Legislative Observations made on regulation of the database and collection, retention and destruction of samples. The Irish Human Rights Commission (IHRC) today, August 8th 2007, released its observations on the General Scheme of the Criminal Justice (Forensic Sampling and Evidence) Bill 2007, after being asked to comment on the General Scheme of the Bill by the Minister for Justice, Equality and Law Reform.
The General Scheme of the Criminal Justice (Forensic Sampling and Evidence) Bill 2007 aims to establish a database that stores DNA samples. While the IHRC acknowledges the potential a DNA database can offer as an effective crime control technique to the Gardaí, the Commission is also concerned about the potential human rights impact of the proposed legislation.
Welcoming the opportunity to comment on the Scheme of the Bill, the President of the IHRC, Dr. Maurice Manning said "The Scheme of the Bill has far reaching implications for human rights. A DNA Database stores and retains the most personal information an individual may possess. The guarantee of a person’s right to privacy is fundamentally affected by the retention and storage of their DNA sample on a database. The Commission believes that a widespread inclusive debate is essential to ensure that the general public fully understand the implications of this new technology before a DNA Database is established."
"The Commission considers that it is imperative that rigorous safeguards underpin the legal framework governing the taking, retention, or sharing of DNA samples, and the operation of a DNA Database. Ensuring the integrity of DNA evidence by proper regulation is essential to avoid potential miscarriages of justice" he continued.
Concerning the substance of the Scheme of the Bill, the IHRC identified a number of key areas as giving rise to human rights concerns. The proposed legislation refers to limiting the use of the DNA database for crime investigation and the identification of missing persons. The Commission supports this position but believes the legislation should go further to guarantee against the possibility that the DNA database could be used for any other purpose.
The IHRC urges caution in relation to the retention of DNA samples. It highlights the fact that the proposed provision for indefinite retention of suspects’ samples on the DNA Database is not the norm either in Europe or internationally. Acting Chief Executive, Des Hogan said "the current proposal to indefinitely retain samples is an unacceptable invasion of the right to privacy. The Commission recommends, in general, the removal and destruction of the DNA samples of people who have not been convicted of a criminal offence as soon as possible after the conclusion of legal proceedings".
“The onus must be on the State to prove that retention of any person’s DNA sample is necessary and proportionate", he added.
The IHRC also urges care in relation to carrying out mass-screenings of groups of people. Mr Hogan continued that "such screenings should not be used as an ordinary investigative tool, but should only be used when other less intrusive and expensive methods have proven unhelpful. 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".
The Scheme of the Bill’s proposal that the Forensic Science Laboratory may reassign or delegate functions and responsibilities in relation to the Database to another body inside or outside the State raises a number of concerns for the privacy of personal information stored in the Database. The IHRC recommends that safeguards should be provided for in legislation so that such out-sourcing can happen only in exceptional circumstances. Sharing of DNA profiles internationally between authorities requires regulation and should not be allowed without a framework on compliance with agreed safeguards and rigorous procedures put in place, according to the Commission. Informing the owner of transferred information should be mandatory, allowing the individual a chance to challenge the transfer in advance.
The integrity of DNA technology as evidence in criminal trials depends on proper accountability and oversight mechanisms being implemented. In relation to ensuring accountability, the President of the IHRC, Dr Maurice Manning said "the Oversight Committee which will monitor the operation of the Database will have a crucial role to play in promoting and protecting human rights, and the Committee should have the power to publish reports concerning issues of urgent interest to the public. It should have independent members to ensure proper consideration is given to privacy and other human rights concerns".
Concerning the taking of DNA samples, the IHRC considered that the proposed safeguards were inadequate and calls for privacy around the taking of bodily samples, and additional safeguards in relation to the availability of legal advice and/or an interpreter, as required, and the video recording of the taking of bodily samples. Stringent safeguards also need to be in place to protect vulnerable people, and the Commission recommends that the presence of a parent/guardian is a pre-requisite for taking the bodily samples of minors. In addition an independent person should be required during the taking of bodily samples for those with reduced capacity.
Click here to download the IHRC’s Observations in full.doc (516 KB)
ENDS
For further information please contact
Martin Mackin/Catherine Logan
Q4PR 01 475 1444
087 814 5030 / 086 811 4785