__________

 

CONSULTATION PAPER

 

ON

 

THE ESTABLISHMENT

 

OF A DNA DATABASE

__________

 

 

(LRC CP 29 - 2004)

 

 

 

 

 

 

 

 

 

IRELAND

 

The Law Reform Commission

 

35-39 Shelbourne Road, Ballsbridge, Dublin 4

 

 

 

© Copyright

The Law Reform Commission 2004

First Published

March 2004

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

ISSN 1393 – 3140


 

THE LAW REFORM COMMISSION

 

 

 

Background

 

The Law Reform Commission is an independent statutory body whose main aim is to keep the law under review and to make practical proposals for its reform. It was established on 20 October 1975, pursuant to section 3 of the Law Reform Commission Act 1975.

 

The Commission’s Second Programme for Law Reform, prepared in consultation with the Attorney General, was approved by the Government and copies were laid before both Houses of the Oireachtas in December 2000. The Commission also works on matters which are referred to it on occasion by the Attorney General under the terms of the Act.

 

To date the Commission has published seventy Reports containing proposals for reform of the law; eleven Working Papers; twenty eight Consultation Papers; a number of specialised Papers for limited circulation; An Examination of the Law of Bail; and twenty four Reports in accordance with section 6 of the 1975 Act. A full list of its publications is contained in the Appendix to this Consultation Paper.

 

Membership

 

The Law Reform Commission consists of a President, one full-time Commissioner and three part-time Commissioners. The Commissioners at present are:

 

President The Hon Mr Justice Declan Budd High Court

 

Full-Time Commissioner Patricia T Rickard-Clarke Solicitor

 

Part-Time Commissioners Dr Hilary A Delany, Barrister-at-Law,

Senior Lecturer in Law, Head of Law

School, Trinity College Dublin

 

Professor Finbarr McAuley

Jean Monnet Professor of European Criminal Justice University College Dublin

 

Marian Shanley Solicitor

 

Secretary John Quirke

 

Research Staff

 

Director of Research Raymond Byrne BCL, LLM, Barrister-at-Law

 

Legal Researchers Deirdre Ahern LLB, LLM (Cantab), Solicitor

Simon Barr LLB (Hons), BSc

Patricia Brazil LLB, Barrister-at-Law

Ronan Flanagan LLB, LLM (Cantab)

Glen Gibbons BA, LLB (NUI), LLM (Cantab)

Claire Hamilton LLB (Ling Franc), MLitt, Barrister-at-Law

Darren Lehane BCL, LLM (NUI)

Trevor Redmond LLB, MPhil, LLM (Cantab)

Eadaoin Rock, LLB, LLM (Cantab)

Jennifer Schweppe BCL (Euro)

 

Administration Staff

 

Project Manager Pearse Rayel

 

Legal Information Manager Marina Greer BA, H Dip LIS

 

Cataloguer Eithne Boland BA (Hons) H Dip Ed,

H Dip LIS

 

Executive Officer Denis McKenna

 

Private Secretary to the President Liam Dargan

 

Clerical Officers Alan Bonny

Deborah Murray

 

 

Principal Legal Researchers on this Consultation Paper

 

Philip Perrins LLB, LLM (Cantab), of the Middle Temple, Barrister

Eadaoin Rock LLB, LLM (Cantab)

Arne Glöckner Ref Iur (Hamburg)

 

Contact Details

 

Further information can be obtained from:

 

The Secretary

The Law Reform Commission

35-39 Shelbourne Road

Ballsbridge

Dublin 4

 

Telephone (01) 637 7600

Fax No (01) 637 7601

Email info@lawreform.ie

Website www.lawreform.ie

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

ACKNOWLEDGEMENTS

 

 

The Commission would like to thank the staff of the Forensic Science Laboratory for their invaluable assistance with this Paper. Particular thanks are owed to Dr Sheila Willis, the Director of the Forensic Science Laboratory, Dr Maureen Smyth, Dr Louise McKenna, Liam Fleury and Michael Norton.

 

The following people gave advice and assistance for which the Commission is grateful:

Professor Edward Imwinkelried, University of California at Davis

Professor David McConnell, Smurfit Institute of Genetics, Trinity College Dublin

Detective Superintendent William Coen, Garda Technical Bureau

Assistant Commissioner of the Garda Síochána, Tony Hickey

Detective Inspector Brendan McArdle, Garda Technical Bureau

Chief Superintendent Tom Gorman, Garda Technical Bureau

Detective Inspector Desmond Benton, Garda Technical Bureau

Joe Meade, Data Protection Commissioner

Aisling Reidy, Director of the Irish Council for Civil Liberties

Jane Liddy, Human Rights Commission

James Hamilton, Director of Public Prosecutions

David Gormally, Office of the Director of Public Prosecutions

Michael Liddy, Office of the Director of Public Prosecutions

Matthew Goode, Managing Solicitor, Government of South Australia

His Honour Judge Arthur Tompkins, New Zealand Judicial Expert on DNA

Pauline Simon, Forensic Biology Team, ESR

Sally Anne Harbison, Forensic Biology Team, ESR

Jill Vintiner, Forensic Biology Team, ESR

Murray Thompson, MLA for Sandringham, Melbourne, Victoria

The Hon Mr Justice J. Bruce Robertson, President of the New Zealand Law Commission

 

The Commission would also like to thank Professor David Gwynn Morgan for his assistance in preparing this Consultation Paper for publication.

 

Full responsibility for this Consultation Paper, however, lies with the Commission.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

TABLE OF CONTENTS

introduction 1

Chapter 1FORENSIC SCIENCE, DNA and dna profiling 4

Introduction 4

AForensic Science 5

(1)Fingerprints 7

(2)Blood Grouping 9

BThe Science of DNA 11

(1)Genetics 11

(2)Deoxyribonucleic Acid (“DNA”) 12

(3)Nature of Genetic Variation 17

(4)Transmission of Genetic Variation 19

CDNA Profiling 20

(1)General 20

(2)Biological Evidence 22

(3)Present Profiling Techniques 24

(4)Other Methods of Analysis 29

(5)Possible Future Developments 31

Chapter 2ADVANTAGES AND DISADVAntages of DNA profiling 33

Introduction 33

AA Brief History of the Use of DNA 33

BPurpose and Benefits of a DNA Database 36

CPersonal Genetic Information: the Context 44

DConcerns and Fears 46

Chapter 3Individual rights and dna 51

Introduction 51

AThe Right to Privacy 52

(1)The Constitution 54

(2)European Convention on Human Rights 56

(3)English Case Law. 60

(4)Germany 60

(5)Comment 61

BThe Right to Bodily Integrity 62

(1)General 62

(2)The Constitution 63

(3)European Convention on Human Rights 64

(4)Comment 67

CThe Privilege Against Self-Incrimination 68

(1)General 68

(2)The Constitution 68

(3)European Convention on Human Rights 69

(4)Comment 70

Chapter 4DNA sampling: current powers and safeguards 74

Introduction 74

APhotographs, Fingerprints and Palmprints 74

(1)General 75

BCriminal Justice (Forensic Evidence) Act 1990 80

(1)Forensic Samples outside the 1990 Act 80

(2)General Scope of the 1990 Act 82

(3)Classification of Samples 85

(4)Safeguards Against Arbitrary Sampling 88

(5)Consent and Reasonable Force 95

(6)Enforcement and Compulsion 99

(7)Destruction of Samples and Records 100

Chapter 5the taking of the DNA samples and the retention of the DNA profiles 104

Introduction 104

ARetention of Forensic DNA Profiles in Principle 106

BJustifications for Sampling and Retention of Records 109

(1)General 109

(2)Evidential Significance Justification 109

(3)Intelligence Gathering or Database Justification 110

(4)‘True Identity’ or Person Identification Justification 112

CSuspects 114

(1)Sampling 114

(2)Retention of Profiles in General 120

(3)Retention of Profiles of Suspects 122

(4)Comparative Legislation 122

(5)The Marper Case 125

(6)Conclusion 129

DConvicted Offenders 132

(1)Sampling 132

(2)Retention 138

EVolunteers 139

(1)Sampling 139

(2)Comparative Law 139

(3)Conclusion 140

(4)Retention 144

(5)Mass Screens 147

FA Comprehensive Database? 151

GRetrospectivity 153

Chapter 6The biological samples – RETENTION OR DESTRUCTION? 156

ARetention of Scene of Crime Stains 157

BRetention of Comparator Samples 160

(1)Retention or Destruction? 165

(2)Conclusion on Sample Retention in Principle. 167

Chapter 7THE PERMISSIBLE USES OF THE DNA SAMPLES AND PROFILEs 169

APermissible Analysis of Biological Samples 170

(1)Scene of Crime Stain 170

(2)Comparator Samples 175

BPermitted Uses of the DNA Database 177

(1)General 177

(2)Identification of Deceased Persons 179

(3)DNA Profiling of Deceased Persons 180

(4)Identification of Severely Injured Persons 181

(5)Crime Investigation Purposes 182

(6)Familial DNA Trawling 186

(7)Information Sharing and the International Dimension 188

Chapter 8oVersight, Regulation, quality control and accreditation 192

Introduction 192

AOversight and Regulation of the DNA Samples and Database 193

(1)The Present Irish Position 193

(2)Comparative Law 194

(3)The Custodian of the Database and DNA Samples 198

BRoles and Responsibilities of the Custodian 202

(1) Security of the Database 202

(2)Security of the Samples 205

(3)Criminal Liability 208

(4)Destruction Reports 210

C Laboratory Performance 212

DCrime Scene Management 216

Chapter 9DNA EVIDENCE 221

Introduction 221

AThe Probative Value of a DNA Match 222

(1)What Does a Match Mean? 224

(2)Holding a DNA Evidential Hearing 228

(3)Corroboration 231

(4)Illegally and Unconstitutionally Obtained Evidence 235

BPresentation of the Evidence at Trial 237

(1)Presentation of the Statistical Evidence 238

(2)The “Prosecutor’s Fallacy” 240

(3)Bayes’ Theorem 242

(4)Case Law 242

(5)Judicial Warning 246

Chapter 10SUMMary of provisional recommendations 250

APPENDIX LIST OF LAW REFORM COMMISSION PUBLICATIONS 258

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

introduction

1.      On 5 February 2003, the Attorney General, Mr Rory Brady SC, acting pursuant to section 4(2)(c) of the Law Reform Commission Act 1975, requested the Commission to consider the following matter:

“The establishment of a DNA Databank. I would appreciate that in your consideration of this issue you would address the complex constitutional and human rights issues that may arise. In particular, the classes of DNA profiles, that would make up the database, would have to be addressed. For instance, would the database include suspects who have not been convicted.”

It is clear from his reference requesting the Commission to consider the establishment of a DNA database that our task primarily concerns considering the establishment of a repository of forensic DNA profiles generated from biological samples, which can be electronically stored for comparison with casework evidence profiles, which are those profiles generated from biological material found at the scene of a crime.

2.      One needs to have an appreciation of how rare a person’s DNA profile is, what analysing DNA will reveal about an individual and whether retaining DNA profiles poses any threat to the human rights of an individual. A clear understanding of the science involved is plainly a prerequisite to grappling with the intricate civil libertarian concerns as well as the evidential issues that DNA profiling and its usage may entail. In this Paper, we draw a distinction between the samples and the profiles in determining whether the sample or the profile or both should be destroyed. It is important to highlight this distinction from the outset. The sample contains the whole of a person’s DNA while the profile consists of only a small section of an individual’s DNA, which at present is believed to contain little personal information about an individual aside from parentage and relatedness.1

3.      The benefits of establishing a DNA database are widely acknowledged. Experience in other jurisdictions has illustrated the important contribution a DNA database makes to crime investigation.2 A DNA database enables a person, not previously suspected of committing a crime, to be identified as the perpetrator of an offence. Consequently, it ensures that miscarriages of justice are avoided. In this respect however, it is important that evidential safeguards are in existence, which guard against the DNA database itself leading to miscarriages of justice. As against the benefits of a DNA database, the costs of it in terms of the infringement to an individual’s rights must be weighed. The establishment and implications of potential usage of a DNA database may interfere with an individual’s privacy and bodily integrity rights and their privilege against self incrimination. The overriding theme of this Paper is therefore the need to strike a balance between these conflicting interests in establishing a DNA database.

4.      The potential for misuse of the information contained in DNA is cited as the primary civil liberties concern over the retention of DNA profiles on the database. We therefore submit that the greater the safeguards implemented to protect the security of the DNA samples and profiles, the easier it is to justify the retention of the DNA information. This Paper consequently entails examining how the public confidence in the security of the database could be improved. On the basis of a secure system being in existence, we recommend which samples and profiles can justifiably be retained. Without safeguards against misuse however, the justifications for retaining any samples or profiles at all are not compelling. Similarly, if there is a careful description of each purpose for which the database may be consulted and the information utilised, the greater the number of DNA profiles, which can justifiably be accumulated and retained.

5.      In this Paper, the Commission commences in Chapter 1 with an examination of the science of DNA. In Chapter 2, it gives a brief overview of the advantages and disadvantages of establishing a DNA database. In Chapter 3, the individual rights that may potentially be infringed on the establishment of a DNA database are discussed. These human rights principles will shape and direct our recommendations in later chapters. Chapter 4 outlines the current powers in respect of the taking of DNA samples and examines some problems that arise in respect of these powers. The Criminal Justice (Forensic Evidence) Act 1990 and the Scheme of the Criminal Justice Bill 2003 are discussed here. Chapters 5-7 are at the very centre of the Paper and discuss the core issues contained in the Attorney General reference. Chapter 5 discusses firstly, the categories of persons from whom the legislation should enable samples to be obtained and secondly, those profiles which should be retained indefinitely on the database. Chapter 6 draws a distinction between scene of crime stains and comparator samples and examines whether these samples should be retained indefinitely or destroyed after the creation of the profile. Chapter 7 examines the permissible purposes for which the Commission accepts the biological samples and the profiles on the database may be used. Chapter 8 contains a discussion on the oversight and regulation of the database and samples. Significantly, it also deals with the question of how the samples and the database may be securely protected. It examines how the chain of custody of a sample can be maintained so as to avoid contamination and in this respect the validity of the crime scene examination and laboratory results can be ensured. Finally, in Chapter 9 the Commission discusses the implications of the defendant’s right to a fair trial where DNA evidence is in issue. The safeguards that should be implemented in this respect are detailed. In particular, the value of requiring a pre-evidential hearing, corroboration and a judicial warning where DNA evidence is in issue is assessed.

6.      This Consultation Paper is intended to form the basis for discussion and accordingly the recommendations made are only provisional. The Commission will make its final recommendations on this topic following further consideration of the issues and consultation with interested parties. Submissions on the provisional recommendations contained in this Consultation Paper are welcome. In order that the Commission’s Final Report may be made available as soon as possible, those who wish to do so are requested to make their submissions in writing or by email to the Commission by the 31st August 2004.

 

 

 

 

  1.  

1.      FORENSIC SCIENCE, DNA and dna profiling

“You, your joys and your sorrows, your memories and ambitions, your sense of personal identity and free will, are in fact no more than the behaviour of a vast assembly of nerve cells and their associated molecules.”3

Introduction4

1.      The discussion here is by no means a comprehensive treatise on the utilisation of deoxyribonucleic acid (“DNA”) in the service of forensic science, or for that matter an authoritative guide to DNA profiling. The objective is merely to highlight some of the areas that need to be understood before conducting any examination in this field.

2.      In Part , an overview of the meaning of forensic science and a brief history of the development and use of two somewhat similar forensic methods is given: fingerprinting and blood grouping. In Part we address genetics in elementary terms; how the understanding of genetics has developed and, more importantly for present purposes, what is DNA. In Part , DNA profiling techniques used in the investigation and prosecution of crime are detailed. A point that must be emphasised here, and will be re-emphasised throughout this Paper, is that a clear understanding of the science involved is a prerequisite to understanding the concerns and benefits of establishing a DNA database, as well as the evidentiary issues that DNA profiling precipitates.

1.      Forensic Science

3.      A traditional way in which a potential suspect may be identified is by an eye-witness. However, both in this jurisdiction and in the UK the courts have readily recognised the risk of wrongful conviction when juries rely wholly or substantially on eye-witness identification evidence. Mistaken identification evidence is a notable source of miscarriages of justice. A practice has developed whereby trial judges in their summing up to the jury will emphasise the need for caution depending on the circumstances of the visual identification, such as whether the person is known to the witness, the reliability and credibility of the witness as to the recognition, the state of the light and the length and proximity of observation.5 There is less chance of this occurring when scientific techniques are used. Such techniques have extremely powerful exculpatory as well as inculpatory value. Even so, evidential issues, such as whether corroboration is required before convicting a defendant solely on DNA evidence is a matter requiring some attention.6 But, even at the outset it is clear that DNA evidence, as with all evidence, needs to be tempered with all the other information available.

4.      Forensic science involves the application of scientific methods and techniques to the investigation of crime and forensic refers to the scientific tests or techniques used in connection with the detection of crime. There are numerous forms of forensic science, including fingerprinting, handwriting and document examination, forensic odontology, forensic hypnosis, forensic psychiatry, polygraph, ballistics, facial mapping and reconstruction, photo-fit and E-fit, voice prints, photogram metric features comparison, breathalyser, blood grouping and DNA profiling.7

5.      The methods of forensic detection that are most important for present purposes are those which enable an individual to be linked to the mark or substance left at the scene of a crime. As Hardiman J points out in Dunne v DPP:8

“We are long habituated to the idea that technology and science can snare the criminal. From the familiar photograph and fingerprint to the microscopic fragment of hair or tissue, the role of their products in detection and the proof of guilt has entered into the public consciousness. The work of the criminalist, the SOCO [scene of crime officer], chemist, the photographer, above all the DNA expert, are firmly established. The law itself has changed to accommodate them. A suspect may be fingerprinted, photographed, compelled to give up his clothing and possessions for testing and to supply samples of his hair, tissue or bodily fluids under a variety of statutes.”9

6.      Investigations often revolve around finding the individual who left the ‘stain’ in order to question that person as to how the stain came to be present at the scene and either eliminate them from the inquiry or treat them as a suspect. In this Paper the Commission is primarily concerned with DNA profiling as a means of connecting an individual to the ‘stain’ left at a scene of crime. But, before turning to DNA specifically, fingerprinting and blood serology will be briefly outlined to illustrate both the shortfalls in those methods and so as to enable analogies to be drawn with the more modern technique of DNA profiling with which we are concerned here.

1.      Fingerprints

1.      History

7.      “[F]ingerprints are formed by the deposit of the perspiration and fatty matter secreted by the sweat glands in the friction-skin of the hands, allied with any dirt, which happens to be on the fingerprints”.10 As Ebiske notes, the history of present day fingerprinting technique is a long one.11 In 1823 Johannes Purkinje, a Bohemian physiologist described the constancy of fingerprints and observed that they have specific patterns, namely, “whorls”, “ellipses” and “triangles”. In 1858 William Herschel, an English civil servant working in India, asked a contractor to sign the back of a contract with a print of his hand. Later he made illiterate pensioners sign their receipts by pressing a finger dipped in ink in order to prevent them from coming back twice for their government pensions. About the same time, in Tokyo, a British physiologist, Henry Faulds noted the fingerprints on Japanese pottery and began studying the “whorls”. Two years later the police, knowing of his interest in fingerprints, engaged Faulds to assist in analysing the sooty fingerprints left by a thief on a whitewashed wall. He compared those prints with those of the man arrested by the police and to his surprise found they were quite different. Another suspect was arrested and Faulds showed that it was his fingerprints which matched those left at the scene.12

8.      The first recorded case in which fingerprints led to a conviction was in Argentina, in 1892, when Francesca Rojas was convicted of murder having killed her two children. When charged on the basis of the fingerprint evidence – a print found in a bloodstain left on the door – she confessed to the murders.

9.      Also in 1892, Sir Francis Galton, after conducting a three year study to make quite sure fingerprints are unique or at least that duplication was rare, published the paper “Finger Prints” in the prestigious journal Nature. He described fingerprints as normally revealing a triangular shape. However, the problem that was encountered was establishing a workable classification system. The aim was to enable a policeman to locate a particular fingerprint quickly from a collection of millions. Later, in 1896, it was a British Civil Servant, Edward Richard Henry, on the basis of Galton’s work who devised a system, which set out the ‘basic’ formula for any fingerprint. Henry was subsequently made an Assistant Commissioner at Scotland Yard and in 1902 founded the Central Fingerprint Branch. By the end of 1902 as many as 1,722 identifications had been made.13

1.      Use and Limitations of Fingerprinting

10.  Fingerprinting has been accepted and considered reliable for over a century. The uniqueness of fingerprints has been confirmed. Indeed Ebisike states that “[i]n the final analysis, fingerprinting appears the most reliable of all forensic science techniques”.14 This may be explained by its use and reliability over such a long period of time. Consequently, most jurisdictions maintain a collection of fingerprints so as to enable them to associate individuals with their past crimes and to determine whether marks/prints left at a scene of crime can be linked with a known individual. This facility has the effect of narrowing the field of suspects who need to be investigated and can be referred to broadly as “intelligence purposes.” The storage of fingerprints has been somewhat modified in line with technological advances and they now tend to be stored on databases, which enable records to be more effectively interrogated. The shortfall in this method of identification is that its reliability is dependent on being able to compare the scene of crime mark with a clear set of a suspect’s prints; because of the nature of the scene of crime prints, which may be latent, visible or even wet and may be present on a number of different surfaces, such as on human skin, it may only be possible to compare certain features of a print.15 By measuring the features of a fingerprint a numerical framework may be created within which one may compare one print with another.16

11.  However, the presentation of fingerprint evidence has always tended to be somewhat subjective, in that the fingerprint expert will provide the court with an opinion as to whether the fingerprints of the accused match those found at the crime scene. With the increasing use of computerisation and fingerprint recognition software, a greater measure of objectivity may be created, as regards such evidence. As we shall see,17 although DNA evidence is infinitely more discriminating as a forensic method, an expert is generally precluded from expressing an opinion as to the relevance of the match in showing the guilt or innocence of the accused.

1.      Blood Grouping

12.  The use of blood grouping as a means of identifying individuals arose mainly as a result of medical research, particularly blood transfusions.18 The breakthrough came with the discovery of blood groups through Karl Landsteiner’s work on blood cell agglutination in 1901. Initially it was discovered that there were three blood groups – A, B, and C (now called O). Later, Landsteiner found a category that had characteristics of both A and B – AB. By the 1920s, ABO blood grouping was routinely used on patients being given blood transfusions and significantly reduced the mortality rates.

13.  The forensic application of blood grouping was first demonstrated by distinguishing between human blood and that of other species. In 1902, a French murderer was sent to the guillotine when tests proved that blood on his clothes was human and not from skinning a rabbit – as he had claimed.19

14.  Later the discovery of different blood typing systems, such as the rhesus system, increased the power to discriminate between blood groups in forensic applications. Blood grouping has been used to exclude alleged fathers in paternity disputes and, more importantly for present purposes, to exclude a suspect from inquiries on the basis that blood found on a victim did not match the blood grouping of that suspect. As an exclusionary method this analysis has been shown to be very powerful, but as an inclusionary method significant limitations are apparent. With four ABO blood groups and two rhesus groups it is only possible to recognise a maximum of eight different types. If, for example, a blood sample found at the scene of a crime, which is believed to have been left by the perpetrator, is type AB and two suspects are found, one who has blood type A and one who has type AB then two conclusions can be drawn: the suspect with type A is definitely not the source of the scene of crime sample and the suspect with AB may be the source. However, if we take figures for blood group frequencies in Western European populations as: A = 42%; B = 9%; AB = 3%; O = 46%,20 then one may say that approximately 1 in 33 people have blood group AB. Despite this rather basic example, it can be readily observed that this information is not terribly helpful in identifying who may be treated as a legitimate suspect – or for that matter determining who is the source of the crime scene stain. Blood grouping tests only result in fairly high probabilities, particularly when compared with the likelihoods in the case of DNA.21

15.  Blood grouping is useful in the preliminary stages of an investigation in order to provide a screen before more detailed DNA tests are performed. Therefore suspects may be eliminated so as to remove the need to carry out expensive and time consuming DNA tests, because in contrast a blood test is relatively quick and inexpensive. However, with the exponential development in DNA technology22 such as increased automation in profiling, coupled with the ability to use less intimate samples to obtain a profile23 the costs have reduced and speed increased. The consequence is that the need for this initial screening process has been reduced.

2.      The Science of DNA

1.      Genetics

16.  Genetics is the scientific study of how physical, biochemical, and behavioural traits are transmitted from parents to their offspring. Thus it embraces the mechanisms of inheritance whereby, although the offspring of sexually reproducing organisms do not exactly resemble their parents, the differences and similarities between parents and offspring recur from generation to generation in various patterns.

17.  Modern understanding of genetics and heredity is the product of a number of developments. First, the method of experimentation that emerged in the 17th Century; secondly, the development and use of the microscope which became prevalent in the 19th Century; thirdly, the emergence of chemistry and biochemistry in the 18th and 19th Centuries; fourthly, the publication of The Origin of the Species by Charles Darwin, the British scientist, who laid the foundation of modern evolutionary theory; finally, the rediscovery, in 1900, of the work of the Augustinian monk Gregor Johann Mendel, which concerned principles of hereditary transmission of physical characteristics. Known as Mendel's laws these were originally formulated in 1865 and became the theoretical basis for modern genetics and heredity.24 From systematically breeding peas, he demonstrated the transmission of characteristics in a predictable way by factors (genes) which remain intact and independent between generations and do not blend, though they may mask one another's effects.25

1.      Deoxyribonucleic Acid (“DNA”)

18.  DNA is found in every one of the trillions of cells26 in the human body; that is with the notable exception of erythrocytes (red blood cells) which do not have nuclei. Cells are the basic unit of structure and function in all living things and consist of protein surrounding a nucleus. Proteins are large complex molecules made up of amino acids. These acids cause the protein chains to fold up into specific three-dimensional structures that define their function within a cell. The nucleus itself is made up principally of nucleic acid.27 When cells divide into two to reproduce, the nucleus transforms into thread-like packets, which are the chromosomes. In every cell there are 46 chromosomes arranged in 23 pairs. The ovum and sperm each contain 23 single chromosomes and at fertilisation these combine to produce a total of 46.28 Accordingly, half of the genetic information is maternal and half is paternal in origin. 44 of the 46 human chromosomes have been assigned the numerical values of chromosome pair 1, chromosome pair 2 and so on to chromosome pair 22. Each individual will therefore have a maternal and paternal copy of chromosome 1, 2, through to 22. The remaining two have been assigned a letter – X or Y. Females have two X chromosomes, while males have an X and a Y.

19.  The main constituent of chromosomes is DNA – the other constituent being protein. In the 1940s, it became apparent that DNA is the principal molecule which carries genetic information from one generation to the next.29 This, however, was not conclusively established until 1953, when Watson and Crick deduced the structure of DNA.30 Each molecule of DNA consists of two strands which coil round each other to form a double helix, a structure like a twisted ladder: see figure A at paragraph . Each rung of the ladder consists of a pair of chemical groups called bases linked together by hydrogen bonds. There are four types of bases (nucleotides) known by their initial letters - A, G, C, and T.31 The sides of the ladder are comprised of phosphates and sugars. An important aspect of DNA is that the two strands will only bind according to a specific rule. Namely, A and T pair with each other and G pairs with C. For example, if the sequence on one strand is --AGATTCTG-- then the opposite chain must have the sequence --TCTAAGAC--. Because the bases combine in specific pairs so that the sequence on one strand of the double helix is complementary to that on the other, it is the specific sequence of bases which constitutes the genetic information.32

20.  A gene is the unit of inheritance, a piece of the genetic material that determines the inheritance of a particular characteristic, or group of characteristics, such as hair or eye colour. Essentially, genes are a particular sequence of base pairs along the DNA strand, as illustrated in figure A, below. The length or sizes of genes vary, but the average gene consists of 3,000 bases.33 A genome, on the other hand, is the complete set of genetic material of a particular organism. The human genome has 3.2 billion base pairs. Analysis of the first draft sequence indicated that the number of genes present throughout the genome is about 30,000-40,000.34

Figure A35

21.  The genetic information that is carried in the DNA is in the form of a code which determines an individual’s physical characteristics and directs chemical processes. In other words, the sequence or particular arrangement of bases along the DNA strand spells out the exact instructions – these are the genes. All information or instructions contained in DNA is commonly referred to as the “blueprint for life”,36 as each DNA molecule contains all of the information needed to produce a complete human body. Each cell that has a nucleus contains the entire genome, which is the same from one cell to the other.

22.  Until the mid-1960s it was believed that most people were nearly identical genetically and that the variations, such as in eye colour and blood grouping, were exceptions. However, through studies a vast amount of data was collected, which revealed that there was much more variation than anyone had predicted. The sequence of the human genome is now thought to be 99.9% the same in all people.37 But, although humans are essentially only 0.1% different from each other, there are many sequences in the genome where there is a lot of variation. Fortunately, for forensic science, those parts of the sequence in the genome vary to such an extent that the sequences can be used to determine whether two biological samples containing cells are from the same source. In other words, it can be shown that where one person has an A at a certain point in their DNA sequence, another person has a C, a T, or a G. With the notable exception of identical twins, who share the same genetic code, at a genetic level no two individuals are exactly alike.38 The important issue of the uniqueness of a DNA profile will be dealt with in more detail below.39

23.  Genes, however, appear to be concentrated in random areas, or loci, along the genome, with vast stretches of sequences in between.40 The regions of the DNA molecule which contain genes are known as “coding regions”. The coding regions from one individual to the next are almost the same because during evolution they are subjected to selection pressure to maintain their specific function: one may say they are essentially what make us human. But no two individuals carry the same DNA sequence (with the exception of identical twins). The difference is this: only a small part of the entire human genome encodes instructions for the production and synthesis of proteins41 - see figure B. In consequence, there are “non-coding” areas that do not contain genes and these are prevalent. It is these areas which are used in forensic testing.

Figure B42

24.  Whereas the coding regions contain sequences that are almost identical from one individual to another, differences can be observed in these “non-coding” areas. The non-coding areas are reported to have little prescribed function (they may have no biological function) and have not been subjected to the same selection pressures as the coding regions. These regions or loci are often described as “genetic junk” as the sequences in these areas mutate more rapidly from one generation to the next without affecting the function of the DNA or organism. Most mutations in the non-coding areas are usually transmitted to the offspring, which in turn leads to a vast increase in genetic variability. It is also in the non-coding areas that “hypervariable regions” can be found, in other words where there is a high degree of variation between individuals.43

25.  The Australian Law Reform Commission (“ALRC”) in its recent report on the protection of human genetic information in Australia stated:

“In recent years, genetic scientists have increasingly come to believe that it is the non-coding DNA that may be the basis for the complexity and sophistication of the human genome, which permits only 30,000 genes to produce about 200,000 proteins”.44

The ALRC also referred to the views of a leader in the field, Professor John Mattick, who is quoted as surmising that non-coding DNA forms: “a massive parallel processing system producing secondary signals that integrate and regulate the activity of genes and proteins. In effect, they co-ordinate complex programs involved in the development of complex organisms”.45

25.  The important issues of what a DNA profile reveals about an individual and whether the analysis and storage of biological samples and profiles represents a threat to privacy will be examined in later chapters. What can be said here is that in the investigation of crimes, biological samples are collected from crime scenes in order to determine the possible sources of that sample. Thus, the purpose of analysis is to differentiate between individuals. Accordingly, the areas of difference (the non-coding regions) are more pertinent for forensic analysis than those regions which are highly varied (coding regions). Problems may, however, arise if some non-coding areas are discovered to disclose rather more information about an individual than originally envisaged. This is particularly so if the ‘non-coding’ loci used in forensic profiling are compromised because they reveal personal information – this is a critical point which will be examined in detail later in the Paper.46

1.      Nature of Genetic Variation

27.  It was noted above that the main constituent of chromosomes is DNA and that they are essentially long strands of DNA tightly packed into bundles.47 Some chromosomes are significantly larger than others and more densely packed with genes. For example there are 279 million base pairs comprising the largest chromosome – chromosome 1 – and an estimated 2968 genes.48 Each chromosome has a distinctive placement of genes and non-coding regions along its length and by virtue of the work carried out by the Human Genome Project all these locations are now known. One can refer to these locations or loci as addresses. For example, an address used in forensic profiling D3S1358 is a stipulated area on chromosome pair 3: D3 refers to a site on pair 3; S refers to the location; and 1358 is the actual address on the strand.49

28.  At this point, we need to go into some detail about the way in which genetic variation is assessed and explained because, as will become apparent,50 this is the basis of forensic testing by which an individual’s DNA may be profiled. Despite the fact that 99.9% of the DNA sequence in humans does not vary from individual to individual, each human being is unique and there is some genetic variation. Variation occurs in a number of different ways: for example, the sequence of base pairs may differ by one of more bases at a particular locus. This variation is known as “sequence polymorphism” and each possibility is called an “allele”, for example a stretch of DNA may on one strand of the double helix take the following form:

--- TTCATGATTA --- (Allele A)

--- TTCATCATTA --- (Allele B)

--- TTCATTATTA --- (Allele C)51

29.  A further way in which individuals may differ at a molecular level – which is the basis of current profiling techniques – is in terms of the length of a stretch of DNA at a particular location, ie “length polymorphisms”. The difference in length is attributable to the changeable number of times a sequence of DNA is repeated in tandem along a particular stretch of DNA (“a repeat unit”), which are typically two to five base pairs in length. For example the sequence AATAC at a particular genetic address may be repeated from 5 to 10 times to produce six different alleles of repeat unit sizes 5, 6, 7, 8, 9 and 10, as follows:

-AATAC AATAC AATAC AATAC AATAC- (Allele size 5)

-AATAC AATAC AATAC AATAC AATAC AATAC- (size 6)

-AATAC AATAC AATAC AATAC AATAC AATAC AATAC- (size 7)52

And so on to size 10. One should note here that length variations exhibit greater variation than sequence variation and are accordingly more discriminating from a forensic perspective. The repeat sequences are known as variable number of tandem repeats (“VNTRs”) for relatively large repeat units and short tandem repeats (“STRs”) for small repeat units. STR profiling has become the preferred method of forensic analysis, because STRs exhibit greater variation and may be targeted more easily with probes.

1.      Transmission of Genetic Variation

30.  DNA locations appear in duplicate because chromosomes occur in pairs, so regardless of whether they are the locations of genes or non-coding areas analysis will unveil results from a maternal and paternal donor at each site or locus tested: if an individual has inherited the same item of DNA at a specific locus from both parents then they are “homozygous” at that location. Alternatively, if the individual has inherited two different items of DNA at a particular locus then they are “heterozygous” at that location. If a person is homozygous then his or her sex cells will contain the same piece of genetic information, in which case only one allele may be passed on to their offspring. On the other hand, if a person is heterozygous at a particular location then there is an equal chance that either allele will be passed on, as illustrated as follows:

Allele

Mother

(AA)

Father

(BC)

Child

(AB)

Child

(AC)

A

B

C

31.  If both parents are heterozygous, so that they both have allele BC at a particular site, then each can pass on either a B or a C. Furthermore, there are three different descendant types, BB, BC and CC and because there are two ways that BC may be produced it is expected that half the couple’s offspring would be BC, a quarter BB, and a quarter CC.

32.  These kinds of probabilities and the distinction between heterozygous and homozygous are important in determining the relative uniqueness of a particular DNA profile, as well as in appreciating relatedness and parentage.53

3.      DNA Profiling

1.      General

32.  DNA profiling refers to the identification of individuals through their DNA. All eukaryotic cells (which are present in an individual’s tissue or bodily fluids) contain an identical DNA molecule.54 There are trillions of sources of DNA that can be set side by side with other samples (such as a sample left at a crime scene) to determine the likelihood that these samples originate from the same individual.55 DNA profiling is used as an investigative tool that enables inferences to be drawn as to who may have been present at a particular place, just as inferences may be drawn from the presence of fingerprints. Profiling can be used to identify, confirm or eliminate a suspect from an investigation. DNA profiling has also become a particularly beneficial tool in exonerating those wrongfully convicted. A compelling illustration of the potency of DNA in exonerating individuals is provided by the US National Institute of Justice project Convicted by Juries, Exonerated by Science.56 As implied in the title the study examined cases where wrongful convictions were obtained and subsequently overturned on appeal through the use of DNA evidence. This study and the work conducted by Innocence Project57 act as powerful reminders of the fallibility of the justice system, particularly when a conviction is substantially obtained on the basis of eye-witness testimony.

33.  Equally, a DNA match cannot be considered as conclusive evidence of a suspect’s guilt, as there may be numerous reasons for the match: for example, the match may be coincidental, as a result of contamination or tampering, or may have been deliberately planted to implicate. Or indeed – and this is a point which should be emphasised – the suspect’s DNA may have been innocently left at the scene of crime. Also the relative strength and usefulness of DNA evidence is dependent on a number of factors, such as the quality of any biological sample left at a scene of crime, and to a lesser extent the quantity of material, as well as the frequency and distribution of the particular alleles within the population. These considerations are crucial and we shall consider them more fully later in the Paper.58

34.  The realisation that DNA could have a forensic application was a result of medical research. In 1984, while studying the genes which code for haemoglobins, Sir Alec Jeffreys of the University of Leicester observed basic building blocks made of repeated sequences within the DNA which were 10 or 15 bases long. He isolated two of these blocks, mass-produced them and made them radioactive. They were then used as probes to detect what Jeffreys describes as “hypervariable regions” in other genetic material. Samples were taken from members of a family to determine whether this method could reveal the relationships. The “hypervariable regions” appeared as dark bands in columns against a white background on an X-ray film. By placing the columns of the parents and children side by side it was observed that all the bands on the children’s film were derived from the mother or father.59

1.      Biological Evidence

35.  As Dr James Donovan, the former Director of the Forensic Science Laboratory, notes:

“Forensic science is largely based on the rule of Edmund Locard, Professor of Medical Jurisprudence at Lyon, who formulated the principle that ‘every contact leaves a trace’. This is known … as ‘Locard’s principle’.

There are many examples of this, a most basic example being a pedestrian struck by a car. The body breaks the head lamp glass, which is left at the scene and can indicate the make and model of the car. The body bounces onto the bonnet, melting the top layer of paint deep within the weave of the victim’s clothing, which allows the scientist to identify the colour from a database. The colour gives the make and model of car. Normally the body smashes into the windscreen, breaking it and leaving glass at the scene. Finally the head crashes into the side pillar of the windscreen, leaving blood and human tissue on the pillar, which can be examined by means of DNA profiling. Thus a very definite linkage can be established between the deceased and the vehicle that killed him/her.”60

DNA profiling is almost invariably preceded by an examination of scenes of crime (or for that matter, secondary scenes such as a victim’s or suspect’s home) in order to forage for bodily fluid, tissue and, more recently hair roots, from which to generate a DNA profile.

35.  The following table provides a summary of the types of biological evidence from which a profile may be generated:61

Bodily

Fluid/Tissue

Location of

DNA

Typical Items

Examined

Blood

White blood cells (leukocytes) contain DNA; human red blood cells (erythrocytes) do not.

Clothing, weapons, scene stains and various items in cases where blood has been shed.

Semen

Spermatozoa, which is the source of DNA in most semen samples; semen from a vasectomised male may still be successfully typed from DNA from epithelial cells lining the male reproductive tract.

Orifice (oral, vaginal, rectal) and surface (skin) swabs from complainants in sexual assault cases, undergarments, clothing, bedding, condoms.

Saliva

Buccal cells lining the oral cavity.

Cigarette butts, used tissues, chewing gum, toothbrushes, stamps and envelope flaps, swabs of bite marks, beer bottles, balaclavas, scarves, eating and drinking utensils, dentures.

Vaginal Secretions

Cells lining the vaginal cavity.

Condoms, underclothing, penile swabs, insertion objects.

Skin

Sloughed off skin cells, dandruff.

Clothing, fingernail scrapings.

Hair roots

The root sheath (the bulbous growth at the scalp or body end of the hair contains DNA); if this root is not present, only mitochondrial DNA analysis is an option.62

Pulled scalp, facial or pubic hairs.

Urine

Urine (usually a poor source of DNA; it may contain relatively few epithelial cells).

Clothing, bedding, neat (undiluted) urine samples submitted for drug testing.

Faeces

Faeces (a relatively poor source of DNA; it may contain some epithelial cells from the intestine and rectum).

Faeces, clothing, bedding.

Bones

Bone marrow.

Skeletal remains.

Teeth

Tooth pulp.

Skeletal remains.

Nasal secretion

Epithelial cells lining the nasal and sinus cavities.

Tissues, paper towels, clothing.

Vomitus

Epithelial cells lining the oesophagus and mouth.

Vomitus, clothing, rugs.

Other

Cells from any tissues or organs.

Remains from mass disasters, biopsy or other hospital-related samples, contact lenses.

36.  As is evident from this table, there are a number of sources from which a DNA profile can be derived. However, the likelihood that a biological sample will create a DNA profile depends on the material involved. For example, blood has a 90% chance of generating a DNA profile. Saliva on a balaclava has a success rate of 43% but on a cigarette butt it is 67% while on a weapon handle it has a success rate of 17%. Hairs have a 25% chance of producing a DNA profile. This is because hair that falls out is dead at the roots and it is difficult to obtain a DNA profile from such hairs. In contrast, hair that is plucked has a much better success rate.63

1.      Present Profiling Techniques

38.  The process of analysing a piece of DNA is a very complex one and one that has developed exponentially since first discovered. Single locus probes and multi locus probes have now been overtaken by the use of the polymerase chain reaction (“PCR”) where small samples of previously unsuitable material may be examined. All of the DNA is extracted and the particular area or sequence of DNA is then targeted and copied. The result of this technology has been that it increases the amount of DNA available for testing and enables even very small stains taken from a scene of crime to be tested successfully.

39.  The particular PCR system that is used in Ireland, Britain, and New Zealand and in most of Europe is called the SGM Plus™ profiling system, which is a commercially produced kit validated for forensic casework.64 Defined areas which can differ from one individual to the next – non-coding STR regions – are targeted and the resulting profile is referred to as an SGM Plus profile. Essentially the technical process for DNA profiling involves the following main steps:

DNA Extraction: the biological material is removed from the clothing or swab by soaking in water or a buffered solution. The solution is spun in a centrifuge which pushes the cells to the bottom of the tube. Unwanted material such as red blood cells and protein is removed and discarded. The remaining cells are burst through heating or chemical action, which releases the DNA from inside the cells;

DNA Quantitation: the amount of extracted DNA is measured using a commercially produced kit. This essentially will reveal whether primate DNA is present in the sample.

Amplification and Detection: after quantitation, an exact amount of DNA is added to the PCR, which amplifies selected regions of DNA to detectable levels. It is then electrophoresed to separate the different sized fragments. The fragments are then analysed and the DNA profile is determined – manually or by computerised software. Once the profile is generated it is compared with other profiles, such as comparator profiles taken from suspects or those profiles generated from stains found at other scenes of crime.

Statistical Assessment and Reporting: matching profiles are assessed to determine their evidential value.65 This is discussed in greater detail later in the Paper.66

1.      The process can vary in relation to the time taken to generate a DNA profile. For example, the nature of the sample may mean that extraction will take longer. However, the process can be broken down as follows:

                                                        i.            Extraction: depends on sample. Blood sample – 90 minutes; semen stain – approximately 6 hours (or overnight); hairs – approximately 5 hours (or overnight); cigarette ends – overnight soak plus 2 hours;

                                                      ii.            Quantitation: about 3 hours;

                                                    iii.            Amplification: about 3 hours;

                                                    iv.            Gel Preparation and Loading: about 1 hour to pre-run and load (plus at least 2 and a ½ hours to pour and polymerise);

                                                      v.            Gel Electrophoresis: 2 and a ½ hours;

                                                    vi.            Gel Analysis: 2 analysts for minimum of 2 hours each;

                                                  vii.            Clerical and Final Checking of Results: up to 1 hour per case.67

As can be seen the process of generating a DNA profile can take around 24 hours, depending on the type of sample to be profiled. However, other variables must also be taken into account: DNA may not be present in the sample or may be completely degraded; the sample may be mixed to such an extent as to render the resulting profile(s) useless.68 It is also notable that the period of time in which a DNA profile may be generated is dependant on the volume of work in the laboratory at the relevant time. This is both in terms of over demand and under demand. As regards the latter, because work is carried out in batches, it would be inefficient to run a gel for just one sample.

2.      A DNA profile, when transcribed, in effect is a digital representation of what an individual’s DNA looks like at the specific targeted regions, or a measurement of the number of short tandem repeat (“STR”) units, as follows:

Figure C69

3.      An individual may have a short four base DNA sequence AGAT repeated six times at a particular location on one strand of the maternally derived chromosome and eight times on the corresponding paternal chromosome, which may be written as 6,8 alongside the particular address or locus. By way of example, the results of DNA analysis that might be presented in a rape case may be illustrated as follows:70

Short Tandem Repeats Region

STR

Loci

Amel

(Sex)

D3

VWA

D16

D2

D8

D21

D18

D19

THO1

FGA

Victim’s Clothing

X,Y

17,17

17,19

13,14,

17,24

12,13

29,30

14,15

13,14

6,7

21,22

Victim’s Profile

X,X

14,18

17,19

11,12

20,26

10,14

30,30

14,16

12,12

6,9.3

22,22

Suspect’s Profile

X,Y

17,17

17,19

13,14,

17,24

12,13

29,30

14,15

13,14

6,7

21,22

4.      On the victim’s profile at STR location THO1 (DNA on chromosome pair 11) there are 9.3 repeat units at the particular locus on one of the pairs. This is what is known as a “non-conforming” allele with 9 STR repeat units plus two or more bases. The STR region D3 (DNA on chromosome pair 3) on the suspect’s profile is 17, 17, which means that the number of repeat units are the same on both the maternal and paternal chromosomes, ie the suspect is homozygous at this locus.

5.      Interpretation of the above casework example is a two-stage process: first, as can be seen, the scene of crime stain and the suspect’s profile ‘match’, in that the same alleles are present at all ten loci tested; secondly, the significance of this ‘match’ must be determined. As regards the second stage, one must determine how common or rare a particular profile is in the population or how frequently it is expected to occur. Unless the DNA from every person in a particular population is examined it is impossible to determine how many people share any one allele. Instead, an evaluation of the rarity of a profile is made with the aid of frequency databases. In other words, a sample population database containing the profiles of 300 of the Irish population is used to estimate how often an allele occurs within the population. As one can see from the above casework example a number of the individual alleles are common to both the victim and the suspect, such as the STR region VWA (DNA on chromosome pair 12) where they both have the same number of repeat units at that locus. On the other hand, at most of the loci tested there is a great deal of variation between the suspect’s profile and that of the victim.

6.      A more detailed account of the significance of a DNA profile match will be given later in this Paper in the particular context of presenting DNA evidence in court.71 However, it should be observed that whilst each allele may be relatively common, even those with a rudimentary understanding of statistics will know that when a number of common events are combined the resulting probability of them all happening becomes very small. To take an apt example, the probability of picking the Ace of Spades from a normal pack of 52 playing cards is 1 in 52. If this ace is replaced then the probability of picking the Ace of Hearts is also 1 in 52. However, the probability of picking the Ace of Spades and then the Ace of Hearts is 1 in 2704 (ie 1/52 multiplied by 1/52). Accordingly, the more events that are combined the smaller the chance that they will occur. Thus, the chance of picking the four aces from a pack is 1 in 7,311,616. As regards a DNA profile of ten loci, the combination of the individual estimates of the likelihood of each allele occurring in the population will result in a very rare event indeed. Typically, this probability could be in the order of 1 in several billions, which implies that any one profile is likely to be very rare in the general population, if not unique.72

1.      Other Methods of Analysis

1.      So far we have been examining the ‘traditional’ STR profiling technique, which is at present the most potent, but there are two further methods that may be of use in the particular circumstances of a criminal investigation; these are mitochondrial DNA (“mtDNA”) and Y chromosome analysis.

1.      Mitochondrial DNA

1.      As regards mtDNA analysis, this may be useful in testing charred remains and bones that are too degraded for nuclear DNA analysis, as well as testing hair shafts found without roots. (It is the roots which contain nucleated cells).73

2.      We observed previously that DNA is found in the 46 chromosomes of each nucleated cell.74 However, a small amount of DNA is also present outside the nucleus – over 16,500 base pairs long.75 There are many small structures in cells, known as mitochondria, that help provide energy to the cells and which contain their own DNA. The advantage is that there are many copies of mtDNA present in a cell, they are smaller compact molecules with few coding regions and are less prone to degradation.76 Where nuclear DNA has degraded and broken down, it may still be possible to find sufficiently intact parts of the mtDNA. But mtDNA is solely maternally inherited and, accordingly, mothers, their children, full siblings, maternal half-siblings, maternal cousins and all on the maternal line will have the same mitochondrial pattern. Also, because mtDNA is much shorter in length than nuclear DNA, there are much fewer features from which to observe differences between individuals. The discriminating power of mtDNA testing is much less than for DNA profiling. The chance of obtaining a match mtDNA sequence between two unrelated individuals is approximately 1 in 100.77 This method may be useful in body identification work, but it is incompatible with STR profiling and databasing, in that a profile generated from mtDNA is not comparable with an STR profile generated from a sample with a nucleus.78

1.      Y Chromosome

1.      As regards Y chromosome testing, this method is most useful in cases where male DNA is overwhelmed by an excess amount of female DNA. For example, in a rape case it is not uncommon for there to be low levels of spermatozoa mixed with high levels of the victim’s cells, whereby only a profile from the victim is obtained. However, by analysing the Y chromosome the male cells may be isolated and the female cells excluded. Whereas a mother passes on her mtDNA to all of her children, a father passes on his Y chromosome only to his sons. On the Y chromosome there are some forensically useful loci, which contain STR and sequence variations. Although Y chromosome testing does not individualise, as there will be no distinction between brothers and fathers and sons, it would give an indication of the source of the sample and perhaps narrow the field to a certain extent.79

1.      Possible Future Developments

1.      With the prospect of increasing demand for DNA analysis in a wider range of cases, from murder, rape and burglary to car theft, as well as the insertion of profiles on to databases, large numbers of samples may need to be processed. Accordingly, those operating in this field are continually searching for ways of reducing the processing times and failure rates. The use of capillary electrophoresis and mass spectrometry, allowing sorting of DNA fragments in seconds, and microchip technology, enabling numerous loci to be tested at once, are just some of the possibilities.80 Instead of sending scene of crime stains to a laboratory to be analysed, it is envisaged that the police will have hand-held devices containing microchips able to decode DNA on the spot.

2.      Single nucleotide polymorphisms (“SNPs” or “snips”), which are differences at single base pair positions along the DNA strand may also be of use in forensic casework.81 SNPs can be measured in very small sections of DNA, which means that analysis is possible even in degraded samples. The UK Forensic Science Service (“FSS”) are currently looking into new ways of automating the forensic analytical process, including the possible use of SNPs as an alternative to using STRs.82

3.      One further technique that is being developed is Low Copy Number (“LCN”), which may enable DNA to be extracted from even previously extracted samples which have failed to yield sufficient levels of DNA to be profiled.83 This technique can be described as ‘super-sensitive’, but it takes much longer than SGM Plus™ profiling and is currently used in the UK only in the most serious cases. The discriminating power is the same as a SGM Plus™ profile and a LCN profile is also compatible with a SGM Plus™ profile, so can be loaded on to the database. The difficulty with LCN profiling, as with all forensic evidence, is that its significance must be considered carefully. Specifically, because of the sensitivity of the technique, DNA may be detected that is not connected with the crime.84

4.      These potential developments in profiling technology and their impact on any DNA database are very important and must be kept in mind when considering what options to take, particularly in relation to whether biological samples should be retained.85

  1.  

2.      ADVANTAGES AND DISADVAntages of DNA profiling

Introduction

1.      This chapter deals with each side of the DNA coin, in that the advantages of establishing a DNA database, as well as the disadvantages are examined. By way of background, in Part the very first cases involving DNA evidence are briefly outlined, together with some more recent Irish examples. In Part the purpose and benefits of compiling a database of DNA profiles are examined. Then, in addition to the scientific matters that have been set out in the preceding chapter, in Part a further prerequisite to recommending appropriate legislation in this field is outlined: namely the nature of the information that may be derived from DNA. Finally, in Part the main concerns and fears that are expressed regarding the use or misuse of such information are explained.

1.      A Brief History of the Use of DNA

2.      Shortly after its discovery by Sir Alec Jeffreys, DNA analysis was used to show that a Ghanaian boy, who had been denied entry into the UK by the immigration authorities, was in fact the son of a woman who was a UK resident as was contended. Accordingly, the boy was entitled to enter the UK.86

3.      The first criminal case in the UK in which DNA profiling was put to use was in the prosecution of Robert Melias who was charged and convicted of burglary and the rape of a 45 year old disabled woman.87 Semen stains found on the victim’s clothing were analysed and compared with Melias’s genetic material, revealing a “match”. On 13 November 1987, he was sentenced to 8 years for rape and 5 years for burglary.

4.      The next case was the rape and murder of two 15 year old schoolgirls – Lynda Mann in 1983 and Dawn Ashworth in 1986. The rapist’s semen stains from the 1983 rape and murder were preserved (as was usual in such cases) and matched the stains from the second case. A suspect was arrested and charged for the 1986 case as he had been seen close to the scene. Sir Alec Jeffreys was asked to check the profile of the suspect in order to determine whether it matched the scene of crime stains. The results conclusively showed that the suspect could not have been the rapist.88 The police therefore had to start their investigation all over again. Because it was probable that the rapist came from a relatively small geographical area in Leicestershire, the police invited all males in the area to give a blood sample – now usually called a ‘mass screen’.89 The task involved an analysis of over 5,000 samples, although a large proportion of those were eliminated through the conventional blood grouping method, which was much quicker than DNA analysis at that time. However, 10% of the men had the same blood group as the stain which was suspected of having been left by the perpetrator, so 500 samples had to be profiled – which was extremely time consuming. This mass screen failed to identify a suspect and it was only more traditional methods of investigation that led to the arrest of Colin Pitchfork. A woman overheard her colleague, Ian Kelly, bragging that he had provided a sample of blood in place of Pitchfork. By the time it was confirmed by DNA profiling that Pitchfork’s profile matched the scene of crime stains, he had already admitted to both murders. In 1988 he was sentenced to life imprisonment.90

5.      Prior to 1994, although DNA evidence had been used in criminal cases in Ireland, the biological samples were sent to England to be tested using profiling technology. However, since 1994 the biology division of the Forensic Science Laboratory (part of the Department of Justice, Equality and Law Reform) has conducted the DNA casework. This has included analysis in criminal cases and immigration cases and in facilitating body identification at Coroner’s inquests.

6.      DNA evidence has now been used in a number of cases in the Central and Circuit Criminal Courts. The vast bulk have tended to be dealt with on the basis of a guilty plea entered by the accused or the DNA evidence has been merely a component part of the evidence.91 For example, in an alleged rape where there is no dispute as to intercourse, but there are opposing positions taken in relation to consent, the DNA evidence extracted from semen stains (if any) taken from the prosecutrix will be readily admitted by the defence. To date there has been no conviction on the basis of DNA evidence alone.92

7.      The first Irish case in which the DNA identification process was challenged as a matter of principle was in The People (DPP) v Mark Lawlor.93 In 1995, Lawlor was convicted of the sexual assault and murder of Rose Farrelly. The forensic evidence against Lawlor included DNA, from the semen found on the victim’s clothing, which matched the DNA profile generated from Lawlor’s blood sample. The profile obtained was estimated to occur in the population with a frequency of approximately 1 in 100 million. A lengthy voir dire of several weeks was held in which the validity of the DNA profiling, its application, as well as the security and integrity of the samples were challenged. The trial judge permitted the forensic evidence to go to the jury.

8.      A number of serious crimes have been solved with the use of DNA profiling, which would otherwise not have been solved, including the highly publicised 1979 murder of Phyllis Murphy. During the original investigation when DNA profiling had not been developed, blood samples were taken from 52 men to see if the grouping matched samples taken from the victim’s body – as explained above, this method is not particularly discriminating.94 However, with the advent of DNA profiling, those original samples and scene of crime stains were subjected to fresh analysis. The result was that John Crerar’s profile ‘matched’ that produced from the semen stains taken from the victim’s body. Whilst the DNA profile implicated Crerar, other significant corroborative evidence including a false alibi emerged and a jury subsequently found Crerar guilty and he was sentenced to life imprisonment.95 Crerar is currently appealing his conviction.

9.      As of the beginning of 2000, 44 unsolved cases were identified and where DNA profiles extracted from the scene of crime stains were likely to belong to the perpetrators the profiles were entered on an “unsolved crime” database – some of which were solved.96 Since 2000 the number of scene of crime stain profiles that have been put on this Forensic Science Laboratory database has increased – as of 16th January 2004 the total number of crime scene profiles stored is in excess of 700. At present DNA casework is concentrated on serious crime, such as murder, rape and armed robbery.

2.      Purpose and Benefits of a DNA Database

10.  DNA or genetic databases have been defined as “collections of genetic sequence information, or of human tissue from which such information might be derived, that are or could be linked to named individuals.”97 Included in this definition is not only the genetic information, but also the biological sample (blood, saliva and other bodily fluid). In his reference requesting the Commission to consider the establishment of a DNA database, the Attorney General asked the Commission to consider, in particular, what classes of DNA profiles would make up the database. This requires the Commission to consider the establishment of a repository of forensic DNA profiles generated from biological samples, which can be electronically stored for comparison with casework evidence profiles – in other words, those generated from biological material found at a scene of crime. In addition, the use, storage and retention of the original biological samples are also issues that must be considered.

11.  From the early investigation of crimes – particularly violent crimes, such as murder and rape – investigators have collected evidence from the scene of crime (both primary and secondary scenes) and the victim in order, in broad terms, to make out a ‘profile’ of the perpetrator. In addition, once the perpetrator has been caught, then material, such as clothing, and objects, such as shoes, glasses and ornaments, and biological samples and fingerprints taken from that person are retained, as are statements and confessions, for evidential purposes and for the record. Evidence and information of this type has been routinely preserved and retained by law enforcement agencies for a number of reasons, including:

                                                        i.            To link together numerous crimes, such as by the correspondence in the method used to commit them or by marks/stains left at the scene;

                                                      ii.            To assist law enforcement agencies to identify the perpetrator of a current crime;

                                                    iii.            To enable those who have previously been convicted of an offence to be readily identified and recaptured in the event that they re-offend, so that recidivism is reduced;

                                                    iv.            To preclude the use of false or assumed identities and thus to ensure that an offender’s previous crimes are taken into account when sentence is being considered in respect of a further offence.

12.  The most common form of data on offenders until now has been fingerprint records and photographs together with other vital statistics or ‘Bertillonage’ measurements, such as height and eye colour. The storage of genetic material and information derived from such material, however, differs from these conventional methods in a number of ways. DNA itself holds infinitely more information than fingerprints, such as predictive health information, and kinship with other persons.98 Before tackling these issues and in consequence of the differing considerations which attach to the collection, storage and use of genetic information, it is sensible first to try to assess the advantages of profiling and subsequently storing these profiles on the database.

13.  It is clear that DNA profiling has become an increasingly powerful tool in criminal investigations. This is demonstrated by the examples given above,99 of perpetrators of serious crimes being brought to justice who might otherwise have remained free to commit further offences. Equally, the storage of DNA profiles on a database is considered to be particularly useful as an intelligence tool in combating current, as well as future, crime by:

                                                        i.            Identifying links between crimes, such as in the case of, for example, stains left at scenes of crime by serial offenders;

                                                      ii.            Allowing for the rapid exclusion from the ambit of the investigation of suspects who are already on a database and whose profiles do not match;

                                                    iii.            Facilitating ‘cold hits’ - that is where a stain is matched with a profile of the person on the database who was not a suspect.

Thus, where a stain is recovered from a scene of crime then comparison of the profile generated from the stain with those on a database of convicted offenders enables the investigating authorities to identify relatively quickly if any of those individuals can be implicated in the current investigation. Moreover, it is axiomatic that if an investigation can be concentrated on a primary suspect from the outset, the net need not be cast too widely and in consequence resources which would otherwise have to be expended on time consuming door to door enquiries may not be required. A further advantage to the storage of DNA profiles is that some criminals will desist from criminal activity for fear of detection through the comparison and exchange of such data.100

14.  A popular example that is often advanced101 as encapsulating the benefits of DNA profiling and the establishment of a profile database can be given: a young woman is attacked and raped in her home by a burglar. A local man who was seen in the area at the time of the offence and who has a previous conviction for sexual assault is arrested. The DNA profile of the assailant is generated from the seminal stains on the victim’s vaginal swabs. The profile is checked against a database containing the profiles of convicted offenders, which includes the primary suspect’s profile. The original suspect is eliminated, but a ‘hit’ or ‘match’ is found against another man whose profile was entered and retained following an earlier conviction. This is what is referred to as a ‘cold hit’, meaning that the person matched was never a suspect for this offence until the match occurred. One might surmise that this example is a chance occurrence, but this is not the case. Since the introduction of the DNA database in the UK in 1995, scores of ‘cold hits’ in stranger rape cases have given useful pointers as to the person on whom the investigation should focus and many cases have been solved in consequence.

15.  The UK operates a ‘National DNA Database’102 and holds profiles from individuals suspected of, cautioned in respect of, or convicted of a “recordable offence”,103 as well as those derived from scenes of crime. The database can be interrogated (or searched) relatively quickly. On the 15 July 2003 the number of profiles stored on the database reached the 2 million mark and the number of crime scene profiles was 180,000.104 As of December 2003, the database contained 2.1 million criminal justice profiles and 218,000 profiles derived from crime scenes.105 It is expected that there will be approximately 2.4 million profiles of individuals on the database by 31 March 2004.106 It is the British Government’s aim to ensure that the profiles of all active criminals are held on the database.107 There have been various statistical representations advanced to illustrate the effectiveness of the database, such as:

                                                        i.            the database provides the police with approximately 1,000 ‘cold hits’ on a weekly basis - in other words, the potential sources108 of 1,000 profiles taken from crime scenes are identified through database searches;109

                                                      ii.            the police have recorded a 40% success rate in matching DNA found at the scene of a crime to profiles held on the database;110

                                                    iii.            as of January 2001 there were around 100,000 matches reported from the database;111

                                                    iv.            the Home Office and the FSS claim that in a typical month the database links suspects to 15 murders, 31 rapes and 770 car crimes;112

                                                      v.            In 2002-03 each crime detected with DNA led to 0.8 other crimes being detected and the Home Office estimated that 50% of detections led to convictions, 25% of these resulted in custodial sentences and each custodial sentence prevented a further 7.8 crimes being committed.113

It is evident from this that the storage of DNA profiles on a database has been extremely effective in combating crime.

16.  There have been a number of notable successes in which crimes have been solved, some many years after they were committed, including:

                                                        i.            The murder of 14 year-old Roy Tutill in Surrey in 1968. The development in scientific techniques enabled a DNA profile of the suspected killer to be generated from stains found on Roy’s clothing. The profile was entered onto the database in 1996. Three years later, Brian Field was stopped by the police on a drink-driving offence. A routine mouth swab was taken and the resulting profile was entered on the database. The profile matched against the 1968 scene of crime stain profile. In November 2001, having pleaded guilty to murder, Field was sentenced to life imprisonment;114

                                                      ii.            The rape and murder of 14 year-old Marion Crofts in Hampshire in 1981. A laboratory microscope slide containing the samples collected from Marion’s body lay untouched for 20 years. In 1999 the FSS used DNA Low Copy Number115 to generate a full profile of the suspected perpetrator from stains found on some of her clothing. The profile was checked against the database and in August 2001 a match was found after Tony Jasinskyj was arrested for another crime and his DNA profile was routinely loaded onto the database. Jasinskyj was convicted and sentenced to life imprisonment;116

                                                    iii.            The rape of a 21 year-old au pair in North London in 1989. The profile generated from the scene of crime stain was stored on the database. Nick Keall, a minicab driver, was arrested for assault on Christmas Day 2001. A sample was taken from him and his profile was run against the database and a ‘match’ was reported with the stain from the crime scene of the rape. Keall was convicted and sentenced to eight years imprisonment.117

17.  It was reported that the Metropolitan Police were reopening more than 1,500 unsolved rape cases using new forensic techniques to elicit evidence.118 Improvements in DNA technology has meant that previously unobtainable samples on clothes or at the scene of the rapes could now be examined and checked against the DNA database. So far, forensic experts have identified the DNA profiles of 40 men in reviews of 330 unsolved rape cases.119

18.  In 1995 the New Zealand police force and the Institute of Environmental Science Research (“ESR”) started to create a DNA database using the same technology as that developed by the FSS in the UK. Initially profiles were collected from convicted offenders and volunteer donors. In 1996 the Criminal Investigations (Blood Samples) Act 1995120 came into force permitting the authorities to take samples, and since 1998 DNA profiles from scene of crime samples have been entered onto a Crime Sample Database. In its first few years in operation it yielded impressive results: of all DNA profiles loaded from unsolved cases, approximately 32% matched an individual profile present on the national DNA database and approximately 14% of profiles generated from scene of crime stains in unsolved cases, when loaded, matched other crime scene profiles contained in the Crime Sample Database.121 In more recent reviews, the results are even more impressive. Of all DNA profiles from unsolved crimes inserted onto the database, approximately 50% of these match a profile present on the national database. Approximately 30% of profiles generated from scene of crime stains in unsolved cases, when loaded, match other crime scene profiles contained on the Crime Sample Database.122

19.  Many other countries have also set up ‘national’ DNA databases for use in criminal investigations: these include Denmark, Austria and Germany. A point concerning the “forensic vernacular” is that the term ‘national’ DNA database is used to distinguish this from a State or regional database, such as those operated in the various states or territories of certain federations like Australia.

20.  A more important distinction is that the use of the phrase ‘National DNA Database’ is not intended to connote what is known as a “comprehensive database”. This significant term involves the collection and insertion on to a database of forensic DNA profiles from the whole population. This issue will be examined in due course.123

21.  What can be gleaned from the discussion in the preceding paragraphs is that DNA profiling and the retention of the profiles on a database is very useful in the investigation and prevention of crime. Because of the advantages of DNA profiling and the subsequent retention of these profiles on a database as described here, it is clear that the development and the operation of DNA databases is perhaps the most significant breakthrough in the investigation of crimes since the introduction of fingerprinting. However, before embracing the concept of the creation of a national database with open arms, we must examine the countervailing considerations and concerns entailed in profiling and the creation of a database: the perceived advantages for society in operating an intelligence DNA database to fight crime should be weighed against the perceived dangers to civil liberties that the forensic use of genetic information presents.

3.      Personal Genetic Information: the Context

22.  Whenever genetic information is discussed, strong feelings are aroused, which epitomise the general public’s sensitivity and anxiety on genetic issues. People feel that genetic information is particularly private and that it should not be disclosed. Genetic information is seen as a special category of information, even more sensitive than traditional medical records, which may contain the most intimate details concerning an individual’s health. The UK’s Human Genetics Commission (“HGC”), in its review of the use of personal genetic information, identified several factors which might seem to distinguish genetic information from other forms, as follows:

“(1) the almost uniquely identifying nature of some genetic information, including its capacity to confirm, deny or reveal family relationships;

(2) the fact that genetic information could be obtained from a very small amount of material (such as skin, saliva, blood spot or hair), possibly secured without the consent of the person;

(3) the predictive power of some genetic information, especially the predictive power across generations of certain rare genetic diseases;

(4) the fact that genetic information may be used for purposes other than those for which it was originally collected;

(5) the interest which some genetic information has for others, including relatives who might be affected by it themselves, insurers and employers;

(6) the importance that genetic information may have for establishing susceptibility both to rare inherited diseases and the effectiveness of some treatments;

(7) a further relevant factor is that of the stability of DNA which can be recovered from stored specimens or even archaeological material after many years.”124

1.      Almost all information concerning one’s physical characteristics and health is genetic: features such as ethnicity, height and eye colour are inherited. Genetic information may be distinguished from other personal information, such as age, occupation, address, or creditworthiness; however, not all genetic information is especially sensitive. There are many forms of genetic information, some of which would not be considered particularly personal or ‘private’. Indeed, the HGC recognised that there are different categories of genetic information, which may range from non-sensitive to sensitive.125 The different types of genetic information may be summarised as falling into the following categories:

                                                        i.            The genotype, which provides at a fundamental level details of DNA or protein that is inherited from both parents;

                                                      ii.            The phenotype, which is the observable outcome in terms of physical or physiological characteristics, such as eye colour and blood pressure;

                                                    iii.            Family information, which shows the pattern of inheritance of different phenotypes.126

2.      Genotype information may be obtained only through direct analysis of DNA, whereas phenotype information may be acquired in many different ways, such as by scientific tests or by visual examination.127 As regards the phenotype information, one may say that much of this type of genetic information is evident from one’s appearance and not what is generally deemed to be strictly private. But more precise genetic information, such as that which may be obtained through scientific tests, may be regarded as sensitive, for example the likelihood of the inheritance of a genetic disorder, such as cystic fibrosis or Huntington’s chorea.128 Plainly information about serious inherited diseases is of an extremely sensitive nature, whereas eye colour or hair colour is not so sensitive.129 By way of analogy, information about one’s age and occupation, although personal, would not be considered to be particularly private and confidential – aside from the fact that this information is widely known and disseminated. Accordingly, different forms of genetic information may legitimately be approached from various perspectives and treated in different ways.

1.      Concerns and Fears

1.      DNA profiling and the storage on databases of DNA profiles, as well as the use of DNA databases, are so different in character from traditional fingerprinting and storage of records because DNA itself contains considerably more and much more personal information than the number and placement, for example, of whorls and ellipses on the right index finger. Accordingly, it has further been suggested because of this that, biological samples should not be retained in storage and that genetic information derived from those samples should also not be kept on databases. At first glance this view appears particularly compelling. However, these concerns have often been conflated in respect of the two broadly distinct topics of genetics and forensic profiling. In other words, the important distinction between the biological sample and the forensic profile has been overlooked. As one commentator observes, this has stemmed in the main from a poor understanding of the science involved and a lack of precision in characterising the technology, such as by proceeding on the erroneous basis that a DNA profile contains rather more information that it actually does.130 It is hoped that the explanation of the science involved in DNA profiling contained in the previous chapter together with the analysis in later parts of this Paper provides a more secure grounding for discussion on this crucial topic.131

2.      The distinction between the biological sample and DNA profile is important and will be reiterated throughout this Paper, but it is now appropriate to highlight the principal concerns which are usually voiced in relation to genetic information generally, which include that:

                                                        i.            DNA testing may reveal the presence of a socially stigmatising genetic disorder or unveil behavioural traits, such as the rape or murder gene (ie behavioural genetics);

                                                      ii.            testing may disclose information about significant future episodes and possibly shameful events, such as susceptibility to disease;

                                                    iii.            DNA testing may also divulge information that an individual has chosen to keep confidential, such as sexual orientation;

                                                    iv.            As to how information of the type suggested in (i) –(iii) might be used, it might be disclosed to other government departments or even private parties, such as employers or insurance companies. The fear is that insurers or employers could use genetic information to deny cover or employment – in effect genetic discrimination;

                                                      v.            Beyond this is the fear of the possibility that DNA testing may be misused in some way – the oft cited examples are in a degenerated eugenics movement and Nazi Germany’s racial hygiene programme, a murderous genocidal ‘ethnic cleansing’ campaign on a massive scale.132

3.      The science of DNA has been examined and it was explained that the biological sample will often contain thousands of DNA molecules, being multiple copies of an individual’s genetic ‘blueprint’.133 By way of illustration, if this sample was made available to insurers, employers or behavioural geneticists and subjected to testing, then the privacy of the person who is the source of the sample would be seriously violated, as conditions or proclivity to illness may be revealed, which potentially could lead to discrimination and stigmatisation. Moreover, from a blood sample the presence of HIV/AIDS or a genetic disorder could be detected. Indeed, access to a collection of biological samples would no doubt be of interest and value to a variety of research bodies. This is not a disapproval of this type of research, which may be beneficial, but access to and disclosure of a person’s genetic data could equally have harmful consequences. The essential point is that individual autonomy suggests that an individual’s genetic information should only be used for the purpose for which it is given or taken. Even on this basis there is unease and distrust in relation to informed consent and there are many unresolved ethical issues which arise in medicine, science and biotechnology generally.134

4.      The ‘private sector fears’ may be relatively easily safeguarded against by denying access to the samples (as well as the results of any testing), imposing a duty of non-disclosure and providing severe punishment for breach of confidentiality and misuse. The ‘public sector fears’ are not as easily safeguarded. The organs of the state may themselves be the custodians of the biological samples (whether on a long-term basis or not) and might subject them to testing in order to find out more about citizens with potentially stigmatising and discriminatory repercussions.

5.      An example of the potential misuse of genetic information is provided by the “XYY syndrome” incident during the 1960s and 1970s, where genetic researchers discovered a high occurrence of men in mental-penal institutions (secure psychiatric facilities) who carried an extra Y chromosome. The correlation between an extra Y chromosome and incarceration was the subject of much discussion and debate and a mass screen was conducted to identify carriers of an extra Y chromosome. Those identified were subjected to what has been described as an arguably “stigmatising study of their behavioural and social characteristics.”135 Such studies also result in a concentration on genetic factors, which cannot be altered, as the cause of crime and ignore the environmental factors involved, which could in fact be eliminated.136 Any repeat of this type of ‘study’ on the basis of more modern genetic testing, would be undesirable.

6.      Incidents such as this bring to mind the film Gattaca released in 1997.137 This film envisages a future where genetic engineering enables parents to screen embryos before implantation for the purpose of ensuring that their children will possess no genetic imperfections. While this film is perhaps rather far-fetched, future developments in genetic technology could in fact make it a possibility. In reality, a version of this situation is already happening with the advent of IVF screening. The Australian Law Reform Commission in its Report on genetic privacy adverted to the undesirability of such a situation arising in reality.138

7.      One point which must be emphasised before addressing the actuality or potentiality of these fears in practice, is that at present we are only beginning to be able to interpret DNA. For example, we know that if an individual’s fourth chromosome pair contains a particular sequence that individual will develop Huntington’s chorea. But our understanding is not always as clear as this because it is often the case that genes work in combinations and the result is such that we may only be able to say that this gene or combination of genes are probabilistically linked to specific diseases or traits. For these reasons, one may legitimately assert that the threat to privacy through the collection, use and storage of genetic information is only as great as the extent to which there is the capacity to understand the information. On the other hand, however, it is fair to say that our capacity to interpret genetic information has accrued very rapidly and this is likely to increase in the future, so we must bear the potentiality of these fears in mind when considering this topic.

8.      Thus, throughout this Paper in proposing reform of the law, the Commission has tried to take into account not only the present state of science and the forensic techniques flowing from it, but also possible developments in the future. Unfortunately, this complicates presentation and results in the examination of potential problems that may never in fact arise. Equally, we may fail to predict certain consequences. In any case, it seems unrealistic not to be aware that there may be future scientific developments which would impact on the law in this field. It is of course open to the legislators to respond that they will legislate for the here and now and will make amendments if and when scientific change makes these necessary. This, too, seems to be a realistic approach. But sometimes science moves more rapidly than legislation and in ways that may make “today’s certainties less obvious tomorrow and tomorrow’s discoveries perhaps more challenging to lawmakers than today’s knowledge might seem.”139 Accordingly, there is an attempt to set out both the position as at present and to highlight any potential developments which may impact on the choices that could be made in this field.

  1.  

3.      Individual rights and dna

Introduction

1.      There are two categories of persons who may be subjected to scientific testing: those mandatorily put through testing procedures and those voluntarily tested. These categories are important in framing our recommendations in Chapter 5 but it may be open to question whether one can so readily distinguish between the two categories. If a particularly heinous murder and rape is committed in a discrete geographical area and the only evidence is the DNA profile extracted from semen stains found on the victim, the Gardaí may decide to conduct an intelligence (mass) screen in that area in order to identify the perpetrator or simply narrow the pool of suspects by eliminating much of the population from the investigation.140 Those requested to provide a sample may include both individuals suspected of committing the offence (perhaps because of a previous conviction and/or registration on the sex offenders register) and those who fall outside the shadow of suspicion. Regardless of categorisation, however, the personal rights of all requested (or in default forced) to provide a comparator sample may be in jeopardy.

2.      Potentially at least three individual rights may be affected: first, the right to (genetic) privacy; secondly, the right to bodily integrity; and thirdly, the privilege against self-incrimination. The extent to which these rights are infringed and in consequence need to be justified so as to be the subject of legitimate derogation will be examined here. This chapter can be broadly described as dealing with general principles and it is later that we deal with the application of those principles to some practical aspects of DNA profiling and databasing: under what conditions samples may be obtained and from whom and when can the profiles be retained (Chapter 5) and whether the samples can and should be retained indefinitely (Chapter 6). As regards this chapter, in Part there is a brief examination of the right to privacy, the extent to which it is infringed by the storage and retention of information about an individual and in what circumstances there may be a legitimate derogation from the right. In Part B the right to bodily integrity is considered in the context of DNA sampling and how, in general terms, this right may involve scrutiny of powers of the Gardaí in this context. In Part we address the possible application of the privilege against self-incrimination in this situation. In this regard, we must also consider the interests of society in the prevention and detection of crime. The rights of third parties including the victim’s rights to have their attackers apprehended must also be considered. Therefore, a balance must be struck between the suspect’s personal rights and the interests of society and the victim’s rights. The principles which will frame how such a balance will be struck will be considered in this chapter.

3.      In this chapter particular reference is made to the case law flowing from the Constitution, with which any legislation must be lawfully compliant and the European Convention on Human Rights (“ECHR”), which has recently been given effect in domestic law by the European Convention on Human Rights Act 2003 (“ECHR Act 2003”).141 Section 2 of the ECHR Act 2003 imposes an obligation on the Irish courts to interpret, in so far as is possible, statutory provisions and rules of law compatibly with the State’s obligations under the ECHR. Correspondingly, any legislation recommended in this field must be consistent with the ECHR. Moreover, section 3 of the ECHR Act 2003 imposes an obligation on the State and every organ of the State to exercise its functions in a manner compatible with the ECHR: a facet which will fall to be considered when addressing the powers of the authorities in this field.

1.      The Right to Privacy

4.      The right to privacy, although a concept that is notoriously vague,142 encapsulates the notion that individuals should be free to determine for themselves what information to disclose to others and also that individuals should be free to go about life without unnecessary intrusion by the State. The right to privacy is plainly violated when people access genetic or other information about a person who does not want to reveal private matters or to be subjected to unnecessary intrusion into their personal affairs. However privacy is not an absolute right as our discussion of the Constitution and the ECHR below will show. Two statements of principle are instructive in the specific context of DNA evidence.

5.      First, in its submission to the Victorian Parliament Law Reform Committee Inquiry into forensic sampling and DNA databases, the Office of the Victorian Privacy Commissioner stated that:

“Privacy and respect for human dignity need not be abandoned when balancing civil liberties with community safety. In many ways, privacy principles will enhance the integrity and legitimacy of DNA profiling by limiting collection to the minimum necessary to achieve the legitimate aims of law enforcement agencies, requiring its use to be in accordance with these aims, demanding secure storage of DNA material, and requiring its destruction or de-identification when the information is not needed.”143 (Emphasis added)

In this and the following chapters consideration is given to how a fair and proportionate balance can be struck between, on the one hand, the privacy rights of the person who is the source of a DNA sample and the profile generated from that sample and, on the other hand, the wider societal interests, such as the prevention of disorder and crime and the protection of the rights of others.

5.      Secondly, in a case concerning the admissibility of DNA evidence Lord Steyn, made the following comment:

“It must be borne in mind that respect for … privacy … is not the only value at stake. The purpose of the criminal law is to permit everyone to go about their daily lives without fear of harm to person or property. And it is in the interests of everyone that serious crime should be effectively investigated and prosecuted. There must be fairness to all sides. In a criminal case this requires the court to consider a triangulation of interests. It involves taking into account the position of the accused, the victim and his or her family, and the public.”144

Although enunciating general principles in the particular context of the criminal trial, Lord Steyn expresses the fundamental tension that exists between competing rights in this field and the need for a system of criminal justice to evolve so as to ameliorate these conflicts in a fair and proportionate way. While our primary concern is with the investigatory stage in the detection of a crime, it is important to make recommendations that address and seek to balance these underlying tensions in a fair, constitutional and Convention compliant manner.

1.      The Constitution

7.      In Irish law the right to privacy is an unenumerated right guaranteed by Article 40.3.1 of the Constitution, first recognised in McGee v Attorney General,145 albeit in the particular form of marital privacy and then in Norris v Attorney General.146 Suspects of crimes and prisoners also enjoy this right to privacy, as was recently confirmed in The People (DPP) v Davis,147 a case concerning a prisoner in respect of whom several photographs were published depicting him in handcuffs and chained to a warden during his trial. In Kennedy v Ireland148 the plaintiffs complained that their right to privacy had been infringed because of unjustifiable telephone tapping by the State. In ruling in favour of the plaintiffs, Hamilton P stated:

“Though not specifically guaranteed by the Constitution, the right of privacy is one of the fundamental personal rights of the citizen which flow from the Christian and democratic nature of the State. It is not an unqualified right. Its exercise may be restricted by the constitutional rights of others, or by the requirements of the common good, and it is subject to the requirements of public order and morality.”149

Thus, there may be a permissible derogation from the right to privacy, as with many constitutional rights, on certain justifiable grounds. Broadly speaking, the Constitution states that this right need only be protected “as far as practicable.” In balancing the competing interests of a person’s privacy rights and the need to detect and prevent crime with respect to the establishment of a DNA database, a proportionality test should be adopted. Such a test was applied in Kane v Governor of Mountjoy Prison.150 This case concerned surveillance by the State and is the closest jurisprudence we have to the issues at hand in this Paper. This case advocates the use of a proportionality test, in a manner similar to its use in the European Court of Human Rights, to weigh up the competing interests of public order and the protection of privacy.

7.      In this regard, we should also discuss briefly the hierarchy of constitutional rights enunciated in The People (DPP) v Shaw.151 This arises when two constitutional rights are in conflict. A decision of priority must be made as to which constitutional right prevails. Kenny J stated here that any such conflict should be resolved by having regard to the terms of the Constitution, the ethical values which all Christians living in the Sate acknowledge and accept and the main tenets of our system of constitutional parliamentary democracy. In this case, he accepted that the right to life of the potential/actual victim of crime prevailed over the accused’s right to personal liberty. However, the majority accepted that such a priority of constitutional rights should only be applied where the notion of a harmonious interpretation of the Constitution was not possible. The creation of a DNA database may lead to a conflict between the defendant’s constitutional rights and those of the victims and the interests of society generally. However, it is only if a harmonious interpretation of these rights is not possible that the hierarchy of constitutional rights should be applied. The principle of proportionality must firstly be used in an attempt to balance these rights before a hierarchy of constitutional rights will be adopted.

1.      European Convention on Human Rights

9.      It has been suggested that both the taking and retention of personal information, such as fingerprints, photographs and DNA samples and profiles, impinges upon privacy and therefore raises issues under Article 8 of the ECHR, which guarantees the right to respect for private and family life, home and correspondence.152 Although the case law of the European Court of Human Rights (“ECtHR”) (and until it was abolished in 1998 the Commission (“ECmHR”)), is still evolving in this field, there have been clear indications that such activities as searches of the person,153 the taking of personal details,154 photographs of suspects and more recently the dissemination of CCTV footage interferes with the right to respect for privacy.155

10.  So too does the holding of information about an individual’s private life in the files held by state authorities or in police registers amount to an interference with the right.156 To be in accord with the ECHR, these interferences must be justifiable under Article 8(2):

“There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others”.

11.  Thus in order for a form of DNA database to be justified under Article 8(2), three requirements must be satisfied. Firstly, any interference must be in accordance with law.157 This requires that the law should be accessible enough for the individual to know of the legal rules which must be applicable to any case. It must also be drafted with sufficient precision to allow a person to regulate his conduct, foreseeing the consequences of his actions. Secondly, it must be demonstrated that the interference was adopted for one of the purposes specified in Article 8(2).158 The retaining of a DNA database aims to achieve the legitimate purposes listed in Article 8(2) of maintaining national security, public safety and the economic well-being of the country, preventing public disorder and crime, protecting health and morals and protecting the rights and freedoms of others. If we concentrate on “preventing crime” only, Article 8(2) seems only to allow the State to justify interferences which are intended to prevent crime and not those which aim to solve previous crimes. However, as there may be a risk that crimes will be repeated if the offender is not apprehended, the detection of crime also assists in protecting public safety and the prevention of crime and the protection of the rights and freedoms of others.

12.  Thirdly, the level of interference with the right to privacy by a DNA database must be deemed such as is necessary in a democratic society.159 To assess this, a form of proportionality test is used. The interference must be in response to a pressing social need and the means used must not go beyond what is necessary to achieve the objective in question. Some cases, close to the present subject, illustrate how this test is applied in practice. The ECmHR in the early case of X v Federal Republic of Germany160 had to consider whether keeping records, including fingerprints and photographs, was justified. The ECmHR stated as follows:

“[T]he keeping of records, including documents, photographs and fingerprints, relating to criminal cases of the past is necessary in a modern democratic society for the prevention of crime and is therefore in the interests of public safety.”161

13.  On the issue of justification, the case of McVeigh, O’Neill and Evans v UK162 is instructive. The applicants were detained on their arrival in England from Ireland under the relevant legislation to prevent terrorism, which was in force at the time, and they were questioned, searched, fingerprinted and photographed. Although no criminal proceedings were brought, the applicant’s fingerprints and photographs were retained. The ECmHR unanimously held that the searching, questioning, fingerprinting and photography of the applicants during their detention were not in breach of Article 8, but considered that it was “open to question whether the retention of … such information amounts to an interference with the applicants’ right to respect for private life”.163

14.  The ECmHR found it unnecessary to decide whether there was any interference with the right, in view of its finding that any presumed interference was justified under Article 8(2), on which it stated:

“Bearing in mind … the serious threat to public safety posed by organised terrorism in the United Kingdom, the Commission considers that the retention for the time being of records such as those at issue in the present case can be considered necessary in the interests of public safety and for the prevention of crime.”164 (Emphasis added)

Implicit in this conclusion is that the information could only be kept for as long as it served the legitimate purpose – the prevention of terrorism in this case. The corollary of this is that where personal data, such as fingerprints and DNA profiles have been collected in the course of investigating crime, it should be destroyed once it is no longer necessary for the legitimate purpose in question.165 The ECmHR in McVeigh explicitly recognised that its decision entailed the retention of records in respect of some individuals against whom no suspicion existed. However, it rationalised this on the following basis:

“[T]aking into account the nature of the records at issue, it must balance what, in its view, is at most a relatively slight interference with the applicant’s right to respect for private life against the pressing necessity to combat terrorist activity.”166

Clearly the desire to cooperate in the battle against terrorism or potential terrorism, as well as the minimum level of any interference in private life, influenced the ECmHR’s decision.

14.  The recent decision of Rotaru v Romania167 provides that in order for the retention of personal data by public authorities to be deemed proportionate, safeguards must exist against the unlawful release of the information. In Friedl v Austria,168 the retention of photographs was in issue. It was held by the ECmHR that the use to which the photographs would be subjected was an important matter to be considered in deciding if the measure was proportionate. It is therefore apparent that the use to which the profile may be subjected and the safeguards in existence against misuse are important factors to be taken into account in applying any proportionality test to the retention of profiles on a national database. Friedl also illustrates that it is not only in cases of suspected terrorism that the retention of an individual’s personal data is justified. The photographs in question were taken in the course of a demonstration and the applicant was not a suspected terrorist. Although, of course the information contained in DNA is much more personal than that ascertainable from a photograph and therefore should be given greater protection.

15.  The case of Z v Finland169 is also relevant here. The applicant in this case was the spouse of a person accused of committing serious sexual offences. Her complaint concerned the introduction into her husband’s trial of her medical records, which explained her infection with the HIV virus. It was accepted here that the interest in the investigation of crime could outweigh the confidentiality of the medical data. However, it was also stated here that the more intimate the data, the greater the obligations imposed on the State to protect confidentiality.170 Therefore, the greater the amount of personal information contained in a DNA profile, the higher the protection that should be afforded to it.

1.      English Case Law.

17.  Recently, the English Court of Appeal in R (S and Marper) v Chief Constable of South Yorkshire171 specifically considered the question of the retention of a suspect’s DNA profile and sample indefinitely. This decision is examined in greater detail later when dealing with the specific issue of the retention of a suspect’s profile.172 For present purposes, some aspects of this decision will be discussed here. This case was brought under the Human Rights Act 1998 (“HRA 1998”), which incorporates the ECHR in the UK. Section 6 of the HRA 1998 requires public authorities to act compatibly with the ECHR. In this case, section 64(1A) of the Police and Criminal Evidence Act 1984 was challenged on the basis of Articles 8 and 14 of the ECHR. This section permits authorities to retain suspects’ DNA samples and profiles indefinitely. For present purposes, it is sufficient to note that section 64(1A) of the PACE Act was challenged on the basis of Article 8 and Article 14 of the ECHR. In respect of Article 8, the qualified nature of this right was reiterated. The proportionality test described above was once again accepted as the test to be applied to determine whether a measure was compatible with the ECHR. The court held that retaining DNA profiles on a database pursues the legitimate aim of crime enforcement. Waller LJ and Sedley LJ observed that the fact that the DNA profile may be used only for crime enforcement purposes was an important factor indicating the proportionality of the measure. The cultural traditions of a particular State as well as the important aim of preventing and detecting crime were also identified as significant considerations to be taken into account.

1.      Germany

18.  Germany has specifically dealt with the difficulties of balancing public order and privacy rights, in relation to the establishment of a DNA database, through section 82g of the Code of Criminal Procedure. It has been held by the German Constitutional Court that the establishment, storage and use of DNA profiles intrudes on the right of informational self-determination protected under Article 1.1 and 2.1 of the German Basic Law and the right to informational self-determination in Germany guarantees one’s authority to decide on the circumstances in which personal facts may be disclosed.173 It was however held by the court that this intrusion can be justified if it complies with the proportionality test. It was observed that a DNA database pursues the legitimate aim of facilitating the solution of future criminal offences of substantial significance. It was decisive that the person’s character traits or diseases could not be drawn from the DNA profile. The Federal Criminal Office is also required under the code to erase the data if the knowledge is no longer necessary for them to fulfil their tasks. Finally, the Code contains a strict earmarking regarding the permitted uses of the collected cell tissue and a requirement to destroy the cell tissue once it is no longer necessary to create an identifying DNA profile.

1.      Comment

19.  Irish case law such as Kennedy v Ireland174 indicates that the right to privacy may be limited by requirements of the common good and the rights of others. The decision in The People (DPP) v Shaw175 also indicates that in some instances a balancing of conflicting rights is appropriate. The comparative example of Germany is important in demonstrating the various factors that should be considered in deciding whether a form of DNA database is proportionate to the aim pursued. The ECtHR’s and the ECmHR’s authority is also suggestive of three essential factors that must be taken into account in applying the proportionality test to determine whether interference with the right to privacy is justified:

                                                        i.            the level of interference;

                                                      ii.            the relative seriousness of the corresponding need; and

                                                    iii.            the category of the applicant.

In relation to the level of interference, firstly, this is closely related to the nature and sensitivity of the subject-matter which forms the basis of the substantive right, namely, what type of information is involved and the sensitivity of that information. It was emphasised in Z v. Finland176 that the more intimate the data, the greater the obligations which were imposed on the State. It would seem that in McVeigh177 the ECmHR considered that fingerprint records and photographs represented a relatively low level of interference. However, as was articulated earlier, certain forms of genetic information may fall into different categories and attract differing considerations.178 The case law of the ECtHR also demonstrates that consideration of the level of interference with the right also entails examining the use to which the data may be subjected and the safeguards in existence against misuse. The decision of the English Court of Appeal in R (S and Marper) v Chief Constable of South Yorkshire179 also identifies this as a relevant factor to be taken into account. The corresponding need, secondly, refers to the purpose of the interference, so, for example, the prevention and investigation of littering offences would be unlikely to justify the taking, use and retention of sensitive private information, whereas terrorism, murder and other such serious wrongdoing would be more likely to suffice. In Ludi v Switzerland180 the ECtHR held that the closer the circumstances are to pure criminal activity the less reasonable is the expectation of privacy. Again in Marper this factor was accepted as important in determining what level of interference with individual rights was justifiable. Thirdly, the category within which an individual falls is equally important: the ECmHR was acutely aware that the applicants in McVeigh had not been found guilty of any offence.

2.      The Right to Bodily Integrity

1.      General

20.  Any database of DNA profiles is of little utility unless in the first place the Gardaí are able to obtain a comparator sample from which a profile may be generated. In the absence of consent the investigatory authorities require the power involuntarily to take a sample for DNA profiling. At common law, any deliberate physical interference with a person is prima facie tortious and indeed actionable per se without the need to prove special damages. At a constitutional level, one may say that any such authority to take a bodily sample raises issues in relation to the right to bodily integrity of the citizen under Article 40.3. The European Convention on Human Rights also provides protection for the bodily integrity of a person. One must examine this case law in order to decide on the circumstances when it will be permissible for the Gardaí to take samples compulsorily, a matter which is discussed in greater detail later in this Paper.181

1.      The Constitution

21.  The right to bodily integrity was first recognised as being inherent in the Constitution in Ryan v Attorney General.182 It is clear that, in principle, any power authorising the Gardaí to take a bodily sample, perhaps with the use of reasonable force in the execution of such authority, would infringe the right to be free from physical interference unless under sanction of law. It is evident from the decision in The State (Richardson) v Governor of Mountjoy Prison183 that prisoners also enjoy this right to bodily integrity. It was held in this case that a woman prisoner had a right not to be subjected to disgusting sanitary conditions, which were a danger to her health while in prison. A corollary to the right to bodily integrity is the right to freedom from torture, inhuman or degrading treatment. It was accepted in The State (C) v Frawley184 that Article 40.3 embraces this right although it was also accepted that the right could be limited by requirements of the common good and under the ‘practicable’ limitation in Article 40.3.

22.  The decision in The People (Attorney General) v O’Brien185 states that in the absence of exceptional circumstances, any evidence that is obtained by a deliberate and conscious violation of a person’s constitutional rights is liable to be deemed inadmissible in court. Such an instance of an extraordinary excusing circumstance arose in The People (DPP) v Shaw.186 The need for information to rescue a victim believed to be in mortal peril arguably justified the obtaining and admission of evidence acquired in breach of the accused’s constitutional rights.

23.  In addition to this limitation, the right to bodily integrity is a qualified right. As observed in AD v Ireland,187 this right need only be protected “as far as practicable.” In that case, it was held that there was no requirement on the State to pay compensation in respect of the personal injuries, which had been inflicted on the plaintiff by a criminal, in order to vindicate the victim’s right to bodily integrity. The purpose of preventing and detecting crime could constitute an appropriate justification for limiting this right to bodily integrity in sufficiently dire circumstances and thus allow reasonable force to be used in taking bodily samples.

1.      European Convention on Human Rights

24.  As regards the ECHR, the relevant provisions are Article 8 and Article 3, although, as will be discussed, it is questionable as to whether Article 3 is applicable to the present situation. One might envisage that Article 5, which guarantees the right to liberty and security of the person, might be relevant, but ECHR jurisprudence in this area has not interpreted security of the person to encompass bodily integrity.188

1.      Article 8

25.  Respect for private life has been interpreted under the ECHR as requiring States to avoid causing adverse effects to a person’s physical integrity. This is evident from X v Netherlands189 and Peters v Netherlands,190 where the EComHR held that the taking of compulsory samples is contrary to Article 8. In the latter case, the applicant complained that the obligation to give urine to the prison authorities in order to have it examined for the presence of drugs constituted an interference with his right to respect for his private life under Article 8 and that this interference was not justified under Article 8(2) of the ECHR. Significantly, the taking of the urine test was not motivated by the applicant’s personal conduct but constituted part of a daily programme involving the random testing of detainees. It was held in Peters that the taking of a urine sample was contrary to Article 8(1). An identical conclusion was reached in X v Netherlands in respect of the taking of a blood sample from a driver for testing for alcohol content.

26.  While the taking of samples compulsorily involves a breach of the right to bodily integrity, a key issue is whether this may be justified under Article 8(2), that is, being necessary in a democratic society for the prevention of crime or the protection of the rights and freedoms of others.191 It was accepted in X v Germany192 that the right to physical integrity can be limited in the interest of preventing crime. It was held that a requirement that an individual undergo a psychiatric examination, even prior to any indictment, was justifiable. It was observed that:

“[ss] it is the criminal court’s duty, in the interest of the accused himself and for the protection of society to investigate any of the circumstances which may be relevant for the assessment of the criminal responsibility of the accused, it must be accepted that the measures taken for this purpose are necessary in a democratic society for the prevention of crime, even if the investigated facts of the accused person’s private life are not in themselves criminally relevant”.

The compulsory taking of the sample in Peters v Netherlands193 was also held to be justifiable under Article 8(2). It was decided that the “necessity” for interference with the exercise of the right of the convicted person to respect for his private life must be considered having regard to the ordinary and reasonable requirements of imprisonment. It was accepted that the “prevention of disorder or crime” may justify wider measures of interference in the case of a prisoner than in the situation of a person at liberty.

 

1.      Article 3

27.  Article 3 provides that “[n]o one shall be subjected to torture or to inhuman or degrading treatment or punishment”. The prohibition contained in Article 3 is absolute and cannot be limited in any way. In determining whether Article 3 is applicable, regard must be had to all the circumstances of the case and to what society in general tolerates at the time of the complaint.194 It has recently been held by the ECtHR that any use of physical force on an individual detained by state authorities, which has not been made strictly necessary by the conduct of the detainee, will be contrary to Article 3.195 This would suggest that the use of reasonable force to obtain a bodily sample from a suspect or a convicted offender could constitute a breach of Article 3 of the ECHR. However, this assertion has been qualified in later cases. In Raninen v Finland196 the Government conceded that the handcuffing of the applicant was not strictly necessary. Despite this, the ECtHR did not consider the effects sufficiently serious to give rise to a violation under Article 3. It is apparent therefore that the force must not be strictly necessary and must also be of sufficient seriousness before it will be deemed to fall within Article 3. It is questionable as to whether the interference with which we are concerned with here would reach the rather high threshold set by the ECtHR.197 However, the ECHR is a living instrument and while at present the force likely to be involved in obtaining a buccal swab or blood sample does not appear to fall within Article 3, this could change in the future or in particular circumstances the threshold of severity might be reached.198

1.      Comment

28.  Although the suspect’s right to bodily integrity may be interfered with to a limited extent in the event that reasonable force is used to obtain a sample from the suspect, this interference may be justified under the Constitution and the ECHR. The EComHR cases of Peters v Netherlands199 and X v Netherlands200 illustrate that the taking of samples can be justified in the interests of preventing crime and disorder. In order for it to be justified on this basis, it is likely that the proportionality test set out above must be satisfied.201 This test was used in X v Germany202 to balance the competing requirements of preventing crime and the right to bodily integrity. US cases have held that it is easier to justify an interference with a convicted person’s bodily integrity rights than a mere suspect’s rights.203 This was also accepted by the EComHR in Peters v Netherlands.204 The justification given for this in the US cases is that analysis of a convicted person’s DNA could be necessary to solve previous crimes and it is also more likely that a person previously convicted of a crime will commit a further offence.205 Consequently, it is easier to satisfy the proportionality test in respect of a convicted person than in the case of a person who is merely a suspect. In relation to a suspected person’s rights, the position is more uncertain. These principles must be considered when examining whether and if so, when is it permissible for reasonable force to be used to extract samples from suspects.206

3.      The Privilege Against Self-Incrimination

1.      General

29.  Lord Mustill in a sophisticated analysis stated that the privilege against self-incrimination or right to silence does not denote any single right, but rather it refers to a disparate group of immunities; such as “a general immunity, possessed by all persons and bodies from being compelled on pain of punishment to answer questions, the answers to which may later be used to incriminate them.”207 In Saunders v UK,208 Walsh J observed that the principle was that “a man could not be made the deluded instrument of his own conviction”.209 The rationale is that:

“The essential and inherent cruelty of compelling a man to expose his own guilt is obvious to everyone, and needs no illustration. It is plain to every person who gives the subject a moment’s thought. A sense of personal degradation in being compelled to incriminate one’s self must create a feeling of abhorrence in the community at its attempted enforcement.”210

1.      The privilege is reflective of the traditional distribution of the burden of proof in a criminal trial, namely that it is incumbent on the prosecution to establish guilt beyond a reasonable doubt. In other words, the privilege absolves the accused from having to face the “cruel trilemma of self-accusation, perjury or contempt.”211

1.      The Constitution

1.      The privilege against self-incrimination is both a common law privilege and a constitutional right. The common law privilege can be overridden by a statutory provision requiring information to be given under penalty for refusal.212 It was accepted in Heaney v Ireland213 and Rock v Ireland214 that the privilege is also a constitutionally protected right, that suspects have a right to remain silent in custody, but that this constitutionally protected right is not absolute and could be abridged. It was acknowledged that the privilege may have to give way to the exigencies of the common good, once the means used to restrict the right were proportionate to the objective to be achieved. Thus, a balance must be struck between the individual’s right to self-incrimination and the right and the duty of the State to defend and protect the life, person and property of all its citizens. The proportionality test will be used to strike a balance between these two conflicting rights. This test was also applied in Rock v Ireland.215 It was accepted in this case that in order for a restriction on the privilege against self-incrimination to be justified, it must not go beyond what is necessary to achieve the objective in question. It can only interfere with the right to the minimum extent necessary to achieve the objective in question. In Heaney v Ireland,216 the test was applied by the Supreme Court in assessing whether section 52 of the Offences Against the State Act 1939 infringed the privilege against self-incrimination. Section 52 obliges people detained in custody under the 1939 Act to give, under pain of penal sanctions, an account of their movements and actions during a specified period. There is in essence a stark choice between giving information and imprisonment. However, it was held that a proper balance was struck by section 52 between on the one hand the citizen’s privilege against self incrimination and on the other hand the entitlement of the State to take measures to protect itself.

1.      European Convention on Human Rights

1.      The privilege against self-incrimination is also protected under the ECHR. The freedom from coerced self-incrimination is protected as an aspect of the right to a fair hearing in the determination of criminal charges under Article 6(1) and is implied in the right to be presumed innocent until proven guilty under Article 6(2). It has been held in a number of cases that the use of evidence obtained in infringement of this right violates Article 6.217 These principles were set out in Heaney and McGuinness v Ireland218 which in effect reversed the decision of the Supreme Court in Heaney v Ireland.219 Although the ECtHR also accepted the proportionality test for determining whether any interference with the privilege against self-incrimination was justified, they reached a different conclusion to the Supreme Court in applying this test. They held that section 52 of the 1939 Act was disproportionate to the aim being pursued. This was because the provision destroyed the essence of the right to protection from self-incrimination. The degree of compulsion in being compelled to give the information or face imprisonment destroyed the very essence of the privilege against self-incrimination. This demonstrates that a stricter test has been adopted in the ECtHR than in the Supreme Court in respect of the requirement of proportionality in this regard. As a result of the enactment of the ECHR Act 2003, the State must exercise its powers compatibly with the ECHR. Consequently, the stricter test advocated by the ECtHR in Heaney must be used in determining whether any interference with the privilege against self-incrimination through the use of DNA profiling is proportionate.

1.      Comment

1.      DNA Profiling and Self-Incrimination

1.      DNA profiling, as described in Chapter 1, leads to the recognition of links between individuals and particular crimes by comparing DNA profiles, obtained from those individuals and stored on a database, with DNA profiles obtained from crime scenes. One must examine whether compulsorily obtaining a DNA profile from a suspect infringes the privilege against self-incrimination. The question for consideration here is whether the privilege against self-incrimination extends beyond the traditional gathering of “testimonial evidence”220 to cover “real evidence”.221 The present judicial consensus is that the privilege only applies to the gathering of testimonial evidence. It has been held by the English Court of Appeal in R v. Smith222 that the taking of bodily samples does not breach the privilege against self-incrimination. This approach has also been followed in the US. As observed by Holmes J in Holt v US,223 “the prohibition on compelling a man in a criminal court to be witness against himself is a prohibition of the use of physical or moral compulsion to exert communications from him not an exclusion of his body as evidence when it may be material”. Similarly in Saunders v United Kingdom,224 the ECtHR accepted that there was a distinction between the right of the accused person to remain silent and the use in criminal proceedings of material obtained through the use of compulsory powers but which has an existence independent of the will of the suspect for example breath, urine or bodily samples. The right not to incriminate oneself was held not to apply to such real evidence samples. As a result, the taking of a bodily sample does not constitute an interference with the privilege against self-incrimination.

1.      DNA Request Surveillance and Self-Incrimination.

1.      A variation on the discussion in the last paragraph would occur where investigators seek to rely on a refusal to consent to a forensic procedure as a sign that the individual has “something to hide”. This would constitute DNA request surveillance.225 This might breach the privilege against self-incrimination.226 The revealing of the negative reaction to the request for a sample could be regarded as self-incriminatory as it can support an inference that the individual is guilty of crime. It is clear that DNA request surveillance is a form of compelled rather than voluntary self-incrimination. Recipients of a request can either submit to that request or reveal their fear of that surveillance. There is no real choice here. This could arise, for example, in respect of a suspect who is asked to give voluntarily a sample or in relation to a situation of mass screening where the whole population in a particular area is requested to give a sample. In such a case, the suspect or other person cannot reveal his or her reluctance to give a sample without incriminating himself or herself. This is different to the case where a suspect is compelled to submit a sample as the recipient of this coercive request is not revealing anything by his or her reluctance to give a sample. In the event of the privilege against self incrimination being breached, the unconstitutionally obtained evidence should be excluded from court.227 Evidence obtained in a conscious and deliberate breach of a person’s constitutional rights must be excluded in the absence of exceptional circumstances.228 Consequently this evidence can only be used for investigative purposes.

2.      However it must be remembered that this constitutional right against coercive self incrimination is not absolute.229 It must be balanced with the right and duty of the State to defend and protect the life, person and property of all its citizens. The proportionality test described above could be used in deciding whether DNA request surveillance and the use made of the evidence obtained from it is constitutional.230 An important consideration in applying such a test is that the right of the citizen should only be breached to the minimum extent necessary to achieve the legitimate aim. In certain circumstances, it may be permissible for such evidence to be admitted into court and for the Gardaí to use it for investigative purposes. The constitutional and ECHR principles described above will be used in deciding on the extent of permissible interference with this privilege. The potential interference of DNA request surveillance with the privilege against self-incrimination will be taken into consideration in deciding on the situations in which DNA sampling can take place and the inferences that can be drawn from a refusal to consent to sampling.231

  1.  

4.      DNA sampling: current powers and safeguards

Introduction

1.      Any legislation providing for the establishment of a DNA database is of little significance unless the Gardaí are first able to obtain a sample from which a profile may be generated. If the decision is taken to compile a database of DNA profiles, then legislation conferring appropriate sampling powers will need to be enacted. As we have discussed in Chapter 3, the right to bodily integrity is intricately engaged when considering such powers and the principles articulated above,232 will help shape constitutionally permissible and Convention compliant law in this area. But, before we discuss what, if any, law to recommend, it is instructive to examine the current legislation concerning both the comparable fields of photographs, fingerprints and palmprints, as well as the existing law in relation to taking bodily samples.

2.      The Commission is also conscious of the publishing by the Minister for Justice of the ‘Scheme’ of a Criminal Justice Bill 2003.233 This recommends some amendments to the law in these fields. These recommendations are based on the suggestions of the Expert Group Appointed to Consider Changes in the Criminal Law (“Leahy Group”).234 These proposed recommendations will be dealt with in as far as they are relevant to this discussion.

1.      Photographs, Fingerprints and Palmprints

1.      General

3.      As Walsh argues, “[f]ingerprinting a suspect without his consent is … an unlawful trespass against the person at common law” and photographing or measuring a suspect may also amount to a trespass if physical restraint is used to facilitate this even if it is not done in violation of his right to privacy.235 Accordingly, appropriate statutory authority must be conferred on the Gardaí in order to photograph and take a fingerprint of an individual. The legislative provisions which confer powers on the Gardaí in this regard are at present contained in a number of statutory provisions including, as follows:236

                                                        i.            Section 6 of the Criminal Justice Act 1984237 which is the most important of these provisions and is dealt with in the next paragraph.

                                                      ii.            Section 7 of the Criminal Law Act 1976238 which concerns individuals who are detained under section 30 of the Offences Against the State Act 1939 and section 2 of the Emergency Powers Act 1976. This provision is otherwise identical to that under section 6 of the Criminal Justice Act 1984.

                                                    iii.            Section 28 of the Criminal Justice Act 1984239 which deals with those individuals who have been prosecuted for an indictable offence and made the subject of an order under the Probation of Offenders Act 1907 or convicted and otherwise dealt with.

                                                    iv.            Measuring and Photography of Prisoners Regulations 1955 – made under the Penal Servitude Act 1891 – which have been relied upon to obtain fingerprints from those individuals in custody.240

                                                      v.            Section 19 of the Criminal Justice (Miscellaneous Provisions) Act 1997, although not conferring a power to obtain photographs and fingerprints per se, enables the Minister for Justice to make Prison Rules providing for “the photographing and measuring of persons detained in a prison and the taking of fingerprints and palmprints from such persons during their detention in a prison.”241 Any such copies may also be furnished to the Gardaí.

                                                    vi.            Section 11 of the Criminal Justice (Miscellaneous Provisions) Act 1997 provides for the electronic recording of fingerprints and palmprints taken under any enactment.

4.      The main provisions governing the taking of photographs, fingerprints and palmprints are in relation to those individuals detained under section 4 of the 1984 Act. Section 6(1)(c) empowers the Gardaí to “photograph him or cause him to be photographed.” Also section 6(1)(d) empowers the Gardaí to “take, or cause to be taken, his fingerprints and palm prints.” Section 6(2) provides that these powers may only be exercised on the authority of an officer not below the rank of superintendent. In the event of any person obstructing or attempting to obstruct the Garda Síochána in the exercise of his powers, under section 6(4), that person shall be guilty of an offence.

5.      It is unclear as to whether any refusal to cooperate with the Gardaí will only result in the commission of a criminal offence under section 6(4), or whether the Gardaí may exercise their powers without the consent of the individual detained. Although section 6 does not explicitly provide for the use of reasonable force in default of consent and cooperation, Boyle and Lawless argue that “an interpretation which denied compulsory powers would render the section nugatory.”242 It would prevent the police from exercising their powers in the cases where fingerprint evidence was most necessary - where the suspect had something to hide and is willing to be convicted of an offence rather than submit to fingerprinting. The authors also comment that if compulsory powers are to be exercised under this section, then this should be prescribed by law with the appropriate limits of such force set out.243 Indeed, the analogous provisions in England and Wales specifically empower the police, in certain circumstances, to obtain the fingerprints of a person detained without appropriate consent.244

6.      Indeed, the Scheme of the Criminal Justice Bill 2003 proposes to amend the provisions to provide specifically for the use of reasonable force to take photographs and prints.245

7.      A further aspect is the obligation in section 8 of the 1984 Act to destroy on request every photograph, fingerprint and palmprint (including all negatives, copies and records).246 Section 8(2) provides that every photograph or print obtained from a person must be destroyed in the event of proceedings not being instituted against that person within six months from the obtaining of the fingerprint or photograph. This applies unless the failure to institute proceedings is attributable to the person absconding or their whereabouts being unknown. Section 8(3) requires destruction to be carried out if any proceedings instituted result in acquittal, discharge or discontinuance. Where a person is subject to an order under section 1(1) or (2) of the Probation of Offenders Act 1907, section 8(4) provides that the sample must be destroyed three years after the making of the order once no offence is committed during that period. This is provided for by section 8(4)(a). Section 8(5) allows the person’s solicitor to witness the destruction of the prints and photographs. However, section 8(7) allows a judge of the District Court to extend the period in which the prints or photographs may be retained for a further six months if they are required for the purpose of further proceedings in relation to the offence. These safeguards are considered below247 when discussing the analogous provisions which govern bodily samples, as set out in the Criminal Justice (Forensic Evidence) Act 1990.

8.      There is no corresponding provision governing destruction as regards those photographs, fingerprints and palmprints obtained from an individual arrested and detained under section 30 of the Offences Against the State Act 1939. Walsh comments that “[t]he clear implication is that they can be retained even if the suspect is released without charge, or if he is acquitted or discharged in related criminal proceedings.”248 Walsh also suggests that this may raise issues in relation to privacy both under the Constitution and the ECHR. The ECmHR in McVeigh, O’Neill and Evans v UK249 took the view that retention of such records may be justified for the prevention of terrorism.250 However, it may be open to question whether all possible offences under the 1939 Act would meet this extremely high threshold and justify retention of these records.251

9.      The taking, retention and use of photographs, fingerprints and palmprints are not necessarily governed by these assorted statutory provisions illustrated above. They may also be obtained ‘voluntarily’ by the Gardaí during an investigation. This voluntary method is, as we understand it, the most commonly used in criminal investigations by the Gardaí. This is certainly the most productive means of obtaining fingerprints from those whom the Gardaí wish to eliminate from the investigation and who did not fall within the requisite ambit of suspicion but the consequence of this method is that the fingerprints are unregulated by the law. As a result, the sorts of safeguards provided for in the 1984 Act are not applicable. Indeed, the result of this Gardaí practice is that ‘volunteers’ are in the same position as those whose photographs and prints are obtained under section 7 of the Criminal Law Act 1976. This is anomalous because ‘volunteers’ have not been arrested or detained and are not necessarily ‘reasonably suspected’ of involvement in an offence, whereas the latter category include those suspected, arrested and detained for the most serious offences. One qualification to this statement should be made. As we understand it, as a matter of practice, where assurances are given that photographs and prints will not be retained, then they are destroyed. Also if a volunteer requests that their prints and photographs be destroyed then the Gardaí, having considered the circumstances, will destroy the records.

10.  However, doubt has recently been cast on the lawfulness of this method of obtaining fingerprints by the decision of Mc Mahon J in the Circuit Criminal Court in The People (DPP) v Carroll.252 It was held in this case that the obtaining of fingerprints and palmprints by this method is unlawful. Fingerprints and palmprints obtained under this voluntary method were deemed inadmissible in this case. It was accepted by the judge that in order for fingerprints and palmprints to be lawfully taken, they must be obtained under the legislative provisions enacted for this purpose. In this case, the accused was arrested under section 4 of the Criminal Justice Act 1984. As a result, section 6 of this Act was in issue. The judge accepted that the language in this section was unambiguous and he saw no reason to depart from its meaning. He noted that there was no provision in the Act allowing for the taking of fingerprints and palmprints outside it where consent had been given. He held that there was no legislative lacuna, which would justify the implying of such a power to take fingerprints and palmprints outside the legislative provisions.

11.  It is clear from this brief survey of the current framework in relation to the comparable fields of photographs and prints that there is a need not only to review this framework, but also to consolidate these provisions. The position concerning the destruction of fingerprints voluntarily obtained needs to be clarified. Also, as considered below, fingerprints should not be given a higher degree of protection than that afforded to DNA profiles.253 Any revision of the law could address this anomaly. It therefore seems that a review and consolidation should provide for the comprehensive regulation by the law of the taking and, in particular, the retention of records.

12.  The Commission is of the view that the taking of photographs and prints should be governed exclusively by legislation, even in the case of those taken on a voluntary basis.

2.      Criminal Justice (Forensic Evidence) Act 1990

1.      Forensic Samples outside the 1990 Act

13.  The Criminal Justice (Forensic Evidence) Act 1990 (“1990 Act”), is the primary legislative provision regulating the taking of bodily samples for “forensic testing.” But section 2(11) of the 1990 Act also states that: “[t]he powers conferred by this section are without prejudice to any other powers exercisable by a member of the Garda Síochána.” Thus, the 1990 Act does not comprehensively govern the taking of bodily samples. There are two further methods: the first is under other statutory provisions that remain untouched by the 1990 Act,254 such as the powers conferred by the Road Traffic Acts 1961-1995, which govern the taking of a specimen of an arrested person’s breath, blood or urine.255 Under these provisions, a person may be required to permit a designated doctor to take a specimen of his blood or to provide a specimen of urine for the doctor, where a person has been arrested under certain provisions of the Road Traffic Acts or where a member of the Gardaí is of the opinion that the person is under the influence of drugs.256 Of course it is right that powers exist to take samples in particular contexts and for specific purposes, such as to determine the level of intoxication of an individual arrested on suspicion of drink driving. However, we note here that a DNA profile may also be extracted from, in particular, blood samples and therefore such a sample could be used to obtain and then put a DNA profile on a DNA database.

14.  The second method, aside from other statutory provisions, is the practice of requesting samples. In principle, this category is dependent on individuals voluntarily providing a biological sample for analysis. What constitutes an adequate consent for this purpose has not yet been clarified.257 Prior to the 1990 Act the Gardaí would simply request individuals to ‘volunteer’ a sample, which would usually be a blood sample for blood grouping but this could also be used to create a DNA profile for the purposes of any DNA database. Doubt has been cast on the lawfulness of this method of obtaining samples by the decision of The People (DPP) v Carroll.258 However, to date this method of obtaining samples has been accepted as lawful.

15.  The existence of those “other powers exercisable” by the Gardaí apart from the 1990 Act produces a lacuna in the regulation of the taking, use and retention of biological samples (and for that matter the profiles generated from them). What is meant by this is that there are situations where a biological sample may be obtained in circumstances, which will not attract the safeguards, which are bestowed by the 1990 Act, such as the obligation under section 4 to destroy the sample and records.259 It is our understanding that this ‘voluntary’ method remains the preferred way in which a sample may be obtained for DNA profiling as the conditions laid down by the 1990 Act are perceived to be too burdensome and section 2(11) provides a comprehensive ring road circumventing the carefully designed controls, established by the 1990 Act. Of course the legislative framework for obtaining comparator samples must be workable, but the Commission is concerned that the collection, testing and retention of samples, which could yield very sensitive and personal information260 is almost completely unregulated. It must certainly be considered, in view of the inherent nature of genetic material and information as well as the potential uses and misuses, whether it is essential that samples taken in the law enforcement field should be exclusively regulated by legislative provisions. Also, as observed above, there are doubts over the lawfulness of this method of obtaining DNA samples and consequently, it seems preferable for the obtaining of samples to be governed exclusively by legislation.

1.      General Scope of the 1990 Act

16.  Section 2(1) of the 1990 Act provides that where a person is in custody under section 30 of the Offences Against the State Act 1939, section 4 of the Criminal Justice Act 1984 or section 2 of the Criminal Justice (Drug Trafficking) Act 1996,261 a Garda Síochána may take certain samples from that person.262

17.  In addition to those arrested and taken into custody on suspicion of having committed specific offences under the 1939, 1984 and 1996 Acts, section 2(2) of the 1990 Act provides that a sample may be taken where ‘a person is in prison’ and who would, but for that imprisonment, be liable to be arrested and taken into custody for an offence under the 1939, 1984 and 1996 Acts.

18.  The intended effect of this provision is to put those in prison in the same position, in respect of the obligation to provide bodily samples, as everybody else.263 As a result, the Gardaí are not, therefore, precluded from taking a sample from an individual already in prison whilst investigating offences under the 1939 Act, the 1984 Act or a drug trafficking offence.264 However, section 2(3) ensures that a sample may only be sought in relation to the investigation of an offence other than the one for which the person is in prison (or a possible alternative count arising out of that indictment). For example, where a person is convicted of rape and imprisoned, the Gardaí may obtain a sample in order to determine whether that person may be implicated in another offence that falls within the 1984 Act, the 1939 Act, or a drug trafficking offence (as defined by section 3(1) of the Criminal Justice Act 1994 (“1994 Act”)). One can readily envisage an application under section 2(3) where the offender is convicted of a crime on the basis of evidence other than DNA and the authorities did not need to obtain a comparator sample from him. Meanwhile there are other similarly perpetrated unsolved offences, which fall within the scope of the subsection, where a biological stain is recovered that was thought to be left by the perpetrator. In this situation the power of the Gardaí to obtain a comparator sample may be essential to solve these crimes. The justification for obtaining a sample here is to prove or disprove the convicted offender’s involvement in the further offence on the basis of the evidential significance justification.265

19.  Although, a convicted offender may be the primary focus of this subsection, O’Connor notes that “the expression ‘a person in prison’ is sufficiently broad to include not only a person who has been convicted of an offence but a person who has been remanded in custody.”266 A person can be remanded in custody for a minor offence. However, the sample itself must be required for the purpose of investigating a serious or relatively serious offence before it can lawfully be taken as is apparent from section 2(3)(b) of the 1990 Act. Also, under the wording of this section, it appears that the “other offence” could possibly arise from the same facts although it could not include alternative counts.

20.  As regards the scope of section 2 in general, the Minister for Justice observed during the parliamentary debates, that “[t]he purpose of this Bill is to provide the Garda Síochána with power to take for forensic testing bodily samples … from persons suspected of serious criminal offences”.267 This observation is for the most part correct; thus section 4 of the 1984 Act concerns detention for offences which attract on conviction punishment by “imprisonment for a term of five years or by a more severe penalty”.268 Moreover, section 30 of the Offences Against the State Act 1939 (“1939 Act”) concerns detention for wide ranging and serious subversive and non-subversive offences.269 However, as O’Connor notes, there are some offences under the 1939 Act which potentially attract relatively minor penalties. The author also comments that “it would … seem inappropriate that where the offence in question is not a serious one that samples should be taken for the purpose of forensic examination.”270 However, there is a contrary argument that if the DNA is relevant to the investigation then it may in fact be appropriate on the basis that it is necessary to prove or disprove the person’s involvement in the offence.

21.  Broadly speaking, it is correct that the powers conferred by the 1990 Act to take bodily samples are primarily aimed at those offences towards the higher end of the scale of seriousness and not summary or minor offences. This is so even following the amendments to the scope of offences by the Criminal Justice (Drug Trafficking Act) 1996, which was passed in order to empower the Gardaí to tackle the problem of crime spawned by drugs. The Minister for Justice described the measures as forming “part of a comprehensive anti-drug package.”271 The offences now include “drug trafficking” offences, which are defined under section 3(1) of the Criminal Justice Act 1994.272 While all these offences may not constitute serious offences,273 it is true to say that most of these offences are serious.

22.  We consider the scope of offences which attract sampling powers in other jurisdictions in the next chapter and consider whether the breadth of offences should remain as currently defined.274

23.  There should also be a power in existence which allows for another sample to be obtained in the event of the first sample becoming contaminated, destroyed or lost. The English law provides a model for the approach that could be adopted in Ireland. In the UK the taking of another sample from a person is permitted by the Criminal Justice and Police Act 2001 (Commencement No. 8) Order 2002. Another sample may be taken from a person if the first sample is insufficient or unsatisfactory. The taking of another sample is also permitted if the first sample is lost, destroyed or contaminated or the analysis of the first sample has proved unreliable. The additional sample must be taken from the person within one month from the time at which the first sample was obtained. Consideration should be given to implementing a similar provision in this jurisdiction to clarify the position.

1.      Classification of Samples

24.  Section 2(1) of the 1990 Act specifies the types of sample that may be taken as follows:

“[A]ll or any of the following samples, namely—

(a) a sample of—

(i) blood,

(ii) pubic hair,

(iii) urine,

(iv) saliva,

(v) hair other than pubic hair,

(vi) a nail,

(vii) any material found under a nail,

(b) a swab from any part of the body other than a body orifice or a genital region,

(c) a swab from a body orifice or a genital region,

(d) a dental impression,

(e) a footprint or similar impression of any part of the person's body other than a part of his hand or mouth [which is governed by the 1984 Act].”

There is no overt classification of these types of sample, as there is in PACE, which categorises samples as either ‘intimate’ or ‘non-intimate’.275 However, two levels of protection are provided for under the 1990 Act which succeeds in creating a distinction between intimate and non-intimate samples.

24.  Those samples under the 1990 Act which require further safeguards to be complied with before they can be taken, and therefore can properly be described as ‘intimate’ samples, are blood, saliva, pubic hair, a swab from a body orifice or a genital region, and a dental impression. In respect of these samples, section 2(8) provides that a sample may only be taken by a medical practitioner, or in the case of a dental impression, by a dentist. The other forms of samples which are considered less intimate can be taken by the Gardaí themselves. This distinction between ‘intimate’ and ‘non-intimate’ samples is more apparent on further reading of section 2(4)(b) in relation to consent. Those intimate samples, listed above, which entail a more intrusive procedure may be taken only with the appropriate written consent of the person from whom the sample is sought. No such written consent is necessary for the ‘non-intimate’ samples.

25.  A point that should be emphasised is that more often than not it is either a blood sample or buccal swab which is taken from the inside of the person’s mouth, which is required for DNA profiling.276 A blood sample would of course have to be taken by a medical practitioner or a registered nurse and the same considerations apply in respect of a dental impression. It is plain that taking pubic hair, or a swab from the genital region or from most body orifices, entails a particularly intrusive procedure. In the context of obtaining a sample for DNA profiling the preferred method is the mouth swab as it requires no particular expertise, is painless, can be self-administered and is not of a particularly intrusive nature. A number of swabs can be taken for initial profiling and independent testing, if required. However, as the Model Criminal Code Officers Committee (“MCCOC”) in Australia have explained:

“[W]here the person from whom the sample is being taken agrees to the procedure it can be very simple and is not invasive. However, where a person does not consent and resists the procedure, the procedure would not fairly be described as being non-intimate. Placing something inside someone’s mouth against the person’s consent is invasive.”277

27.  The legislature in the UK has been quick to react and amend PACE to meet the challenges of DNA profiling and to keep in step with advances in technology: namely, the improved success in profiling from mouth swabs. Section 65 of PACE was amended by section 58 of the Criminal Justice and Public Order Act 1994 which shifted saliva and mouth swabs from the intimate to non-intimate category in order to facilitate the taking of samples from suspects and offenders without the need to engage the services of a medical practitioner, which proved inconvenient.278 An intimate sample is now defined as a dental impression or a sample of blood, semen, or any other tissue fluid, urine, or pubic hair, or a swab taken from a person’s body orifice other than the mouth. Feldman comments that this ‘down-grading’ of what constitutes an intimate sample lends weight to the “thin end of the wedge” critique of new police powers, in that the powers are incremental in nature.279

28.  Head 12 of the Scheme of the Criminal Justice Bill 2003 indicates an intention to follow suit in this respect and shift saliva and mouth swabs into the ‘non-intimate’ category. This could significantly assist the authorities in obtaining a DNA profile from both suspects and offenders because a medical practitioner is not needed and consent is not a prerequisite to obtaining a ‘non-intimate’ sample. However, the advisability and extent of any force used to obtain even ‘non-intimate’ samples together with the questions as to what safeguards are necessary must be given the most careful consideration. This change might also not prove viable in practice. At present it is considered by Gardaí to be too dangerous to obtain mouth swabs forcibly.280 However, in the event of a prisoner shaving off hair to avoid samples being obtained, a buccal swab could prove to be the only option available to obtain a DNA sample without consent.

29.  A mention of hair root samples should be made here. As described by MCCOC, experience in the UK has shown that where a person is implacably hostile to undergoing a forensic procedure, force is used by officers specially trained in the art of obtaining hair root samples. These are also arguably the least invasive ‘non-intimate’ source from which a DNA profile can be generated. Head 12 of the Scheme of the Criminal Justice Act 2003 provides that a hair sample may be “taken either by cutting hairs or by plucking hairs singly with their roots.” It also provides that “no more should be plucked than the person taking the sample reasonably considers to be necessary to constitute a sufficient sample.”

30.  Section 63A of PACE, as inserted by the Criminal Justice and Public Order Act 1994, is in similar terms. The revised PACE Code of Practice which ensued has further clarified the practice of obtaining a hair sample, as follows:

“i) where a hair sample is being taken for DNA purposes, the suspect should be permitted a reasonable choice as to what part of the body he wishes the hairs to be taken from;

ii) when hairs are plucked, they should be plucked individually unless the suspect prefers otherwise; and

iii) no more should be plucked than the person taking them reasonably considers necessary for a sufficient sample – no fewer than 10 hairs should be submitted.”281

These modifications appear to the Commission to be sensible and go some way to ameliorating the inevitable encroachment on bodily integrity and privacy rights that is entailed in obtaining such a sample.

31.  The Commission is of the view that similar modifications to those in the revised Police and Criminal Evidence Act 1984 Code of Practice outlining the procedure for taking a hair sample should be introduced in this field by way of either Code of Practice produced by the Gardaí themselves or through Ministerial regulations passed under section 5 of the 1990 Act.

1.      Safeguards Against Arbitrary Sampling

32.  In addition to the requirement that a comparator sample may only be obtained in relation to the investigation of an offence which falls within the scope of those offences set out in the 1990 Act above,282 and, depending on the type of sample, who may be permitted to take it,283 certain other conditions must also be met. Although the four topics that follow may be described as either conditions or prerequisites to taking a sample, they are actually safeguards against the arbitrary exercise of power by the Gardaí. Because the taking of bodily samples entails an infringement of the right to bodily integrity and privacy of the person, it is, of course, proper that a sample may not be taken merely because it might be helpful to the investigation. There is a need for safeguards and prerequisite conditions to be in place.

1.      Authorisation

33.  The first condition is that authorisation must be given for sampling by an officer not below the rank of superintendent,284 which may be given orally but must be confirmed in writing as soon as is practicable.285 This subsection therefore provides for some element of oversight by a more senior officer.286

1.      Suspicion of Involvement in an Offence

34.  The second condition is that the authorising officer must, under section 2(5)(a), have reasonable grounds:

“for suspecting the involvement of the person from whom the sample is to be taken—

(i) in a case where the person is in custody, in the offence in respect of which he is in custody, or

(ii) in a case where the person is in prison, in the commission of an offence under the Offences against the State Act 1939 or an offence which is for the time being a scheduled offence for the purposes of Part V of that Act or an offence to which section 4 of the Criminal Justice Act 1984 applies …”

35.  This condition has the effect of introducing a measure of objectivity to the process, but as O’Connor notes, there is a disparity between the legal standard that must be met, on the one hand, before arresting someone for an offence under section 30 of the 1939 Act and, on the other hand, before obtaining a sample from such an individual. The difference is that suspicion is a prerequisite for arrest, whereas reasonable suspicion is needed before being able to obtain a bodily sample.287 Presumably, some extra information or evidence, such as that obtained through interviewing the suspect, must be obtained before a ‘suspicion’ is transformed into a ‘reasonable suspicion’.

1.      Tend to Confirm or Disprove Involvement

36.  In addition to reasonable grounds for suspecting the involvement in those offences set out in the legislation, the authorising officer must, under section 2(5)(b), also have reasonable grounds:

“for believing that the sample will tend to confirm or disprove the involvement of the person from whom the sample is to be taken in the said offence.”

This is an important safeguard against the unnecessary taking of samples from suspects. In other words, it is only to be used in cases where there is biological evidence found on the victim or at the scene of crime thought to be left by the perpetrator. Moreover, it would seem that such material must also be capable of either yielding a DNA profile or other comparative analysis. This also prevents the Gardaí from conducting a fishing expedition for evidence which may implicate the suspect in an offence other than the one for which he is detained:– if the authorities wish to obtain evidence for a different offence then, quite simply, the individual should be arrested for that offence and a sample taken under the appropriate provisions.

1.      Explanation to Suspect

37.  Under section 2(6), before the Gardaí may take a sample (whether ‘intimate’ or ‘non-intimate’) from those detained (but not those in prison),288 or seek the consent of such a person they must inform that person:

“(a) of the nature of the offence in which it is suspected that that person has been involved,

(b) that an authorisation has been given under subsection (4) (a) of this section and of the grounds on which it has been given, and

(c) that the results of any tests on the sample may be given in evidence in any proceedings.”

These provisions mirror the warning given under the Judges’ Rules in the context of incriminating statements and clearly intend to communicate to the detained person their predicament and the purpose and effect of sampling. O’Connor suggests that “[t]he obligation to inform stems, perhaps, from a recognition of the human dignity of the person and as a preliminary to the taking of a sample, particularly an intimate sample, a person should be given information of the kind specified in the paragraph.”289 This stage is also a step towards obtaining the consent of the individual where required, but it may be open to question, in view of the inherently coercive nature of the criminal investigation, whether consent is in fact always freely given.290

37.  The information must be given in a form that is readily understandable and not overly complicated having regard to the particular circumstances of the person submitting to the taking of the sample. In this respect, the recommendations of the Parliament of New South Wales Legislative Standing Committee on Law and Justice (“NSW Review”) are instructive.291 It recommended that the request for consent to the taking of the sample should be in an understandable form. It also recommended that a plain English version of the consent information that should be provided should be drafted.

38.  The Commission recommends that the explanation for the reason and basis for taking samples must be given in a readily understandable manner, using plain language.

39.  In respect of the taking of samples generally, the Human Rights Commission (“HRC”) suggested that a number of safeguards should be complied with when taking bodily samples.292 Given that the Commission is broadly in favour of these safeguards, it is useful to set these out here. They are as follows:

“(i) the taking of bodily samples should be carried out in circumstances affording reasonable privacy to the suspect;

(ii) the taking of bodily samples should be carried out in the presence or view of a person who is of the same sex as the suspect;

                                                        i.            the taking of bodily samples should not be carried out in the presence or view of a person whose presence is not necessary for the purposes of the forensic procedure;

                                                      ii.            there should be no questioning during the taking of bodily samples;

                                                    iii.            the taking of bodily samples should not involve any cruel, inhuman or degrading treatment;

                                                    iv.            the taking of bodily samples should be carried out by specified professionals including nurses, medical practitioners, and dentists depending on the procedure;

                                                      v.            a child or incapable person should be entitled to have present a parent, guardian, legal practitioner or other independent person who is not a member of the Garda Síochána during the taking of the bodily samples;

                                                    vi.            the number of members of the Garda Síochána present during the taking of bodily samples must not exceed that which is reasonably necessary to ensure that the procedure is carried out effectively;

                                                  vii.            the taking of bodily samples must be video recorded in all circumstances unless the suspect objects to the video recording and the suspect must be informed of the reasons for the video recording;

                                                viii.            the suspect should have the right to an interpreter where he or she does not speak English as his or her first language;

                                                    ix.            the suspect should have the right of access to legal advice of his or her choice to decide the implications of refusing to give a bodily sample.”293

It submitted that these safeguards should be provided for in a set of formal guidelines in a Schedule appended to the proposed Bill or by Ministerial order. The Commission agrees that safeguards similar to those suggested by the HRC should be implemented in the form of a Code of Practice. Such safeguards would ensure that an appropriate balance is struck between the bodily integrity rights of the suspect and wider societal interests.

2.      One element that is omitted from the suggestions of the HRC is information regarding the type of forensic procedure and therefore the type of sample that is proposed to be taken. The type of sample is important in terms of the intrusiveness of the procedure used to obtain it. An individual may be vehemently opposed to one procedure but not another. Some people have a fear of needles and would accordingly be unlikely to consent to a blood sample being taken – even by a pin prick on the finger – whereas, they may be comfortable with providing a mouth swab or some hair root samples for analysis. The absence of choice has been highlighted by the Australian Law Reform Commission in its Report on The Protection of Human Genetic Information in Australia.294 This is a matter that is of particular relevance when contemplating a forensic procedure in the absence of consent.295

3.      The Commission recommends that safeguards similar to those recommended by the Human Rights Commission, in respect of the taking of bodily samples, should be provided for in a Code of Practice. In addition to these safeguards, so long as the particular forensic test may be conducted on the sample, the Commission is of the view that a certain amount of latitude should be given to individuals to choose the type of sample to be obtained.

1.      Consent and Reasonable Force

43.  Section 2(4)(b) provides that those ‘intimate’ samples may only be taken if “appropriate consent” has been given in writing.296 Section 2(10) defines “appropriate consent” as meaning:

“(a) in the case of a person who has attained the age of 17 years, the consent of that person;

(b) in the case of a person who has not attained the age of 17 years but has attained the age of 14 years, the consent of that person and of a parent or guardian of that person; and

(c) in the case of a person who has not attained the age of 14 years, the consent of a parent or guardian of that person.”

This subsection raises a number of issues in relation to what amounts to appropriate consent. These issues are examined in more detail by Feldman in the context of the analogous provisions contained in PACE.297 For example, Feldman argues that there are serious doubts as to whether it is proper to allow a parent or guardian to give consent on behalf of a child who is competent, as in Gillick,298 and is refusing consent. This and further issues are also examined by O’Connor, who questions whether a 13 year old’s constitutional right to bodily integrity may be infringed where that child objects to the taking of a bodily sample, but whose parents or guardians consent under section 2(10)(c). As a result, the Australian Law Reform Commission (“ALRC”) recommended that a forensic procedure should only be carried out on a child of 12 years or more if the child and the parents consent to it.299 O’Connor also highlights that there may be a difficulty if one parent consents to the taking of an intimate sample, but the other does not.300 In addition to this, section 23 of the Non Fatal Offences Against the Person Act 1997 provides that a minor who has attained the age of 16 may consent to surgical, medical or dental treatment without the consent of their parents or a guardian. However, under section 2(10) of the 1990 Act, a person must be 17 before they can give an effective consent on their own behalf.

43.  As well as that, any child or parent consenting on behalf of the child must be given the information in a form that can be understood by them. The ALRC criticised the fact that in the Australian legislation there was no requirement to give any information to the child on the procedure even though they would be the subject of this procedure.301 It is therefore also important that the information be imparted to the child in a form which is understood.

44.  As we also noted above,302 for those samples that fall within the ‘non-intimate’ category there is no obligation on the Gardaí to obtain the consent of the individual concerned. Implicit in this is that the Gardaí may use reasonable force to obtain a ‘non-intimate’ sample.303 One view is certainly that if it is intended to empower the Gardaí to use reasonable force and in consequence interfere with an individual’s personal rights and freedoms, as guaranteed by the Constitution and the ECHR, then this should be done explicitly – to use ECHR vernacular, prescribed by law and the parameters for such force should be clearly set out.

45.  Head 10 of the Scheme of the Criminal Justice Bill 2003 proposes that, in addition to the taking of photographs and prints, reasonable force may be used to obtain ‘non-intimate’ samples, where necessary.304 There are some potential difficulties with this, in particular the use of reasonable force in obtaining a mouth swab. The power exists in the UK to do this, but it is considered dangerous not only for the person seeking to obtain the sample (the subject may bite them), but also for the individual from whom the sample is sought to be obtained, as injury may be suffered.

46.  Moreover, it has been stated that “a prisoner, as a result of being imprisoned, is peculiarly vulnerable to arbitrary and unlawful action.”305 The same may be said of those merely in custody on suspicion of having committed an offence. The nature of custody, as with imprisonment, is such that those individuals detained are the most at risk of having their rights violated and, accordingly, are in need of extra protection from the arbitrary exercise of power. Not only does the nature of detention give one cause to question the reality of consent, but also the appropriateness of the use of even ‘reasonable’ force.

47.  The Human Rights Commission in its Observations on the Scheme of the Criminal Justice Bill 2003 has recently made a number of recommendations in respect of the use of force to obtain non-intimate bodily samples.306 It recommended that “authorisation to take a sample without the consent of the person under investigation should not be given by a member of the Garda Síochána unless he or she is satisfied that the carrying out of the forensic procedure without consent is justified in all the circumstances”.307 In assessing whether the carrying out of the forensic procedure is justified in all the circumstances, the Garda should be required to balance the public interest against the right to privacy and the right to bodily integrity of the suspect. The HRC set out a number of matters to be considered in balancing these interests including the seriousness of the offence, the religious and cultural beliefs of the suspect, whether there is another means by which evidence confirming or disproving the involvement of the suspect in the offence can be attained and also the suspect’s reasons for refusing consent.

48.  In addition to this, in order for the interference with the individual’s bodily integrity to be justified,308 appropriate safeguards should be implemented to ensure that force in excess of reasonable force is not used. In this respect, we endorse the recent recommendations of the Human Rights Commission on this provision.309 It observed in respect of the power to use reasonable force to obtain bodily samples that:

“The use of force by members of the Garda Síochána should only occur when it is strictly necessary and to the extent required for the performance of their duty. In particular, where persons suspected of having committed a crime are in detention the use of force should only occur in exceptional circumstances”.310

The HRC commented that in order for the infringement to be a proportionate interference with an individual’s right to bodily integrity, certain safeguards should be introduced. It suggested that there should be adequate police training in the taking of samples, comprehensive custody records should be kept and that a prisoner should have a right of access to a medical practitioner. It has argued that the use of reasonable force in obtaining bodily samples should only be used on the basis that video-recording facilities are installed at Garda stations, or alternatively, there should be an obligation on the Gardaí to take a suspect to a station where there are such facilities.311 A further safeguard which would go some way towards protecting the rights of suspects would be to permit their solicitor to be present at the interview and when either consent is sought or cooperation is required.

49.  The Commission recommends the implementation of safeguards to ensure that the power to use reasonable force is not arbitrarily exercised. These safeguards should be similar to those suggested by the Human Rights Commission and could be implemented in the form of a Code of Practice.

1.      Enforcement and Compulsion

51.  Section 2(9) of the 1990 Act makes it an offence for a person to obstruct or attempt to obstruct the Gardaí or any other person acting under the powers conferred by section 2(1). This subsection, together with section 3 which permits adverse inferences to be drawn from any refusal to consent to a forensic procedure, without reasonable cause, is aimed at encouraging the person detained to consent and submit to a forensic procedure. Not only do they commit an offence if they make it difficult for the Gardaí to obtain a sample, but any refusal of consent to giving a non-intimate sample can count against them subsequently.

52.  Although these two sections represent the elements of enforcement and compulsion in the 1990 Act, it is arguable, in view of the proposed increased use of force in obtaining non-intimate samples from which a DNA profile may be generated, whether these provisions will come into play at the later stage of proceedings. One can readily envisage that the mere existence of a possible further offence being pursued and an adverse inference being drawn will act as motivation to comply, so much so that refusal of consent and obstruction may be rare.

53.  One issue that arises in respect of section 3 is its potential interference with the individual’s privilege against self incrimination. Drawing an adverse inference in this instance is a form of “DNA request surveillance”.312 It involves seeking to rely on a refusal to consent to a forensic procedure as a sign that the individual has “something to hide”. However, it is also apparent that the privilege against self incrimination can justifiably be limited in the public interest. The legitimate aim of crime investigation is furthered here. On the basis of the principles enunciated earlier, it seems that the limit on the privilege is proportionate.313 First, under this provision, no one can be convicted on the basis of inferences alone. Secondly, under this provision, there is no obligation to draw inferences. These limits on the power to draw inferences lead the Commission to conclude that the measure is proportionate.

1.      Destruction of Samples and Records

54.  The important subject of the destruction of samples and records is governed by section 4 of the 1990 Act, which states:

“(1) Subject to subsection (5) of this section, every record identifying the person from whom a sample has been taken pursuant to section 2 of this Act shall, if not previously destroyed, be destroyed as this section directs and every sample identified by such record shall be destroyed in like manner.

(2) Where proceedings for any offence in respect of which a person could be detained under section 30 of the Offences against the State Act, 1939, or section 4 of the Criminal Justice Act, 1984, are not instituted against the person from whom the sample was taken within six months314 from the taking of the sample and the failure to institute the proceedings within that period is not due to the fact that he has absconded or cannot be found, the destruction of the record and the sample identified by such record shall be carried out on the expiration of that period unless an order has been made under subsection (5) of this section.

(3) Where proceedings have been so instituted and the person is acquitted or discharged or the proceedings are discontinued, the destruction of the record and the sample identified by such record shall be carried out on the expiration of twenty-one days after the acquittal, discharge or discontinuance unless an order has been made under subsection (5) of this section.

(4)(a) Where a person from whom a sample has been taken is the subject of an order under subsection (1) or (2) of section 1 of the Probation of Offenders Act, 1907, the destruction of the said sample and every record identifying such sample shall be carried out on the expiration of 3 years from the making of the order; provided that he has not been convicted of an offence to which section 4 of the Criminal Justice Act, 1984, applies during that period.

(b) Paragraph (a) of this subsection shall not apply to an order under section 1 (2) of the Probation of Offenders Act, 1907, discharged on the appeal of a person against conviction if on appeal his conviction is affirmed.”

This section has the effect of imposing an imperative against the retention of both records and samples relating to those individuals who for various reasons, as provided for in section 4, may be regarded as innocent of the offence for which the samples were taken in the first place. For example if the person who is the source of the comparator sample has been acquitted of the offence for which the sample was taken, records and samples must be destroyed within 21 days after the acquittal.

54.  The most important part of section 4 is subsection (2), which permits the authorities to hold on to samples and records during the investigation of an offence. The current time limit is 6 months, but it is proposed in head 12 of the Scheme of the Criminal Justice Bill 2003, on the foot of a recommendation from the Leahy Group, that this be extended to 12 months. It was observed in the Leahy Report that:

“[t]here are balancing considerations to be taken into account here, principally the operational desirability of retention of samples set against what must be accepted as the principle that there can be no open-ended retention of identifiable samples from unconvicted suspects. On balance, we propose that the existing period of retention should be extended to twelve months, with provision for further retention on judicial authorisation.”315

Presumably this is intended to allow the Gardaí more time to investigate an offence and collect evidence against a suspect. Six months is not seen as an adequate time within which to investigate an offence. Maintaining the retention period at six months would therefore result in an excessive amount of requests for judicial authorisation to extend the period for which the sample may be retained, a power which is discussed below.

1.      These provisions are analogous to the legislation governing the retention of photographs, fingerprints, and palmprints: in section 8 of the Criminal Justice Act 1984.316 However, whereas section 8(5) gives the individual concerned (or their solicitor or someone authorised by them in writing) the right to witness the destruction, there is no equivalent provision in the 1990 Act. This could be as a result of the practical difficulties of destroying the sample and also because, the destruction in this instance, where work has been completed on the sample, is carried out by the Forensic Science Laboratory as opposed to the Gardaí. However, there does seem to be an anomaly in affording a lesser degree of protection to DNA than to fingerprints. DNA reveals significantly more personal information about an individual than a fingerprint.

2.      By way of saver, section 4(5) of the 1990 Act provides that the court may, on application, authorise retention for a longer period than 6 months in the event of there being a good reason why the samples should not be destroyed. It is notable that this differs from the 1984 Act. Section 8(7) of the 1984 Act, dealing with fingerprints and photographs, limits such an extension to a further six months only. Again, this anomaly may be explained on the basis that during the Oireachtas debates concern was expressed that limiting the period to six months would deprive those from whom a sample was taken from authorising their records to be kept on file. The argument is that a known individual may wish to take this option in preference to being asked to provide fresh samples on a regular basis. This could be catered for by including a consent provision and by placing the profile of such a person on a volunteer database.317

3.      This is a matter that falls to be considered in the next chapter when recommending law in this field, but it is worth mentioning that the Council of Europe Committee of Ministers recommended that “[s]amples and other body tissues, or the information derived from them, may be stored for longer periods: (i) when the person concerned so requests …”318

4.      Another concern which should be mentioned here is that at present there is scope to obtain samples outside the legislative framework.319 The safeguards which attach to samples obtained under the legislative provisions do not apply to ‘volunteers’. These ‘volunteers’ may include not only ‘suspects’ but also those who provide prints to exclude themselves and assist the investigation. For example, the victim’s sexual partner in relation to a sexual assault case or a victim’s flatmate (or even friends who have visited) in a burglary case. The anomaly is that the safeguards that exist in the legislative framework do not apply to those donations.

5.      Ensuring that the taking of bodily samples is solely governed by legislation would also offer clarification in respect of the status of the bodily samples. Once the bodily samples are obtained under the legislative framework, they become evidence or potential evidence in the criminal investigation as opposed to the property of the person from whom the sample was taken. Consequently, questions of ownership do not arise in this instance. The samples are merely part of the evidential process of solving crime.

6.      The Commission recommends that, as with fingerprints, the taking of bodily samples should be governed by legislation which should encompass all samples, even those taken on a voluntary basis.

5.      the taking of the DNA samples and the retention of the DNA profiles

  1.  

Introduction

1.      This chapter and Chapter 6 are at the very centre of this Paper. As explained, the essential steps in the use of DNA are the taking of the samples and its analysis to yield a profile. Thereafter, the question arises as to whether the profile and samples should both be retained or only the profile or neither. In the present chapter, we address the question of whether, and subject to what conditions, the sample may be taken and the profile both used and retained. We emphasise that this chapter concerns the retention and use of DNA profiles only. This is so even though much of the comparative legislation considered will refer to the retention or destruction of both samples and records. In the following chapter, we deal with the further question of whether the sample itself should be retained.

2.      In this chapter, we adopt an essentially thematic approach and draw upon not only those general policy considerations set out in Chapter 2 and the legal principles discussed in Chapter 3, but also any relevant comparative material. As we have already observed, the composition of any database of DNA profiles is primarily dependant on whether the authorities may lawfully obtain a bodily sample from an individual from which a profile can be generated. As part of the examination of the present law in relation to carrying out forensic procedures (and obtaining photographs and prints), outlined in the previous chapter, we highlighted a number of anomalies that need to be addressed, some of which are included in the Scheme of the Criminal Justice Bill 2003. However, ancillary to the issue of whether the authorities may obtain a bodily sample in order to generate a profile, the composition of a DNA database also depends on whether the authorities are permitted to retain this profile for storage and search on a database. The present law, as indicated in the previous chapter, is framed in such a way that retention is the default position. In other words while there are legislative provisions which direct (in certain widely drawn circumstances) that the profiles (and samples) must be destroyed, not all profiles and samples have been taken under statutory authority and in these cases, the samples may be retained. Indeed, convicted offenders (other than those dealt with under the Probation of Offenders Act 1907) and volunteers are in the same position in relation to both bodily samples and DNA profiles and prints and photographs, in that there is nothing directing that these should be destroyed. We have indicated that the present situation is less than satisfactory and our view is that no bodily samples and DNA profiles (and for that matter photographs and prints) should be outside the purview of legislation and the safeguards that come with regulation by statute.320

3.      As regards the presentation of this chapter, in Part A, we examine whether forensic DNA profiles can be retained at all in principle. In Part B, the underlying justifications for both sampling an individual and retaining the resulting DNA profile are outlined. In Parts C-E, we consider how these justifications might apply to the sampling of and retention of profiles obtained from suspects (including those subsequently convicted), those already convicted, and various categories of ‘volunteer’. In these Parts we survey what choices have been made in other jurisdictions and consider some of the key provisions which provide for sampling and retention and destruction of profiles. We also examine some of the important decisions of foreign courts in relation to the most crucial constitutional conundrums that face policy makers in this field. We consider whether a comprehensive database which would include the entire population should be established. Finally, we discuss the issue of retrospection. This entails examining whether the profiles obtained voluntarily outside the ambit of the 1990 Act and the profiles obtained under the 1990 Act, which have not yet been destroyed, may be retained under our proposed legislative framework.

1.      Retention of Forensic DNA Profiles in Principle

4.      Before we turn to the specific issues of the sampling of various categories of persons and the retention of their DNA profiles and the justifications for this sampling and retention, it must be discussed whether DNA profiles should be retained at all in principle.

5.      The distinction between the biological sample and the profile should be emphasised. This distinction is very important in determining whether the sample or the profile or both should be kept or destroyed. Accordingly, before considering the various options that may be taken in respect of each, it is appropriate to go into some detail about what a profile reveals about the source of the sample.

6.      From the outset the same observation that was made above,321 is equally applicable here: namely, the threat to privacy through the collection, use and storage of genetic information is only as great as the extent to which we are able to understand the information. This argument has been well made out by Redmayne in the context of a DNA database, as follows:

“[E]ven if we were given information about a person’s entire DNA sequence, there would be relatively little we could say for certain about him or his future. In the context of the privacy implications of the DNA database, an even more important point is that the database does not even contain the entire sequence. It only contains DNA profiles: information about the DNA at several loci (sites) on the genome. These loci form only a tiny portion of a person’s DNA. The extent to which the database is a threat to privacy, then, depends on whether these profiles contain important information about the lives of the donors of the profiles.”322

7.      The discussion above on current profiling techniques and generally about DNA, indicated that it is the non-coding areas of the DNA molecule that are used in forensic work.323 We explained that the reason for targeting non-coding rather than coding regions was because there is more variation between individuals in the non-coding areas and that these therefore provide a more suitable basis for identifying and differentiating between individuals. Genetic privacy did not feature in this as a specific issue. However, with the gradual realisation that non-coding regions may be more important and reveal much more than previously envisaged, genetic privacy has become a very serious concern. After all if the loci used in forensic profiling are truly non-coding then the storage on databases of DNA profiles represents no more of a threat to privacy than the storage of fingerprints and photographs. But, if the genetic information that cannot at present be interpreted were to become capable of interpretation in the future, then many of the concerns voiced in relation to the retention of samples may be equally applicable in respect of profiles.

8.      The prospect that a forensic profile may be interpreted and that sensitive information may be derived about the source is not an entirely remote prospect. Although not used in forensic profiling, some STR loci which were thought to be non-coding may be linked to diseases, for example fragile X syndrome, myotonic dystrophy and Kennedy’s disease.324 Even more worrying is the suggestion that one of the most commonly used loci in forensic profiling, THO1, may be associated with bi-polar illness.325 One commentator has suggested that if this association is confirmed then the use of THO1 in profiling should be discontinued in order to avoid inadvertent disclosure of what is obviously very sensitive genotype information. This association has not yet been shown to exist and there remains a large degree of conflict arising from differing scientific studies.326 All that can be said is that there are examples where STR loci originally thought to be ‘non-coding’ may be shown to reveal quite personal information about the source. These are compelling reasons for being extremely cautious in claiming that a forensic profile will never give rise to any privacy concerns. Consequently, the security, confidentiality and isolation of the forensic profile is a matter which should be approached with caution.

9.      The threat to privacy through the retention of DNA profiles is not, however, restricted to the potential discoveries highlighted in the preceding paragraph, as there are more immediate ethical concerns. Whilst a profile reveals only a snippet of information about an individual’s DNA at a number of loci along the vast DNA strand, the profile conclusively proves parentage and relatedness.327 By way of example, the remains of the Romanovs were identified using samples provided by the British Royal family and DNA testing in immigration disputes is now commonplace.328 Because a DNA profile reveals and confirms parentage and relatedness with such a high degree of certainty it is not difficult to envisage that the retention of a vast collection of profiles (particularly on a searchable electronic database) will give rise to some concerns about the privacy and confidentiality of information about a family, as it would be possible not only to confirm but also to disprove relatedness. Again the threat to what one may term ‘familial privacy’ is dependent on the relative inclusiveness of any database of profiles. If the database contained the entire population or even a substantial proportion of it, access to that database would enable someone to uncover potentially damaging information about families. Even with the most stringent security measures in operation the mere existence of a vast collection of profiles is a serious concern. Revelations that the man indicated as the father of a child on the birth certificate of that child is not in fact the biological father and also revelations that siblings are only half-siblings could cause unquantifiable distress.

10.  However, if the database were to be made up of profiles taken from a relatively small and distinct group - for example those convicted or suspected of serious offences - then the threat would be correspondingly reduced. Some may argue that this is discriminatory, in the sense that such an approach would discriminate between those convicted or suspected of crimes and those who are not. This represents one of the crucial issues to be addressed in this Consultation Paper, but before this subject is tackled in full it is worth noting that, whilst arbitrary classifications and grouping is objectionable, differences in treatment between different groups does not as such amount to discrimination, whether under the Constitution or the ECHR. The crucial issue is whether differentiation in treatment can be justified on some objective criteria, including the questions of reasonableness and proportionality. Indeed, the law currently ‘discriminates’ in relation to the long term storage of fingerprint records between offenders and those who have never come to the attention of the authorities. In any event, regardless of the nature of any database of profiles, which we consider later in this chapter, it is clear that access to and disclosure of profile information should be closely regulated and confined.

11.  The Commission is of the view that, at present, the secure storage of DNA profiles is not, in principle, objectionable.

2.      Justifications for Sampling and Retention of Records

1.      General

12.  At this point, it is useful to examine the underlying rationale and justifications for the sampling and retaining of DNA profiles. This will enable us to deduce the categories of persons, whose profiles should be retained on the database. In Chapter 2 we set out some general observations in relation to why investigatory authorities collect and retain certain information and evidence from all manner of individuals, but particularly those suspected of perpetrating crime.329 In this part it is appropriate to examine in more detail these underlying rationales since they purport to justify the interference with the rights to privacy and bodily integrity that the taking of samples and their retention necessarily entails.330

1.      Evidential Significance Justification

13.  At present, the justification for first obtaining a DNA profile under the Criminal Justice (Forensic Evidence) Act 1990 is that it will “tend to prove or disprove involvement in an offence.”331 In other words, the profile must have some ‘evidential significance justification’ in the investigation, for example because biological material thought to have emanated from the perpetrator has been found at the scene of crime. Comparator profiles are required not only to identify a potential suspect, but also to eliminate from further investigation as a prime suspect those who have been present innocently at the scene. Where a hair root sample (from which a profile may be generated) is found near the broken window of a house that has been burgled, it is essential to establish that the hair does not belong to anyone living in (or perhaps even those who have recently visited) the house. If the hair root sample is unaccounted for, in the sense that the source has not been identified as emanating from those innocently present, then perhaps in the absence of other evidence, this may provide a vital lead to the investigators. If an individual was observed close to the scene of the burglary, then a comparator sample would be required from that person in order to carry out a comparison with the supposed “crime stain” or hair root profile so as to determine whether that person or that person’s hair can be placed at the scene.

14.  This justification, which is in the main applicable to obtaining samples, is particularly cogent in relation to the investigation of past and present crimes. This is because a profile may be compared to those profiles generated from biological material found at the scene of either the present crime or an historic crime.332 However, in relation to the investigation of a future crime, any evidential significance that the profile may have is speculative.

1.      Intelligence Gathering or Database Justification

15.  Where the concern is with facilitating the detection of future crimes, the principal rationale is the intelligence gathering or database justification, which is more broadly applicable to retaining profiles than obtaining them. This argument is that retaining profiles, especially on a database in a searchable format, is not only a useful intelligence tool for investigating crimes which have been committed but also could have some deterrent value as regards the criminal activity of those whose profiles are stored on the database. The tool therefore has a dual function.

16.  As regards the first function, the storage of profiles has two applications: first, where there is no match between the scene of crime stain profile and any of the database profiles, the investigatory authorities may exclude those individuals whose profiles are stored from further investigation;333 and secondly, where there is a match between a profile from a crime scene stain and a database profile, this provides useful intelligence334 to investigators, who may then seek to detain and question the individual concerned. This latter application may also be more broadly described as enabling the State to combat recidivism or ensure that those who repeatedly re-offend are apprehended quickly and dealt with appropriately.

17.  Secondly, it is also possible that the storage on a database of profiles may have a deterrent effect on those contemplating criminal activity although in most cases this seems rather far-fetched (especially considering that proportionately a large number of offenders for which DNA evidence would be relevant would be sexual assaults).335 The effectiveness of profiling and the storage of profiles on a database are such that perpetrators are likely to be identified and linked to a crime even through the discovery of a single hair root sample at the scene. Although, it should also be noted that the countervailing argument is that criminals may become more adept at preventing their biological material being left at the scene of crime in the first place.

18.  The difficulty is where one should draw the line: just because the storage of DNA profiles on a database may fulfil these two functions of detection and deterrence, can this justify retaining profiles across a broad spectrum of circumstances or for that matter justify the retention of everyone’s DNA profile? This is as much a policy matter as it is a jurisprudential question and we pick up this thread when considering the substantive issues below.

1.      True Identity’ or Person Identification Justification

19.  The final justification is in essence based upon the need to establish the true identify of the individual concerned. Apparently, in a significant number of cases those suspected of involvement in an offence when detained give a false name and details which are not always readily discoverable and then, once released on their own recognisance or on police bail, that individual may evade further action. Indeed, this was one of the main justifications provided by the Minister for Constitutional Affairs and Lord Chancellor, Lord Falconer, to the UK Parliament’s Joint Committee on Human Rights in explaining the proposals contained in the Government’s Criminal Justice Bill to further extend the power to take and retain fingerprints and samples.336

20.  This argument has until now been primarily deployed in order to justify the carrying out of routine fingerprinting and photography and other traditional identification procedures on those arrested. An examination of US jurisprudence in relation to fingerprinting and other forms of ‘inventory’ would seem to suggest that in this context constitutional propriety is taken for granted. For example, in Napolitano v United States337 the 1st Circuit Court of Appeals stated that the “[t]aking of fingerprints [prior to bail] is universally standard procedure, and no violation of constitutional rights”. Also in Smith v United States338 the District Circuit Court of Appeals stated that “it is elementary that a person in lawful custody may be required to submit to photographing … and fingerprinting … as part of routine identification processes.”

21.  Moreover, in the particular context of DNA databasing, the 4th Circuit Court of Appeals in Jones v Murray339 pointed to “universal approbation of ‘booking’ procedures that are followed for every suspect arrested for a felony, whether or not the proof of a particular suspect’s crime will involve the use of fingerprint identification”. The court also highlighted the state interests in “preserving a permanent identification record of convicted felons”. But as Kaye observes, the court, in concluding that the collection of DNA genotypes (like fingerprints) was justified to link an offender to a crime, “lost sight of the original rationale for fingerprinting and spoke only of ‘resolving past and future crimes” in that “it is a well recognized aspect of criminal conduct that the perpetrator will take the usual steps to conceal not only his conduct, but also his identity.”340 Clearly, as Kaye implicitly says, the court in this case seems to be conflating both the (less embracing) evidential significance and database justifications, set out at (2) and (3) above, with the (more embracing) ‘true identity’ justification.

22.  Despite this lack of specificity in analysis and in the application of the ‘true identity’ justification there remains some merit in its potential deployment in relation to the routine sampling of those individuals who have been arrested on suspicion of involvement in an offence.

23.  However, the Commission concludes this section by noting that this justification is of future rather than present significance. At present the main sources of identification include documentation in the possession of the individual concerned, such as a driving licence, or fingerprint and photograph records held by the authorities. In relation to the latter sources, the Gardaí are the custodians of fingerprint and photograph databases and may relatively quickly take a suspect’s fingerprints and photograph him or her after which the databases may be interrogated – this can be done with increasing efficiency with the extended use of fingerprinting technology, such as Live Scan, coupled with the efforts of the Criminal Records Bureau to store both fingerprints and photographs on an integrated and searchable electronic database. If a suspect is photographed and fingerprinted as part of routine “booking” procedures, then their ability to avoid further prosecution by providing false information is significantly curtailed. Of course suspects may change their appearance or provide a false name and address, but short of self-mutilation it would be extremely difficult to conceal their fingerprints, which are unique – even in the case of identical twins.341 Thus, fingerprint records provide a practical and effective way of establishing the ‘true identity’ of an individual.

24.  However, DNA profiling is a significantly more discriminating means of distinguishing between individuals than, for example, blood grouping.342 But in order to be an effective method of establishing the ‘true identity’ of an individual, a DNA profile, at a practical level, must be readily obtainable and any database of profiles would also have to be readily accessible. The present technology is such that a profile takes rather a long time to generate – around 24 hours depending on the type of sample to be profiled and the workload of the laboratory,343 whereas a fingerprint scan can be done in a matter of minutes. Equally, the technology is not at the stage whereby a profile can be generated – or for that matter a fingerprint scan can be obtained – using handheld devices. If and when this technology is developed then the true identity argument in favour of routine profiling (as well as fingerprinting) becomes more forceful. The rapid improvement in DNA techniques makes such advances imminent and forethought is required.

3.      Suspects

1.      Sampling

1.      Threshold

25.  As discussed in the preceding chapter the current sampling threshold set by the 1990 Act is broadly that of an arrestable offence.344 In the main the sampling powers conferred by the Act are applicable in respect of those detained for offences attracting a potential sentence of five years (or more serious punishment), offences under the 1939 Act, as well as various drug trafficking offences. We consider here what thresholds have been set by other jurisdictions in relation to the obtaining of samples from suspects and in light of such practice whether the existing threshold should be reconsidered.

26.  What appears to be usual international practice has been to concentrate on obtaining samples from those suspected of the most serious of offences. For example in Germany the authorities may, for the most part, only obtain samples from those suspected or arrested for an “offence of substantial significance.”345 This term includes all serious offences plus a limited number of minor offences, which are themselves relatively serious. For an offence to fall within this second category, it must be attributable to a sphere of medium delinquency, it must disturb the public peace severely and it must be capable of substantially affecting the population’s feeling of legal security. Examples of minor offences falling within this provision include dangerous bodily injury and theft in a particularly serious case.

27.  Also under the Canadian Criminal Code a warrant to obtain bodily samples may only be obtained if there are reasonable grounds to believe that a “designated offence” has been committed.346 Designated offences, which fall into the two categories of primary and secondary, are enumerated in the Criminal Code and include the more serious crimes, such as facilitating terrorist activity, murder, manslaughter, sexual assault (which are primary), child pornography, indecent acts and assault (which are secondary).347 The distinction between the two categories of offence is important in terms of whose profile may be retained and stored on the DNA database.

28.  In New South Wales section 3 of the Crimes (Forensic Procedures) Act 2000 provides that a DNA sample may only be obtained from individuals who are suspected of a “prescribed offence” or who have been convicted of a serious indictable offence. A prescribed offence is defined as an indictable offence or any other offence that the State has prescribed by regulation.348 Although the scope of DNA sampling procedures may be widened by the State passing regulations designating offences, sampling is concentrated on the more serious offences. Indeed, the Parliament of New South Wales Legislative Standing Committee on Law and Justice in its Review of the Crimes (Forensic Procedures) Act 2000 (“NSW Review”)349 considered that less serious summary offences should not result in DNA sampling and recommended that no additional offences be prescribed for the purposes of section 3.350 The NSW Review also expressed concern about the use of secondary legislation to expand the range of offences that might result in a suspect being subjected to a forensic procedure and took the view that such public policy decisions should be made only after full parliamentary debate. Accordingly, the NSW Review recommended that the Attorney-General remove the enabling provision from section 3, thus ensuring that any further prescribed offences are added only after debate and by primary legislation.351

29.  Originally in England and Wales (which is from where the 1990 provisions were essentially derived) the Police and Criminal Evidence Act 1984 (“PACE”), which governs the powers of the police, set the threshold at the level of a ‘serious arrestable offence’.352 This threshold has now been down-graded by subsequent amendment to a ‘recordable offence’.353 A recordable offence is one which is potentially punishable with imprisonment of any length as well as certain other specified non-imprisonable crimes such as loitering or soliciting for the purposes of prostitution, possessing a weapon with a blade or a point in a public place, or tampering with a motor vehicle.354 Following this first series of amendments to PACE, in the Criminal Justice and Public Order Act 1994 (the second being through the Criminal Justice and Police Act 2001), the Home Office issued a Circular on the National DNA Database,355 which stated as follows:

“The new PACE provisions allow CJ [comparator] samples to be taken in all recordable offences. Chief officers have agreed that all offenders committing recordable offences will be profiled but that, in the first instance, the police should only obtain samples from offenders in the categories:

i) offences against the person;

ii) sexual offences; and

iii) burglaries.

This does not, however, preclude forces from obtaining CJ samples for other recordable offences for inclusion on the database nor does it compel forces to take samples in all the above categories or in all cases in selected categories. All forces should have a clearly stated policy for sampling.356

30.  The result of this shift in the requisite level of seriousness of offences has been that the number of profiles stored on the database has increased exponentially since 1995. Indeed the number recently passed the 2 million mark and the Home Office circular issued in 1995 envisages that, in time, the database will hold up to approximately 5 million records.357 As Lord Woolf CJ noted in R (S and Marper) v Chief Constable of South Yorkshire “[s]o far as the prevention and detection of crime is concerned, it is obvious the larger the databank of fingerprints and DNA samples available to the police, the greater the value of the databank will be in preventing crime and detecting those responsible for crime”.358

31.  It should, however, be emphasised that the law applicable in England and Wales is the exception rather than the rule and that the majority of States confine forensic sampling to the more serious offences. The position in the UK has in fact attracted considerable criticism. Indeed the Human Genetics Commission recently commented that “the emphasis in forensic profiling should primarily be on its use for serious criminal offences particularly those involving personal injury to another”.359 They expressed concern that DNA samples could be compulsorily taken from those suspected of minor offences for example shoplifting and fraud. They encouraged a greater public dialogue on the issue and urged the UK Government to review their decision to increase the range of offences for which a sample may be taken.

32.  As the Irish Council for Civil Liberties commented “Given the invasive nature of taking DNA samples, non-consensual testing should generally be strictly limited to persons convicted of serious offences”.360 This is the present position under the Criminal Justice (Forensic Evidence) Act 1990. The 1990 Act allows for the taking of samples from persons suspected of committing crimes under the Offences Against the State Act 1939, the Criminal Justice Act 1984 and the Criminal Justice (Drug Trafficking) Act 1996. Broadly speaking the powers conferred by the 1990 Act are aimed at offences towards the higher end of the scale of seriousness.361 The penalty for the majority of these offences is imprisonment for a period of at least five years. As is evident from the Oireachtas debates, the intention of the legislature was always to confine these powers to serious offences.362

33.  It is suggested therefore that samples should only be obtained from those suspected of committing offences of a serious nature. Permitting the obtaining of samples from those suspected of very minor offences would constitute a disproportionate interference with their bodily integrity and privacy rights. Generally, individuals suspected of very minor offences363 may not even be questioned under the present law. Allowing the compulsory taking of their DNA is a greater encroachment on their rights than questioning. Given the interference with the privacy and the bodily integrity rights of the suspect entailed by these provisions, they should be confined to, at the very least, relatively serious offences so as to meet the test of proportionality. In addition to this, on a practical note, it has recently been observed by one commentator that the expense of DNA profiling is not justified where it is expended merely to apprehend minor offences.364

34.  It has been suggested that the present provision, which outlines the offences for which it is permissible to take a bodily sample, could be replaced by a provision enabling samples to be extracted where a person is suspected of an “arrestable offence”. An “arrestable offence” is defined by the Criminal Act 1997 as “an offence for which a person of full capacity and not previously convicted may, under or by virtue of any enactment, be punished by imprisonment for a term of five years or by a more severe penalty and includes an attempt to commit any offence”. The Commission however submits that the definition of “arrestable offence” does not cover a sufficiently broad spectrum of offences. Persons detained under section 2 of the Criminal Justice (Drug Trafficking) Act 1996 may not be suspected of offences which meet the threshold of “arrestable offence” but nonetheless could be suspected of relatively serious offences, which the acquisition of DNA may be necessary to solve.365 Given that persons suspected of committing these offences may be detained in custody, the objections to obtaining DNA samples from them seem unpersuasive. It would be arbitrary and irrational to preclude the obtaining of a DNA sample in these few cases.

35.  The Commission concludes that there should be no alteration to the present situation in respect of the offences for which it is possible to obtain DNA samples from suspects. It should be possible to obtain bodily samples from a suspect when they are in custody under section 30 of the Offences Against the State Act 1939, section 4 of the Criminal Justice Act 1984 or section 2 of the Criminal Justice (Drug Trafficking) Act 1996.

36.  The Commission does not recommend any amendment to the present position by which a person must (subject to limited exception) be suspected of an “arrestable offence”, that is one carrying a penalty of at least five years imprisonment, to authorise the taking of a forensic sample.

1.      Retention of Profiles in General

37.  In examining what profiles should be retained on the database, one must discuss the two competing arguments that are made in this context. First, it has been argued that the storage of DNA profiles taken from citizens is unjustifiable.366 It is argued that the right to privacy implies that citizens should be entitled to control their own personal information and live life in privacy and not in a “total surveillance state”.367

38.  On the other hand, it has been argued that the retaining of the profiles of the entire population would significantly assist crime investigation and would consequently enhance citizens’ civil liberties.368 This argument is discussed in greater detail later in this chapter.369 Clearly a comprehensive (or inclusive) databank of fingerprints, palmprints, photographs, DNA profiles, retinal scans, and other biometric information, together with other details, such as names, addresses, employment history, and criminal records, would serve a number of purposes. These may include the detection of crime, benefit fraud, and illegal immigration.

39.  This Paper aims to effect a compromise between these two opposing positions. Although both these competing positions have merit, it is suggested that neither can be pursued in isolation. While it is necessary for the interests of society in crime investigation to be safeguarded, it is also imperative that there should be no unjustified intrusion into and interference with an individual’s right to privacy and bodily integrity. Ultimately, this is, as the case law under the ECHR indicates, a question of proportionality and reasonableness.

40.  The difficulty in determining the proportionality of a measure cannot be underestimated.370 For example, it is apparent that the retention of a violent offender’s DNA profile, which may be used to link them to future as well as past crimes (and perhaps deter them from committing further offences) on the basis of an amalgamation of the evidential significance and database justifications appears reasonably justifiable and proportionate. A more testing scenario is the retention of a profile from someone who has committed fraud or another non-violent ‘white-collar’ crime. It is, moreover, particularly difficult to justify the retention of a profile from someone who has not been (and perhaps, therefore, is unlikely in the future to be) involved in criminal activity involving the transfer or abandonment of biological material. Although in the future such a profile could in fact be useful to ascertain the identity of the individual. One must also observe that our idea of what crimes may and may not require forensic examination to forage for biological material for DNA analysis is becoming increasingly blurred because of the lightning speed at which the technology is advancing. For example, even a fraud case may involve the inadvertent abandonment of biological material, such as by the fraudster licking the envelope, within which one of the crucial documents relating to the fraud was sent to the victim, and thereby leaving skin cells present in the saliva.

41.  Moreover, the answer to the question of what is legitimate and necessary may change depending on the challenges of a given social and political climate. For example, the Omagh bombing of 1998 may have persuaded the Oireachtas to enact provisions in the Offences Against the State Act 1998, at which it might otherwise have baulked. Similarly, the emergence of global terrorism has enabled the UK administration to propose and its legislature to enact laws that in a pre-9/11 context would be viewed as quite draconian, but are now regarded as both legitimate and necessary. The English High Court has also recently stated that use of the wide powers conferred by the Terrorism Act 2003 to stop and search demonstrators at an international arms-fair in east London had been justified “in light of the threat of terrorism.”371

1.      Retention of Profiles of Suspects

42.  The 1990 Act is silent on what is to happen to the samples and profiles taken from those suspects who are convicted and not dealt with under the Probation of Offenders Act 1907.372 However, section 4 of the 1990 Act does direct that, in respect of those individuals who are subjected to a forensic procedure such as the taking of a sample for DNA, as part of the investigation of an offence but who are not ultimately convicted of any offence, the bodily samples and records relating to those samples must be destroyed. It can therefore be inferred as a result of the rule that if a provision expressly covers one situation and does not mention another cognate case, it is to be taken not to embrace the related case (the expressio unius est exclusio alterius rule), that if these suspects are convicted, their profiles can be retained.373 Consequently, there does not appear to be any prohibition in the legislation on the indefinite retention of the profiles of suspects who have been convicted but not dealt with under the Probation of Offenders Act 1907. In this section, we examine the situation in respect of suspects who are not subsequently convicted.

1.      Comparative Legislation

43.  A brief survey of the options taken in other jurisdictions in relation to suspects not convicted is instructive. In New South Wales, section 88 of the Crimes (Forensic Procedures) Act 2000 requires that forensic material taken under the Act must be destroyed if:

“(i) An interim order is disallowed after the procedure is carried out;

                                                        i.            A serious indictable offender has his or her conviction quashed and the sample was taken after a court order;

                                                      ii.            In the case of a suspect, 12 months has elapsed since the forensic material was taken and proceedings have not been instituted against the suspect for the offence, or proceedings have been discontinued;

                                                    iii.            In the case of a suspect for who there is a warrant for arrest, the warrant expires or 12 months has elapsed since the suspect was apprehended;

                                                    iv.            The suspect is convicted but no conviction is recorded.”

This particular legislation, as noted above, has recently been the subject of an extensive review. The NSW Review made a number of recommendations on the destruction of profiles and samples, including that both the samples and profiles of those suspects who have been exonerated, acquitted or otherwise cleared should be destroyed and the Committee took the view that retention is not justified when an individual is no longer a suspect.374

44.  In New Zealand, the Criminal Investigations (Bodily Samples) Act 1995 provides for the destruction of DNA samples and related records on acquittal, or on withdrawal of a charge.375 Under section 60(f) a sample must be destroyed 12 months after it has been taken if within that period there has been no charge in relation to the investigation. Section 61 of the Act allows for the extension, on an application to the High Court, of the period within which a sample may be retained, where a person has not been charged with an offence within 12 months of the taking of the sample. In order to extend the period of retention, the High Court judge must be satisfied that there is still good cause to suspect that the person committed the offence, that there is good reason why he or she has not yet been charged, and that it is important to the investigation of the offence that the bodily sample and the profile be retained. This latter provision is somewhat analogous to section 4(5) of the Irish Criminal Justice (Forensic Evidence) Act 1990 and ensures that the framework is not a straitjacket on the authorities investigating difficult and complex cases which may entail delays in bringing a prosecution.

45.  At the more inclusive end of the spectrum, in England and Wales, the Criminal Justice and Police Act 2001 (which amends the Police and Criminal Evidence Act 1984 (“PACE”)) removes the prohibition on the retention of fingerprints or samples, including DNA samples, after the person from whom they have been taken has been acquitted, or a decision has been taken not to prosecute. The amended section 64(1A) of PACE also allows fingerprints or samples to be retained and used in the investigation of other unrelated offences. Under section 64(1B) of PACE, fingerprints and information derived from samples may be retained on a database and speculative searches carried out against them.

46.  These powers are the broadest granted in relation to the retention of samples and profiles and have led some to argue that they permit excessive intrusion on privacy rights. Indeed, a leading UK human rights organisation, Justice, in its response to the proposals when the 2001 Act was published as a Bill, stated as follows:

“[T]here are significant questions as to whether the indefinite retention of fingerprint and DNA samples … would be considered to be a proportionate interference with privacy rights under Article 8 of the Convention. Although the Court and Commission of Human Rights have held that the retention of records, where there has been an acquittal or a decision not to prosecute, may be justified where the information is necessary for the investigation and prevention of terrorist offences, this has been stressed to be in the context of the serious threat to public safety posed by organised terrorism in the UK at that time. There are considerable doubts as to whether a similar principle would apply in relation to the investigation of the broad spectrum of criminal offences.”376

47.  Interestingly, although profiles obtained in Scotland are submitted to the UK National DNA Database, the law in England and Wales is not mirrored north of the border. In Scottish law, there still exists an obligation on the authorities to destroy samples and profiles taken from persons suspected of an offence, but who are subsequently acquitted or not prosecuted.377 The Human Genetics Commission (“HGC”) in its report on the use of personal genetic information highlighted the compliance difficulties in relation to the destruction of those ‘Scottish profiles’ that are loaded on the UK database378 – a matter that we will address in the Irish context379 when considering oversight and regulation.

48.  However, while the Human Genetics Commission criticised the fact that the UK legislation allows for the retention of samples from suspects after they are acquitted or charges are dropped, they did not condemn the provision allowing the profiles of persons to be retained in these instances. The HGC recognised the importance of the distinction between the samples and the profiles. While a sample can potentially contain the whole of an individual’s genetic make-up, the personal genetic information contained in a profile is at present extremely limited.380 As a result, the arguments in favour of the destruction of samples are considerably stronger than those in respect of the deletion of the profiles derived from them. The Commission recommends the destruction of all comparator samples after the conclusion of the trial for which they were obtained.381

1.      The Marper Case

49.  The issue of the retention of DNA profiles and samples lawfully taken from people who have been investigated but not convicted of any offence has recently been considered by the Court of Appeal of England and Wales in the light of the Human Rights Act 1998 in the case of R (S and Marper) v Chief Constable of South Yorkshire and Secretary of State for the Home Department (“Marper”).382

50.  The facts of these conjoined appeals were as follows. S, a 12 year old boy, with no previous convictions, was arrested on a charge of attempted robbery. He had his fingerprints and DNA sample taken but subsequently he was acquitted of the offence. In the other appeal, Marper had been arrested and charged with harassment of his partner. His fingerprints and DNA sample were also taken. Subsequently the CPS issued a notice of discontinuance. The legal representatives of S and Marper applied to the Chief Constable of South Yorkshire to have their fingerprint records and DNA samples and records destroyed. However, pursuant to section 64(1A) of Police and Criminal Evidence Act 1984 (as amended by the Criminal Justice and Police Act 2001), which retrospectively permitted the authorities to retain such records and samples, the Chief Constable refused to accede to these requests.

51.  Counsel on behalf of the claimants argued that the retention of the samples breached Article 8 of the ECHR on the right to privacy and Article 14 of the ECHR on the right to non-discrimination.

52.  All three judges in the Court of Appeal accepted that retention did interfere with Article 8 rights. Waller LJ was convinced by the submissions of Liberty that “there is a breach of Article 8(1) in the retention and use of samples independent from the original breach of that Article in the taking of the samples in the first place.”383 For Lord Woolf CJ, whether there was any interference depended much upon the cultural traditions of a particular state and in view of these he concluded that “fingerprints and samples are material which is regarded as being personal to the individual from whom it is taken and so requires legal justification before it can be retained.”384 In recognising that the retention of personal information represents a further and continuing invasion of the right to respect for one’s private life, Sedley LJ took into account “the strong cultural unease in the United Kingdom about the official collection and retention of information about individuals.”385

53.  It therefore fell to the court to determine whether the interference was justified by reference to Article 8(2).386 The Court of Appeal accepted that the justifications advanced in Article 8(2) were in issue. By virtue of section 64(1A), the retained profiles may only be used for the purposes of the prevention or detection of crime, investigation of an offence or the conduct of an investigation. The “prevention of disorder or crime” is specifically expressed in Article 8(2) to be a concern which justifies interference with the right to privacy. The Court of Appeal then went on to consider whether the interference with Article 8 was proportionate and held that it was. Lord Woolf CJ held that this was so because only the fingerprints and samples that were lawfully taken could be retained. He also stated that there was no less harmful means by which the objective could be achieved. The interference in question here did not go beyond what was necessary for the objective in question to be achieved. Both Waller LJ and Sedley LJ were influenced greatly in holding that the measure was proportionate by the fact that the profile could not be used for any purpose other than crime enforcement purposes. Liberty had submitted that science could in the future enable DNA analysis to prove an individual’s propensity to commit certain crime and the wording of the section was sufficiently broad to encompass the use of DNA for this purpose. They also alerted the court to the risk that the samples and profiles could be used in an unlawful manner. However, Waller LJ dismissed the first concern by holding that any change in the law or practice must comply with the Convention. He dismissed the concern about risk of unlawful use by refusing to assume any unlawfulness. He also held that the risks in question here were outweighed by the benefits in achieving the aim of preventing crime.

54.  The potential infringement of section 64(1A) with Article 14 of the ECHR, which protects against discrimination, was also considered. The Court of Appeal unanimously decided that there was no breach of Article 14. There was no discrimination in the obtaining of the samples as it was necessary to obtain these samples for the investigation of the offence. The presumption of innocence did not preclude people from being investigated for offences so the fingerprints and samples were lawfully taken in the course of the investigation. Once these samples were lawfully obtained, there was an objective difference between citizens who had their samples or fingerprints taken and those who did not. What distinguishes them is the fact that the suspects have already had their fingerprints taken. The different treatment was deemed to be fully justified as unless the samples or fingerprints matched those alleged to be responsible for an offence, no harmful consequences would flow from the retention.

55.  Implicit in the Court of Appeal’s decision in Marper is a measure of judicial respect for the legislature. Lord Woolf CJ observed that “it is important that the courts show appropriate deference to the body whose decision has the advantage of being able to rely on unimpeachable democratic credentials”.387

56.  This approach is comparable to the “margin of appreciation” test in ECHR jurisprudence, which provides that “by reason of their direct and continuous contact with the vital forces of their countries, the national authorities are in principle better placed to evaluate the local needs and conditions”.388 As Sir John Laws points out the margin of appreciation is not relevant in the domestic context.389 As a result of the ECHR Act 2003, the ECHR will in the future be administered in Ireland by Irish judges. Consequently, the margin of appreciation will not be applicable in this context.

57.  Nevertheless, a similar doctrine of domestic judicial deference has emerged in the UK case law on the Human Rights Act 1998. It seeks to maintain the distinction between appeal and review thus ensuring that the courts do not take over the role of primary policy and decision-maker. For example, areas that may require “judicial reticence”390 include social or economic policy391 and allocation of resources.392 In the development of Irish constitutional law, the courts have adopted similar “rules of prudence”.393

58.  While expressing judicial deference in the specific context of Marper, a further feature of Lord Woolf CJ’s judgment is the explicit recognition that there is nothing in the ECHR setting a ‘ceiling’ on the level of respect which a jurisdiction is entitled to extend to personal rights. Accordingly, there may be situations where the standards of respect for the rights of the individual may be higher than those required by the ECHR.

1.      Conclusion

59.  As discussed earlier,394 the European Commission on Human Rights (“ECmHR”) confronted, in the case of McVeigh, the issue of retaining personal data taken from an individual, including photographs and fingerprints, where that individual was not convicted of any offence. In that case the ECmHR was satisfied that not only did the purpose of the retention pursue a legitimate aim, but that the measure permitting retention (for the time being) was proportionate in view of the threat posed by terrorism in the UK. One commentator has suggested that the ECmHR may also have been influenced by the fact that the personal data retained was used for identification purposes only and kept separately from criminal records.395 In light of this case and considering that the Irish courts have a duty to take into account the jurisprudence of the Strasbourg institutions,396 it is evident that it is permissible for profiles of persons who are suspected of terrorism to be retained on a database, even if charges are not subsequently brought.

60.  At present, the ECtHR has yet to decide on the compatibility of measures allowing suspect’s profiles to be retained indefinitely on national databases with the ECHR. It has yet to decide whether concerns other than that of preventing terrorism can justify the retention of acquitted suspects’ fingerprints and DNA profiles indefinitely. The Court of Appeal in the UK has in Marper however affirmed the compatibility of measures allowing for the indefinite retention of suspects’ profiles with the ECHR.

61.  On this important issue, the Commission favours the retention of the profiles of suspects indefinitely. We are of the opinion that this approach strikes a fair and proportionate balance between the rights of the individual citizen and the interests of society. In order for a measure to be a proportionate interference with an individual’s rights, it must not go beyond what is necessary for the objective in question to be achieved.397 In this instance, this is the prevention and detection of crime. We consider that this recommendation constitutes a proportionate interference with the suspect’s right to privacy in accordance with the principles detailed in chapter 3.398 The three considerations which should be taken into account in applying the proportionality test are: the level of interference with the right, the relative seriousness of the corresponding need and the category of the applicant. The discussion in the next few paragraphs illustrates that these considerations demonstrate that our proposal is a proportionate interference with an individual’s rights. There are a number of limiting elements to our recommendation, which ensure that the measure is indeed a proportionate interference with these rights.

62.  First, we have recommended that samples may only be taken from those who are suspected of the commission of serious crimes. As observed in the previous paragraph, the category within which the individual falls is important in determining if the measure is proportionate. The Commission therefore does not suggest moving to the situation in the UK, where under the changes made in the 2001 Act, a sample can be taken from persons suspected of committing a “recordable offence”. Some offences which constitute “recordable offences” are rather trivial.399 Our proposal ensures that it is only those who are suspected of committing serious offences that are exposed to the retention of their profiles on the database.

63.  Secondly, one of the grounds for the Court of Appeal’s decision in Marper was that the profiles on the database could only be used for crime investigation purposes. The court observed that this demonstrated that the measure was proportionate. The level of interference with the right is an important factor to be taken into account in applying the proportionality test. The Commission proposes that the use of the profiles be confined to crime investigation purposes and the identification of deceased and severely injured people.400 The level of interference with the right to privacy is consequently quite limited. Any attempt to utilise these profiles for additional purposes, for example to reveal the individual’s genetic characteristics, would be prohibited by these proposals. As is discussed below, the uses to which the database may be subjected should be defined in precise terms.401 This will ensure that the permitted purposes outlined in the legislation will not be extended beyond those which are compatible with the ECHR because of ambiguity. Consequently, unless the suspect commits a further offence, he or she will not suffer any disadvantage from the retention of a profile on the database.

64.  Any possibility of misuse, a concern which Liberty identified in its submission to the court in Marper, will be precluded in all but the most exceptional of cases, by virtue of the safeguards the Commission is proposing in Chapter 8. Misuse under these conditions designed to ensure security would be unlikely, easily detectable and would carry harsh consequences. The small risk involved should not outweigh the benefits attained by the retention of the profiles of suspects indefinitely.

65.  The seriousness of the corresponding need is another important factor to be taken into account in applying the proportionality test. The significance of the objective to be achieved is evident here. Retaining the profiles of suspects on the national database would increase the number of profiles on the database and correspondingly the number of offenders likely to be detected. The need to reduce the incidence of serious crimes and to detect the offenders of those crimes committed is undoubtedly an important objective. Any less inclusive database may not be cost effective. Given the substantial safeguards recommended by the Commission to ensure the security of the database,402 the cost of operating the database will prove extensive. In order for this substantial cost to be justified, the benefits afforded by the databank should justify the cost involved. Therefore, the databank must be composed of a significant number of profiles or it would simply not prove viable and the plan to establish a database might not be feasible.

66.  Finally, it must be observed that the Commission is merely recommending the retention of the profiles of suspects. We suggest in the next chapter that in most cases the comparator samples should be destroyed after the conclusion of the trial for which they were obtained. This is in contrast to the decision of the Court of Appeal in Marper and most appropriately explains the trenchant criticism by Justice, quoted above.403 Retaining the profiles only, as opposed to the profiles and the samples, is a further limiting provision which assists in maintaining the proportionality of the measure.

67.  The Commission recommends that the DNA profiles obtained from individuals in custody under section 30 of the Offences Against the State Act 1939, section 4 of the Criminal Justice Act 1984 and section 2 of the Criminal Justice (Drug Trafficking) Act 1996 may be retained indefinitely on the national database.

4.      Convicted Offenders

68.  The advantages of sampling convicted people are twofold. First, the profiles obtained can be checked against profiles of past crime scene stains to see if the convicted person had some link with these offences. Secondly, the storing of the profiles on the database could in the future implicate a convicted person in a crime and could consequently, although arguably improbably, deter the convicted person from committing a crime. At present the taking of samples from convicted persons in prison is permitted under section 2(2) of the Criminal Justice (Forensic Evidence) Act 1990. Both the intelligence gathering or database justification and the true identity justification are embraced here.404 It is proposed that in the event of suspects being convicted, their profiles may be retained. We intend to examine now whether the sampling and retention of profiles of convicted persons is justifiable, where their DNA profile has not been obtained as a suspect.

1.      Sampling

1.      Retrospectivity

69.  A preliminary issue that must be addressed is whether the proposed scheme for sampling should be prospective. At present, the Criminal Justice (Forensic Evidence) Act 1990 permits the retrospective sampling of convicted offenders.405 This issue is relevant to both whether the convicted person can in this instance be made to give a sample and also whether, if the sample is taken, the profile extracted can be retained on the database. It is an important principle of the criminal law that no one should be subjected to a penalty that was not available at the time they were convicted. This principle is specifically provided for in Article 7 of the ECHR.406 Also, Article 15.5 of the Constitution prohibits retroactive penal legislation. This Article is a prohibition on the enactment of retrospective laws declaring acts to be an infringement of the law, which were not unlawful previously. It is not a prohibition on the enactment of retrospective legislation generally. Article 15.5 is not therefore directly applicable here. Kelly comments however that a prohibition on the imposition of a penalty that was not available at the time the offence was committed is probably inherent in the right to be tried in due course of law under Article 38.1 of the Constitution.407 This was affirmed recently by the judge in Enright v Ireland,408 where it was accepted that there was a prohibition against a law, which increases the penalty after the date of the commission of an offence.

70.  It is therefore important to examine whether the measure in question is a penalty here for the purposes of Article 7 of the ECHR and Article 38.1 of the Constitution. Justice Action put the argument this way in its submission to the NSW Review “it was not intended by the original magistrate, when those people were sent to gaol, that they would lose their right to bodily integrity and genetic privacy, and would be subject to DNA surveillance for the rest of their lives”.409 It regarded the obligation to submit to a DNA test as an additional penalty to that imposed on conviction.410 However, if the sampling requirement is regarded as merely preventative rather than punitive, it will not constitute a ‘penalty’ within the meaning of Article 7. This is evident from Ibbotson v United Kingdom411 where the EComHR held the registration requirements for the Sex Offenders Act 1997 were preventative rather than punitive and therefore not a ‘penalty’. A similar argument could be made in respect of the sampling requirement which is imposed to deter the convicted person from committing further offences. The substance and severity of the measure must also be examined in order to determine whether it is a ‘penalty’.412

71.  On balance, the Commission does not regard the measure as a “penalty”. This is because the measure will only have punitive effects if the convicted offender has already committed offences or does so in the future. In addition to this, the taking of a sample is not enforceable by a term of imprisonment in default.413 It is also compulsorily imposed upon suspects even though they have not been convicted of an offence. This illustrates that it is not intended to have a punitive effect. Rather, this is just a form of evidence, which has been collected using a more sophisticated device than was available at the time of the offence. It is evident therefore that Article 7 of the ECHR and Article 15.5 and Article 38.1 of the Constitution do not prohibit the taking of a sample from a person who is at present convicted of an offence.

1.      Threshold

72.  One must examine whether the offences for which it is permissible to obtain samples from convicted people should be the same as those for which it is possible to take samples from suspects. It is easier to justify interference with a convicted person’s right to bodily integrity than a suspect’s right.414 Consequently, while the threshold for obtaining samples from suspects is that of serious offences only, it may be justifiable to sample all convicted offenders who are in prison. This is the position adopted in South Australia under section 30(3)(a) of the Criminal Law (Forensic Procedures) Act 1998, which simply has the prerequisite that the convicted person is in prison at the time that it is sought to obtain the sample. The Commission agrees with this provision. It strikes an adequate balance between the convicted person’s rights and the interests of a law-abiding society in crime investigation. We do not extend this recommendation to convicted offenders who are serving non-custodial sentences. To extend it to non-custodial and suspended sentences would constitute too great an infringement on the convicted person’s rights. The fact that the convicted person has received a sentence of imprisonment illustrates that the offence is not so minor as to preclude compulsory sampling.

1.      Safeguards

73.  At present, a sample can only be taken from a person in custody or in prison where they are suspected of having committed certain offences or if the sample would tend to confirm or disprove their involvement.415 It could be argued that while these safeguards should remain in the case of samples taken from suspects, the situation is necessarily different in respect of convicted persons. In the latter instance, the purpose for which the samples are taken is different. In the case of suspects, samples are only taken if it is necessary to solve the offence which the person is suspected of committing, although once they are obtained, they may be retained for the purpose of detecting other crimes. In the case of convicted people, samples are taken not only to link them to any past crimes but also to enable the Gardaí to use the profile extracted to detect any future crimes the convicted person may commit.

74.  This issue has recently been addressed in a number of cases in the USA. These cases concerned the obtaining of DNA samples from convicted persons irrespective of whether they are suspected of committing another offence and whether this intrusion breaches their Fourth Amendment rights. Two rationales have been used in the US cases to justify this interference. The first rationale is the reasonableness justification. In Boling v Romer416 and Shaffer v Saffle,417 it was held that the interest of society in the identification of those arrested in order to solve current as well as past and future crimes outweighed any claims to protection under the Fourth Amendment. Particular emphasis was placed on the fact that prison inmates forfeit some of their rights on being convicted and only minimal intrusion would be involved in the DNA sampling. The second rationale used is the “special needs exception”. This provides that a search may be reasonable even when it is predicated on less than probable or individualised suspicion where special needs, beyond the normal need for law enforcement, render those requirements impractical. These cases demonstrate that it is possible to justify the taking of compulsory samples from convicted people in this instance. However, it should also be noted in respect of the US position that recently the US Circuit Court of Appeals has ruled that the federal mandatory DNA testing statute is unconstitutional on the basis that individualised suspicion must be present for a measure to be reasonable and also that the “special needs exception” does not apply in this instance as the measure aims merely to detect ordinary criminal wrongdoing.418 On balance, however, the position in the US seems to favour the obtaining of samples in this instance. The majority of US cases favour this position.

75.  We agree with the reasoning of the earlier US cases. It is easier to justify interference with a convicted person’s right to bodily integrity than with a suspect’s right.419 This is evident from Irish law, the case law of the ECtHR and the US case law outlined above. Therefore, while it may not be justifiable to take a suspect’s sample unless it may help to prove or disprove involvement in an offence, the taking of a convicted person’s sample is justifiable in wider circumstances. The fact that a person has been convicted increases the likelihood that they may have committed other offences and will commit further offences so it is justifiable to take a sample to detect either of these occurrences. A convicted person has also by unlawful conduct in effect waived the right to avoid having a DNA sample taken.

1.      Non-Custodial Sentences

76.  One must examine whether the power to take samples from convicted people should extend beyond those currently in prison. Section 2(2) of the Criminal Justice (Forensic Evidence) Act 1990 provides that only convicted offenders who are in prison may be subjected to the compulsory taking of samples. Attempts have been made in other jurisdictions to subject convicted persons who are not in prison to similar procedures. For example in the UK under section 27 of the Police and Criminal Evidence Act 1984, a person convicted of a recordable offence who is not in custody may be required to attend the police station to submit to fingerprinting. It is also possible to fingerprint individuals who have been given non-custodial sentences in this jurisdiction under section 28 of the Criminal Justice Act 1984. However, the Commission does not intend to recommend the enactment of a similar provision in respect of DNA samples. Such a measure would constitute a disproportionate interference with individuals’ rights in that it would subject even people convicted of extremely minor offences to a routine invasion of their privacy and bodily integrity. It would not be justifiable under the principles in respect of privacy rights.420 It could also have a potential impact on an individual’s liberty rights under Article 40.4 of the Irish Constitution and Article 5 of the ECHR and it could prove extremely difficult and costly to implement in practice.

77.  The Commission recommends that a person convicted of an offence, who is in prison, may be subject to DNA sampling without their consent. This sampling should be subject to the safeguards and rules set out in the Criminal Justice Act 1984 and the Scheme of the Criminal Justice Bill 2003. However there should be no need, in the case of convicted offenders in prison, to show that the taking of the sample was required to prove or disprove involvement in an offence nor to prove that it is suspected that the convicted person committed an offence in addition to the offence, which caused the incarceration.

78.  The NSW Review recently recommended that in the event of a convicted offender’s conviction being quashed, the DNA profile should be erased.421 The Commission agrees with this sentiment in respect of profiles obtained after the conviction of the person. Where profiles are obtained while the person is a suspect, the quashing of their conviction should not result in the erasure of their profiles. This is because the Commission recommends that the profiles of suspects should be retained indefinitely irrespective of whether they are convicted or not.422 However, in the event of profiles being obtained while the person is convicted, they should be destroyed if the conviction is subsequently quashed. The justifications listed above collapse when it is discovered that the defendant is in fact not guilty of the crime of which he was convicted. The power to obtain samples from convicted persons is also considerably wider than that for suspects. It is therefore suggested that where an accused’s conviction is quashed under section 2 of the Criminal Procedure Act 1993 and the profile was obtained while he or she was convicted, the profile should be removed from the database.

79.  The Commission recommends that on the quashing of an accused’s conviction, where the profile was obtained while they were in prison, the profile should be deleted from the database.

1.      Retention

80.  One must examine the length of time for which a profile obtained from a convicted person may be retained on the database. Should it be retained even after the convicted person has served their prison sentence? It is instructive to examine the comparative law in this regard. In Australia, there is no provision preventing the use of profiles obtained from convicted people for matching purposes after the convicted person has served their prison sentence.423 In the UK, under section 64(3AA) of the Police and Criminal Evidence Act 1984 there is no obligation to delete the profiles from the database at any stage even if the conviction has been spent. In New Zealand similarly, under the Criminal Investigations (Bodily Samples) Act 1995, there is no need to destroy profiles obtained from convicted people. The Commission is of the view that a similar approach should be followed in Ireland.

81.  Again, as discussed above, it is easier to justify interference with a convicted person’s rights than with a suspect’s. It was accepted in McVeigh, O’Neill and Evans v UK,424 that the category of applicant is an important factor to be taken into account when deciding whether a measure is proportionate. Retaining a convicted person’s profile on a database indefinitely could have significant crime detection and prevention functions. It could allow the police to detect any future offences committed by the convicted person or could deter the person from committing any further offences. The benefits obtained by retaining this profile justify the interference with the convicted person’s privacy rights.425 Another important factor is the fact that the profile can only be used for the limited purpose of crime enforcement, as observed in Marper.426

82.  The Commission recommends that a convicted offender’s profile be retained indefinitely on a national database.

5.      Volunteers

1.      Sampling

83.  Taking samples from volunteers for crime investigation purposes is a widespread practice. It may be necessary to take samples from volunteers for a range of reasons. In any crime investigation where DNA is involved, it is imperative to take samples from the victim and from all other people who had contact with the scene but are not yet suspects in order to ensure that the DNA present at the scene does not originate from them. This is based on the evidential significance justification.427 However, it has been recommended by the Commission that the taking of all samples should be exclusively governed by legislation and should encompass all samples, even those taken on a voluntary basis.428 This was based on the concern that many samples are taken voluntarily and are thus unregulated by legislation. We outline here the circumstances in which such sampling may take place.

1.      Comparative Law

84.  The comparative law indicates that provision is made in most international legislation for the sampling of volunteers. However, in these jurisdictions there are also a number of provisions which require the consent of the volunteer before any sample can be taken. In the UK, under sections 63(1) and (2) of the Police and Criminal Evidence Act 1984, a sample may be taken from any person provided that the appropriate consent is given in writing. In New Zealand, the police may request a volunteer to give a sample under section 30(1) of the Criminal Investigations (Bodily Samples) Act 1995. However, in order for the consent to be a valid one, the police are obliged to provide the volunteer with a notice containing a number of statements. These must set out the purpose for which the sample is required, a statement that the person is under no obligation to consent to the taking of a sample, a statement that a person may consult a lawyer before consenting to the taking of the sample and a statement that the sample will be retained on the national databank and used for the investigation of offences. The consent must also be in writing, signed by the person, given orally and recorded on a videotape by virtue of section 34(1) of the Act.

85.  In Australia under section 23XWR of the Crimes Act 1914 as amended, a volunteer must be informed of a number of matters before they can give an informed consent to the forensic procedure. The constable must advise the person that they may consult a legal practitioner before giving consent, that the forensic procedure may produce evidence that can be used in a court of law and that the information may be retained on a database, on which there will be some discussion later. The consent must be given in the presence of an independent person. Similarly, Part 8 of the NSW Crimes (Forensic Procedures) Act 2000 requires that the consent of a volunteer be informed and given in writing in the presence of an independent person.

 

1.      Conclusion

1.      The Commission agrees with the thrust of these provisions. Taking a blood sample from someone who is not suspected of the commission of the crime without their informed consent could constitute an infringement of their right to bodily integrity.429 Therefore, safeguards akin to those in New Zealand or in Australia should be introduced to ensure that the consent of the volunteer is informed and real. In the event of a failure to follow these safeguards, any evidence obtained from the volunteer could be inadmissible in the absence of a subsequent informed consent and the profile would have to be destroyed. However, as part of the direction, the individual should also be informed of their moral, albeit not legal, duty to assist in solving the crime. The sample could be necessary to convict the perpetrator of the crime.

2.      At present, where consent is required under the 1990 Act in respect of the taking of samples from individuals under the age of 17, section 2(10) provides that the consent of that person and their parents or guardian is necessary if that person has attained the age of 14. If the person is under 14, the consent of the parents or guardian is adequate. The definition of “appropriate consent” set out in section 2(10) should form the basis for the consent required from volunteers under the proposed scheme.

3.      It is also important that samples are not taken unnecessarily from volunteers. Individuals should only be requested to provide bodily samples if their samples are likely to be useful for the investigation of an offence. Such an intrusive procedure should only be carried out if it is necessary. It is probable that volunteers may feel under pressure to provide a sample when they are requested to do so by the Gardaí. Consequently, such a request should not be made too readily.

4.      It is also possible that a request to submit to giving a sample in this instance could constitute a breach of the individual’s privilege against self incrimination.430 A failure to consent to DNA profiling could lead the Gardaí to suspect the individual of committing the crime even though they did not initially have such suspicions. This could result in the individual’s arrest and the compulsory taking of a sample under section 2 of the Criminal Justice (Forensic Evidence) Act 1990. While the breach of the individual’s privilege against self incrimination in this instance could be justified under the principles enunciated earlier,431 this is only if the infringement is pursuing a legitimate aim. It could not be deemed to be pursuing a legitimate aim unless the request for the sample was likely to be necessary for the investigation of an offence. In order to minimise the breach to the individual’s privilege against self incrimination, failure to consent should also be precluded from constituting a reasonable ground for suspecting a person’s involvement in an offence so as to justify the taking of a compulsory sample from them under section 2 of the 1990 Act and head 10 of the Scheme of the Criminal Justice Bill 2003. This provision would be similar to section 84 of the NSW Crimes (Forensic Procedures) Act 2000, which provides that evidence of a refusal or failure to consent or withdrawal of consent to a procedure is not admissible as evidence in court against the person. This would not preclude its use for investigative purposes.

5.      The Commission recommends that the taking of samples from volunteers should only occur under legislative cover and with the exception of the provision for the compulsory taking of samples below, only if they consent and the sample is likely to be useful for the investigation of a specific offence. Volunteers should be defined as persons from whom samples are taken who are not suspects or convicted offenders. In order for their consent to be valid, it must be informed, in writing and they should be given an opportunity to consult a legal practitioner before they agree to provide a sample. For it to be an informed consent, they should be notified of the purpose for which the sample is to be provided, the use that will be made of it and the fact that they are under no obligation to provide a sample. Failure to consent should also be precluded from constituting a reasonable ground for suspecting a person’s involvement in an offence so as to justify the compulsory taking of a sample from them under section 2 of the 1990 Act and head 10 of the Scheme of the Criminal Justice Bill 2003.

6.      We now turn to the question of whether individuals who are not suspected of committing offences or have not been convicted of an offence may in any instance be compelled to provide profiles for the purpose of the investigation. Several circumstances can be contemplated whereby such profiles could become necessary. For example, it may be necessary to acquire samples from investigators or other people who were innocently present at the crime scene to ensure that the crime stains are not composed of their DNA. While in most instances, such individuals will willingly provide samples, they may sometimes refuse. This could considerably hamper the investigation. A question arises as to whether such individuals should be compelled to provide a sample in this situation.

7.      The comparative law in general does not allow for such a power. In the UK, which is the jurisdiction with the most extensive powers in respect of the taking of samples, there is no provision authorising the compulsory collection of samples from non-suspects. In the Commission’s view, a general provision allowing for the routine taking of samples from non-suspects would be incompatible with the individual’s right to privacy and bodily integrity.432 We have identified three factors that should be taken into account in applying any proportionality test in deciding whether any interference with a person’s right to privacy is justified.433 Firstly, the level of interference with the individual’s rights must be considered. The level of interference is extensive here given the intimacy of the data involved. Secondly, the seriousness of the corresponding need must be considered. In this situation, the need in question is the apprehension of a criminal. While this is a serious need, the aim in question will generally be capable of being achieved without the level of interference involved here. Taking a sample from the suspect in most cases will be sufficient. However, on the other hand, it may be imperative to rule out that the profile from an ostensible crime stain in fact belongs to an innocent person who came on the scene or is from a member of the investigating team. Finally, the category of the prospective donee must be considered. In this case the donee is a non-suspect and therefore any interference with their rights must be strongly justified.

8.      On the basis of these considerations, the Commission believes that it is only in exceptional cases that the Gardaí should be entitled to take a sample compulsorily from an unwilling non-suspect. The Gardaí should be required to obtain judicial authorisation before they can take a sample from such a non-suspect. The exceptional cases where the taking of a sample of a non-suspect would prove justifiable are those where the non-suspect is refusing to consent in order to obstruct the course of justice. It is only where the non-suspect is attempting to obstruct the course of justice that the coercive taking of a sample may justifiably be conducted. In such an instance, the non-suspect is unconcerned with the infringement of his or her individual rights and consequently, the interference with his or her individual rights cannot outweigh the legitimate aim of preventing and detecting crime. The Gardaí should be required to prove this desire to obstruct the course of justice on the balance of probabilities. The court, in determining whether the individual is seeking to obstruct the course of justice, should examine the reasons for the individual’s refusal to consent. It should also assess the seriousness of the alleged crime for which the sample is necessary in order to decide whether the seriousness of the corresponding need justifies the compulsory taking of a sample from a non-suspect in this instance. It should examine whether the sample is truly necessary for the conduct of the investigation. If it is not so necessary, then it should not be obtained without consent, even if the individual is seeking to obstruct the course of justice. The DNA sample should also only be used for the purposes of the investigation in question and should be destroyed once it is no longer necessary for this investigation and any ensuing proceedings. It should not be retained on the national database.

9.      The Commission recommends that samples from persons other than suspects or convicted persons may only be taken without the consent of the person where a court order authorises the taking of the sample on the basis that the person is endeavouring to obstruct the course of justice in refusing to give the sample and the sample is necessary for the investigation of a serious offence.

1.      Retention

1.      Retention of Profiles of Volunteers Generally

1.      When a volunteer provides a sample, it should not automatically be assumed that such a sample may be inserted onto the national database. While an individual may consent to the taking of a sample where it will assist a particular investigation, this may not extend to allowing their profile to be placed on a database for an indefinite period. For example, while an assault victim will generally be receptive to providing a sample for the purposes of the recognition of the victim’s own profile in the case against the alleged attacker, there is less likely to be consent to the use of this profile for unrelated purposes. In other words, while a person may accept the obtaining of this sample for the evidential significance justification, consent may not be forthcoming for its retention for the intelligence gathering justification. This is particularly so in the case of volunteers who provide samples in the course of mass screens. Such persons could in fact be strongly opposed to the use of their profile for insertion onto a national database. It is therefore important that before the volunteer’s profile is inserted onto the database that a full and informed consent is given to this retention and that full information is given about the implications of having the profile on the database, including its use for speculative searches.

2.      The Commission recommends that a volunteer’s profile may only be retained on the national database, where an informed consent has been given for this. A volunteer should be advised of all the implications that this insertion will involve including the fact that it may be used for the purpose of future searches.

3.      Provision should also be made for volunteers who, though unconnected with any particular crime, wish their profiles to be inserted onto the national database to eliminate them from suspicion from any future crime. Such people believe that the retention of their profiles on the database effectively secures them from unjustified suspicion and in general, this retention enhances their overall confidence in the Gardaí and legal system.434 It is apparent that there can be no objection to enabling these individuals to submit their samples for retention on the database. No infringement of their individual rights is in issue here and allowing them to submit a profile may enhance their human rights and public security. Permitting the submission of a profile in these circumstances could be regarded as a form of freedom of expression under Article 40.6 of the Irish Constitution and Article 10 of the ECHR. Alternatively, it could be regarded as a protection of an individual’s personal rights under Article 40.3 of the Constitution.

4.      The Commission recommends that any individual, even a person unconnected with a particular investigation, should be permitted to have their profile retained on the national database.

1.      Withdrawal of Consent

1.      In the UK, section 63A(1D) of the Police and Criminal Evidence Act 1984 provides that a consent by a volunteer to the retention of their profile cannot be withdrawn. This provision is at variance with the situation in other common law jurisdictions. In New Zealand under section 36 of the Criminal Investigations (Bodily Samples) Act 1995, a person can withdraw their consent to the use of their sample at any stage after the sample has been obtained. Under section 23XWT(2) of the Australian Crimes Act 1914 as amended, a volunteer can withdraw their consent to the retention of the forensic material or the DNA profile.

2.      There are clearly benefits to prohibiting the withdrawal of consent in the case of volunteers. It would lead to the detection of more crime because volunteers would be prevented from seeking the removal of their profiles from the database in the event of them committing or planning to commit any offence. However, this proposal, if implemented, would also have significant costs. It was observed by the Office of the Victorian Commissioner in a submission to the Australian Law Reform Commission that after a serious crime is committed, there is potential for the shock to induce volunteers to consent to the retention of their profiles when they would not otherwise do so.435 The Human Genetics Commission also noted the potential for coercion to be exercised in obtaining the initial consent.436 Individuals may believe that if they do not consent in these circumstances, the suspicions of the Gardaí will be aroused. While requiring an informed consent in this instance could considerably reduce the risk of such coercion, it could never be completely eliminated. Consequently, retaining the profiles of such innocent people after they have ceased to be willing entails a significant interference with their privacy and bodily integrity rights.

3.      Such an intrusion cannot be regarded as a proportionate interference with their rights as these people are innocent and there is no reason to suspect that they will commit any crimes in the future. The category of the person involved is an important factor to be taken into account in applying the proportionality test.437 The slight increase in crime detection that this prohibition on withdrawal would involve could not justify the significant intrusion with the rights of these individuals. In any event, refusing to allow volunteers to withdraw their consent to the retention of their profiles could in fact reduce the number of profiles retained on the database. The prohibition on the withdrawal of consent could prove counter-productive as in practice it might deter people from initially consenting to the retention of their profiles on the database.

4.      The Commission recommends that volunteers be permitted to withdraw their consent to the retention of their profiles on the national database.

1.      The Volunteer’s Index

1.      In Australia, volunteer’s profiles may be inserted onto either an ‘unlimited purposes’ or a ‘limited purposes’ index.438 The ‘limited purposes’ index precludes the matching of profiles within this index against profiles in other indexes except with the informed consent of the volunteer. The ‘unlimited purposes’ index allows speculative searches to be conducted between the volunteer’s index and all the other indexes. In Australia, the volunteer may submit to the addition of his profile to either index. However, this distinction between the two indexes has attracted criticism from a number of sources in Australia.439

2.      The Commission do not consider that there is any need for two separate indexes containing the profiles of volunteers. Instead, volunteers should be required simply either to consent to the retention of their profiles on the national database or not to consent to this. If they consent to the submission of their profile to the database, this consent will enable the profile to be used for any of the purposes detailed in the new legislation.440 If they are opposed to the use of their profile for any of these purposes, they should withhold their consent to its retention on any index. The provisions concerning informed consent suggested by the Commission would ensure that any consent was free and fully informed. Requiring the volunteer to decide between the retention of a profile on a ‘limited purposes’ database, on an ‘unlimited purposes’ database or on no database at all is unnecessarily complex. This choice would on occasion confuse the volunteer and therefore result in mistaken decisions being made.

3.      The Commission recommends that if a volunteer consents to the retention of their profile on a national database then it may be utilised for any of the purposes permitted.

1.      Mass Screens

1.      The advantages and disadvantages of mass testing a population in an endeavour to find a suspect have been extensively discussed. A mass screen involves inviting individuals, sometimes only those of a specified sex and age, within a particular area to submit to DNA testing in an attempt to find the perpetrator of a crime. Those in favour of mass testing refer to the case of Colin Pitchfork, where Pitchfork’s evasion of giving his sample in such a mass screen eventually resulted in the discovery of his guilt.441 A friend of Pitchfork’s was overheard boasting that he had provided a sample in place of Pitchfork. This convinced the police to investigate Pitchfork. Without the mass screen here, perhaps Pitchfork’s guilt would never have emerged. The evidential significance justification supports the use of mass screens.442 An example of a successful mass screen in this jurisdiction is the case of The People (DPP) v David Lawlor.443 In this case a successful mass screen resulted in the identification of David Lawlor as the murderer of Marilyn Rynne. He was subsequently convicted. However, there are also cases where despite the taking of samples from huge numbers of people, the screen has been completely unsuccessful. For example, in the UK in the investigation of Sara Cameron’s murder, samples were taken from 4500 people in a mass screen. Despite this, no one has as yet been charged with the offence.444 In Australia, criticism was directed at the sampling of a community of 500 people when it emerged subsequently that the offender was one of the suspects questioned initially in the investigation.445 This case caused the NSW Review to comment that “mass screenings should only be used as a last resort”.446 The Review criticised the use of this procedure because traditional forms of investigation could be more useful and impinge less on police resources. They also recognised that those who failed to consent to the procedure on conscientious grounds could suffer abuse by the community and could also be the subject of suspicion from the police for this reason alone. This could induce people to submit to testing purely to avoid this criticism and suspicion. This would constitute a form of indirect compulsion. Obtaining samples from people in these circumstances could perhaps constitute an unjustifiable breach of their rights to privacy and bodily integrity.

2.      The fact that a person’s refusal to consent to giving a sample could open them to suspicion suggests that the privilege against self incrimination could be infringed in such an instance.447 Clearly, the privilege may justifiably be limited in certain cases.448 However, while it may be justifiable for the privilege to be limited in cases where a person is suspected of a crime, the concern here is that mass screening could prompt self-incrimination even by non-suspects. Such compulsion at times might not constitute a proportionate interference with a person’s privilege against self-incrimination.

3.      The Irish Council for Civil Liberties in its submission to the Commission on this topic also expressed concerns regarding mass testing.449 Echoing the NSW Review, they suggested that mass testing was a waste of resources and that the money would be better spent on more traditional forms of investigation. They expressed the opinion that examples from other jurisdictions showed that there was no link between mass screening and the finding of the perpetrators. The Council favoured a system “whereby DNA evidence from a crime scene can be compared only to the DNA profiles of suspects in the crime and oppos[ed] any system of mass screening with no reasonable cause”.

4.      The Commission accepts these concerns have validity. Mass screening is a ploy which should be used sparingly and after due consideration. However, given the potential for exceptional cases, the Commission considers that the necessity to resort to such screening is an operational decision for investigating Gardaí. The NSW Review suggested that before the police can engage in a mass screen, they should be required to acquire judicial authorisation.450 Such authorisation would only be granted in exceptional cases. While this approach would ensure that the necessity of conducting a mass screen was determined before it was proceeded with, we are of the opinion that the Garda Síochána are in a better position than the courts to evaluate the usefulness of conducting such a screen. Deciding whether the significant costs of mass testing are outweighed by the benefit likely to be achieved is a matter peculiarly within the knowledge of the Gardaí. The Commission considers that the conducting of a mass screen should be subject to the approval of a Garda Superintendent in the district where it is proposed to carry out the testing. The Superintendent should consider a number of factors in deciding whether to permit the testing to be carried out. In particular, permission for a mass screen should only be given if it is expedient to detect the perpetrator of the crime. Consideration should be given as to whether the same objective could, in practice, be achieved by less intrusive and costly means. Care should also be taken to ensure in sanctioning the mass test that the range of people who may be requested to provide a DNA sample is as narrowly defined as possible. The potential impact of the mass testing on a person’s rights to bodily integrity and privacy should also be a consideration in the decision. Given the expense which would be incurred in conducting a mass screen, it is evident that it is only in exceptional cases, where it is expedient, that mass testing should be undertaken.

5.      The concerns regarding the potential breach of the non-suspect’s privilege against self-incrimination in a mass screen should also be addressed.451 We have already suggested in respect of volunteers that a failure to consent to a forensic procedure should not be capable of constituting reasonable grounds for suspecting the involvement of a person in an offence so as to justify requiring them to give a sample under the 1990 Act and head 10 of the Scheme of the Criminal Justice Bill 2003.452 This recommendation would also apply to those requested to provide a sample in a mass screen. This would guarantee that the interference with the individual’s privilege against self incrimination is minimal.

6.      The Commission recommends that a Garda Superintendent or acting Superintendent be required to approve in writing a mass screen before it may be conducted. In addition to this, evidence of a person’s failure to consent to testing during a mass screen should not be admissible in court.

1.      A Comprehensive Database?

1.      A number of commentators have argued for the establishment of a comprehensive database, that is a compulsory one involving every person in the State. It has been claimed that retaining the profiles of all individuals in the country could enhance rather than diminish the civil liberties of the individual.453 This is because retaining the profiles of every individual on the database would eliminate any suggestion of discrimination in respect of a class of persons whose profiles are held. This would also help at times to ensure that the innocent were not subject to unjustified suspicion. It could avoid miscarriages of justice by helping to exclude possible suspects from connection with a crime stain.454 The law-abiding citizens would also have their civil liberties enhanced in that they could live in a safer and more secure society as such a database would ensure that an increased number of criminals would be likely to be apprehended. As a result of these concerns, Kaye and Inwinkelried have commented that “the balance of advantage seems to favor creating a comprehensive database”.455

2.      Sedley LJ recently observed by way of obiter comments in Marper that he “would certainly not assume that a comprehensive national DNA database or samples bank, if one were to be lawfully compiled, would constitute an unacceptable invasion of privacy”.456 He suggested in this decision that the establishment of a comprehensive database could be compatible with the Articles in the Convention because such a database would help to ensure that only the guilty were convicted.

3.      However, the Commission submits that such a measure could involve a disproportionate interference with the privacy and bodily integrity rights of innocent citizens. The proportionality test would not be satisfied in this instance.457 Given that we are recommending the retention of the profiles of convicted offenders and those suspected of “arrestable offences” on the database indefinitely, mandating the creation of a comprehensive database would be difficult to justify as ‘necessary in a democratic society’. It is suggested that the advantages such a database would offer, which are detailed above, could not outweigh the significant intrusion into an individual’s personal rights. In order for a comprehensive database to be regarded as proportionate, the law enforcement gains to be achieved by the establishment of a comprehensive database, as opposed to a more limited one, would have to justify the significant intrusion on the rights of privacy and bodily integrity of innocent persons.

4.      The three considerations involved in determining proportionality weigh heavily against the establishment of such a database.458 Firstly, the level of interference with the individual’s rights is considerable. The corresponding need is not very serious given that it is unlikely that most of these citizens will commit further offences. Finally, it is persons that have never committed nor were ever suspected of committing offences that are affected here. If any individual wants to be exculpated from a crime, then the individual can submit a sample for this purpose of having their profile obtained and excluded from a match with a crime stain. The profile need not be retained on the database for potential miscarriages of justice to be avoided. Consequently, we believe that a comprehensive database is a disproportionate interference with the rights of innocent individuals. Maintaining a database of the profiles of convicted offenders and suspects would suffice for law enforcement purposes.

5.      In addition to this, the cost of creating and maintaining such an extensive database is prohibitively expensive. Taking samples from almost 4 million people and deriving profiles from these samples would be a very expensive process. The benefits received from such an expenditure would have to be substantial for this expenditure to be justified. It is submitted that they are not. As observed above, it is unlikely that the majority of these individuals will commit further offences. Consequently, obtaining and retaining the DNA profiles of the entire population is unjustifiable.

6.      The Commission does not recommend the establishment of a comprehensive DNA database because its establishment would weigh disproportionately against individual rights and be excessively expensive and its benefits would not be significant in terms of crime prevention.

1.      Retrospectivity

1.      Many DNA samples have already been obtained and stored by the Gardaí and the Forensic Science Laboratory. They will be hoping to insert these profiles onto any national database. Potential problems arise here. The majority of these samples and profiles were in fact obtained voluntarily outside the 1990 Act. In the event that the profiles were obtained under the 1990 Act, their destruction would have been mandatory after six months under section 4. Some doubt has been cast on the lawfulness of this voluntary method of obtaining samples but to date it has been accepted as a lawful practice.459 If it were to be seen as unlawful in the future, these samples could not be used as evidence in court. If the obtaining of these samples is accepted as lawful, whether these voluntary samples can be retained depends on whether at the time the individuals proffered them they were given an indication that their profiles would be retained indefinitely and perhaps inserted onto a database. If a person consented to the retention of their profile indefinitely, the profile could be retained. If however they implicitly consented merely to the use of their profile for the purposes of the investigation in issue, then the profile should have been destroyed on the conclusion of the investigation. At present the Forensic Science Laboratory possesses in excess of 700 DNA profiles, which include crime scene profiles.

2.      In practice, it is probably impossible and certainly impractical in the majority of cases to determine what conditions the volunteer consented to. It is therefore suggested in respect of these profiles that they be retained subject to the right of the volunteer to withdraw consent if they wish the profile to be destroyed. As these profiles were obtained on a voluntary basis, they should also be destroyed if so desired. This would ensure that the intentions of those responsible for submitting the profiles are fulfilled. It would also not hamper the crime investigation functions of the Gardaí unnecessarily.

3.      In respect of the profiles other than those of convicted offenders that were obtained under the 1990 Act but have not been destroyed as the six month period for which they may be retained has not expired, it is necessary to examine whether any new legislation should be retrospective in application and therefore apply to these profiles. It should be observed that Article 15.5 of the Constitution does not contain any general prohibition on the enactment of retrospective legislation.460 However, the profiles obtained other than those of convicted offenders under section 2 of the 1990 Act were given on the basis that they would be destroyed after six months in the absence of a court order. This is the position irrespective of whether they were obtained with or without consent. As a result, there is no justification for their continued retention beyond this period. In respect of the compulsory taking of samples, this power to take a sample was subject to the condition under the 1990 Act, which required the destruction of the samples after six months. Samples could only be taken under this Act for the purpose of the specific investigation. There was no provision in the Act for their use to detect other offences for which the suspect was responsible. These individuals had a legitimate expectation that the profiles would be destroyed after six months in the absence of a court order. To alter these provisions retrospectively would constitute an unjustifiable interference with the privacy rights of each individual.

4.      The Commission recommends that the profiles obtained voluntarily outside the ambit of the 1990 Act may be retained indefinitely unless the volunteer withdraws consent to their retention. In respect of the profiles obtained under the 1990 Act, these should be destroyed within the period specified by the Act.

  1.  

6.      The biological samples – RETENTION OR DESTRUCTION?

Introduction

1.      In Chapter 5, we considered the issue of retaining DNA profiles and we will now discuss whether the samples themselves should be retained or destroyed. The important distinction between the samples and the profiles has already been discussed.461 A further distinction that is made is in respect of the two categories of biological samples that primarily feature in this field, namely a scene of crime stain and a comparator sample. Although, both potentially could contain much or all the genetic information about the source of the sample,462 the purpose and therefore the position of each in a criminal investigation is strikingly different. As will be emphasised throughout this chapter, a scene of crime stain has usually been left or discarded, whereas a comparator sample is provided (not always consensually) for the purpose of exculpating or implicating the source of the sample in some way or otherwise assisting the investigation. It should perhaps be noted that although this distinction may not be clear-cut especially when an unidentified sample is subsequently attributed to the source, the Commission’s view is that each sample may legitimately be treated differently. Moreover, even though this distinction may give rise to difficulties in both presentation and evaluation, we consider it preferable to simply dealing with the two categories of sample together.

2.      This chapter is divided into two Parts. In Part A, we examine whether the scene of crime stains should be retained after a profile has been created from them. In Part B, we discuss whether the comparator samples should be retained after the conclusion of the trial for which they were obtained.

1.      Retention of Scene of Crime Stains

3.      Clearly, the physical evidence from a crime scene must be retained whilst the investigation continues and is not closed. The basis upon which biological samples found at the scene are initially retained is essentially the same as with other physical evidence (such as clothing, weapons, and non-biological stains), namely in order to allow examination and test analysis to be carried out, either at the behest of the defendant or at the request of the prosecuting authority in the hope that with improved technology, a conclusive outcome may be obtained. The careful retention of the stains recovered from a scene of crime may also facilitate the defendant and enable a retained sample to be independently tested so that the result of the further test is available for the trial or perhaps for a subsequent appeal against any conviction founded on such evidence. In this regard Murphy J, in McGrath v DPP,463 stated:

“It must be remembered that it is a commonplace in criminal trials for a defendant to rely on ‘holes’ in the prosecution case, for example, a failure to take fingerprints or a failure to submit evidential material to forensic examination. If in such a case, there is sufficient credible evidence, apart from the missing evidence, which, if believed, would justify a safe conviction, then a trial should proceed, leaving the defendant to seek to persuade the jury or justices not to convict because evidence which might otherwise have been available was not before the court through no fault of his. Often the absence of a video film or fingerprints or DNA material is likely to hamper the prosecution as much as the defence.”464

4.      There is a long line of authority that imposes a legal duty on the investigatory authorities to preserve material evidence. In Dillon v O’Brien and Davis465 Palles CB stated that: “the interest of the State in the person charged being brought to trial in due course necessarily extends as well to the preservation of material evidence of his guilt or innocence as to his custody for the purpose of trial.”466 Also in The Queen v Lushington, ex parte Otto467 Wright J stated:

“[I]t is undoubted law that it is within the power of, and is the duty of, constables to retain for use in Court things which may be evidence of crime, and which have come into the possession of constables without wrong on their part. I think it is also undoubted law that when articles have once been produced in Court by witnesses it is right and necessary for the Court, or the constable in whose charge they are placed (as is generally the case), to preserve and retain them, so that they may be always available for the purposes of justice until the trial is concluded.”468

In Murphy v DPP469 Lynch J approved of these authorities, stating that they “established that evidence relevant to guilt or innocence must so far as is necessary and practicable be kept until the conclusion of the trial.”470

4.      More recently, the Supreme Court considered this issue. In Braddish v DPP471 the accused was charged with robbery and arrested on the basis of CCTV footage which purportedly identified him. He requested a copy, but was told that it had been returned to the owners because the prosecution did not intend to rely on it. The Supreme Court restrained the further prosecution of the accused on the basis that he was entitled to see the video, as it might exculpate him. In explaining the duty on the Gardaí to seek out and preserve all evidence that had a bearing on guilt and innocence, Hardiman J stated:

“It is a well-established principle that evidence relevant to guilt or innocence must, so far as necessary and practicable, be kept until the conclusion of a trial. This principle also applies to the preservation of articles which may give rise to the reasonable possibility of securing relevant evidence.”472

6.      This case law concerns the retention of evidence up to the end of the trial (and by necessary implication any appeals process), but we should also address whether the scene of crime stains should be retained in other situations, such as where the crime has been solved and the perpetrator convicted or, rather more controversially, when the person who is the source of the sample is acquitted or not prosecuted.473 The Council of Europe Committee of Ministers to Member States on the use of analysis of DNA within the framework of the criminal justice system recommended that “[s]amples and other body tissues, or the information derived from them, may be stored for longer periods: … (ii) when the sample cannot be attributable to an individual, for example when it is found at a scene of an offence.”474 In practice, samples taken from the scene of a crime are usually kept and current attitudes appear to be inclined towards long-term storage. Indeed, this would aid the Court of Criminal Appeal in reviewing alleged miscarriages of justice following the invocation of the procedure set out in the Criminal Procedure Act 1993. The Commission’s initial view is that there is nothing objectionable in this option, so long as the samples are stored in appropriately secure conditions and the sources are not readily identifiable.

7.      The Commission is of the view that where biological samples are found at the scene of a crime they should be retained, principally as a safeguard in the event that an individual convicted of the offence to which the sample relates alleges that a miscarriage of justice has occurred and wishes to challenge the veracity of the original evidence.

2.      Retention of Comparator Samples

8.      When retained, comparator samples are preserved, labelled and stored in a deep freeze facility. These samples could be accessed or disclosed in the future – perhaps by reason of changed attitudes – and subjected to the type of testing that would in accordance with present attitudes impermissibly violate the privacy of the source of the sample by revealing deeply sensitive information.

9.      In view of this danger in respect of future usage, comparator samples obtained under the Criminal Justice (Forensic Evidence) Act 1990 are governed by section 4. Section 4(1) safeguards against the retention of not only the comparator sample and record identifying the person from whom the sample was taken, but also “every sample identified by such record”.475 For example, under section 4(3), if the person from whom the sample is taken is acquitted, then “the destruction of the record and the sample identified by such record shall be carried out on the expiration of twenty-one days after the acquittal …”.476

10.  Section 4 gives rise to a potential conflict with the views we have already expressed: namely that biological samples taken from the scene should be retained on a long-term basis.477 Section 4(1) refers to “every sample identified by such record”, which would include a scene of crime stain attributable to, for example, someone acquitted of the offence for which the comparator sample relates. Whilst it may be perfectly proper for the authorities to be precluded from retaining comparator samples taken from a number of suspects who are not convicted of any offence, biological material taken from a scene of crime may form part of vital evidence in the case. If there are, for example, three different samples found at the scene of a murder, one being attributable to the victim and the remaining two being from unknown sources: one, two or none may have committed the offence, but it is simply not known until they can be found and investigations can be made in relation to their presence at the scene. Say two suspects are found and comparator samples are taken and a match is confirmed with the samples found at the scene. Following questioning (and perhaps other evidence in the case, such as an eye-witness account) suspect ‘A’ is charged and convicted, whereas suspect ‘B’ is not proceeded against, perhaps because there is a perfectly innocent explanation for suspect B’s presence at the scene. Under the present law, suspect A’s comparator sample, the records relating to that sample, and any scene of crime stain attributed to suspect A may be retained. However, under section 4(2) suspect B’s records, comparator sample, and the scene of crime stain attributable to him – which will no doubt be identified by records reporting the match – must be destroyed. Should suspect A wish to challenge his conviction on the basis of the scientific evidence, maybe on the basis of analysis with new technology or it is simply that he wishes to point the blame at someone else who was there (such as suspect B), then he will be seriously disadvantaged if the original evidence taken from the scene of crime is destroyed. For these reasons, we have recommended above that the scene of crime stains should be retained.

11.  As regards comparator samples, where section 4 does not direct the authorities to destroy the records or samples, such as in the case of where a person is convicted of the crime, it would appear that the default position is that the records and samples may be retained indefinitely. There is a clear distinction in the treatment of those convicted and those who are only ever suspected of an offence – a feature that accords with our scrutiny of ECHR jurisprudence in Chapter 3.478 There is nothing in the current law to preclude the authorities from collating profiles derived from samples taken from those convicted and then storing them in a searchable database. Indeed, Walsh made the following comment on the 1990 legislation:

“The availability of a police power to take bodily samples in the course of criminal investigations [the subject of Chapter 4] could result in the establishment of a databank of the most personal information on people who have come to the notice of the police. While this might appear attractive to those engaged in the prevention and detection of crime, it clearly has the potential to inflict enormous damage on the extent to which the personal rights of the citizen are protected. The 1990 Act has struck a balance between competing interests by making provision for the destruction of bodily samples, and the results obtained from those samples, in a wide range of situations.”479

Despite the current legislative framework, which was enacted at a time when our understanding of DNA was only developing, the Commission must consider in this Paper all the options that could be taken: including, whether in principle the samples of even those convicted of an offence should be retained at all.

11.  Fears concerning genetic privacy have prompted many commentators to suggest that not only should analysis of DNA be confined to discovering information that is socially insignificant480 but that the samples themselves should be destroyed once the DNA profile has been generated and the trial has concluded (any by implication any appeals process). Indeed, even in 1992, the Council of Europe Committee of Ministers recommended that:

“Samples or other body tissues taken from individuals for DNA analysis should not be kept after rendering of the final decision in the case for which they were used, unless it is necessary for purposes directly linked to those for which they were collected.”481

13.  In the US there is a variable policy regarding retention of samples: some State laboratories retain them where others destroy them.482 In Belgium, Germany, Norway, and Switzerland various provisions exist requiring samples to be destroyed. This may be once a profile has been generated and entered on to the database or a defined period of time after entry or as soon as the sample is no longer needed for comparison.483 In the UK there is no difference in treatment between the biological sample and the DNA profile as both are retained.484

14.  Waller LJ in the Marper case485 expressed the principal aims of retaining DNA samples after the conclusion of the trial, as follows:

“[T]he retention of samples permits (a) the checking of the integrity and future utility of the DNA database system; (b) a re-analysis for the up-grading of DNA profiles where new technology can improve the discriminating power of the DNA matching process; (c) re-analysis and thus an ability to extract other DNA markers and thus offer benefits in terms of speed, sensitivity and cost of searches of the database; (d) further analysis so as to be able to identify any analytical or process errors.”486

The Court of Appeal found the aims of retention to be persuasive and, accordingly, went on to consider the retention of samples together with that of profiles. The Court of Appeal’s rulings on the issue of whether the authorities could indefinitely retain the samples and profiles of suspects have already been addressed in detail.487 However, the UK Human Genetics Commission (“HGC”) in its report on the use of personal genetic information also highlighted the principal reasons why samples are retained, as follows:

                                                        i.            for Quality Assurance purposes, that is so as to be able to monitor the performance of the profile supplier;

                                                      ii.            in the event of a database match to check the veracity of the match using the original sample;

                                                    iii.            to retest the sample with newer and more discriminating methods;

                                                    iv.            to investigate challenges to or errors in the original profile.488

But the HGC found these reasons unconvincing. The HGC suggested how these aims could be achieved without the need to retain all biological samples (and with them the inherent risks identified previously in this Paper).489

15.  As regards (i) the HGC felt that quality assurance could be conducted adequately on a smaller scale or with samples made anonymous. In relation to (ii) and (iv), confirming matches and correcting errors could be achieved by taking new comparator samples. Any person convicted on the basis of DNA evidence who wishes to challenge the veracity of the profile would no doubt be more than willing to provide a fresh sample in order to generate a new (and presumably correct) profile. In any case, the sampling process is such that when a ‘hit’ is obtained on a database profile a second comparator sample is always taken (from which a profile is generated) to verify the ‘hit’. This has the effect of safeguarding against spurious results, any mishandling or erroneous labelling of samples, or any error in loading profiles onto the database. Another reason for always taking a second sample is that the match will ultimately need to be presented at the trial of the accused in the event that there is a ‘not guilty’ plea. Revealing that the match was obtained through a database hit may be potentially prejudicial and should be avoided.490

16.  The main practical objection – (iii) – to the destruction of comparator samples once a profile has been generated and loaded onto a database, is that the profiles from both the scene of crime stain and the comparator sample are both products of current technology and they may become obsolete in the event of further technological advancement in profiling. This appears, on the face of it, to be a legitimate concern in response to any proposals that insist on the destruction of comparator samples, especially when one considers that DNA profiling technology has developed so rapidly within a relatively short period. However, because of this development the technology is such that it is arguable that there is no need to seek advancement, especially when one considers that current methods of profiling produce match probabilities of 1 in several billions.491 Would a more discriminating method really be worthwhile? Moreover, new samples could be taken at this stage with the advantage being that the samples will be taken in the context of improved understanding. There should be a procedure in place to enable new samples to be taken if such a concern arose. A further and more immediate point for the Government is that, whilst taking a new sample at a later date may be inconvenient and perhaps costly, so too, no doubt, is the storage and organisation of a large number of samples in appropriate conditions. But, what is clear to the Commission is that any cost-benefit analysis of this nature must factor in the compelling issues of privacy and public trust and confidence in DNA profiling.

17.  A logical corollary to the practice of obtaining a second comparator sample is that the original sample plays a relatively nominal role in the whole process after the profile has been generated.492 Indeed one cannot readily infer a legitimate purpose for retaining every single comparator sample. The only purpose of retaining all comparator samples following the final disposition of the case would be either to put that sample to some future secondary use or as a safeguard against loss of data (the profile information).

 

1.      Retention or Destruction?

18.  We have explained the distinction between the comparator sample and the profile that is generated from the sample, particularly what each reveals about the source of the sample at present and in terms of potential revelations.493 It is apparent from this discussion that the concerns described earlier,494 at present, resonate in particular with the sample to a far greater extent than with the profile. The sample may be subjected to further testing in the future, but once generated the profile can only be further interpreted in light of contemporaneous knowledge. The Commission therefore concludes that it is the biological sample itself which is a major cause of concern, particularly in terms of safeguarding privacy.

19.  Paradoxically, it is the need to protect the privacy of the source of the sample that may, on one view, militate in favour of the retention of comparator samples: if it is subsequently discovered that a forensic profile reveals much more personal information about the source, then a different technique, that does not reveal so much, will need to be developed to replace the existing profiling technology. The retention of samples, although carrying inherent risks to privacy, would facilitate the transition from an objectionable technique to a new and acceptable method, without necessarily rendering nugatory all the previous investment in the collection of samples.

20.  This suggestion may be implausible, but as has been shown earlier it is not outside the realm of possibility, particularly when one considers that our understanding of the ‘junk’ DNA is fairly primitive. However, this scenario of retention is also predicated on the assumption that the entire profiling technique must be abandoned according to the dictates of privacy which then would favour a newer, less revealing method. What is perhaps more likely is that one or perhaps two of the current forensic loci are subsequently found to reveal or be linked to a disease, disorder or disposition, for example, of a particularly sensitive nature. In this latter scenario three potential options are available:

                                                        i.            wholesale replacement of the technique with a newer method, as above;

                                                      ii.            deletion of the information on and discontinuing use of the one or two loci, but preservation of the other loci (so that there will be a reduction from 10 to 9 or 8). Then target new loci that will not reveal sensitive information and yet will maintain the discriminatory value of the technique. Any matches on retained loci will lead to a second sample being taken and a new (full) profile will be generated;

                                                    iii.            encryption, de-identification or non-disclosure of the information.

Only option (i) would call for retention, whereas (ii) and (iii) would not. Option (iii) would provide relatively little protection as much would depend upon the effectiveness of regulation and trust in the custodians of any database of profiles.

21.  Although the discussion here is speculative and therefore dependent on future events, which may not eventuate, it appears to the Commission that option (ii) is preferable – at least in the short to medium term. Not only will this option not require the retention of samples, but deleting part of the profile and targeting different loci will ensure that sensitive and private information is not retained or disclosed. Moreover, continuing to use the permissible loci means that the profile (and incidentally the investment in the technology) is not completely lost.

22.  It is useful to note that as a result of the development of profiling techniques a number of profiles that have been held on the UK’s database are representative of older methods, such as the SGM profiling system, which targeted only 6 loci instead of the 10 loci which are now targeted using the SGM Plus method.495 Matches have occurred on these older profiles, some of which have been spurious,496 others not, but they have either been confirmed or disproved following profiling of a second comparator sample. Moreover, because a second sample is taken the evidentiary significance of the match is not denigrated in any way. But should all current forensic loci be compromised in some way or the basis upon which profiling is currently conducted change (such as by a move away from STRs to SNPs)497 then it would be a fair assessment to conclude that option (ii) together with destruction may not be desirable.

23.  A further consideration in relation to the concern that there may be a new basis for profiling is that the UK (with whom there will inevitably be cross-jurisdictional investigations involving DNA evidence) are unlikely to change wholesale from STR SGM Plus profiling to, for example, SNPs profiling, particularly when one considers that this will entail re-profiling of the in excess of 2 million samples which are currently retained by the FSS.

1.      Conclusion on Sample Retention in Principle.

24.  In considering this subject the Commission is acutely aware that the prospect of governmental organisations having the power to collect, analyse, and retain (perhaps for future analysis) an individual’s genetic material may to most people be particularly unpalatable. The indefinite retention of samples could discourage people from volunteering a sample in order to help with an investigation (or for that matter consenting to a forensic procedure). It is necessary for the sample to be retained until the conclusion of the trial in order for it to be presented as an exhibit in court. However, after the trial, it should be destroyed. Destroying the comparator sample after a profile has been generated and verified and a final decision in the particular case has been rendered would go a long way in allaying concerns about misuse and possible future analysis, as well as inspiring public confidence in DNA profiling and the establishment of a profile database.

25.  The Commission is, in principle, inclined towards destruction of comparator samples once a profile has been generated, verified and stored and the trial in respect of which the sample was obtained has concluded. Limited and anonymised samples should be retained for longer periods of time, but not indefinitely, in order to ensure that the profiling methods are accurate, for quality assurance purposes and to assist in the regulation and accreditation of providers of forensic profiles and the custodian of any database.

 

  1.  

7.      THE PERMISSIBLE USES OF THE DNA SAMPLES AND PROFILEs

1.      We will now examine the permissible purposes for which both the biological samples and the profiles may be used. While the Commission is recommending, subject to limited exception, the destruction of the comparator samples after the conclusion of the trial for which they were obtained, in this chapter we intend examining the analysis that may be conducted of these samples prior to their destruction. This chapter is extremely important as the use to which the samples and profiles can be put indicates the persons from whom the samples may be taken and the length of time for which the samples may appropriately be retained. This chapter is concerned with the analysis that may be conducted on the DNA samples and the uses to which the database may be put. As is evident from the discussion in Chapter 5, the purposes for which a DNA database may be used is an important factor to be taken into account in assessing the proportionality of any measure providing for the taking of samples from individuals.498 If the purposes for which the samples and database may be subjected are limited, it follows that the range of persons from whom samples may be obtained is wider. This is also implicit in the reasoning of R (S and Marper) v Chief Constable of South Yorkshire.499 Consequently, this analysis is important in underlining our reasoning in Chapter 5 and Chapter 6.

2.      This chapter is composed of two Parts. In Part A, we examine the analysis of the DNA samples that may be undertaken. In Part B, we discuss the uses to which the DNA database may be put.

1.      Permissible Analysis of Biological Samples

1.      Scene of Crime Stain

3.      We consider first what type of forensic analysis is permissible in respect of biological material left at a scene of crime. We note that DNA found at a scene of crime may be from a person who was not the perpetrator of the offence, but happened to be present for some innocent purpose. This factor is also crucial when determining the evidential significance of finding an individual’s DNA at the scene.500 As a caveat to what is suggested in the following paragraphs, any further analysis of a scene of crime stain beyond the generation of a profile should only be contemplated in the most exceptional cases and where it is believed that the scene of crime stain comes from the perpetrator of the offence. In other words, where the authorities are at a loss as to how the investigation may be directed and, perhaps, as a precursor to an intelligence (mass) screen.501

4.      In the future it could become straightforward to subject a scene of crime stain to analysis which will identify common characteristics, such as ethnicity, skin, hair and eye colour, stature, weight, age and facial characteristics. This could create a ‘genetic photo-fit’. Being able to find out that the person whose DNA was left at the scene of crime may have certain physical characteristics would undoubtedly be useful intelligence in the investigation of an offence, particularly when the investigating authorities have not found other evidence to lead them to the perpetrator.

5.      The UK Forensic Science Service (“FSS”) has already conducted research into ethnic inference, as well as other commonplace characteristic markers. There have been two pilot studies by the FSS into ethnicity prediction: one in the West Midlands and the other in South Yorkshire.502 In the first, ethnic predictions were made for 176 solved cases submitted to the FSS by the police. These were processed ‘blind’, in that the FSS did not know the ethnicity of the offenders until afterwards. The results were categorised as follows:

                                                        i.            Those where a major ethnic group was indicated as being the origin of the DNA – 27%;

                                                      ii.            Those where an ethnic group could be excluded as being the origin of the profile – 35%;

                                                    iii.            Those where no significant inference could be made – 38%.

Of the 109 profiles that were ethnically predictable, categories (i) and (ii), four were incorrect, which is unsurprising in view of the fact that the method of prediction is based on probabilities and those individuals of ‘mixed race’ will produce anomalous results.

6.      In the second study 110 cases were taken, some of which were ongoing and some were solved. The result was that, in 52% of the cases, ethnicity could be inferred and was considered useful in the investigation.

7.      As a result of this research the FSS run an ethnic inference service as well as a red hair prediction service, the latter being over 80% accurate. The ethnic inference test is based on DNA sequences associated with the gene pool of a population, such as British Afro-Caribbeans who display a greater number of distinctive characteristics. Using DNA sequences, the probability of a person’s ethnicity can be calculated by comparing their SGMplus profile with the relevant population database. The prediction is generated using a FSS software package known as ALFIE (allele frequency for the inference of ethnicity). The frequency of an SGMplus profile in each of the five British ethnic groups – white-European, Afro-Caribbean, Indian Subcontinent, South East Asian and Middle Eastern – is calculated.503 The red hair prediction test, on the other hand, is based on the difference in the DNA of the MC1R gene (melanocortin 1 receptor) that determines hair pigmentation. A mini-sequencing technique detects variations in the coding sequence of this gene. It is anticipated that, together with the research being conducted by the Human Genome Project, other genes may be identified that determine other human features, such as eye colour, skin colour, and perhaps even facial structure.504

8.      The question that arises is: when it appears from genetic markers that the source of the scene of crime stain is likely to belong to a person from a particular ethnic group would the constitutional right to be held equal before the law in Article 40.1 prohibit the Gardaí from using this information as an investigatory lead enabling them to focus enquiries on members of that particular group? US jurisprudence in relation to the Fourteenth Amendment is of help here, where the validity of using ethnicity as an identifying feature in a criminal investigation appears always to have been presumed.505 Kaye and Imwinkelried note that if the police were unable to use physical evidence of ethnicity they:

“could not rely on an eyewitness’s report that a person fleeing the scene of a crime was Hispanic, on a victim’s report that a rapist was white, or on a linguist’s analysis of accent or word choice in a recorded death threat that suggested that the caller was African-American”.506

9.      Evidently ethnicity is a legitimate consideration in deciding whom to approach as a suspect when descriptions of the perpetrator of an offence include ethnicity.507 What would probably be unconstitutional and repugnant would be using information about ethnicity in a way that targets or discriminates against people. However, research conducted into the variation of particular alleles or genetic markers across ethnic groups and the use of this information in improving forensic detection methods would appear to be constitutionally permissible. The reason is that inferences as to ethnicity should not lead to the targeting of minorities or disadvantaged groups because an investigation should essentially be an objective exercise. Indeed, genetic photo-fit profiling may rectify any tendency to pursue one or other ethnic group unfairly or disproportionately.

10.  This type of forensic analysis presents few constitutional conundrums, as any potential violation of the unidentified individual’s privacy is likely to be outweighed by the greater societal good in investigating and solving the crime: especially when the scene of crime stain is from a particularly serious or heinous offence. Moreover, the category of genetic information, which is in the main phenotype, being observable characteristics, is not of a particularly sensitive nature.

11.  A more difficult question is where to draw the line between the permissible analysis that furthers the criminal investigation and impermissible analysis. For example, the analysis of DNA to identify physical characteristics of perpetrators may represent the thin end of the wedge and analysis may ‘creep’ towards identifying genetic disorders and personality and behavioural traits. This goes beyond physical characteristics, such as for instance ethnicity and racial features.508 The danger is that advances in our understanding of genetics, whilst having beneficial implications in respect of the treatment of genetic disorders might also have potential ramifications conducive to discrimination and stigmatisation.509

12.  One view is that this type of analysis provides essential information in solving crime. However, there exists much public sensitivity concerning genetic privacy, which would demand compelling justifications for conducting any further analysis beyond inferring physical characteristics, which one may categorise as non-sensitive phenotype information.510 Owing to the fact that the relevant field of science is at an early stage of development it is not possible to be categorical about the advisability of this form of intelligence gathering. However, there is a view that the analysis of a scene of crime stain should only be conducted for the purpose of detecting, investigating and preventing crime, so as to aid the authorities to catch a perpetrator or improve profiling techniques and statistical frequency databases. Accordingly, the Commission submits that the authorities for the present should be precluded from conducting any kind of medical/behavioural research using the samples; but this should not prevent further forensic analysis for the legitimate purpose of furthering the investigation and prevention of crime and improving forensic techniques.

13.  One further aspect to the analysis of DNA left at or associated with a scene of crime concerns the dissemination of the results of testing (that is over and beyond the profile itself), particularly as the information may be of different levels of sensitivity. As a policy matter, the Commission feels that the results should not be disseminated further than is necessary for the investigation and prosecution of the offence. This follows from the fact that the justification for this intrusion on the right to privacy is that it is necessary to solve crime. So, for example, if the investigatory authorities were to subject a scene of crime stain to testing that revealed the source to have a particular genetic disorder or contagious disease, which could form the basis of an investigatory lead, the authorities would have to be extremely careful as regards the disclosure of this sensitive type of information.511 This is immediately apparent when one considers that a victim’s or an innocent third party’s DNA may be mixed with the perpetrator’s DNA. Although that is not to say that perpetrators have no right to privacy. Results obtained from further testing should therefore only be revealed to and by the investigatory authorities where the results relate to the potential perpetrator and are useful for the purpose of investigating the offence.

14.  The Commission is of the view that the analysis of biological samples taken from a scene of crime should be limited to purposes that further the criminal investigation and that the results of any analysis should be kept under the most careful custody. Analysis of coding regions should be allowed to determine non-sensitive phenotype information in respect of common characteristics, such as eye colour and skin colour.

1.      Comparator Samples

15.  In contrast to samples provided with the informed consent of the donor in the context of medical, scientific and biotechnological research or for that matter biological material discarded or at least found at a scene of crime, samples provided in the context of a criminal investigation are not always given consensually.512 These comparator samples513 are provided for a specific purpose, namely for comparison with a biological sample left at a scene of crime. As we have already observed,514 the objective is either to exculpate or to point towards presence at the scene, and even, inferentially, guilt. This comparator sample has not been abandoned in the way that a scene of crime stain has been discarded. A comparator sample that is taken from a suspect or volunteer is in an entirely different category, as a sample of blood or the cells on a mouth swab or rather more specifically the genetic information contained within these samples, is uniquely attributable to one individual. Consequently, there is a sound view that because of the nature of the material and what may be derived from it different considerations should be contemplated.

16.  Whilst current profiling techniques examine only the non-coding parts of the DNA molecule, advances in forensic science suggest that the non-coding areas may contain information relevant to health or diseases or other characteristics.515 The Australian Law Reform Commission has expressed its concern about the potential extension of forensic analysis of comparator samples to physical and behavioural characteristics.516 The Human Genetics Commission also commented on this issue, as follows:

“It appears to us that there is a clear distinction between using DNA for comparison or identification purposes (which the public broadly accepts) and using it to predict the characteristics of a person. We take the view that the public might have concerns about such uses and that it should be subject to wider debate”.517

1.      There would be little use in determining the colour of the hair or ethnic origin of the donor where this is already known. This phenotype information or information regarding observable characteristics would only be useful to discover from and through testing the source of a sample left at a scene, but once a suspect is found this information is apparent. It is only the genotype information that is not discoverable through visual examination and it is this information that is arguably the most sensitive.518 Accordingly, an individual should have the right to keep this private and the authorities should be precluded from gaining access to this data. Therefore, unlike the scene of crime stain, which may legitimately be subjected to further testing in the interests of furthering a criminal investigation in exceptional circumstances, a comparator sample should not be subject to analysis beyond that which is necessary to establish the likelihood that the donor of the comparator sample is the source of the scene of crime stain. After all, the knowledge that ‘suspect X’ has a particular genetic disorder does little or nothing to show whether he or she was at the scene, let alone whether he or she is in actual fact guilty of the particular offence being investigated.

2.      This safeguard against the unnecessary diminution of the right to privacy, or more specifically reduced control over one’s personal genetic information, is not controversial. Indeed this type of protection exists in the laws of other jurisdictions, such as Germany.519 German law precludes the analysis of DNA to draw conclusions as to personality traits, dispositions or diseases.520

3.      However, German law does not explicitly restrict analysis to the non-coding DNA regions. This is so as to avoid limiting or precluding future scientific development. At present it is the non-coding regions that are of particular use for analysis because they contain the most variation.521 The coding regions contain substantially less genetic variation between individuals and are not especially useful when attempting to distinguish between possible sources of a scene of crime stain. However, should it be discovered in the future that the non-coding regions and in particular the loci used in forensic profiling are not truly ‘non-coding’, then it may become necessary to discontinue the use of these areas.522

4.      The Commission recommends that any legislation providing for the analysis of DNA samples for comparison with biological samples left at the scene of a crime should exclude testing which might reveal information about genetic disorders, personality and behavioural traits and predispositions. The Commission does not recommend that analysis of these DNA samples should be restricted explicitly to the non-coding regions.

1.      Permitted Uses of the DNA Database

1.      General

1.      It is imperative that the permitted uses of the DNA database be clearly defined to avoid the possibility of ‘function creep’. ‘Function creep’ in essence refers to “a situation where the permissible uses of a DNA profile gradually expand”.523 Widespread concern has been expressed over the possibility of ‘function creep’. As observed by the Irish Council for Civil Liberties “[i]n order to be human rights compliant, any system of DNA retention particularly in the area of criminal justice, must be strictly limited in its purpose and must not be allowed to fall victim of the phenomenon of “function creep”.524 In particular, there is concern that the information on the database will be disseminated to both public and private organisations. At present the information which can be derived from the profile is quite limited.525 However, there is concern that research may show that these profiles reveal more about an individual than was previously realised. It has been suggested that some STR loci which were thought to be non-coding may be linked to diseases, for example Kennedy’s disease.526 As well as this, whilst a profile reveals very little information about an individual’s DNA, the profile does conclusively prove parentage and relatedness.527 The misuse of the information on the database is a very real concern and not just a theoretical argument. Indeed in Iceland and Tonga, the Governments actually sold genetic information to multinational corporations without the consent of those who gave samples.528 The safeguards that should be put in place and adopted to ensure that the profiles are used solely for the purposes permitted by the legislation are discussed later.529

2.      In order to avoid this possibility of “function creep”, the purposes for which the database may be used should be clearly defined in legislation. In particular, the dissemination of the information on the database to public or private bodies for purposes beyond those stipulated should be expressly prohibited. The crime enforcement purposes for which the database may be utilised are discussed later in the chapter.530 Before we examine these uses, we discuss whether the profiles derived from samples may be used for the identification of deceased and severely injured persons.

1.      Identification of Deceased Persons

1.      DNA identification is increasingly used as a means of ascertaining or confirming the identity of unknown deceased persons.531 The DNA of the deceased person can be matched with DNA from their personal articles or from their close personal relatives to determine their identification. In the event however of a mass disaster and in certain other circumstances, it could prove useful to match the profiles from the deceased persons with the profiles on the database. This will only be possible if the body is not too degraded for nuclear DNA analysis. If the body is too degraded for nuclear DNA analysis, it may be possible to identify the person through mitochondrial DNA (“mtDNA”) analysis. However, a profile generated from mtDNA is not comparable with an STR profile so in this instance it will not be possible to search the profile of the deceased person against the profiles on the database.532 Even if nuclear DNA analysis is possible, given that the national database will only contain a portion of the profiles of the population of the country, this mechanism often may not solve the mystery of the identity. However, if the profile of the deceased person is in fact retained on the database, it constitutes a rapid, non-invasive and efficient mechanism for identifying the deceased person.

2.      In Australia, an index has been established which contains the profiles of missing individuals and their relatives and of unknown deceased persons. Part 1D of the Crimes Act 1914 as amended allows for unrestricted matching between profiles contained in the ‘missing persons’ index and all other indexes of the DNA database system.533

3.      The Commission accepts that the profiles of the unidentified deceased should be matched against the convicted offenders’, suspects’ and volunteers’ indexes of the database. While the outcome of these speculative searches is varied, given the limited number of individuals whose profiles will be retained on the national database, there are no countervailing disadvantageous factors which outweigh the benefits that this attempted matching of profiles may achieve. The privacy and bodily integrity intrusions entailed by this measure are minimal. The individuals whose profiles may be utilised for this purpose are deceased.

4.      It is imperative however that permitting the use of the DNA database for the identification of deceased people does not enable it to be used for other purposes, such as, for example, the determination of the paternity of the child of a deceased person. Using the database for the purpose of determining relatedness and parentage in this instance could cause severe distress to the family of the deceased person and could constitute an unjustifiable infringement of their right to privacy. Instead, the database should be used for the purpose only of identifying the deceased person and no other information concerning this person should be released.

5.      The Commission recommends that the profiles of deceased’s persons may be matched against the convicted offenders’, suspects’ and volunteers’ indexes of the database for the purpose only of identifying these persons and not for any other purpose such as paternity determination.

1.      DNA Profiling of Deceased Persons

1.      The Commission also recommends that it should be possible to make a court application seeking the searching of a deceased’s profile against the profiles on the crime scene index. This recommendation encompasses both known and unknown deceased persons. In the UK under PACE, it is possible to take a sample from a dead body if there is reasonable suspicion that the deceased person may have committed the offence.534 In Ireland, the court should be authorised to make an order allowing for the use of the database for this purpose in appropriate cases. There is a public interest in the resolution of outstanding offences. Discovering that a deceased person’s profile matches a crime scene profile may enable the Gardaí to resolve and close the case and prevent resources being wasted. It is also in the victim’s interest.

2.      There should however be a requirement to show that there is a reasonable suspicion that the deceased committed the offence before a court order is made. In addition to this, given that such an order may naturally cause distress to the relatives of the deceased and impinge on the traditional respect for the dignity of the dead, the judge should be given discretion in deciding whether or not it is an appropriate case in which to make such an order. It is only where the public interest in the resolution of the outstanding offence outweighs these considerations that the court should allow a sample to be taken and the deceased’s profile to be searched against the crime scene profiles on the database. The deceased’s profile should not be retained on the database beyond the time that it is necessary to deduce whether there is a match or not.

3.      The Commission recommends that the profile of a deceased’s person may be matched against the crime scene index where a court authorises this on the basis that there are reasonable grounds for suspicion that the deceased was responsible for the crime and it is an appropriate order to make having regard to all the circumstances of the case.

1.      Identification of Severely Injured Persons

1.      There will also be rare instances where a person is so severely injured that they are unable to identify themselves. Where this arises, determining their identity will probably be desirable. In most cases, it is likely that the injured individual would wish for their identity to be disclosed. However, there may be cases where this is not so. In the event of the individual being in a position to consent or to refuse to consent to the discovery and disclosure of their identity, no problems will arise as their wish can be respected. In the majority of cases where DNA matching is required to ascertain the identity of the injured person, the person will be incapable of giving an informed consent to the disclosure. The Commission suggests that in this situation a person with a proper interest in the matter should be entitled to make a court application seeking the identification of the person from the database. A court order could then be granted allowing for the searching of the database for the identity of the person where the court deems it appropriate. Of course as with the identification of deceased persons, it is unlikely that a match would be attained from the database. However, allowing for the searching of the severely injured person’s profile against the profiles on the database could prove useful in certain circumstances. This would ensure that an appropriate balance is maintained between the right of the injured person to consent to the disclosure of their identity and the need for the identity of this individual to be revealed in certain circumstances.

2.      The Commission recommends that in the event of a person being so severely injured as to be unable to indicate their identity, a person with a proper interest in the matter should be entitled to make a High Court application seeking the identification of the person from the DNA database.

1.      Crime Investigation Purposes

1.      Apart from the identification of deceased and severely injured persons, it is suggested that the database be confined to use for crime investigation purposes. This is because only crime investigation purposes could justify the significant infringement on an individual’s privacy and bodily integrity rights and their privilege against self incrimination that the taking of samples and retaining of profiles involves. Using the profiles for crime investigation purposes advances the legitimate aim of safeguarding the interests of society and the victims of crime. These interests justify the limited infringement on the individual’s rights involved. In the event of a constitutional right to paternity determination being recognised, it is suggested that this DNA database may not be used for the purpose of determining the identity of a person’s parents.

2.      The database’s primary function in the criminal investigation system is to enable ‘speculative searches’ to be conducted. This essentially involves searching for matches between the profiles on the crime scene index and those on the other indexes. The attainment of a match in these circumstances is referred to as a ‘cold hit’. It allows a person to be connected to a crime about which there was no previous suspicion of the person’s involvement.

3.      The database may also need to be accessed for other reasons ancillary to this primary function. In order to avoid any uncertainty, each individual purpose for which it is necessary to have access to the database should be specified in the legislation. Section 92 of the NSW Crimes (Forensic Procedures) Act 2000 provides a commendable example of such an approach. This section sets out unambiguously and concisely the purposes for which the database may be accessed. The suggested permitted purposes, in the Irish context, which might justify the accessing of the database by the custodian are:

1.      To conduct forensic matches or speculative searches (as described above).

2.      To make the information available to the subject to whom the information relates.

3.      To establish and administer the DNA database system.

4.      To examine a contention that any conviction is a miscarriage of justice under section 2 of the Criminal Procedure Act 1993 or that a conviction should be overturned on appeal.

5.      To investigate a complaint by the overseeing body of the database.

6.      To compile statistics for the overseeing body on the operation of the database.

7.      To exchange the profiles between jurisdictions as sanctioned by the legislation.

8.      To identify unknown deceased persons.

9.      To identify severely injured persons where the court sanctions it.

10.  Or any other related purpose.

1.      This approach however can be criticised for being unduly restrictive in that it does not enable the database to be utilised for any additional purposes apart from those related to the present purposes which are discovered to be useful on the operation of the database. Indeed in NSW itself, section 93 of the 2000 Act enables regulations to prescribe additional purposes for the database. There is no restriction on the additional purposes which can be prescribed in this regard. However, the Commission disagrees with this approach. Any additional useful purposes that become evident with time should be prescribed by primary legislation. While normally a topic may not command legislative attention with any frequency, with DNA we do not think it is right to be governed by this practice and make guesses in a rapidly evolving area. Indeed, any attempt to enact a provision mirroring that in NSW could in fact be unconstitutional. Article 15.2.1° of the Constitution limits the power of the Oireachtas to delegate law-making functions to Ministers or other bodies. This is evident from the decision of City View Press Ltd v AnCO,535 where the Supreme Court held that the test for determining whether delegated legislation is an unconstitutional delegation of parliamentary power is whether it does more than merely give effect to the principles and policies contained within the legislation itself. If it does, then it is an unconstitutional delegation of power. It is therefore apparent that if a provision similar to that adopted in Australia were enacted in Ireland, it could be unconstitutional.

2.      In the UK, the legislation provides that the samples can be utilised for “purposes related to the prevention or detection of crime, the investigation of an offence or the conduct of an investigation”.536 No further definition is given in the legislation as to the precise purposes for which the database can be accessed. In the Marper case537 Liberty submitted that this section was broad enough to enable in the future information in relation to an individual’s propensity to commit crime to be obtained from the sample and to be used in a criminal trial. Waller LJ answered these concerns by observing that any change in the practice of the police force, for example by deriving information in respect of an individual’s propensity to commit crime from the samples, would have to comply with the ECHR. He also observed that unlawfulness should not be assumed. Given that it is recommended by the Commission that the samples should not be retained beyond the conclusion of the trial, the fears of Liberty are less likely to arise in Ireland.538 At present, very little information can be derived from the profile itself.539 However, there is the potential for the discovery that the profile contains more information than is currently recognised. It is suggested therefore that the purposes for which the information on the database may be utilised should be clearly defined. The “any other related purpose” proviso suggested above would ensure that the definition of the permitted purposes is not so constrained that the functioning of the database would be impaired.

3.      Kaye and Inwinkelried also believe that permitting the database to be utilised for “crime investigation purposes” could be interpreted to allow the database to be used for research purposes relevant to crime detection and prevention.540 While the profiles are likely to be of less use for research purposes than the samples, they could still be informative. Whether any meaningful research can be conducted on the profiles should be reviewed by an expert group set up for this purpose. The advantages and disadvantages of utilising the database for these purposes are dependant on the value of the scientific research that could be conducted on the profiles and this is beyond the scope of this Paper. However, the Commission does not, in principle, have any objection to the use of anonymous profiles for research purposes related to criminal investigation, where this is deemed useful. If it is intended to use the profiles for this purpose, this should be specifically addressed in the legislation. At present, the Commission intends to confine its recommendations to the criminal investigation and identification purposes of the database.

4.      The Commission recommends that the database should only be used for crime investigation purposes and the identification of deceased and severely injured people. The specific purposes for which the database may be used should be detailed in legislation.

1.      Familial DNA Trawling

1.      It has been suggested that DNA from a family member could alert the Gardaí to the identity of the actual offender. This is a consequence of the similar genetic make up of relatives. As a result, the Gardaí may wish to perform a forensic procedure on a close relative of a suspect, where the suspect is not available for testing. For example, the murderer of Pauline Floyd, Geraldine Hughes and Sandra Newton was recently detected through his family.541

2.      Permitting the acquisition of a sample from a suspect’s close relatives, whether on a voluntary or compulsory basis, could enable the Gardaí to circumvent the safeguards in the Criminal Justice (Forensic Evidence) Act 1990 and the Scheme of the Criminal Justice Bill 2003. This near match could create a reasonable suspicion that one or other of the family members was responsible for the commission of the offence. The near match could then be utilised to subject the actual suspect to compulsory sampling.542 This evading of the safeguards in the legislation is apparent irrespective of whether the sampling is voluntary or compulsory.

3.      The compulsory taking of a sample could also impact considerably on the family member’s privacy and bodily integrity rights, although it is mostly in respect of the voluntary giving of samples that these concerns would arise. This is because the taking of samples compulsorily from family members would generally prove unnecessary as in such cases a sample could be taken from the suspect. The only situation where this might arise is if the suspect is located outside the jurisdiction. In any event, the compulsory taking of samples would generally be prohibited as a result of the recommended provisions in respect of persons who are not suspects or convicted offenders. The exceptional circumstances where a non-suspect could be subjected to compulsory sampling would not be implicated here, unless the relative was endeavouring to pervert the course of justice.543 The Commission does not believe that an exception should be made for the rare cases where the compulsory taking of a sample of a relative is necessary to implicate an individual in a crime.

4.      We suggest however that a sample obtained voluntarily from a perpetrator’s relative may be used to implicate the perpetrator in a crime because this would not involve an infringement of the suspect’s privacy rights. Rather, information is obtained from another person and this is used to trigger an investigation. In this instance, the information attained would merely be used to take a sample from the individual without their consent under the 1990 Act. Of course the situation would be different if the partial match was admitted into court as evidence. This could constitute an unjustifiable breach of the suspect’s privacy rights. But in the absence of the partial match’s admission into court, the use of it to further the investigation cannot be regarded as objectionable. Using information obtained from another individual to further the investigation cannot per se be regarded as objectionable. An analogy can be drawn here with identification evidence. A victim may be shown photographs of convicted offenders. The victim may assert that the photograph resembles their attacker but that they were younger than the person in the photograph. There can be no objection to pursuing the convicted offender’s younger brother in this instance.

5.      The Commission recommends that a sample obtained voluntarily from a perpetrator’s relative may be used to implicate the perpetrator in the crime but that no compulsory power should be introduced to the effect that such a relation may be compelled to give a sample.

6.