1

1.
Introduction
2.
Executive Summary
3.
Relevant Human Rights Standards
4.
Analysis of Bill
Page
3
6
14
30
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1. Introduction
On February 14 th 2007, the General Scheme of the Criminal Justice (Forensic
Sampling and Evidence) Bill 2007 was referred to the Irish Human Rights
Commission (IHRC) for examination and to report on its implications in consideration of prevailing human rights norms.
1 These observations set out the main relevant human rights standards and analyse the provisions of the Bill against these standards.
At the outset, the Commission wishes to make clear that, in line with the primary objective of preventing and detecting crime, the gardaí should have at their disposal the benefits of modern science and technology.
2
In the context of DNA science, it has been argued that the potential of this crime control technique in Ireland is currently limited by the absence of a permanent collection of reference profiles to which samples obtained at a crime scene can be compared.
3
A DNA database enables a person, not previously suspected of committing a crime, to be identified as the possible perpetrator of an offence or to exclude a person from further investigation.
4
While appreciating the important contribution a DNA database can make to crime investigation, the IHRC believes that any legislative initiative in this area must find a proportionate balance between the rights of the person who is the source of a DNA sample and the wider societal interests such as the prevention of disorder and crime.
The principle of proportionality further requires that the more intimate the data retained, the more important the competing interest has to be. Thus, while the legitimate interest in the prevention and detection of crime may justify the
1 Under section 8(b) of the Human Rights Commission Act 2000 , the IHRC is required
“if requested by a Minister of Government, to examine any legislative proposal and report its views on any implications of such proposal for human rights”.
2 See judgment of Lord Steyn in R (S and Marper) v Chief Constable of South
Yorkshire [2004] 4 All ER 193., para.1. and Heffernan, L., “The taking of forensic samples: a review of proposed reforms”, (2006) 16(2)
ICLJ 2, 11.
3 Law Reform Commission Report on The Establishment of a DNA Database (LRC
78-2005) at 1.01. Existing legislation makes provision for the taking of bodily samples from suspects for the purpose of forensic testing. The use of DNA analysis is currently limited to known suspects. The introduction of a DNA database has been supported by many. See: Opening Address of James Hamilton, Director of Public
Prosecutions at the 6 th
Annual National Prosecutors Conference, 28 th
May 2005, pp5-
6; sentiments of the Garda Commissioner ; “Absence of DNA database for Gardaí deplored”
The Irish Times 27 April 2005. The Director of the Forensic Science
Laboratory agrees that the lack of a national DNA database can hamper crime detection; “Testing times for DNA”
Irish Independent 13 June 2005.
4 The Law Reform Commission was requested by the Attorney General to examine the issue. Its recommendations are contained in its Report on The Establishment of a
DNA Database (LRC 78-2005) which followed the publication of a Consultation
Paper on The Establishment of a DNA Database (LRC CP 29-2004). The Attorney
General welcomed the publication of the report but indicated that the government would seek to introduce a less restrictive database than the model proposed in the report. C Coulter, “Attorney General Welcomes Report on DNA Database”, The Irish
Times , November 11, 2005, p.7.
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establishment of a DNA database, the need for human rights protections in relation to the examination of the function, scope and operation of the database is essential.
A core principle of human rights law is that classification and differential treatment of persons must not be discriminatory or arbitrary in application. Such differentiation must be justified on some objective criteria based on reasonableness and proportionality. These factors must be considered when addressing the scope of persons whose profiles are stored on the database. The IHRC is also aware of the inherent intrusiveness of forensic sampling and the particular sensitivity of personal genetic information; genetic data contained in DNA represents the most intimate medical data an individual may possess.
5
In addition, the IHRC appreciates that the use of DNA evidence in criminal trials in Ireland is still in its infancy.
6
A further important aspect of any technology of this nature is the interplay between the role of an expert witness and the interpretation of DNA evidence by the jury, which has a fundamental impact on the determination of guilt or innocence.
It is clear, therefore, that legislative reform in relation to the taking of DNA samples and in relation to their immediate and long-term use, retention and destruction, will engage with important questions of individual rights, particularly in relation to bodily integrity,
7
privacy
8
and fair trial.
9
In particular, the observations herein will focus on the following areas of concern:
(i) Establishment of a DNA Database

Function of the DNA database

Retention of DNA samples from suspects

Removal and destruction of DNA samples
(ii) Regulation of the DNA Database

Designated laboratory

Role of the oversight committee

International co-operation
5
Heffernan, L., “The taking of forensic samples: a review of proposed reforms”,
(2006) 16(2) ICLJ 2. In addition to personal medical information, analysis of DNA samples can reveal sensitive information about familial relationships.
6 See judgment of McCracken J in Allen v DPP unreported, Court of Criminal Appeal,
December 18, 2003.
7 See e.g. Constitution Article 40.3; Ryan v AG [1965] IR 294; Re A Ward of Court
[1996] 2 IR 73; ECHR, Article 3.
8 See e.g. Constitution Article 40.3.1; McGee v AG [1974] IR 284; Norris v AG [1984]
IR 36 ; ECHR Article 8; Stubbings v United Kingdom , Appl. No.22083, Judgment of the European Court on Human Rights, October 22, 1996, Rep. 1996-IV p.1487;
ICCPR Article 17.
9 Specifically, the privilege against self-incrimination. See Constitution Article 38.1;
Re National Irish Bank [1999] 3 IR 145; ECHR Article 6(2); Saunders v United
Kingdom (1996) 23 EHRR 313.
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(iii) Taking DNA samples

General safeguards

Vulnerable persons

Mass screening and volunteers

Consent and use of reasonable force
(iv) Evidential issues and due process values.
The IHRC is additionally concerned that the potential human rights impact of the proposed legislation may be underappreciated by the wider public due to the technical complexity of DNA. The IHRC believes a widespread inclusive debate as a prelude to the introduction of effective regulatory controls is therefore essential and it would welcome any initiative that would foster informed debate on this issue.
10
10
Heffernan, L., “The taking of forensic samples: a review of proposed reforms”,
(2006) 16(2) ICLJ 2 and Heffernan, L., “The Recording of Fingerprints: Legal
Aspects”, (2006) 13(1)
DULJ 201. Also, the Law Reform Commission has commented: “When analysing the issues involved in the establishment of a DNA database, the Commission considers that a clear understanding of the science involved is vital for an informed discussion of the human rights concerns as well as the evidential issues that the use of the forensic analysis of DNA entails”, Report on
The
Establishment of a DNA Database (LRC 78-2005) at 1.02.
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The Criminal Justice (Forensic Sampling and Evidence) Bill 2007 aims to establish a
DNA database in Ireland. The Commission welcomes the potential a DNA database can offer as an effective crime control technique to An Garda Síochána. It can enable a person, not previously suspected of committing a crime, to be identified as the possible perpetrator of an offence. It can also exclude a person from further investigation.
While appreciating the significance of this contribution to criminal investigation, the
Commission is concerned that the potential human rights impact of the proposed legislation may not be fully appreciated by the wider public. A DNA database stores and retains the most personal information an individual may possess, the implications of which should be understood by each individual. The Commission believes a widespread inclusive debate as a prelude to the introduction of effective regulatory controls is therefore essential.
The Commission considers it imperative that rigorous safeguards underpin the legal framework governing the taking of DNA samples and the operation of a DNA database. The fundamental integrity of DNA as evidence in a criminal trial is dependent on adherence to such standards. In this way, safeguards should be explicit in legislation to avoid miscarriages of justice which can and do take place in the pursuit of finding those guilty of a crime. The necessity of having stringent safeguards in place is further heightened in the context of vulnerable persons, such as children and those with a mental illness. In the Commission’s view, protection in the proposed legislation is not adequate.
The Commission also considers it essential to highlight that there can be little, if anything, more private to an individual than information on his or her genetic makeup. The guarantee of a person’s right to privacy is therefore fundamentally affected by the retention and storage of their DNA sample on a database. What is objectively reasonable and proportionate must be considered in the examination of the parameters of the DNA database. By way of example, the indefinite retention of DNA samples from persons who remain innocent before the law is an unacceptable invasion of a person’s right to privacy. In addition, carrying out mass-screenings of groups of persons should not be used as an ordinary investigative tool, but should be restricted in their use where other less intrusive and less expensive means have proved unhelpful.
Exchanging personal information, such as a DNA sample, to other bodies internationally raises serious concerns for the privacy rights of individuals, particularly those who ‘freely’ consent to DNA sampling. In volunteering a DNA sample, an individual may or may not appreciate the pool of potential persons who may have access to their sample. There is thus an onus of responsibility on the State to provide such information so that the consent given is actual and real.
The following is a summary of the main recommendations of the Irish Human Rights
Commission in its examination of the General Scheme of the Criminal Justice
(Forensic Sampling and Evidence) Bill 2007 and its adherence to prevailing human rights standards.
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1.
Function of the DNA Database

It must be acknowledged that the potential uses of DNA samples are likely to expand in the future. It is therefore essential that domestic law lays down with sufficient precision the circumstances in which authorities can store and make use of information relating to an individual’s private life.
 The IHRC recommends the proposed legislation should be amended to specify in explicit and exclusive terms the purposes for which the
information in the DNA database can be utilised.
2.
Retention of DNA samples from suspects
 It must be highlighted that the indefinite retention of suspect’s samples on
DNA databases is the exception rather than the norm both in Europe and internationally. The IHRC considers the current proposal to indefinitely retain samples taken from suspects, who remain innocent, is an unacceptable invasion of a person’s right to privacy.

The IHRC recommends removal and destruction of a suspect’s sample and profile should occur as soon as practicable once legal proceedings have been discontinued or concluded and the person has been discharged or acquitted.

In line with recommendations made by the Law Reform Commission, the
IHRC acknowledges there may be circumstances where a sample should not be destroyed.

The IHRC recommends inclusion of a saver provision to give the DPP authority to make an application to the court allowing the retention of the sample or profile in certain circumstances.
3.
Removal and destruction of DNA samples

The IHRC considers the provision that an applicant must appeal the Garda
Commissioner’s decision regarding removal and destruction of DNA samples to be within two months, very restrictive. This may allow limited opportunity for the applicant to seek legal advice. There is no requirement for the Garda
Commissioner to supply reasons for its position and thus the applicant may not easily appreciate whether an appeal is likely to be granted or refused.

The IHRC recommends an onus should lie on the Garda Commissioner to supply reasons for his or her position regarding removal and destruction of
DNA samples. The time period within which a person can make an appeal on the decision should be extended from two months to four months in order to allow sufficient time for preparation of his or her case.

In the context of those persons who have freely consented to give a sample, persons who are classified as volunteers under the Bill, the Commission
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believes they should be entitled to withdraw their consent without difficulty.
In addition, guidance should be given to the court in making the decision to grant or refuse the application. Given the particular sensitivity of personal genetic information contained in a DNA sample and the volunteer status of the individual, the IHRC considers that such an order should only be granted in exceptional circumstances.

The IHRC recommends that the factors to be considered by the court and the grounds upon which a Superintendent has authority to make a request for retention of the sample should be laid out in legislation.
An order requesting the retention of the sample should only be granted in exceptional circumstances.
4.
Designated Laboratory

The IHRC believes the potential for reassignment and delegation of responsibility of work carried out by the Forensic Science Laboratory to another body inside or outside the State raises a number of concerns for the privacy of personal information stored on a national DNA database.
International human rights jurisprudence has indicated that a number of important safeguards should be in place to ensure that information concerning a person’s private life does not reach the hands of persons who are not authorised by law to receive, process and use it, and is never used for purposes incompatible with domestic law. Every individual should have the right to ascertain what personal data is stored about them and for what purpose.

The IHRC recommends accountability provisions should be intrinsic in any framework allowing the transfer of personal information such as DNA.
Safeguards should be provided by legislation so that designation of responsibility of work to a third party only occurs in exceptional circumstances. There should be an undertaking on the Director or
Commissioner to provide the Minister with a detailed explanation for proposing the reassignment of responsibility.
5.
Role of the oversight committee

The IHRC believes that the oversight committee established to oversee the operation of the DNA database will have a crucial role in ensuring effective protection of human rights.

The IHRC recommends that the committee should have the power to publish reports concerning issues of urgent interest to the public. As an independent agency, the method of publication of its reports should not be at the Minister’s discretion. Queries raised by the committee should have the right to receive a reply from the relevant body within a specified period of time. Access to documentation and records should be open to the oversight committee on a non-restricted basis.

The IHRC considers the appointment of the members of the oversight committee must have regard to the knowledge and experience that would be of assistance to the committee in the performance of its functions. While the
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Commission welcomes the legislative proposals stating that a representative of the legal profession, a person with appropriate scientific or medical qualifications, and a nominee of the Data Protection Commissioner should be members on the committee, the Commission considers the important human rights issues with which a DNA database engages necessitate a human rights perspective to be represented on the committee.

The IHRC recommends in line with the Law Reform Commission’s stated recommendations that the committee should include a representative from a human rights organisation.

The IHRC recommends added protection should be inserted in statute so as to avoid the risk of a conflict of interest between members of the oversight committee and the designated laboratory.

The IHRC recommends membership on the committee should attract absolute privilege so as to ensure independence, impartiality and security of position for its members.

The IHRC recommends independent external reviews of the database should be carried out by the Irish National Accreditation Board (INAB).
6.
International co-operation

Ensuring effective compliance with safeguards is problematic when sensitive information is transferred between different states and between agencies with different access, use and privacy provisions. The current state of co-operation between national authorities in respect of DNA profiles is at an early stage of development. The IHRC considers it essential that a detailed framework be established at a European and international level that incorporates procedural protections to ensure compatibility with human rights obligations. Allowing the exchange of personal information in the absence of a framework is a cause for concern.
 The IHRC recommends an agreement between the Irish authorities and other states or agencies concerning the transfer of such personal information as a necessary safeguard to ensure protection for the privacy and the fundamental rights and freedoms of data subjects. In the absence thereof, no exchange should be authorised.

The IHRC recommends legislation should make it explicit that non-public bodies are precluded from capacity as recipients of such information.

The IHRC recommends individual notification of the transfer of a person’s
DNA data internationally should be mandatory and individuals should be allowed to make a challenge to the use of his or her data.

The IHRC contends that the initial consent of a volunteer to the availability of the sample on the Irish database should not be taken as authorisation for the transfer of the sample internationally.
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
If there is a possibility that the sample taken from a volunteer could be exchanged internationally, the IHRC recommends An Garda Síochána should be required, when seeking consent, to inform the individual of this possibility.
7.
Taking DNA Samples

The IHRC recommends the Bill should be amended to stipulate that codes of good practice in relation to the taking of samples should be developed with due regard to international best practice and international human rights standards. Consultation should be mandatory between the gardaí, the designated laboratory, Data Protection Commissioner and the Irish Human
Rights Commission before such codes of good practice are developed.

The IHRC considers the safeguards in relation to the taking of samples laid out in the proposed Bill are inadequate. The following general safeguards should be included in relation to the taking of bodily samples:
(i) the taking of bodily samples should be carried out in circumstances affording reasonable privacy to the person;
(ii) 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;
(iii) there should be no questioning during the taking of bodily samples;
(iv) the taking of bodily samples should not involve any cruel, inhuman or degrading treatment;
(v) 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;
(vi) the taking of bodily samples must be video recorded in all circumstances unless the person objects to the video recording and the person must be informed of the reasons for the video recording;
(vii) the person should have the right to an interpreter where he or she does not speak English fluently;
(viii) the person should have the right of access to legal advice to decide the implications of refusing to give a bodily sample.
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8.
Vulnerable persons

In line with the importance of respecting the rights and vulnerability of children, the IHRC recommends the presence of a parent or guardian should be a condition of consent when taking a sample from persons under
18 years of age. The IHRC also recommends the taking of samples from persons of this age should be limited to those convicted of a serious offence and to suspects for serious offences, but not volunteers or more generally.
This should be made explicit in legislation.

In the event that the safeguard, requiring the presence of a parent or guardian during the taking of bodily samples from a minor, is not included in legislation, the IHRC recommends no use of force should be allowed.

There are no additional safeguards in place for vulnerable persons with reduced capacity due to for example, a mental illness.

The IHRC recommends that the presence of an independent person who is not a member of An Garda Síochána should be required during the taking of bodily samples from persons with reduced capacity.

The IHRC recommends that a person from whom a sample is taken should have the right to an interpreter where he or she does not speak English fluently.
9.
Mass screening and volunteers

The IHRC recommends mass screening should only be considered an option for the gardaí where consideration has been given to alternative less intrusive and less costly means of criminal investigation methods.

Before consent is given for the giving of a sample, the IHRC recommends volunteers and persons involved in a mass screening should have a reasonable opportunity to communicate or attempt to communicate with a legal practitioner. In the event that the person does not communicate with a legal practitioner, access to such information, for example in the form of a leaflet, should be supplied in advance of giving his or her consent.

In the context of volunteers and mass screenings, failure to consent to a forensic procedure should not be capable of constituting a reasonable ground for suspecting a persons involvement in the particular offence so as to justify requiring them to give a sample as a suspect. The IHRC recommends this protection should be stipulated in statute.
10.
Use of reasonable force

The proposed legislation permits the use of reasonable force in the taking of
DNA samples from persons convicted of an offence and from suspects for arrestable offences (including children between 12 years and 18 years). The
Commission is concerned that there may be a danger that the use of force
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could become a practice regularly employed by An Garda Síochána in the gathering of evidence. Such a danger must be avoided. The IHRC wishes to emphasise once again the principle that force should only be used by members of An Garda Síochána where it is strictly necessary and if so only to the extent required for the performance of their duties. In particular, where persons suspected of having committed a crime are in detention, the use of force should only occur in exceptional circumstances . This is a basic principle governing the activities of law enforcement officials as laid down in international human rights law.

The IHRC recommends that legislation should explicitly condition the circumstances in which authorisation to take samples without consent may be given.

The significance of consent is considerably undermined by the negative consequences that may flow from a person’s refusal to consent. Specifically, a court may draw inferences from the refusal and the refusal may be treated as corroboration of any evidence in relation to which the refusal is material. In making the decision whether to consent or refuse to the taking of a sample, a person may consider not only the impact of this procedure on their right to bodily integrity and privilege against self-incrimination, but also the privacy concerns relating to the indefinite retention of their DNA sample on a database. There may be valid reasons behind a reluctance to provide a DNA sample.

Capacity to provide real consent should not be influenced by the possibility that negative consequences will flow from the person’s refusal to give consent. Due to the intimate information contained in a DNA sample and the consequences of retention of a DNA sample on a database, the IHRC recommends an individual should have the right to refuse the taking and storage of a sample without such a refusal to be used as evidence against him or her in court. Inferences should not be drawn from a person’s refusal to give consent.
11.
Evidential issues and due process values

Although the defence has access to the evidence obtained, it must be highlighted that the accused is not currently well-placed to challenge crime scene sampling.

The IHRC recommends the State should provide adequate financial assistance if necessary for independent analysis of the DNA evidence obtained.

The IHRC considers the degree of intrusion in bodily integrity and privacy merits the greatest vigilance in terms of compliance with the safeguards provided by law.

The IHRC considers the absence of any provision for the consequences of a breach of safeguards in the Bill is a cause for concern. This will ultimately
12

reduce the significance of forensic evidence in the eyes of the law and the public and may also have an impact on the prevention of miscarriages of justice.

A judicial warning would aim to assist the jury in weighing the complex evidence presented during the trial. The warning would also aim to avoid a
‘trial by expert’ and help to ensure false conclusions are not reached.

Due to the probative value of a DNA match and the perceived infallibility of
DNA evidence, the IHRC recommends that a judge gives a warning to the jury in cases involving DNA evidence.
12.
Informed Debate

The IHRC is concerned that the potential human rights impact of the proposed legislation may be underappreciated by the wider public due to the scientific complexity of DNA.
 The IHRC recommends a widespread inclusive debate as a prelude to the introduction of effective regulatory controls is essential.
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2. Relevant Human Rights Standards
The Irish Constitution and international human rights texts, both universal and regional, contain a body of basic principles that are applicable to the legislative measures introduced in the Criminal Justice (Forensic Sampling and Evidence) Bill
2007.
2.1 Right to Privacy
The notion of privacy derives from the assumption that all information about a person is in a fundamental way his or her own, to communicate or retain for himself as he or she sees fit.
11 In the words of the Canadian Privacy Commissioner in his report on
Genetic Testing and Privacy :
“The measure of our privacy is the degree of control we exercise over what others know about us. No one, of course, has absolute control. As social animals, few would want total privacy. However, we are all entitled to expect enough control over what is known about us to live with dignity and to be free to experience our individuality. Our fundamental rights and freedoms- of thought, belief, expression and association- depend in part upon a meaningful measure of individual privacy. Unless we each retain the power to decide who should know our political allegiances, our sexual preferences, our confidences, our fears and aspirations, then the very basis of a civilised, free and democratic society could be undermined.” 12
This sense of a private sphere is central not only to human rights theory, but also to liberal democratic theory. While the right to privacy is currently undergoing dramatic development at both the European and international levels, it is important to emphasise at the outset that a self-standing right to privacy involves an appreciation of the right of an individual to retain certain information about his or her life as a good in itself . The individual should not have to justify a refusal or reluctance to divulge information. Rather the onus should be on the State to justify an infringement of the individual’s legitimate private life, home and family.
There can be little, if anything, more private to an individual than information on his or her genetic make-up.
13
In this way, the guarantee of the right to privacy is fundamentally affected by the taking of DNA samples, retention of samples on a
DNA database, their exchange of DNA samples internationally, and use as evidence during a criminal trial. The legislative proposals under the Criminal Justice (Forensic
Sampling and Evidence) Bill 2007 need to be justified on objective criteria based on
11 Per La Forest J. in R v. Dyment (1988) 45 CCC (3d) 244, at 255-256.
12 The Privacy Commissioner of Canada, Genetic Testing and Privacy (Minister for
Supply and Services Canada: 1995) at p.2.
13
It has been argued that the ‘knowledge’ in relation to an individual’s life that can be revealed from DNA samples has no parallel in the history of science. The Canadian
Privacy Commissioner commented: “No surveillance technology is more threatening to privacy than that designed to unlock the information contained in human genes” in
Genetic Testing and Privacy (Minister for Supply and Services Canada: 1995) at p.2.
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reasonableness and proportionality. The principle of proportionality under human rights law requires that any interference with fundamental rights must be proportionate to the legitimate aim being pursued. This requires the legitimate interest of detecting and preventing crime to be balanced against the right of individuals not to have their personal information held with or without their consent.
Furthermore, the principle of proportionality requires that the more intimate the data retained, the more important the competing interest has to be. The following discussion attempts to lay out the domestic, regional and international protection guaranteed by the right to privacy, particularly as it applies to the legislative proposals under the Criminal Justice (Forensic Sampling and Evidence) Bill 2007.
2.1.1 Irish Constitution- Article 40.3
The Irish Constitution guarantees the unenumerated right to respect for private life as one of the fundamental personal rights of the citizen which flows from the Christian and democratic nature of the State.
14
In the case of Kennedy v Ireland ,
15
Hamilton P. iterated this view, stating:
“The nature of the right to privacy must be such as to ensure the dignity and freedom of an individual in the type of society envisaged by the Constitution, namely, a sovereign, independent and democratic society.” 16
He emphasised however that the right is a qualified right. The exercise of the right may be restricted by the constitutional rights of others or by the requirements of the common good, and is subject to the requirements of public order and morality.
17
A proportionality test has been applied by the Supreme Court in the context of qualified rights. In the case of Heaney v Ireland , 18 Costello J. defined the proportionality test as a test which requires that there should be minimal restraint on the exercise of protected rights.
19
The objective of the restraint must be of sufficient importance to warrant overriding a constitutionally protected right and must relate to concerns pressing and substantial in a free and democratic society.
20 In order to pass the proportionality test, Costello J. stated that the means chosen must be rationally
14 Article 40.3.1 of the Irish Constitution. See McGee v AG [1974] IR 284; Norris v
AG [1984] IR 36.
15 [1987] IR 587 .
16 [1987] IR 587, 592.
17 See also in the case of Re A Ward of Court [1996] 2 IR 73, the Court accepted that the right to refuse medical treatment could be viewed as an aspect of the right to private life. Hamilton CJ. quoting Costello J.’s remarks, made extra-judicially, pointed out that none of the personal rights in Article 40.3.1 are absolute and they may be restricted under certain circumstances. Costello J. pointed to the following example: “in the case of contagious diseases, the claims of the common good might well justify restrictions on the exercise of a constitutionally protected right to refuse medical treatment.”
18 [1994] 3 I.R. 593. See also judgments of the European Court on Human Rights in their application of the principle in early decisions such as Times Newspapers Ltd. v
United Kingdom (1979) 2 EHRR 245 and Dudgeon v United Kingdom (1981) 4
EHRR 149.
19 Ibid at 607.
20 Ibid.
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connected to the objective, must not be arbitrary or unfair, and must impair the right as little as possible.
21
The precise scope of the right to private life has not been fully defined by the Irish courts.
22
2.1.2 European Convention on Human Rights- Article 8
Our obligations under the European Convention on Human Rights 23 necessitate consideration of jurisprudence created by the European Court of Human Rights in its interpretation of the right to respect for private life under Article 8.
24
Article 8 provides:
“1.
Everyone has the right to respect for his private and family life, his home and his correspondence.
2. There shall be no interference by a public authority with the exercise of this right except such as 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.”
In Stubbings v. United Kingdom ,
25
the Court stated that the concept of private life includes the “physical and moral integrity of the person”.
26
The Commission has considered two cases where the applicants claimed that a law obliging them to take a compulsory blood test amounted to a violation of their right to private life under Article 8 of the European Court of Human Rights. In the case of X v the Netherlands 27 the applicant was required to take a blood test on suspicion of driving under the influence of alcohol and in the case of X v Austria
28
the applicant was required to take a blood test in the context of paternity proceedings. In both cases the Commission accepted that: “physical interference, even minimum physical interference, with a person against his will may raise problems in connection
21 Ibid.
22 It has been argued that new data retention laws could have a significant affect on a persons right to privacy. At present, Digital Rights Ireland (DRI) has begun a High
Court action against the Irish government challenging the EU Directive 2006/24/EC and Irish laws requiring mass surveillance. Under section 63(1) of the Criminal
Justice (Terrorist Offences) Act 2005
, citizens’ electronic communications data must be retained for 3 years. The EU Directive 2006/24/EC aims to introduce a data retention regime for all EU member states, including retention of internet use records.
This will require Internet Service Providers to monitor citizen’s internet use, including recording details of every e-mail sent.
23 Incorporation of the European Convention on Human Rights into domestic law took place with the introduction of the European Convention on Human Rights Act 2003 .
24 Section 2(1) of the European Convention on Human Rights Act 2003 .
25 (1993) 23 EHRR 213.
26 Ibid. para. 61. It is noteworthy that the concept of private life under Article 8 is considered to be one of the most open-ended provisions of the European Convention on Human Rights and has the potential to be interpreted broadly.
27 Application no. 8239/78, 16 D.R. 184.
28 Application no. 8278/78, 18 D.R. 154.
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with…Article [8].” 29
However, in both cases the Commission accepted that the interferences in question could be justified under Article 8(2) of the European
Convention on Human Rights, which sets out the circumstances in which interferences with privacy are acceptable. In the case of X v the Netherlands ,
30
the
Commission held that,
“while compulsory blood testing may be seen as constituting a violation of private life within the meaning of Article 8, paragraph 1, it may also be seen as necessary for the protection of the rights of others, within the meaning of paragraph 2 of the same article.” 31
Moreover, in the case of X v Austria ,
32
the Commission concluded that the public has an interest in the courts having the power to make use of a harmless scientifically proven method of obtaining evidence for the purpose of determining paternity relationships and thereby determining paternity rights. It was held that these interests must prevail in the circumstances of the case over the applicant’s interest in being protected against interferences with his private life.
33
The European Court of Human Rights has not directly considered the question of the taking of bodily samples under Article 8 of the Convention. An analogous situation is a case in which the Court looked at the issue of voice samples. This was presented in the case of P.G. and J.H. v United Kingdom ,
34
where the applicants alleged that the secret recording of their voices by the police when they were being charged at the police station and while they were being held in their cells amounted to a violation of their private life. The Government submitted that the aural quality of the applicants’ voices was not part of private life but was rather a public, external feature. However, the Court held:
“While it is generally the case that the recordings were made for the purpose of using the content of the conversations in some way, the Court is not persuaded that recordings taken for use as voice samples can be regarded as falling outside the scope of protection afforded by Article 8. A permanent record has nonetheless been made of the person’s voice and it is subject to a process of analysis directly relevant to identifying that person in the context of other personal data.” 35
29 Application no. 8239/78, 16 D.R. 184. at p. 189.
30 Ibid.
31 Ibid.
32 Application no. 8278/78, 18 D.R. 154.
33 Ibid . at pp. 156-157.
34 Application no. 44787/98, 25/09/2001.
35 Ibid. para. 59. The Court also concluded that the interference in question was not in accordance with the law because it was not provided for in legislation. The Court noted that: “[I]t is trite law that specific statutory or other express legal authority is required for …invasive measures, whether [it is to] search private property or taking personal body samples……The underlying principle [is] that domestic law should provide protection against arbitrariness and abuse” at para.62.
17

In addition, recent case-law from the European Court of Human Rights shows that retention by the police of personal information can amount to an interference with the right to respect for personal privacy under Article 8(1). In Amann v Switzerland , 36 the
European Court of Human Rights found Article 8 applicable when State security services kept a record indicating that the applicant was a contact of the Soviet
Embassy, after intercepting a telephone call from the Embassy to the applicant. The
Court specifically noted that storage of the information on an index card alone was sufficient to constitute interference in private life and that the subsequent use of the stored information had no bearing on that finding.
Not all interferences with the right to private life violate Article 8 of the European
Convention on Human Rights. Article 8(2) acknowledges that there are certain situations in which interference by the State is justified. But the Court has been clear that this paragraph, since it provides for an exception to a right guaranteed by the
Convention, is to be read narrowly. The Court has accordingly interpreted Article
8(2)’s requirement that such interferences be in accordance with the law, as meaning not only that there must be a law in place authorising the interference, but that it should meet the standards of accessibility and forseeability inherent in the concept of the rule of law. The principle behind the foreseeability requirement is the notion that the State should give citizens an adequate indication of the circumstances in which the public authorities are empowered to interfere in their private lives.
In Rotaru v Romania , 37 the Court held that the collection, storage and use by a public authority of personal data interfered with the right to privacy under Article 8(1).
38
In order for the storage and use of such information not to contravene Article 8, such interference must have been "in accordance with the law", 39 pursue a legitimate aim and, furthermore, be necessary in a democratic society in order to achieve that aim.
Although the storing of such information had a basis in Romanian law, the requirement of forseeability had not been fulfilled. The Court stated that domestic law must indicate with reasonable clarity the scope and manner of exercise of the relevant discretion conferred on the authorities.
40
The Court noted that no provision of domestic law laid down limits on the exercise of such powers.
41
For example,
36 (2000) 30 EHRR 843.
37 (2000) 8 BHRC 43.
38 The European Court of Human Rights noted that the Romanian Intelligence
Service’s letter of 19 December 1990 contained various pieces of information about the applicant’s life, in particular his studies, his political activities and his criminal record, some of which had been gathered more than fifty years ago. The Court held that such information when systematically collected and stored in a file held by agents of the State fell within the scope of ‘private life’ for the purposes of Article 8(1) of the
Convention.
39 The Court noted that in its judgment of 25 November 1997 the Bucharest Court of
Appeal had confirmed that it was lawful for the Romanian Intelligence Service to hold the information as depository of the archives of the former security services.
That being so, the Court could conclude that the storing of information about the applicant’s private life had had a basis in Romanian law.
40 Ibid, para.61.
41 Ibid, para.51. and para.57. See also: “The ‘quality’ of the legal rules relied on in this case must therefore be scrutinised, with a view, in particular, to ascertaining
18

domestic law did not define the kind of information that could be recorded, the categories of people against whom surveillance measures such as gathering and keeping information could be taken, the circumstances in which such measures could be taken or the procedure to be followed.
42
Similarly, the Court noted that the law did not lay down limits on the age of information held or the length of time for which it could be kept.
43 The measure prescribed by national law must be accessible to the person concerned and foreseeable as to its effects.
44
The Court also stated that adequate and effective safeguards against abuse did not exist.
45
For such reasons, the
Court held that the holding and use by the Romanian Intelligence Service of information on the applicant’s private life was not “in accordance with the law”, and was in violation of Article 8.
46
In addition, the dissemination of CCTV footage in a public street was held to interfere with the right to respect for privacy in the case of Peck v UK .
47
In line with the
Commission’s decision in
Herbecq v Belgium ,
48
the Court accepted that “the monitoring of the actions of an individual in a public place by the use of photographic equipment which does not record the visual data does not, as such, give rise to an interference with the individual’s private life”.
49
However, the Court stated that the situation is different where a record is maintained or, as in the present case, disclosed.
50
This decision has relevance for the use, storage and in particular the exchange of personal information such as DNA samples.
Application of Art. 8 of the European Convention on Human Rights in the UK Courts
Incorporation of the European Convention on Human Rights in England and Wales took place through introduction of the Human Rights Act 1998 . In R (S and Marper) v Chief Constable of South Yorkshire , 51 the House of Lords examined the compatibility of measures allowing for the indefinite retention of suspects profiles with the European Convention on Human Rights.
52
The clients requested that their fingerprints and DNA samples be destroyed. One of the claimants had been whether domestic law laid down with sufficient precision the circumstances in which the RIS could store and make use of information relating to the applicant’s private life”, at para.56.
42 Ibid, para. 57.
43 Ibid, para. 57. See also Malone v U. K. (1984) 7 EHRR 14 and Amann v
Switzerland (2000) 30 EHRR 843.
44 Ibid, para.52.
45 Ibid, para. 59.
46 Ibid, para. 62.
47 (2003) 36 EHRR 41.
48 Application No.s 32200/96 and 32201/96, Dec, 14.1.98, D.R.-A, p.92.
49 Ibid, para.59.
50 The Court referred to the following cases: Amann v Switzerland (2000) 30 EHRR
843; Rotaru v Romania (2000) 8 BHRC 43.
51 [2004] 4 All ER 193.
52 See further for discussion of judgment in the Law Reform Commission Report on
The Establishment of a DNA Database (LRC 78-2005) at 2.56-2.62.
19

acquitted, while proceedings against the other claimant had discontinued.
53
The requests for destruction of the samples were refused by South Yorkshire police. The claimants contended that section 64(1A) of the Police and Criminal Evidence Act
1984 infringed their right to respect for private lives under Article 8(1) of the
European Convention on Human Rights. This section allowed police to lawfully retain fingerprints and samples of persons after they had fulfilled the purposes for which they had been taken and provided that they were not used “except for purposes related to the prevention or detection of crime, the investigation of an offence of the conduct of a prosecution.” The claimants stated particular concern about the future uses to which the DNA samples might be put and the lack of independent oversight in the UK National DNA Database.
In the judgment of the House of Lords, Lord Steyn listed a number of factors which led to the Courts’ declaration of compatibility with the European Convention on
Human Rights. Such factors included the fact that under the existing legislation, fingerprints and samples are kept only for a limited purpose, they are not of any use without a comparator fingerprint or sample, they are not made public, and they are not identifiable by an untutored eye as belonging to a particular individual.
54
The case has recently been accepted for hearing by the European Court of Human
Rights. This is the first time that the Court will directly consider whether the taking and retention of bodily samples for forensic analysis and investigation of crime amounts to an interference with private life.
55 The following factors will be considered: any restriction on this right must be minimal; the object of the restriction must be of sufficient importance to warrant overriding the right to private life, and the means chosen to restrict the right must be proportionate to the objective pursued. In assessing whether the principle of proportionality has been complied with, the Court will examine whether adequate and effective safeguards exist to protect the individual against arbitrary or unjustifiable interference. A ruling is expected later in 2007.
2.1.3
Committee of Ministers of the Council of Europe
Recommendation No. R(92)1
In collaboration with the Parliamentary Assembly, the Committee of Ministers is the guardian of the Councils fundamental values and monitors member states’ compliance with their undertakings. The Committee has the authority to issue non-binding recommendations to the members states on matters that it has agreed are ‘common policy’ as between member states.
56
It has issued a Recommendation regarding the use, taking and storage of DNA samples in the context of the criminal justice system.
57
For example, the Recommendation states that the information derived from
53 One of the cases concerns a juvenile who was charged with an offence and acquitted, and the other a man, Michael Marper, charged with harassment whose case did not go to court as the charges were dropped.
54 R (S and Marper) v Chief Constable of South Yorkshire [2004] 4 All ER 193, para.
38.
55 Section 64(1A) of the Criminal Justice and Police Act 2001 and Article 8 of the
European Convention on Human Rights.
56 Article 15 (b) of the Statute of the Council of Europe.
57 Recommendation No. R (92) 1 of the Committee of Ministers on the use of analysis of deoxyribonucleic acid (DNA) within the framework of the criminal justice system.
20

such analysis for the purpose of investigation and prosecution of a criminal offence must not be used for other purposes.
58
In addressing the question of the laboratories and institutions that control DNA analysis, the Recommendation points out that DNA analysis is a sophisticated scientific procedure which should only be performed by laboratories possessing the appropriate facilities and experience. The Committee of
Ministers recommends, where the domestic law admits that samples may be taken without the consent of the suspect, such sampling should only be carried out if the circumstances of the case warrants such action.” 59
The Recommendation also states that samples should not be kept after the rendering of the final decision in the case for which they are required.
60
Measures should be taken to ensure that the results of
DNA analysis and the information so derived are deleted when it is no longer necessary to keep it for the purposes for which it was used.
2.1.4 International Covenant on Civil and Political Rights- Article 17
Article 17 of the International Covenant on Civil and Political Rights provides that:
61
“1. No one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence, nor to unlawful attacks on his honour and reputation.
2. Everyone has the right to the protection of the law against such interference or attacks.” 62
In relation to the gathering and holding of personal information, the Human Rights
Committee requires that a number of important safeguards be in place.
63
It must be regulated by law; effective measures must be taken by States to ensure that information concerning a person’s private life does not reach the hands of persons who are not authorised by law to receive, process and use it, and is never used for purposes incompatible with the Covenant; every individual should have the right to ascertain whether, and if so, what personal data is stored about them and for what purpose; if such files contain incorrect personal data or have been collected or processed contrary to the provision of the law, every individual should have the right to request rectification or elimination. The safeguards laid out in General Comment
16 display the importance of legislative reforms providing effective safeguards, both in the taking of samples, their use domestically and exchange of DNA information to other public authorities or bodies internationally.
58 Paragraph 3.
59 Paragraph 4.
60 Paragraph 8.
61 Article 2 of the International Covenant on Civil and Political Rights (ICCPR) is an essential foundation for the obligations undertaken by the States’ parties. Article 2 (1) provides that: “Each State Party to the present Covenant undertakes to respect and to ensure that all individuals within its territory and subject to its jurisdiction the rights recognised in the present Covenant, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.”
62 The meaning of privacy for the purposes of Article 17 has not yet been thoroughly defined in either the General Comment or case law.
63 General Comment 16 of the Human Rights Committee, UN Doc. HRI/GEN/1/Rev.1 at 21 (1994), para. 10.
21

2.2 Human Rights and the Use of Force
In the context of the taking of samples, it can be stated that a core principle of international human rights law states that the use of force by the police or other agents of the State must be carefully regulated and based on the principle of least necessary force.
2.2.1 Irish Constitution- Article 40.3
Related to this principle is the constitutional protection provided by Article 40.3 under the Irish Constitution- every individual enjoys the right to bodily integrity.
64
It protects the individual from deliberate physical interference with his or her person and, in the context of the criminal justice system, operates in tandem with guarantees of due process and fair procedures.
65 This constitutional right to bodily integrity is by no means absolute, however, and the State is obliged to protect it only so far as is practicable having regard to the common good. Irish case-law has yet to interpret
Article 40.3 in the context of the taking of bodily samples.
66
2.2.2 European Convention on Human Rights- Article 3
Jurisprudence from the European Court of Human Rights is relevant in this context.
Article 3 of the European Convention on Human Rights provides that “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”
67
The
European Court of Human Rights has emphasised that,
“in respect of a person deprived of his liberty, any recourse to physical force which has not been made strictly necessary by his own conduct diminishes human dignity and is in principle an infringement of the right set forth in
Article 3 of the Convention….[T]he requirements of an investigation and the undeniable difficulties inherent in the fight against crime cannot justify placing limits on the protection to be afforded in respect of the physical integrity of individuals.” 68
The determination of whether the treatment complained of amounts to “degrading treatment” must be decided taking into account the factors relevant to such a determination and in light of all the circumstances of the case.
69
For example, the
64 Ryan v Attorney General [1965] IR 294.
65 State (Healy) v Donoghue [1976] IR 325, at 348-349. Heffernan, L., “The
Recording of Fingerprints: Legal Aspects”, (2006) 13(1)
DULJ 201.
66 In the Matter of a Ward of Court: in the interpretation of this unenumerated right, the Irish courts have stated that the integrity of an individual is violated, for example, where there is an invasive medical procedure or ‘mutilation’ of the body without consent from the individual.
67 See generally R. Macdonald, F. Matscher, and H. Petzold, The European System for the Protection of Human Rights (Dordrecht, 1993), at 225 and 263.
68 Ribitsch v. Austria , Application no. 18896/91, 04/12/1995. Article 3: “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.” The prohibition against torture, inhuman and degrading treatment or punishment is absolute. See Aksoy v. Turkey , Application no. 21987/93 at para. 62.
69 In order for conduct to be embraced by the prohibition, it must “attain a minimum level of severity”,
Ireland v United Kingdom , Judgment of 18 January 1978, Series A,
22

Court has commented that “[t]reatment or punishment of an individual may be said to be degrading if it grossly humiliates him before others or drives him to act against his will or conscience.” 70 In Selcuk and Asker v. Turkey , 71 the Court stated:
“…ill-treatment must attain a minimum level of severity if it is to fall within the scope of Article 3. The assessment of this minimum is relative: it depends on all the circumstances of the case such as the duration of the treatment, its physical and/or mental effects and, in some cases, the sex, age and state of health of the victim.” 72
Such factors are particularly relevant in the context of developing appropriate safeguards for the taking of samples from persons, sometimes categorised as vulnerable, such as young people, the elderly, and individuals with psychiatric concerns. It is also important to highlight that the protection afforded by Article 3 of the European Convention on Human Rights can place the State under a positive obligation to take preventative measures to ensure that violations do not occur.
73 It has been stated that:
“the right not to be exposed to a real risk of Article 3 ill-treatment- is both absolute and fundamental: it is not a qualified right requiring a balance to be struck with some competing social need
74 …The Court’s primary task is to clarify the legal standard, and to ensure that there are in place adequate measures to ensure that the standard is generally met.” 75
In this sense, it can be deduced that the State has a positive obligation to ensure that persons who are deprived of their liberty are not subjected to any form of ill-treatment that may be considered degrading. The appropriateness of the preventative measures
No.25; (1979-80) 2 EHRR 25, para.162 of judgment; and Tyrer v United Kingdom ,
Judgment of 25 April 1978, Series A, No.26; (1979-80) 2 EHRR 1, para.30 of judgment.
70 The Greek Case, Report of 5th Nov, 1969, (1969) 12 Yearbook 186-510 at p. 186.
71 Selcuk and Asker v Turkey , Application nos. 23184/94, 23185/94, 24/04/1998.
72 Ibid, para 76.
73 In Pretty v the United Kingdom (2002) 35 EHRR 1, “the Court stated that the obligation of the high contracting parties under Article 1 of the Convention…to secure to everyone within the jurisdiction the rights and freedoms defined in the
Convention, taken together with Article 3, requires states to take measures designed to ensure that individual within their jurisdiction are not subjected to torture or inhuman or degrading treatment”. In addition, remedial action to ensure accountability and justice must take place where violations have already taken place. It was observed in the Aksoy case that, “where an individual is taken into police custody in good health but is found to be injured at the time of release, it is incumbent on the State to provide a plausible explanation as to the causes of the injury failing which a clear issue arises under Article 3 Aksoy v Turkey (2000) 34 EHRR 1173. See also Sevtap Veznedaroglu v Turkey (App.32357/96), Judgment of 11 April 2000; (2001) 33 EHRR 1412.
74 R. ex parte Adam and others v Secretary of State for the Home Department [2004]
EWCA Civ.540 at para. 128.
75 Ibid. at para.130.
23

developed may depend on the nature of the individuals involved and the circumstances of the treatment.
2.2.3 European Convention for the Prevention of Torture and Inhuman or
Degrading Treatment or Punishment- European Committee for the Prevention of Torture
The European Committee for the Prevention of Torture
76
was established under the
European Convention for the Prevention of Torture and Inhuman or Degrading
Treatment or Punishment to examine the treatment of persons deprived of their liberty within the Council of Europe member states. The CPT regularly issues a set of substantive standards to indicate to national authorities its views regarding the manner in which persons deprived of their liberty ought to be treated. In its 2002 report, the
CPT identified three rights for persons detained by the police as being of particular importance: the right of the person concerned to have the fact of his or her detention notified to a third party of his choice; the right of access to a lawyer and the right to request a medical examination by a doctor of his or her choice.
77 In particular, as regards medical examination requested by persons in police custody, the CPT states that all examinations should be conducted out of the hearing and preferably out of the sight, of police officers and the results of the examination should be recorded by the doctor and made available both to the detainee and his or her lawyer.
78
Electronic recording of police interviews is also noted as a useful safeguard against ill-treatment.
It can provide a complete and authentic record of the interview process, thereby facilitating the investigation of any allegations of ill-treatment.
79 The importance of keeping comprehensive records of custody recording all aspects of a persons’ treatment while in custody was also expressed.
80
In relation to the training of law enforcement personnel, the CPT stated that there is no better guarantee against the illtreatment of a person deprived of his or her liberty than a properly trained police officer who is able to carry out his or her duties successfully without having recourse to ill-treatment.
81
When interviewed by the CPT delegation to Ireland in 2002, a significant number of persons claimed to have been physically ill-treated by members of An Garda
Síochána. The CPT observed in its report that:
“[t]he number and consistency of the allegations of ill-treatment by the delegation lend them credibility. Moreover, in some cases, the delegation’s doctors gathered medical evidence consistent with the allegations received.”
82
The CPT stated that the Irish Government need to take concrete action to ensure that all members of An Garda Síochána become aware that ill-treatment of persons
76 Hereinafter referred to as the CPT.
77 CPT/Inf/E (2003) 1, para. 36.
78 Ibid. para. 38.
79 Ibid. para. 39.
80 Ibid. para. 40.
81 Ibid. para. 59.
82
CPT, “Report to the Government of Ireland on the visit to Ireland carried out by the
European Committee on Prevention of Torture and Inhuman and Degrading
Treatment and Punishment”, CPT/Inf (2003) 36, para. 12.
24

deprived of their liberty is unacceptable. When making an arrest, the use of force should be no more than is strictly necessary and recommended that, “the Irish authorities seek to integrate human rights concepts into practical professional training for high-risk situations, such as the arrest and interrogation of suspects.”
83
2.2.4 United Nations- Codes and Principles of Conduct
The rules of conduct governing the activities of law enforcement officials, in particular in relation to the use of reasonable force, have been further developed by the United Nations into detailed codes and principles of conduct. While these instruments are not directly legally binding upon States, they are important interpretative guides as regards international best practice in the area of police powers. The European Court of Human Rights has made frequent reference to these instruments and the Human Rights Committee has cited their authority both in its concluding observations and general comments.
84
The United Nations General Assembly Resolution, “Code of Conduct for Law
Enforcement Officials”,
85
contains a detailed set of principles that sets the standard for the proper conduct of law enforcement officials in carrying out their duty. In relation to the use of force, Article 3 provides: “law enforcement officials may use force only when strictly necessary and to the extent required for the performance of their duty.” The code of conduct states that the use of force by the police should be exceptional, and that while police may use such force as is reasonably necessary for the prevention of crime or in effecting or assisting in the lawful arrest of offenders or suspected offenders, no force should go beyond that may be used.
86
National principles of proportionality apply to the use of force by police.
87
In accordance with the UN Principles the Irish Government are encouraged to keep the ethical issues associated with the use of force under constant review.
88
The United Nations “Basic Principles on the Use of Force and Firearms by Law
Enforcement Officials” provides a detailed set of principles specifically addressing the use of force and firearms by law enforcement agencies.
89
It embodies not only rules that are essentially normative in character, but also rules representing good practice on technical aspects of policing. The principles of proportionality and necessity form the basis of the standards on the use of force. For example, law enforcement officials may only use force against detainees when strictly necessary for
83 Ibid. para. 15.
84 See cases of McKerr v the United Kingdom 28883/95; Shanaghan v. the United
Kingdom 37715/97; Jordan v. the United Kingdom 30280/96; Kelly and Ors. v. the
United Kingdom 30054/96. See also Human Rights Committee General Comment
21, UN Doc. and Concluding Observations on: United States CCPR/C/79/Add.50;
Estonia, CCPR/CO/77/EST, 31 st March 2003, and Cyprus CCPR/C/79/Add.39, 21 st
Sept. 1994.
85 Adopted by General Assembly Resolution 34/169 of 17th December 1979.
86 Paragraph a to the commentary.
87 Paragraph b to the commentary.
88 Ibid. Principle 1.
89 Adopted on 7th September 1990 by the Eighth UN Congress on the Prevention of
Crime and the Treatment of Offenders.
25

maintaining order within the institution or when personal safety is threatened.
90
The absolute prohibition of torture and other cruel, inhuman or degrading treatment or punishment, and the right of detainees to humane treatment preclude the use of force for the purposes of obtaining confessions of crime, or obtaining intelligence. More generally, governments and law enforcement agencies are required to adopt and implement rules and regulations on the use of force and in doing so they are required to keep the ethical issues associated with the use of force constantly under review.
91
In relation to training and selection, governments and law enforcement agencies are required to ensure that all officials are selected by proper screening procedures, and have the appropriate moral, psychological and physical qualities for the effective exercise of their functions.
92
They are to receive continuous and thorough professional training, and their continued fitness to perform these functions is to be subject to periodic review.
If the circumstances under which the members of An Garda Síochána are authorised to use reasonable force to obtain bodily samples are to be extended, the risk of physical ill-treatment of persons deprived of their liberty will increase. Specific professional training in human rights concepts to deal with this high-risk situation is required to protect persons against such physical ill-treatment.
2.3 The Principle of ‘Equality of Arms’
The right to a fair hearing incorporates the principle of equality of arms. This has been given recognition by the Irish courts in its constitutional interpretation of Article
38.1, 93 and has been recognised under Article 6 of the European Convention on
Human Rights.
94
The principle of equality of arms implies that everyone who is a party to proceedings must have a reasonable opportunity of presenting his case to the court under conditions which do not place him or her at a substantial disadvantage vis-à-vis his or her opponent. A fair balance must be struck between the parties.
95
The right to a fair hearing also incorporates the right to adversarial proceedings- the opportunity for parties to a trial to have knowledge of and comment on all evidence adduced or observations filed.
96
90 Principle 15.
91 Principle 1.
92 Principle 18.
93
Article 38.1 of the Irish Constitution provides: “No person shall be tried on any criminal charge save in due course of law.”
94 In particular Article 6(3)(d) of the Convention is of relevance. It provides: “To examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him
” (emphasis added).
95 See De Haes and Gijsels v Belgium , 24 February 1997.
96 Ruiz-Mateos v Spain , 23 June 1993, para.63.
26

2.3.1 Irish Constitution- Article 38.1
As observed by Hardiman J in J.F. v DPP ,
97
the principle of
égalité des armes
is not a new concept but “rather a striking expression of a value which has long been rooted in
Irish procedural law.” 98
A defendant is entitled to fair procedures and in particular to the “minimum protection” identified by Ó Dálaigh CJ in
Re Haughey :
99 a.
That he should be furnished with a copy of evidence which reflected on his good name, b.
That he should be allowed to cross-examine, by counsel, his accuser or accusers, c.
That he should be allowed to give rebutting evidence, d.
That he should be permitted to address, again by counsel, the committee in his own defence.
In J.F. v DPP ,
100
Hardiman J referred to the decision in McGrory v ESB ,
101
whereby the Court stated that it is not only common but routine for civil or criminal parties against whom expert or professional evidence is to be deployed to explore that evidence with the assistance of experts engaged on their own behalf, and where possible to counter it with evidence from such persons.
102
He stated that the employment of an expert is not due to doubts as to the competence or integrity of the plaintiff’s expert:
“It is done to ensure that everything is taken into account, to counter any unconscious sympathy with one’s own patient or client, to ensure that the latest techniques and interpretations are brought to bear, to detect any unwarranted assumptions or conclusions and to test and challenge the other side’s expert opinion insofar as that can properly be done.” 103
Moreover, Hardiman J refuted the proposition made by the prosecution in J.F. v
DPP 104 that it is only where there is some reason to doubt the independence or objectivity of one side’s expert exists that the other has a right to deploy expertise of its own.
97 [2005] IESC 24.
98 Re Haughey [1971] IR 217 ; Maguire v Ardagh [2002] 1 IR 385 ; O’Callaghan v
Mahon and Ors unreported, Supreme Court, 9 th
March 2005; State (Healy) v
Donoghue [1976] IR 325.
99 [1971] IR 217.
100 [2005] IESC 24.
101 [2003] 3 IR 407.
102 The Court set out an important principle regarding the right of defendants to obtain medical information in personal injuries actions. The Court held that a plaintiff could not unfairly and unreasonably impede a defendant in the preparation of the defence by refusing to consent to a medical examination. Similarly, a defendant is entitled to have access to any medical records and information from the plaintiff’s doctors that are relevant to the plaintiff’s medical condition (other than privileged medical reports).
103 [2005] IESC 24.
104 [2005] IESC 24.
27

2.3.2 European Convention on Human Rights- Article 6
It is noteworthy that in J.F. v DPP ,
105
Hardiman J referred to jurisprudence from the
European Court of Human Rights. He pointed to the relevance of the protection afforded by Article 6 of the European Convention on Human Rights and the principle of equality of arms. He cited Steel and Morris v the United Kingdom ,
106
whereby the
European Court of Human Rights commented:
“The adversarial system…is based on the idea that justice can be achieved if the parties to a legal dispute are able to adduce their evidence and test their opponent’s evidence in circumstances of reasonable equality…the Court recalls that the Convention is intended to guarantee practical and effective rights. This is particularly so of the right of access to court in view of the prominent place held in a democratic society by the right to a fair trial (see the
Airey v Ireland judgment of 9 th
October, 1979). It is central to the concept of fair trial in civil as in criminal proceedings that a litigant is not denied the opportunity to present his or her case effectively before the Court and that he or she is able to enjoy equality of arms with the opposing side…” 107
Moreover, in Bonisch v Austria ,
108
the European Court of Human Rights held that
“the principle of equality of arms inherent in the concept of a fair trial requires equal treatment between a court appointed expert and witnesses for the defence”. There is a violation of Article 6 when an expert witness appointed by the defence is not accorded the same facilities as one appointed by the prosecution or the court. In this case the
Director of the Federal Control Institute had been appointed an expert by the Court for the purposes of a food hygiene prosecution. A consequence of this appointment was that he was “formally invested with a function of neutral and impartial auxiliary of the
Court.” Once this status attached to him, there was by Austrian law only limited scope to hear another expert and even if he were heard, he was not accorded the status of the Court appointed expert. The Court held:
“It is easily understandable that doubts should arise, especially in the mind of an accused, as to the neutrality of an expert when it was his report that in fact prompted the bringing of the prosecution. In the present case, appearances suggested that the Director was more like a witness against the accused. In principle, his being examined at the hearings was not precluded by the
Convention, but the principle of the equality of arms inherent in the concept of a fair trial and exemplified in paragraph 3(d) of Article 6 required equal treatment as between the hearing of the Director and the hearing of persons who were or could be called, in whatever capacity, by the defence”.
Further, the Commission held in Jespers v Belgium ,
109
the equality of arms principle read together with Article 6(3)(b) imposes an obligation on prosecution and investigating authorities to disclose any material in their possession, or to which they
105 [2005] IESC 24.
106 ECHR unreported 15 th
February 2005.
107 Ibid, at paras.50 and 59.
108 Bonisch v Austria , 6 May 1985.
109 Jespers v Belgium , 27 DR 61.
28

could gain access, which may assist the accused in exonerating himself or in obtaining a reduction in sentence.
2.3.4 International Covenant on Civil and Political Rights- Article 14
The International Covenant on Civil and Political Rights also expressly guarantees equality before the courts; under Article 14, the law should be applied without discrimination by the judiciary. Article 14(3)(e) states that the accused shall be entitled to examine or have examined the witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him. This provision is designed to guarantee to the accused the same legal powers of compelling the attendance of witnesses and of examining or cross-examining any witnesses as are available to the prosecution.
In this way, the concept of equality of arms signifies that each party must have a reasonable opportunity to present his case under conditions which do not place him at a substantial disadvantage vis-à-vis the State. The guarantee of equality is the right to confront and cross-examine, to present one’s case fully and to have advance disclosure of the evidence against him.
29

3. Analysis of Bill
3.1 Establishment of a DNA Database

Function of the DNA database
 Retention of DNA samples from suspects

Removal and destruction of DNA samples
3.1.1 Function of the DNA Database
Head 2 of the Bill provides, subject to more specific provisions that may apply, that profiles derived from samples may be analysed or used in connection with: criminal investigations generally or as appropriate; 110 for the purpose of identifying missing or unidentified persons,
111
or as evidential samples in the investigation of particular offences.
112
The purpose of the DNA database is an important factor to be considered in assessing the proportionality of any measure providing for the taking and retention of DNA samples from individuals. The IHRC believes only criminal investigation purposes and the identification of missing or unidentified persons justify the significant infringement of an individual’s privacy, bodily integrity and privilege against selfincrimination which the taking and retention of DNA samples entails.
113
For this reason, the purpose for which the DNA database may be used should be set out explicitly in legislation.
114
In the words of the Canadian Privacy Commissioner:
“Modern explorers have set sail on voyages into the genetic microcosm, seeking a medically powerful but potentially dangerous treasure: information about how our genes make us tick. Today, we can ask who among us is likely to have healthy babies or fall ill with a genetic disease. In the future, we may be able to use genetic testing to tell us who will be smart, be anti-social, work hard, be athletic or conform to prevailing standards of beauty.”
The IHRC is concerned that the terminology used to limit the potential use of the database for the purposes of “criminal investigations generally or, as appropriate
” 115 could be interpreted to allow the database to be used for research purposes which have only a minimal connection with crime detection and prevention. This concern
110 Head 2 (a) of the Bill.
111 Head 2 (b) of the Bill.
112 Head 2 (c) of the Bill.
113 (LRC 78-2005) at 2.02: “The phenomenon of ‘function creep’, whereby technology introduced for one narrowly defined purpose is extended in its usage over time to other areas, must be guarded against. Any future alteration to the purpose of the database should be the result of debate on the fundamental principles on which the database is based.”
114 In addition, public confidence in the process and integrity of the system are encouraged.
115 Emphasis added by the IHRC.
30

becomes particularly acute when one considers the retention of DNA samples and profiles from a wide range of persons. The sensitivity of the information contained in an individual’s genetic code must be emphasised. In this respect, the IHRC is in agreement with the Law Reform Commission’s comments in its Report on
The
Establishment of a DNA Database whereby it states “the use of broad terms without precise definitions should be avoided where possible”.
116 The report refers to existing legislation in England and Wales. Section 64(1A) of the Police and Criminal
Evidence Act 1984 prohibits the use of retained DNA samples for purposes other than those “related to the prevention or detection of crime, the investigation of an offence or the conduct of an investigation”.
117
The IHRC is aware that the National DNA
Database board of England and Wales has approved research projects using genetic samples from the database for the purpose of researching the possible identification of ethnic and familial traits.
118 The IHRC considers medical research is only indirectly connected to the investigation of crime and cannot justify the interference with the right to respect for privacy of individuals. The practice of allowing genetic research without consent means that anyone retained on the database (a suspect or convicted person, or a volunteer) loses the right to refuse to take part in potentially highly controversial research.
119
Aware of such dangers and the phenomenon of “function creep”, legislative reform in other jurisdictions have used explicit yet precise terminology in the establishment of the functional basis of a DNA database. For example, section 92 of the New South
Wales Crimes (Forensic Procedures) Act 2000 sets out a list of permitted purposes of the DNA database, including conducting forensic matches or speculative searches; to establish and administer the DNA database system; to provide an individual with
DNA information about himself; to consider a claim that a miscarriage of justice under section 2 of the Criminal Procedure Act 1993 has occurred or that a conviction should be overturned on appeal; to investigate a complaint in relation to the database; to compile statistics on the operation of the database; to make information available to other jurisdictions as sanctioned by legislation; to identify unknown deceased or severely injured persons (only with court order), or any other related purpose.
120
116 (LRC 78-2005) at 2.08.
117 As amended by section 82 of the Criminal Justice and Police Act 2001 .
118 See Liberty (2002) Third Party Intervention in R (S and Marper) v Chief Constable of South Yorkshire and Secretary of State for the Home Department Court of Appeal
(Civil Division), at para.2.1 and 3.5. See also GeneWatch UK (2006) Using the police National DNA Database- under adequate control? GeneWatch Briefing. June
2006. Available on www.genewatch.org. Freedom of Information requests by
GeneWatch UK to the NDNAD Board have shown that since the year 2000, 19 research projects have been allowed and 14 refused. The requests revealed that stored
DNA samples have been used for genetic studies of the male Y-chromosome, without the consent of the people involved, as part of a controversial attempt to predict ethnicity from DNA.
119 Participation from the commercial sector in genetic research may also be of concern, particularly in light of the potential for misuse and difficulty in ensuring appropriate standards of accountability in this area.
120
These functions are similar to those outlined in the Law Reform Commission’s
Report on The Establishment of a DNA Database (LRC 78-2005). See 2.02-2.09 and
31

Recommendation
The IHRC acknowledges the attempts made in the proposed legislation to limit the use of the stored DNA samples. It must be appreciated and acknowledged, however, that the potential use of samples is likely to expand in the future.
121
As stated in
Rotaru v Romania ,
122
domestic law must lay down with sufficient precision the circumstances in which authorities can store and make use of information relating to an individuals private life.
123
It is therefore essential that effective safeguards are established to ensure that the functions of a DNA database are made explicit.
124
The
IHRC considers Head 2 of the general scheme of the proposed legislation should specify in explicit terms the purposes for which the information in the DNA database can be utilised.
3.1.2 Retention of DNA samples from suspects
Head 8 provides that all those suspected of committing an offence under the provisions of section 30 of the Offences Against the State Act 1939 , section 4 of the
Criminal Justice Act 1984 , section 2 of the Criminal Justice (Drug Trafficking) Act
1996 , section 42 of the Criminal Justice Act 1999 will have their DNA samples retained indefinitely on a database.
125
The samples must be taken at a garda station or with the consent of an Inspector at another place where the person is lawfully detained.
126
In the event that the suspect does not consent to the taking of a sample, a
Superintendent may authorise the use of reasonable force to ensure that it is taken.
127
The level of force employed must be proportionate and be carried out in the present of a garda not below the rank of an Inspector.
128
Where samples are being taken from a person who is over 12 but under 18 years old, a parent or guardian must be given an opportunity to attend where it is reasonably possible to do so.
129 In the event that use of force is employed, the taking of a sample must be video-recorded.
130
Any results of analysis carried out on the sample will not be used as evidence in criminal proceedings,
131
unless with leave of the Court hearing the proceedings, the person refuses, fails or is unavailable to provide a second sample for evidential purposes under Head 14.
132
The court may also permit it.
133
It is an offence to obstruct a garda section 13 of the Law Reform Commissions Draft Criminal Justice (DNA Database)
Bill 2005.
121 Every person has a real interest in how the samples are stored and who has access to them while they are stored.
122 Application no. 28341/95.
123 Ibid, para. 56.
124
Ibid, para. 59: “The Court must also be satisfied that there exist adequate and effective safeguards against abuse, since a system of secret surveillance designed to protect national security entails the risk of undermining or even destroying democracy on the ground of defending it”.
125 Head 8(a) of the Bill.
126 Head 8(c)(iii) of the Bill.
127 Head 8(d)(ii) of the Bill.
128 Ibid.
129 Head 8(d)(iii) of the Bill.
130 Head 8(d)(ii) of the Bill.
131 Head 8(f) of the Bill.
132 Head 8(g) of the Bill.
32

who is entitled to take a sample.
134
A person convicted of such an offence will be liable to a fine of up to €5,000 or three years imprisonment or both.
135
While the IHRC appreciates the reasons for taking samples from suspects for certain offences, the retention of such samples on a DNA database for an indefinite period needs to be justified on objective criteria based on reasonableness and proportionality.
The principle of proportionality under human rights law requires that any interference with fundamental rights must be proportionate to the legitimate aim being pursued. In the context of a national DNA database, this requires the legitimate interest of detecting and preventing crime to be balanced against the right of individuals not to have their personal information held with or without their consent. Furthermore, the principle of proportionality requires that the more intimate the data retained, the more important the competing interest has to be. Thus, while the legitimate interest in the prevention and detection of crime may justify the retention of DNA profiles of those charged and proven guilty, it cannot serve as a justification for the indefinite retention of DNA samples of individuals who are by law presumed to be innocent.
136 Under
Head 8 of the proposed Bill, the DNA profile of an innocent person, who has ultimately being found not guilty of the relevant offence or the charges have been withdrawn, will be available on the DNA database and its possible exchange for matching or sharing with other jurisdictions for an indefinite period.
The IHRC does not consider it proportionate that the presumption now lies in favour of the indefinite retention of such samples from suspects and rests on such persons to supply reasons for its destruction and removal from the DNA database.
137
Section 4 of the Criminal Justice (Forensic Evidence) Act 1990 has been amended by the
Criminal Justice Act 2007 by shifting the onus of responsibility on to the person to whom a sample has been taken, in making an application to the Commissioner requesting the destruction of his or her sample.
138
The applicant must set out the reasons for the request. In the event that the Commissioner decides to refuse the request or grant it only in part, the applicant has 8 weeks to appeal to the District
Court against the decision.
139
The court can pay particular regard to the results of any analysis of the records concerned; any previous convictions, and whether in all the circumstances, it would be unjust not to allow the appeal. In the event that proceedings have not being instituted for 12 months, or the person has been acquitted of any charges, the IHRC considers it essential to highlight that such persons remain innocent before the law. The Commission is concerned that this essential principle of due process rights is not respected in this context.
133 Ibid.
134 Head 8(h) of the Bill.
135 Ibid.
136 Article 6(2) of the European Convention on Human Rights.
137 Section 49 (8)(3) of the Criminal Justice Act 2007 states: “Such a request shall be made in writing to the Commissioner and shall- (a) contain sufficient particulars in relation to the request to enable the records to be identified, and (b) set out the reasons for the request.”
138 See section 49 of the Criminal Justice Act 2007 .
139
The proceedings are “heard otherwise than in public”.
33

It can be said that up until the recent introduction of section 49 of the Criminal Justice
Act 2007 , the approach favoured the destruction as opposed to the indefinite retention of suspect’s samples.
140 Section 4 of the Criminal Justice (Forensic Evidence) Act
1990 provided that every sample and record identifying the person from whom a sample has been taken must be destroyed where proceedings are not instituted against the person within 12 months, 141 or where proceedings have been so instituted and the person is acquitted or discharged or the proceedings are discontinued. The IHRC considers the removal of suspect’s profiles from the database should be along similar lines to procedures that were in place under section 4 of the Criminal Justice
(Forensic Evidence) Act 1990 .
142
Recommendation
The IHRC considers the indefinite retention of DNA samples of persons suspected, but not subsequently convicted, of an offence is possibly in breach of Article 8(2) on the basis that such retention is unnecessary and disproportionate.
143
It must also be highlighted that the indefinite retention of suspect’s profiles on DNA databases is the exception rather than the norm both in Europe and internationally.
144
The majority of countries, which allow the DNA samples of suspects to be added to their DNA databases, require their removal upon acquittal or the dropping of charges.
145
The
IHRC argues the current proposal to indefinitely retain samples taken from suspects, who remain innocent, as an unacceptable invasion of a person’s right to privacy.
Recommendation
The IHRC considers removal and destruction of a suspect’s sample and profile should occur as soon as practicable once proceedings have been instituted and the person has been acquitted or discharged, or the proceedings have been discontinued. There may be circumstances where a sample should not be destroyed. For this reason, the legislation should include a saver provision to give the Director of Public
Prosecutions authority to make an application to the court allowing the retention of
140 See section 4 Criminal Justice (Forensic Evidence) Act 1990 .
141 As amended by section 14 of the Criminal Justice Act 2006 .
142 Section 4 of the 1990 before amendments introduced under section 49 of the
Criminal Justice Act 2007 .
143 As stated previously, there is a pending case before the European Court of Human
Rights which will decide on the compatibility of measures allowing suspect’s profiles to be retained indefinitely on the UK National DNA Database with the European
Convention on Human Rights. See the decision of the House of Lords in R (S and
Marper) v Chief Constable of South Yorkshire [2004] 4 All ER 193.
144
See for detailed discussion Law Reform Commission’s Report on
The
Establishment of a DNA Database (LRC 78-2005) at 2.52-2.69.
145
See European Network of Forensic Science Institute’s DNA Working Group
Report on ENFSI Member Countries’ DNA Database Legislative Survey prepared by
Christopher H. Asplen, Smith Alling Lane, PC. Available at http://www.enfsi.org/.
For example, the Criminal Procedure (Scotland) Act 1995 creates 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. See also section 88 of the Crimes (Forensic Procedures) Act 2000 in New South Wales. It provides that
DNA samples must be destroyed rather than stored where a suspect is found not guilty or where proceedings are not instituted against the suspect within 12 months.
34

the sample or profile.
146
The onus of responsibility would rest on the DPP to provide a clear justification for the retention of the sample or profile. Factors to be considered by the court on hearing the application could include the nature of the alleged offence, the seriousness of the alleged offence and specific circumstances of the case.
147
3.1.3 Removal and destruction of DNA samples
General Application
A person
148
whose sample has been taken may apply to the Commissioner of An
Garda Síochána to have the sample destroyed and all related profiles removed or to have the analysis of the profile restricted to certain purposes.
149
The applicant must provide a reasoned statement as to the reasons for the application.
150
The Garda
Commissioner must reply within one month of the application being made indicating his or her position on the request.
151
In the event that the applicant is not satisfied with the Garda Commissioners position, the applicant has to appeal the decision to the
District Court where he or she resides, within two months of the Commissioners reply.
152
The application will be heard in public.
153
The applicant must give notice of the appeal to the Garda Commissioner.
154
On appeal, the District Court must have regard to the results of any analysis on the sample, in particular if the results are positive.
155
The District Court must also take into account the circumstances in which the sample was provided, in particular if it was taken voluntarily or while detained
146 This would operate along similar lines to section 4 of the Criminal Justice
(Forensic Evidence) Act 1990 . See also recommendations from the Law Reform
Commission’s Report on The Establishment of a DNA Database (LRC 78-2005) at
2.67-2.68.
147
In the IHRC’s
Observation on Additional Proposals for Amendments to the
Criminal Justice Bill 2004 (8 th March 2006) the establishment of a sex offender register was examined. The IHRC commented: “In the view of the IHRC it is clear that the requirements of the register amount to an interference with private life…Establishing whether a measure is necessary in a democratic society involves showing that the action taken is in response to a pressing social need, and that the interference with the rights protected is not greater than is necessary to address that pressing social need, in other words that the interference is proportionate”, at p.21.
The IHRC noted that the specific category of sexual offenders display signs of compulsive behaviour, particularly in relation to persons guilty of sexual offences against children. The vulnerability of children as victims of sexual offences and the particularly serious nature of the offences involved means that special measures may be needed to monitor the activities of this group of offenders following release.
148 As a suspect (Head 8), convicted person (Head 9), volunteer (Head 10), mass screening (Head 11), elimination index (Head 12) or evidential sample (Head 14) under the General Scheme of the Bill.
149 Head 16(a) of the Bill.
150 Head 16(b) of the Bill.
151 Head 16(c) of the Bill.
152 Head 16(e) of the Bill.
153 Ibid.
154 Head 16(f) of the Bill.
155 Head 16(g) of the Bill.
35

under statutory powers.
156
The District Court must also consider whether in all the circumstances it would be unjust to refuse the application.
157
Both the Garda
Commissioner and the applicant can appeal the decision to the Circuit Court.
158
Recommendation
The IHRC considers the provision that an applicant can only appeal the Garda
Commissioner’s decision within two months is very restrictive. During this time, an applicant may wish to seek legal advice. Moreover, there is no requirement for the
Garda Commissioner to supply reasons for its position and thus leaves the applicant without an appreciation of whether an appeal may be granted or refused. The Garda
Commissioner should have a responsibility to supply reasons for his or her position.
Potential applicants include volunteers, suspects for certain offences, a group of persons who have been subjected to mass screening and those persons on an elimination index.
Volunteers
Where a volunteer has consented to having his or her sample and profile available generally on the DNA database, the person has the opportunity to withdraw consent.
159
This must be made in writing to the Superintendent in the area in which the sample has been taken.
160
If the Superintendent considers that the request should not be allowed, he or she must apply to the District Court for an order seeking that the sample and profile be retained.
161
The application to the District Court must be on notice party to the person for whom the sample was taken.
162
Recommendation
A volunteer who has freely consented to giving a sample should be entitled to withdraw consent without difficulty. The factors to be considered by the court and the grounds upon which a Superintendent has authority to make a request for retention of the sample should be laid out in legislation. In the absence thereof, no guidance is given to the court in making the decision to grant or refuse the application. Given the particular sensitivity of personal genetic information contained in a DNA sample and the volunteer status of the individual, the IHRC considers exceptional circumstances should only allow for such an order to be granted.
156 Ibid.
157 Ibid.
158 Head 16(k) of the Bill.
159 Head 10(g) of the Bill.
160 Ibid.
161 Ibid.
162 Ibid.
36

3.2
Regulation of the DNA Database

Designated laboratory

Role of an oversight committee

International co-operation
3.2.1 Designated laboratory
Head 3 establishes the Forensic Science Laboratory to carry out analysis of samples.
The laboratory will retain ownership of the samples; the information derived from the forensic analysis and the profiles generated from the samples.
163
The laboratory will undertake searches of the database as required and will inform the gardaí when a match is recorded.
164
The laboratory must adhere to best international practice in all matters relating to the performance of its functions and shall maintain accreditation to recognised international standards in relation to its procedures.
165
The laboratory must provide an annual report to the Minister on its operation under the Act.
166
The laboratory has authority to seek the assistance of another laboratory within Ireland or outside the State in the analysis of the samples. Responsibility rests with the laboratory to satisfy whether the other laboratory meets the required standards in respect of the analysis to be carried out.
167
Where the services of the laboratory are temporarily unavailable, work can be assigned to another laboratory within or outside the State.
168 This shall be authorised by the Minister upon request by the Director of the laboratory or the Commissioner.
169
The laboratory must have appropriate accreditation and other requirements specified by the Minister.
170
When the period of reassignment ceases, the laboratory must return all relevant files, sample and profiles without delay. Criminal liability attracts to any abuse of powers.
171
Recommendation
The IHRC believes the potential for reassignment and delegation of responsibility of work carried out by the Forensic Science Laboratory to another body inside or outside the State raises a number of concerns for the privacy of personal information stored on a national DNA. In relation to the gathering and holding of personal information, accountability of the UN Human Rights Committee indicated in its General Comment
16 that a number of important safeguards should be in place. This is to ensure that information concerning a person’s private life does not reach the hands of persons who are not authorised by law to receive, process and use it, and is never used for purposes incompatible with the Covenant; every individual should have the right to ascertain whether, and if so, what personal data is stored about them and for what
163 Head 3(b) and (c) of the Bill.
164 Head 3(d) of the Bill.
165 Head 3(g) of the Bill.
166 Head 3(i) of the Bill.
167 Head 3(h) of the Bill.
168 Head 3(j) of the Bill.
169 Head 3(j)(ii) of the Bill.
170 Head 3(j)(iii) of the Bill.
171 Head 3(j)(vi) and Head 20 of the Bill.
37

purpose.
172
For this reason, accountability provisions must be intrinsic in any framework allowing the transfer of such sensitive information. Safeguards should be provided by legislation so that such designation only occurs in exceptional circumstances. The Director or Commissioner should have an undertaking to provide the Minister with a detailed explanation for proposing the reassignment of responsibility.
3.2.2 Role of an oversight committee
Head 21 requires the Minister to establish an oversight committee. It lays out its role, responsibilities and composition. Its function will be to review and report annually to the Minister on the operation of the Act, having particular regard to the importance of ensuring the overall integrity of the arrangements and systems.
173 The report will be published by the Minister.
174
The committee’s role is to keep under review the arrangements established by the Act for the taking of samples, their transmission to the laboratory, their secure handling and storage, the development of profiles, techniques and practices for the analysis and communication of the results.
175
In doing so, the Committee has the power to make recommendations relating to the arrangements and systems established under the Act.
176
The Committee will have access to such documentation and other records as are required for the discharge of its functions.
177
The Committee will consist of a maximum of five persons,
178
including a judge of the Circuit Court who will act as chairperson,
179
and at least one representative from the legal profession, a person with scientific or medical qualifications, and a person nominated by the Data Protection Commissioner.
180
It will be a part-time committee and may, with the approval of the Minister, retain such administrative, technical and scientific support as is considered necessary.
181 In particular, the committee may, with the approval of the Minister, retain expertise for the purpose of undertaking more detailed consideration of issues coming within its functions.
182
It shall be an offence to obstruct the committee or its officers while in pursuit of its functions.
183
172 General Comment 16 of the Human Rights Committee, UN Doc.
HRI/GEN/1/Rev.1 at 21 (1994), para. 10.
173 Head 21(b) of the Bill.
174 Head 21(n) of the Bill.
175 Head 21(c) of the Bill.
176 Head 21(e) of the Bill.
177 Head 21(f) of the Bill.
178 Head 21(h) of the Bill.
179 Head 21(i) of the Bill.
180 Head 21(j) of the Bill.
181 Head 21(k) of the Bill.
182 Head 21(m) of the Bill.
183 Head 21(o) of the Bill. This offence attracts a penalty of up to €3,000 or six months imprisonment on summary conviction.
38

The IHRC considers the custodianship of the database to be of vital importance. The custodian will have a significant impact on the maintenance of the integrity and security of a DNA database and the guarantee of accuracy in issuing match reports.
184
Given the close co-operation that can take place between law enforcement agencies and the Forensic Science Laboratory, it is crucial that the custodian be independent and competent in its ability to carry out its function. Its establishment should seek to avoid any potential conflict of interests and aim to ensure public confidence. In addition, its method of monitoring should aim to be effective in practice so as to ensure actual rather than perceived oversight.
Recommendation
The IHRC has a number of concerns with the proposals for an oversight committee in the general scheme of the Criminal Justice (Forensic Sampling and Evidence) Bill
2007. The IHRC contends the committee should have the power to publish reports concerning issues of urgent interest to the public. As an independent agency, the method of publication of its reports should not be at the Minister’s discretion.
Queries raised by the committee should have the right to receive a reply from the relevant body within a specified period of time. Access to documentation and records should be open to the oversight committee on a non-restricted basis. Membership on the committee should attract absolute privilege so as to ensure independence, impartiality and security of position of its members. Independent external reviews of the database should be carried out by the Irish National Accreditation Board
(INAB).
185
Recommendation
The IHRC considers that the appointment of the members of the oversight committee must have regard to the knowledge and experience that would be of assistance to the committee in the performance of its functions. While the Commission welcomes the legislative proposals stating that a representative of the legal profession, a person with appropriate scientific or medical qualifications, a nominee of the Data Protection
Commissioner should be members on the committee, it considers that important human rights issues with which a DNA database engages necessitate involvement from the human rights sector. For this reason, the IHRC agrees with the Law Reform
Commission’s stated recommendation that the committee should also include a representative of a human rights organisation.
186
184 See requirements stipulated by General Comment 16 of the Human Rights
Committee, UN Doc. HRI/GEN/1/Rev.1 at 21 (1994), para. 10.
185 INAB is the national body with responsibility for accreditation in accordance with the relevant International Organisation for Standardisation ISO 17000 series of standards and guides and the harmonised EN 45000 series of European standards.
The existing Forensic Science Laboratory (FSL) has obtained ISO 17025 accreditation in relation to the work practices and procedures in the processing of cases involving DNA. As a result, the FSL must comply with the minimum standards set by this programme. It involves establishing and inspecting protocols, and procedures for matters such as documentation, security, methodology, laboratory equipment, calibration, evidence management, reporting, validation methods and training. External auditing is conducted by INAB.
186 Law Reform Commission Report on The Establishment of a DNA Database (LRC
78-2005) at 4.09.
39

Recommendation
The IHRC also considers it essential that membership of the oversight committee should attract absolute privilege so as to ensure independence, impartiality and security of position for its members. There is a particular risk that a conflict of interest may arise between members of the oversight committee with medical or scientific qualifications and the designated laboratory, the Forensic Science
Laboratory. The IHRC considers it appropriate that added protection be inserted in statute so as to avoid this risk.
Recommendation
Independent external review of the database should be carried out by the Irish
National Accreditation Board (INAB).
3.2.3 International co-operation
Head 19 establishes for the transfer of information relating to samples and profiles between states and agencies for the purpose of supplying forensic evidence, where such material is requested in connection with criminal investigations or proceedings, or information to assist with identification of missing or unidentified persons.
187
The transfer of such information can occur in the presence or absence of an agreement entered into by the State. Where there is no agreement, the decision to transfer the information will occur following consultation of law enforcement authorities with the laboratory.
188 The law enforcement authorities will provide such information as is appropriate for the purposes of a criminal investigation or prosecution in the recipient
State.
189
The following safeguards apply: samples taken for the purposes of the elimination index and mass screening are excluded; samples taken for the purposes of identification of missing or injured persons are permitted on condition that consent is provided from the person who originally supplied the sample or the representative. It must be for identification purposes only.
190
Following consultation, conditions may be attached to the information provided to the state or agency as are reasonable and appropriate.
191
The Bill allows for the exchange of information relating to samples and profiles, in the absence of an agreement, with the following safeguards: the exchange must be for the purposes of a criminal investigation or prosecution and conditions may be attached where reasonable and appropriate.
192
The IHRC considers such safeguards are inadequate and believes that an agreement between the state and other states or agencies concerning the transfer of such personal information is a necessary safeguard to ensure protection for the privacy and the fundamental rights and freedoms of data subjects.
193 In the absence thereof, no exchange should be authorised.
187 Head 19 (a) of the Bill.
188 Head 19 (b) of the Bill.
189 Head 19 (b) of the Bill.
190 Head 19 (c) of the Bill.
191 Head 19 (d) of the Bill.
192 Head 19 (b) and (d) of the Bill.
193 Rotaru v Romania Application no. 28341/95, para. 59: “The Court must also be satisfied that there exist adequate and effective safeguards against abuse, since a
40

The IHRC is aware that crime is transnational. For this reason, co-operation may be necessary between states in the investigation and prosecution of crime. However, the transfer of personal information, such as DNA samples and profiles, between agencies and states raises issues concerning respect for individual privacy. It must be stated however that any increase in the pool of potential persons who have access to an individual’s DNA sample is an increase in the extent of the interference with this fundamental right, raising concerns as to the compatibility of the provision with the principle of proportionality. Although such interference may sometimes be justified as proportionate, it is essential that recipients of the information, be they states or agencies, are bound by the same restrictions as should apply to those holding the information. Non-public bodies should be precluded from capacity as recipients of such information.
The European Court of Human Rights has stated that domestic law must indicate with reasonable clarity the scope and manner of exercise of the relevant discretion conferred on the authorities.
194 The measure should be accessible to the person concerned and foreseeable as to its effects;
195
adequate and effective safeguards must be prescribed by law against abuse.
196
In addition, the UN Human Rights Committee requires that a number of important safeguards should be in place to ensure that information concerning a person’s private life does not reach the hands of persons who are not authorised by law to receive, process and use it, and is never used for purposes incompatible with the Covenant; every individual should have the right to ascertain whether, and if so, what personal data is stored about them and for what purpose.
197
For this reason, accountability provisions must be intrinsic in any framework allowing the transfer of such sensitive information.
Recommendation
On a practical level, ensuring effective compliance with safeguards is problematic when sensitive information is transferred between states and agencies with differing access, use and privacy provisions.
198 The current state of co-operation between system of secret surveillance designed to protect national security entails the risk of undermining or even destroying democracy on the ground of defending it”.
194 Ibid, para.61.
195 Ibid, para.52.
196 Ibid, para. 59.
197 General Comment 16 of the Human Rights Committee, UN Doc.
HRI/GEN/1/Rev.1 at 21 (1994), para. 10.
198 Currently, DNA database legislation worldwide differs in many significant areas.
For example, some jurisdictions allow for testing of suspects and arrestees, whilst others only allow for testing of certain convicted persons. Profiling techniques also differ. In recent times, developments have taken place in Europe, whereby common provisions have developed to regulate the protection of personal data transferred within the European Economic Area and to third states. The Irish Data Protection
Act 1998 and 2003 provide that the transfer of personal data to a country or territory outside the European Economic Area may not take place unless the country or territory ensures an adequate level of protection for the privacy and the fundamental rights and freedoms of data subjects in relation to the processing of personal data having regard to all the circumstances surrounding the transfer. See section 11 of the
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states in respect of DNA profiles is at quite an early stage of development.
199
The
IHRC considers it essential that a detailed framework be established at a European and international level that incorporates procedural protections to ensure compatibility with human rights obligations. Allowing the exchange of personal information in the absence of a framework is a cause for concern.
Recommendation
The IHRC considers the safeguards laid out in Head 19 are inadequate. It believes that an agreement between the state and other states or agencies concerning the transfer of such personal information is a necessary safeguard to ensure protection for the privacy and the fundamental rights and freedoms of data subjects.
200
In the absence thereof, no exchange should be authorised. In addition, legislation should make it explicit that non-public bodies are precluded from capacity as recipients of such information. Individual notification of the use of data should be mandatory and individuals should be allowed to make a challenge to the use of his or her data.
Recommendation
Information relating to samples and profiles taken from volunteers may be provided internationally.
201
The IHRC contends that the initial consent of a volunteer to the availability of the sample generally on the database should not be taken as authorisation for the transfer of the sample internationally.
202
The notion of ‘informed consent’ as it applies to volunteers under Head 10 of the Bill is brought into question.
Data Protection Act 1988 as amended by section 12 of the Data Protection
(Amendment) Act 2003 .
199 In 2003, Interpol established an international DNA database of attributable and non attributable DNA profiles (that is from crime scene samples and reference samples) for use by its member states. In 2001, the Council of Ministers in Europe passed a second resolution defining certain parameters for the exchange of DNA information between member states. See Council Resolution of 25 June 2001 on the Exchange of
DNA Analysis Results. Official Journal C 187, 03/07/2001 p.0001-0004.
200 Rotaru v Romania Application no. 28341/95, para. 59: “The Court must also be satisfied that there exist adequate and effective safeguards against abuse, since a system of secret surveillance designed to protect national security entails the risk of undermining or even destroying democracy on the ground of defending it”.
201 Head 10 of the Bill concerns samples taken from volunteers. Head 10 (e) of the Bill provides: “The consent may relate to the sample and profile being available for analysis in relation to a particular investigation(s) or generally”; Head 10 (f) provides:
“Where the consent is in relation to a particular investigation(s), the sample and profiles shall be removed from the DNA database and destroyed as soon as possible after the investigation or, as appropriate, the proceedings relating to that particular offence have been completed. The person giving the sample shall be informed when destruction has taken place”, and Head 10(g) provides: “Where the person has consented to having the sample and profile available generally on the database, the person may withdraw consent, by notification in writing to the Superintendent in the area where the sample was taken. Where the Supt considers that the request should not be acceded to, he shall apply to the District Court for an order that the sample and profiles may be available generally. The application shall be on notice to the other party”.
202 In particular, see Head 10 (g) of the Bill.
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If there is a possibility that the sample taken from a volunteer could be exchanged internationally, gardaí should be required, when seeking consent, to inform the individual. As stipulated by the European Court of Human Rights, the principle behind the foreseeability requirement under Article 8(2) is the notion that the State should give citizens an adequate indication of the circumstances in which the public authorities are empowered to interfere in their private lives.
203 In the absence of an obligation to inform a volunteer of the potential consequences of his or her sample, the consent should not be regarded as actual or real consent. For this reason, the
IHRC contends that there should be additional legal protection against the use of genetic samples internationally without the knowledge and consent of the individual concerned.
3.4 Taking DNA samples

General safeguards

Vulnerable persons

Mass screenings and volunteers

Consent and use of reasonable force
A number of safeguards and protections in relation to the taking of samples are set out in the Criminal Justice (Forensic Sampling and Evidence) Bill 2007. Authorisation for sampling must be given by a member in charge. The member in charge must have reasonable grounds for suspecting the involvement of the person from whom the sample is taken in the offence in respect of which he or she is in custody, or in a case where the person is in prison, in the commission of an offence under the 1939,
204
1984,
205
1996
206
or 1999 Act.
207
Proposals under the Bill authorise members of An Garda Síochána to use reasonable force in taking a sample if a person fails or refuses to consent to it. The use of force must be authorised by the Superintendent and the level of force must be proportionate.
It must be carried out in the presence of a garda not below the rank of Inspector.
Where force is used to take a sample, video-recording of the procedure must take place.
203 Rotaru v Romania Application no. 28341/95, para.52: “The Court reiterates settled case-law, according to which the expression “in accordance with the law” not only requires that the impugned measure should have some basis in domestic law, but also refers to the quality of the law in question, requiring that it should be accessible to the person concerned and foreseeable as to its effects
.” Emphasis added. See also
Amann v Switzerland (2000) 30 EHRR 843.
204 Section 30 of the Offences Against the State Act 1939 .
205 Section 4 of the Criminal Justice Act 1984 .
206 Section 2 of the Criminal Justice (Drug Trafficking) Act 1996 .
207 Section 42 of the Criminal Justice Act 1999 .
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3.4.1 General Safeguards
The IHRC considers the need for detailed and comprehensive standards in relation to the taking of samples cannot be overstated. The process for collecting DNA samples is particularly susceptible to abuse and vulnerable to corruption and contamination.
208
In this way, safeguards are essential to prevent miscarriages of justice and to ensure a fair trial in criminal proceedings.
Head 17 allows for codes of good practice to be developed by An Garda Síochána in consultation, where appropriate, with the Forensic Science Laboratory to set out procedures relating to the taking of samples, transmission of samples, communication of results, and the safe storage of samples.
Recommendation
The IHRC considers the Bill should be amended to stipulate that codes of good practice in relation to taking of samples be developed with due regard to international best practice and international human rights standards. In addition, consultation should be mandatory between the gardaí, the Forensic Science Laboratory, Data
Protection Commissioner and the Irish Human Rights Commission before such codes of good practice are set out.
Recommendation
The IHRC proposes that detailed regulation of the taking of samples as is set out in this section should be provided for in a set of formal guidelines either in a Schedule appended to the proposed Bill or by Ministerial order.
209
It must be acknowledged that under Article 3 of the European Convention on Human Rights, the State has a positive obligation to ensure that persons who are deprived of their liberty are not subjected to any form of ill-treatment that may be considered degrading.
210
Recommendation
The IHRC welcomes the safeguards proposed in the general scheme of the Bill. For example, only a medical practitioner, dentist or a nurse can take intimate samples and the person taking specific samples must be of the same sex as the person giving the sample. However, the IHRC considers further safeguards are required. The following general safeguards should be included in relation to the taking of bodily samples:
(i) the taking of bodily samples should be carried out in circumstances affording reasonable privacy to the person;
(ii) 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;
208
Heffernan, L., “The taking of forensic samples: a review of proposed reforms”,
(2006) 16(2) ICLJ 2.
209 See IHRC Observation on the Criminal Justice Bill 2004, at pp.4-5. The Criminal
Justice (Forensic Evidence) Act 1990 Regulations 1992 sets out procedures for the taking of samples. See SI 130 of 1992.
210
Article 3 of the European Convention on Human Rights provides that “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”
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(iii) there should be no questioning during the taking of bodily samples;
(iv) the taking of bodily samples should not involve any cruel, inhuman or degrading treatment;
(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 An Garda Síochána during the taking of 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 person objects to the video recording and the person must be informed of the reasons for the video recording;
(viii) the person should have the right to an interpreter where he or she does not speak English as his or her first language;
(ix) the person 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.
211
3.4.2 Vulnerable Persons
The IHRC is particularly concerned with the lack of safeguards for vulnerable persons, in particular as they apply to children and persons with a mental illness. For example, according to the Bill the presence of a parent or guardian must be given the opportunity to attend while the sample is being taken where it is reasonably possible to do so.
212
Recommendation
The IHRC recommends the taking of samples from persons of this age should be limited to those convicted of a serious offence and to suspects for serious offences, but not volunteers or more generally. This should be made explicit in legislation.
The IHRC suggests additional safeguards in the context of persons over 12 but under
18 years of age are necessary. The IHRC considers the procedural protection allowing the presence of a parent or guardian in the taking of samples from persons, over 12 but under 18 years of age, only where it is reasonably possible to do so, is wholly inadequate. The presence of a parent or guardian should be a condition of consent. The IHRC is also concerned that the use of reasonable force is authorised in the context of persons over 12 but under 18 years of age in the taking of samples for those convicted of certain offences and suspected of certain offences. In addition to the particular vulnerability of minors in the taking of samples, international human rights standards stipulate that the use of reasonable force should only be used in exceptional circumstances. In the event that added protection is not provided, such as the mandatory presence of a parent or guardian, use of force should not be allowed.
211 IHRC Observation on the Criminal Justice Bill 2004 (November 2004) at pp.4-5.
212 Emphasis added. See Head 8 (d)(iii) of the Bill.
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Recommendation
There are no additional safeguards in place for persons with reduced capacity due to for example, a mental illness. The IHRC recommends the presence of an independent person who is not a member of An Garda Síochána during the taking of bodily samples from persons with reduced capacity.
Recommendation
The person from whom a sample is taken should have the right to an interpreter where he or she does not speak English fluently.
3.4.3 Mass Screening and Volunteers
A mass screening involves inviting a group of individuals by reference to one or more of the following “gender, age, geographic location, timeframe, kinship, or any other factor that the Chief Supt considers relevant.” 213
A mass screening may be undertaken in the investigation of a particular offence only.
214
The offence must be an arrestable offence.
215 The Chief Superintendent can authorise the mass screening where he or she reasonably believes (a) it is a reasonable and proportionate course of action; (b) it is likely to advance the investigation of the offence, and (c) it represents an efficient use of resources.
216
Consent must be in writing.
217
An individual’s privilege against self-incrimination must be guaranteed and respected.
The implications of what a person is consenting to when they volunteer their sample necessitates full disclosure regarding the nature of the event. For this reason, the
IHRC believes that volunteers and persons involved in mass screening should be entitled to information laying out such detail. Persons should be provided with full information about the actuality and potential for sampling and its analytical outcomes.
Such a safeguard is necessary in order for the person to make an informed decision and to ensure that the person has given real and informed consent.
Recommendation
Before consent is given, the IHRC considers volunteers and persons involved in a mass screening should have a reasonable opportunity to communicate or attempt to communicate with a legal practitioner.
218 In the event that the person does not communicate with a legal practitioner, access to such information, for example in the form of a leaflet, should be supplied in advance of giving his or her consent.
219
Recommendation
The IHRC considers mass screening should only be considered an option for the gardaí where genuine consideration has been given to alternative less intrusive and
213 Head 11(c) of the Bill.
214 Head 11 (d) of the Bill.
215 Ibid.
216 Ibid.
217 Head 11 (f) of the Bill.
218 Section 7 of NSW Crimes (Forensic Procedures) Act 2000 .
219
Head 11 (f) states that “All those invited to give samples under this Head shall be informed of the purpose and shall be required to consent in writing”. This form is protection is not sufficient.
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less costly means of criminal investigation methods.
220
Such factors should be considered by the Superintendent along with the factors laid out in Head 11.
Recommendation
In the context of volunteers and mass screenings, failure to consent to a forensic procedure should not be capable of constituting a reasonable ground for suspecting a persons involvement in the particular offence so as to justify requiring them to give a sample as a suspect under Head 8 of the Bill. The IHRC considers this protection should be stipulated in statute.
3.4.4 Consent and Use of Reasonable Force
The IHRC has already expressed concern at the broadening of garda powers in relation to forensic sampling in general and the authorisation of sampling without consent in particular.
221
The current Bill under examination proposes that a garda has the power to use reasonable force in the taking of samples from persons convicted of certain offences and persons suspected for certain offences.
222 The use of force must be authorised by a Superintendent,
223
the level of force must be proportionate, and the taking of the sample must be carried out in the presence of a garda not below the rank of Inspector. It must also be video-recorded.
While such safeguards are to be welcomed, the Commission is concerned that there may be a danger that the use of force could become a practice regularly employed by
An Garda Síochána in the gathering of evidence. Such a danger must be avoided.
The IHRC wishes to emphasise once again the principle that force should only be used by members of An Garda Síochána where it is strictly necessary, and if so, only to the extent required for the performance of their duties.
224 In particular, where persons suspected of having committed a crime are in detention, the use of force should only occur in exceptional circumstances . This is a basic principle governing the activities of law enforcement officials as laid down by the CPT standards, the UN
“Code of Conduct for Law Enforcement Officials” and the UN “Basic Principles on the Use of Force and Firearms by Law Enforcement Officials”.
Recommendation
The IHRC recommends that the legislation explicitly condition the circumstances in which authorisation to take samples without consent may be given.
225
Specifically, the senior garda in question should be satisfied that the carrying out of the forensic procedure without consent “is justified in all the circumstance” based on a balancing of the potentially conflicting public interests in obtaining evidence and upholding the
220 Similar sentiments have been expressed by the Law Reform Commission in its report on The Establishment of a DNA Database (LRC 78-2005) at 2.93-2.98.
221 IHRC Observations on the Scheme of the Criminal Justice Bill 2003 and
Observations on the Criminal Justice Bill 2004.
222 Head 8(d) and Head 9 (e) of the Bill.
223 In the context of samples taken from convicted persons in prison authorisation is required from the Governor as opposed to the Superintendent.
224 See IHRC Observations on the Criminal Justice Bill 2004 (Nov 2004) at p.6-8.
225 Ibid.
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physical integrity and private life of the individual.
226
In making this assessment, the
IHRC considers that the law should require the garda to have regard to the following factors:
1.
the seriousness of the circumstances surrounding the commission of the relevant offence and the gravity of the relevant offence;
2.
the degree of the individual’s alleged participation in the commission of the relevant offence;
3.
the age, physical and mental health, cultural background and religious beliefs of the person, to the extent that they are known;
227
4.
whether there is a less intrusive but reasonably practical way of obtaining evidence tending to confirm of disprove that the person committed the relevance offence,
5.
if the person gives reasons for refusing consent- the reasons for refusing.
228
The IHRC is concerned that the use of reasonable force is authorised in the context of persons over 12 but under 18 years of age in the taking of samples for those convicted of certain offences and suspected of certain offences. In addition to the particular vulnerability of minors in the taking of samples, international human rights standards stipulate that the use of reasonable force should only be used in exceptional circumstances. In the event that added protection is not provided, such as the mandatory presence of a parent or guardian, use of force should not be allowed.
Inferences from refusal to give consent
The significance of consent is considerably undermined by the negative consequences that may flow from a person’s refusal to give consent. Specifically, a court may draw such inferences, if any, from the refusal as appear proper and the refusal may be treated as corroboration of any evidence in relation to which the refusal is material.
229
The person cannot be convicted of an offence solely on the basis of the inference drawn from the refusal.
The provisions are drafted in similar terms to provisions contained in the Criminal
Justice Act 1984 which permit a court to draw inferences from the failure or refusal of a suspect to account for an object, substance or mark found on his person or in his possession,
230
or for his whereabouts at a particular location.
231
The constitutionality of these provisions was upheld by the Supreme Court in Rock v Ireland
232
against challenges based on the presumption of innocence and privilege against selfincrimination. However, it must be stated that the statutory regimes may not be
226 See IHRC Observations on the General Scheme of the Criminal Justice Bill 2003 at p.33.
227 The IHRC acknowledges that gardaí may require particular training in this context so that such factors can be considered appropriately.
228 Ibid, at p.34.
229 Head 14 (n)(i) of the Bill.
230 Section 18 of the Criminal Justice Act 1984 . See also section 3 of the Criminal
Justice (Forensic Evidence) Act 1990 .
231 Section 19 of the Criminal Justice Act 1984 . See also sections 28, 29 & 30 of the
Criminal Justice Act 2007 .
232 [1997] 3 IR 484.
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strictly comparable. In making the decision whether to consent or refuse to the taking of a sample, a person may consider not only the impact of this procedure on their right to bodily integrity and privilege against self-incrimination, but also the privacy concerns relating to the indefinite retention of their DNA sample on a database. Valid reasons may apply behind a reluctance to provide a DNA sample that do not arise in relation to other forms of potentially incriminating evidence. Therefore, a person’s capacity to provide real consent should not be influenced by the possibility that negative consequences will flow from his or her refusal to give consent. For this reason, evidence in court against the accused should not include inferences drawn from his or her refusal to provide a sample.
Recommendation
The IHRC considers inferences should not be drawn from a person’s refusal to give consent.
3.5 Evidential Issues and Due Process Values
Head 14 enables samples to be taken in the context of the investigation of a specific offence of offences, with a view to proving or disproving the involvement of a person in the commission of the specific offence(s), where the offence attracts a penalty of more than one year imprisonment.
233
The sample will be analysed against the relevant crime scene sample, the results of which can be admitted as evidence in a trial.
234
The contribution of science to the trial process is increasing. The rate of developments in new technology is also increasing. However, new technology presents risks as well as benefits. There is no explicit means of measuring or managing the risks or benefits.
235
For this reason, there is a danger in allowing the incremental creep of new technology without robust safeguards. No matter how reliable the analytical results may be, the investigatory stage cannot be separated from the evaluating stage of the DNA evidence. The entire process is crucial to the overall reliability of DNA as evidence in the determination of guilt or innocence of the accused.
The IHRC believes that the tendency to present DNA as the most compelling information raises concerns for the consequences of a ‘trial by expert’. For example, the manner in which DNA evidence is presented in the courtroom can be critical to how it is perceived by the jury.
236
An unqualified acceptance of such evidence and its susceptibility to misuse requires practitioners and the courts to approach this evidence with caution. As Professor Marie Cassidy, the Irish State Pathologist, commented in
233 Head 14 (a)(i) of the Bill.
234 Head 14 (a)(ii) of the Bill.
235 Professor Jim Fraser, The Centre for Forensic Science, University of Strathclyde,
“Forensic Science and Criminal Justice” presented at
Forensic Evidence in the
Criminal Process: Scientific and Legal Perspectives (Trinity College Dublin, June
2007).
236
Michael O’Higgins SC, “A legal practitioner’s perspective”, presented at
Forensic
Evidence in the Criminal Process: Scientific and Legal Perspectives (Trinity College
Dublin, June 2007).
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the context of forensic science: “its not black and white- it’s a shade of grey”.
237
She argued against the over-reliance on forensic evidence in the trial process. McCracken
J in Allen v DPP 238 has made the following observations:
“Expert evidence comparing DNA profiles is a comparatively recent scientific technique, and indeed it would appear that it is still being perfected. As in many scientific advances, the jury have to rely entirely on expert evidence.
One of the primary dangers involved in such circumstances is that, the matter being so technical, a jury could jump to the conclusion that the evidence is infallible. That, of course, is not so in the case of DNA evidence, at least in the present state of knowledge.” 239
Recommendation
Although the defence has access to the evidence obtained, it must be highlighted that the accused is not currently well-placed to challenge crime scene sampling. The
IHRC considers it essential that the State provide adequate financial assistance if necessary for independent analysis of the DNA evidence obtained.
Recommendation
At present, where DNA is obtained illegally, but not in breach of a person’s constitutional rights, the trial judge is empowered to determine, as a matter of discretion, whether to admit it in evidence. The Bill does not provide triggers for the defence to argue against admissibility on the grounds of illegal or improper obtaining.
If gardaí believe DNA will be admitted in court as evidence regardless of how it is obtained, there will be little to constrain the practice of obtaining forensic evidence through means outside the parameters of the Bill. This will ultimately degrade and reduce the significance of forensic evidence in the eyes of the law and the public and may also have an impact on the prevention of miscarriages of justice. The IHRC considers the degree of intrusion in bodily integrity and privacy should merit the greatest vigilance in terms of compliance with the rights of the individual. The absence of any definitive effect of breach of the legislative safeguards in the Bill are a cause for concern.
Recommendation
Due to the probative value of a DNA match and the perceived infallibility of DNA evidence, the IHRC considers it appropriate that a judge give a warning to the jury in cases that involve DNA evidence. This would assist the jury in weighing the complex evidence presented during the trial. The warning would also aim to avoid a ‘trial by expert’ and help to ensure false conclusions are not reached.
237
Professor Marie Cassidy, State Pathologist, “Forensic Pathology- its not black or white, it’s a shade of grey” presented at
Forensic Evidence in the Criminal Process:
Scientific and Legal Perspectives (Trinity College Dublin, June 2007).
238 Unreported, Court of Criminal Appeal, December 18, 2003.
239 Ibid, at p.4.
50