on the Scheme of the Bill and I warmly 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, the IHRC is concerned at the lack of judicial supervision of the taking of samples from people who have served a prison sentence. The IHRC considers that there are limited circumstances where the DNA of people who been convicted of a relevant offence and have served their sentences needs to be gathered. In such cases, the Garda Síochána should be required to apply to a judge of the District Court and the judge should be satisfied that the DNA sample is needed for the investigation of a specific criminal offence.

The IHRC urges caution concerning the retention of DNA profiles. Mr Éamonn Mac Aodha, CEO of the IHRC said, "retaining adult DNA profiles for 10 years and children’s profiles for 5 years is far too long when a person is acquitted or criminal proceedings are discontinued. The IHRC recommends the removal and destruction of the bodily samples and DNA profiles of people who have not been convicted of a criminal offence, as soon as possible after the conclusion of legal proceedings. The obligation falls on the State authorities to ensure removal and to show that retention of any person’s DNA profile is necessary and proportionate".

Mr Mac Aodha continued: "Particular attention should be paid to the protection of children and vulnerable people from the negative consequences these legislative powers may entail. Access to legal advice is vital. The provisions that allow negative inferences to be drawn from a 14-18 year old child’s refusal to consent to the taking of an ‘intimate sample’ at trial should be removed."

In relation to the taking of "voluntary" DNA samples, the IHRC is concerned that the scope of the legislation is too broad. Dr Manning said "the wording of the legislation should specify that people will only be requested to act as "volunteers" where this is necessary to investigate a specific criminal offence. Any person volunteering their DNA sample should be made fully aware of the implications of doing so, and should be entitled to withdraw their consent without difficulty. DNA profiles should be destroyed as soon as possible and volunteers should not be asked to enter their profile on the general DNA database."

ENDS/

A spokesperson is available for comment.

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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.

The 2010 Bill allows for the taking of bodily samples from people detained for the investigation of certain serious offences including offences against the State, scheduled offences, drug trafficking offences and specified offences which carry a sentence of 5 years imprisonment or more.

A "serious offence" is an offence under section 30 of the Offences Against the State Act 1939, section 4 of the Criminal Justice Act 1984, section 2 of the Criminal Justice (Drug Trafficking) Act 1996 and section 50 of the Criminal Justice Act 2007.

Under the 2010 Bill, bodily samples may be "intimate samples" (that is, sample of blood, pubic hair or urine; a swab from a genital region or body orifice other than the mouth or a dental impression), or "non-intimate" (that is, a sample of saliva, hair other than pubic hair, a nail or material found under a nail, a swab from any part of the body including the mouth or a skin impression).