__________
CONSULTATION PAPER
ON
THE ESTABLISHMENT
OF A DNA DATABASE
__________
(LRC CP 29 - 2004)
IRELAND
The Law Reform Commission
35-39 Shelbourne Road, Ballsbridge,
Dublin 4
|
© Copyright |
The Law Reform Commission 2004 |
|
First Published |
March 2004 |
ISSN 1393 – 3140
THE LAW REFORM COMMISSION
Background
The Law Reform Commission is an
independent statutory body whose main aim is to keep the law under review and
to make practical proposals for its reform. It was established on 20 October
1975, pursuant to section 3 of the Law Reform Commission Act 1975.
The Commission’s Second Programme
for Law Reform, prepared in consultation with the Attorney General, was
approved by the Government and copies were laid before both Houses of the
Oireachtas in December 2000. The Commission also works on matters which are
referred to it on occasion by the Attorney General under the terms of the Act.
To date the Commission has published
seventy Reports containing proposals for reform of the law; eleven Working
Papers; twenty eight Consultation Papers; a number of specialised Papers for
limited circulation; An Examination of the Law of Bail; and twenty four Reports
in accordance with section 6 of the 1975 Act. A full list of its publications
is contained in the Appendix to this Consultation Paper.
Membership
The Law Reform Commission consists
of a President, one full-time Commissioner and three part-time Commissioners.
The Commissioners at present are:
President The Hon Mr Justice Declan Budd High
Court
Full-Time Commissioner Patricia T Rickard-Clarke Solicitor
Part-Time Commissioners Dr Hilary A Delany,
Barrister-at-Law,
Senior Lecturer in Law, Head of Law
School, Trinity College Dublin
Professor Finbarr McAuley
Jean Monnet Professor of European Criminal Justice University College
Dublin
Marian Shanley Solicitor
Secretary John Quirke
Research Staff
Director of Research Raymond Byrne BCL, LLM,
Barrister-at-Law
Legal Researchers Deirdre Ahern LLB, LLM
(Cantab), Solicitor
Simon Barr LLB (Hons), BSc
Patricia Brazil LLB, Barrister-at-Law
Ronan Flanagan LLB, LLM (Cantab)
Glen Gibbons BA, LLB (NUI), LLM (Cantab)
Claire Hamilton LLB (Ling Franc),
MLitt, Barrister-at-Law
Darren Lehane BCL, LLM (NUI)
Trevor Redmond LLB, MPhil, LLM (Cantab)
Eadaoin Rock, LLB, LLM (Cantab)
Jennifer Schweppe BCL (Euro)
Administration Staff
Project Manager Pearse Rayel
Legal Information Manager Marina Greer BA, H Dip LIS
Cataloguer Eithne Boland BA (Hons) H Dip Ed,
H Dip LIS
Executive Officer Denis McKenna
Private Secretary to the President Liam Dargan
Clerical Officers Alan Bonny
Deborah Murray
Principal Legal Researchers on this
Consultation Paper
Philip Perrins LLB, LLM (Cantab), of
the Middle Temple, Barrister
Eadaoin Rock LLB, LLM (Cantab)
Arne Glöckner Ref Iur (Hamburg)
Contact Details
Further information can be obtained
from:
The Secretary
The Law Reform Commission
35-39 Shelbourne Road
Ballsbridge
Dublin 4
Telephone (01) 637 7600
Fax No (01) 637 7601
Email info@lawreform.ie
Website www.lawreform.ie
ACKNOWLEDGEMENTS
The Commission would like to thank
the staff of the Forensic Science Laboratory for their invaluable assistance
with this Paper. Particular thanks are owed to Dr Sheila Willis, the Director
of the Forensic Science Laboratory, Dr Maureen Smyth, Dr Louise McKenna, Liam
Fleury and Michael Norton.
The following people gave advice and
assistance for which the Commission is grateful:
Professor Edward Imwinkelried,
University of California at Davis
Professor David McConnell, Smurfit
Institute of Genetics, Trinity College Dublin
Detective Superintendent William
Coen, Garda Technical Bureau
Assistant Commissioner of the Garda
Síochána, Tony Hickey
Detective Inspector Brendan McArdle,
Garda Technical Bureau
Chief Superintendent Tom Gorman,
Garda Technical Bureau
Detective Inspector Desmond Benton,
Garda Technical Bureau
Joe Meade, Data Protection
Commissioner
Aisling Reidy, Director of the Irish
Council for Civil Liberties
Jane Liddy, Human Rights Commission
James Hamilton, Director of Public
Prosecutions
David Gormally, Office of the
Director of Public Prosecutions
Michael Liddy, Office of the
Director of Public Prosecutions
Matthew Goode, Managing Solicitor,
Government of South Australia
His Honour Judge Arthur Tompkins,
New Zealand Judicial Expert on DNA
Pauline Simon, Forensic Biology
Team, ESR
Sally Anne Harbison, Forensic Biology
Team, ESR
Jill Vintiner, Forensic Biology
Team, ESR
Murray Thompson, MLA for
Sandringham, Melbourne, Victoria
The Hon Mr Justice J. Bruce
Robertson, President of the New Zealand Law Commission
The Commission would also like to
thank Professor David Gwynn Morgan for his assistance in preparing this
Consultation Paper for publication.
Full responsibility for this
Consultation Paper, however, lies with the Commission.
TABLE OF CONTENTS
Chapter
1FORENSIC SCIENCE, DNA and dna profiling 4
(2)Deoxyribonucleic
Acid (“DNA”) 12
(3)Nature
of Genetic Variation 17
(4)Transmission
of Genetic Variation 19
(3)Present
Profiling Techniques 24
(4)Other
Methods of Analysis 29
(5)Possible
Future Developments 31
Chapter
2ADVANTAGES AND DISADVAntages of DNA profiling 33
AA
Brief History of the Use of DNA 33
BPurpose
and Benefits of a DNA Database 36
CPersonal
Genetic Information: the Context 44
Chapter 3Individual
rights and dna 51
(2)European
Convention on Human Rights 56
BThe
Right to Bodily Integrity 62
(3)European
Convention on Human Rights 64
CThe
Privilege Against Self-Incrimination 68
(3)European
Convention on Human Rights 69
Chapter 4DNA
sampling: current powers and safeguards 74
APhotographs,
Fingerprints and Palmprints 74
BCriminal
Justice (Forensic Evidence) Act 1990 80
(1)Forensic
Samples outside the 1990 Act 80
(2)General
Scope of the 1990 Act 82
(3)Classification
of Samples 85
(4)Safeguards
Against Arbitrary Sampling 88
(5)Consent
and Reasonable Force 95
(6)Enforcement
and Compulsion 99
(7)Destruction
of Samples and Records 100
Chapter 5the
taking of the DNA samples and the retention of the DNA profiles 104
ARetention
of Forensic DNA Profiles in Principle 106
BJustifications
for Sampling and Retention of Records 109
(2)Evidential
Significance Justification 109
(3)Intelligence
Gathering or Database Justification 110
(4)‘True
Identity’ or Person Identification Justification 112
(2)Retention
of Profiles in General 120
(3)Retention
of Profiles of Suspects 122
(4)Comparative
Legislation 122
FA
Comprehensive Database? 151
Chapter 6The
biological samples – RETENTION OR DESTRUCTION? 156
ARetention
of Scene of Crime Stains 157
BRetention
of Comparator Samples 160
(1)Retention
or Destruction? 165
(2)Conclusion
on Sample Retention in Principle. 167
Chapter 7THE
PERMISSIBLE USES OF THE DNA SAMPLES AND PROFILEs 169
APermissible
Analysis of Biological Samples 170
BPermitted
Uses of the DNA Database 177
(2)Identification
of Deceased Persons 179
(3)DNA
Profiling of Deceased Persons 180
(4)Identification
of Severely Injured Persons 181
(5)Crime
Investigation Purposes 182
(7)Information
Sharing and the International Dimension 188
Chapter
8oVersight, Regulation, quality control and accreditation 192
AOversight
and Regulation of the DNA Samples and Database 193
(1)The
Present Irish Position 193
(3)The
Custodian of the Database and DNA Samples 198
BRoles
and Responsibilities of the Custodian 202
(1)
Security of the Database 202
(2)Security
of the Samples 205
AThe
Probative Value of a DNA Match 222
(1)What
Does a Match Mean? 224
(2)Holding
a DNA Evidential Hearing 228
(4)Illegally
and Unconstitutionally Obtained Evidence 235
BPresentation
of the Evidence at Trial 237
(1)Presentation
of the Statistical Evidence 238
(2)The
“Prosecutor’s Fallacy” 240
1.
On
5 February 2003, the Attorney General, Mr Rory Brady SC, acting pursuant to
section 4(2)(c) of the Law Reform Commission Act 1975, requested the
Commission to consider the following matter:
“The establishment of
a DNA Databank. I would appreciate that in your consideration of this issue you
would address the complex constitutional and human rights issues that may
arise. In particular, the classes of DNA profiles, that would make up the
database, would have to be addressed. For instance, would the database include
suspects who have not been convicted.”
It is clear from his reference requesting the Commission to consider the
establishment of a DNA database that our task primarily concerns considering
the establishment of a repository of forensic DNA profiles generated
from biological samples, which can be electronically stored for
comparison with casework evidence profiles, which are those profiles generated
from biological material found at the scene of a crime.
2. One needs to have an appreciation of
how rare a person’s DNA profile is, what analysing DNA will reveal about an
individual and whether retaining DNA profiles poses any threat to the human
rights of an individual. A clear understanding of the science involved is
plainly a prerequisite to grappling with the intricate civil libertarian
concerns as well as the evidential issues that DNA profiling and its usage may
entail. In this Paper, we draw a distinction between the samples and the
profiles in determining whether the sample or the profile or both should be
destroyed. It is important to highlight this distinction from the outset. The
sample contains the whole of a person’s DNA while the profile consists of only
a small section of an individual’s DNA, which at present is believed to contain
little personal information about an individual aside from parentage and
relatedness.1
3. The benefits of establishing a DNA
database are widely acknowledged. Experience in other jurisdictions has
illustrated the important contribution a DNA database makes to crime
investigation.2
A DNA database enables a person, not previously suspected of committing a
crime, to be identified as the perpetrator of an offence. Consequently, it
ensures that miscarriages of justice are avoided. In this respect however, it
is important that evidential safeguards are in existence, which guard against
the DNA database itself leading to miscarriages of justice. As against the
benefits of a DNA database, the costs of it in terms of the infringement to an
individual’s rights must be weighed. The establishment and implications of
potential usage of a DNA database may interfere with an individual’s privacy
and bodily integrity rights and their privilege against self incrimination. The
overriding theme of this Paper is therefore the need to strike a balance
between these conflicting interests in establishing a DNA database.
4. The potential for misuse of the
information contained in DNA is cited as the primary civil liberties concern
over the retention of DNA profiles on the database. We therefore submit that
the greater the safeguards implemented to protect the security of the DNA
samples and profiles, the easier it is to justify the retention of the DNA
information. This Paper consequently entails examining how the public
confidence in the security of the database could be improved. On the basis of a
secure system being in existence, we recommend which samples and profiles can
justifiably be retained. Without safeguards against misuse however, the
justifications for retaining any samples or profiles at all are not compelling.
Similarly, if there is a careful description of each purpose for which the
database may be consulted and the information utilised, the greater the number
of DNA profiles, which can justifiably be accumulated and retained.
5. In this Paper, the Commission
commences in Chapter 1 with an examination of the science of DNA. In Chapter 2,
it gives a brief overview of the advantages and disadvantages of establishing a
DNA database. In Chapter 3, the individual rights that may potentially be
infringed on the establishment of a DNA database are discussed. These human
rights principles will shape and direct our recommendations in later chapters.
Chapter 4 outlines the current powers in respect of the taking of DNA samples
and examines some problems that arise in respect of these powers. The Criminal
Justice (Forensic Evidence) Act 1990 and the Scheme of the Criminal
Justice Bill 2003 are discussed here. Chapters 5-7 are at the very centre
of the Paper and discuss the core issues contained in the Attorney General
reference. Chapter 5 discusses firstly, the categories of persons from whom the
legislation should enable samples to be obtained and secondly, those profiles
which should be retained indefinitely on the database. Chapter 6 draws a
distinction between scene of crime stains and comparator samples and examines
whether these samples should be retained indefinitely or destroyed after the
creation of the profile. Chapter 7 examines the permissible purposes for which
the Commission accepts the biological samples and the profiles on the database
may be used. Chapter 8 contains a discussion on the oversight and regulation of
the database and samples. Significantly, it also deals with the question of how
the samples and the database may be securely protected. It examines how the
chain of custody of a sample can be maintained so as to avoid contamination and
in this respect the validity of the crime scene examination and laboratory
results can be ensured. Finally, in Chapter 9 the Commission discusses the
implications of the defendant’s right to a fair trial where DNA evidence is in
issue. The safeguards that should be implemented in this respect are detailed.
In particular, the value of requiring a pre-evidential hearing, corroboration
and a judicial warning where DNA evidence is in issue is assessed.
6. This Consultation Paper is intended
to form the basis for discussion and accordingly the recommendations made are
only provisional. The Commission will make its final recommendations on this
topic following further consideration of the issues and consultation with
interested parties. Submissions on the provisional recommendations contained in
this Consultation Paper are welcome. In order that the Commission’s Final
Report may be made available as soon as possible, those who wish to do so are
requested to make their submissions in writing or by email to the Commission by
the 31st August 2004.
1.
FORENSIC SCIENCE, DNA and dna profiling
“You, your joys and
your sorrows, your memories and ambitions, your sense of personal identity and
free will, are in fact no more than the behaviour of a vast assembly of nerve
cells and their associated molecules.”3
Introduction4
1.
The
discussion here is by no means a comprehensive treatise on the utilisation of
deoxyribonucleic acid (“DNA”) in the service of forensic science, or for that
matter an authoritative guide to DNA profiling. The objective is merely to
highlight some of the areas that need to be understood before conducting any
examination in this field.
2. In Part , an overview of the meaning
of forensic science and a brief history of the development and use of two
somewhat similar forensic methods is given: fingerprinting and blood grouping.
In Part we address genetics in elementary terms; how the understanding of
genetics has developed and, more importantly for present purposes, what is DNA.
In Part , DNA profiling techniques used in the investigation and prosecution of
crime are detailed. A point that must be emphasised here, and will be
re-emphasised throughout this Paper, is that a clear understanding of the
science involved is a prerequisite to understanding the concerns and benefits
of establishing a DNA database, as well as the evidentiary issues that DNA
profiling precipitates.
3.
A
traditional way in which a potential suspect may be identified is by an
eye-witness. However, both in this jurisdiction and in the UK the courts have
readily recognised the risk of wrongful conviction when juries rely wholly or
substantially on eye-witness identification evidence. Mistaken identification
evidence is a notable source of miscarriages of justice. A practice has
developed whereby trial judges in their summing up to the jury will emphasise
the need for caution depending on the circumstances of the visual
identification, such as whether the person is known to the witness, the reliability
and credibility of the witness as to the recognition, the state of the light
and the length and proximity of observation.5 There is less chance of this
occurring when scientific techniques are used. Such techniques have extremely
powerful exculpatory as well as inculpatory value. Even so, evidential issues,
such as whether corroboration is required before convicting a defendant solely
on DNA evidence is a matter requiring some attention.6 But, even at the outset it is clear
that DNA evidence, as with all evidence, needs to be tempered with all the
other information available.
4. Forensic science involves the
application of scientific methods and techniques to the investigation of crime
and forensic refers to the scientific tests or techniques used in connection
with the detection of crime. There are numerous forms of forensic science,
including fingerprinting, handwriting and document examination, forensic
odontology, forensic hypnosis, forensic psychiatry, polygraph, ballistics,
facial mapping and reconstruction, photo-fit and E-fit, voice prints, photogram
metric features comparison, breathalyser, blood grouping and DNA profiling.7
5.
The
methods of forensic detection that are most important for present purposes are
those which enable an individual to be linked to the mark or substance left at
the scene of a crime. As Hardiman J points out in Dunne v DPP:8
“We are long
habituated to the idea that technology and science can snare the criminal. From
the familiar photograph and fingerprint to the microscopic fragment of hair or
tissue, the role of their products in detection and the proof of guilt has
entered into the public consciousness. The work of the criminalist, the SOCO
[scene of crime officer], chemist, the photographer, above all the DNA expert,
are firmly established. The law itself has changed to accommodate them. A
suspect may be fingerprinted, photographed, compelled to give up his clothing
and possessions for testing and to supply samples of his hair, tissue or bodily
fluids under a variety of statutes.”9
6.
Investigations
often revolve around finding the individual who left the ‘stain’ in order to
question that person as to how the stain came to be present at the scene and
either eliminate them from the inquiry or treat them as a suspect. In this
Paper the Commission is primarily concerned with DNA profiling as a means of
connecting an individual to the ‘stain’ left at a scene of crime. But, before
turning to DNA specifically, fingerprinting and blood serology will be briefly
outlined to illustrate both the shortfalls in those methods and so as to enable
analogies to be drawn with the more modern technique of DNA profiling with
which we are concerned here.
1.
History
7.
“[F]ingerprints
are formed by the deposit of the perspiration and fatty matter secreted by the
sweat glands in the friction-skin of the hands, allied with any dirt, which
happens to be on the fingerprints”.10 As Ebiske notes, the history of
present day fingerprinting technique is a long one.11 In 1823 Johannes Purkinje, a
Bohemian physiologist described the constancy of fingerprints and observed that
they have specific patterns, namely, “whorls”, “ellipses” and “triangles”. In
1858 William Herschel, an English civil servant working in India, asked a
contractor to sign the back of a contract with a print of his hand. Later he
made illiterate pensioners sign their receipts by pressing a finger dipped in
ink in order to prevent them from coming back twice for their government pensions.
About the same time, in Tokyo, a British physiologist, Henry Faulds noted the
fingerprints on Japanese pottery and began studying the “whorls”. Two years
later the police, knowing of his interest in fingerprints, engaged Faulds to
assist in analysing the sooty fingerprints left by a thief on a whitewashed
wall. He compared those prints with those of the man arrested by the police and
to his surprise found they were quite different. Another suspect was arrested
and Faulds showed that it was his fingerprints which matched those left at the
scene.12
8.
The
first recorded case in which fingerprints led to a conviction was in Argentina,
in 1892, when Francesca Rojas was convicted of murder having killed her two
children. When charged on the basis of the fingerprint evidence – a print found
in a bloodstain left on the door – she confessed to the murders.
9. Also in 1892, Sir Francis Galton,
after conducting a three year study to make quite sure fingerprints are unique
or at least that duplication was rare, published the paper “Finger Prints” in
the prestigious journal Nature. He described fingerprints as normally
revealing a triangular shape. However, the problem that was encountered was
establishing a workable classification system. The aim was to enable a
policeman to locate a particular fingerprint quickly from a collection of
millions. Later, in 1896, it was a British Civil Servant, Edward Richard Henry,
on the basis of Galton’s work who devised a system, which set out the ‘basic’
formula for any fingerprint. Henry was subsequently made an Assistant
Commissioner at Scotland Yard and in 1902 founded the Central Fingerprint
Branch. By the end of 1902 as many as 1,722 identifications had been made.13
1.
Use and Limitations of Fingerprinting
10. Fingerprinting has been accepted and
considered reliable for over a century. The uniqueness of fingerprints has been
confirmed. Indeed Ebisike states that “[i]n the final analysis, fingerprinting
appears the most reliable of all forensic science techniques”.14
This may be explained by its use and reliability over such a long period of
time. Consequently, most jurisdictions maintain a collection of fingerprints so
as to enable them to associate individuals with their past crimes and to
determine whether marks/prints left at a scene of crime can be linked with a
known individual. This facility has the effect of narrowing the field of
suspects who need to be investigated and can be referred to broadly as
“intelligence purposes.” The storage of fingerprints has been somewhat modified
in line with technological advances and they now tend to be stored on
databases, which enable records to be more effectively interrogated. The shortfall
in this method of identification is that its reliability is dependent on being
able to compare the scene of crime mark with a clear set of a suspect’s prints;
because of the nature of the scene of crime prints, which may be latent,
visible or even wet and may be present on a number of different surfaces, such
as on human skin, it may only be possible to compare certain features of a
print.15
By measuring the features of a fingerprint a numerical framework may be created
within which one may compare one print with another.16
11.
However,
the presentation of fingerprint evidence has always tended to be somewhat
subjective, in that the fingerprint expert will provide the court with an
opinion as to whether the fingerprints of the accused match those found at the
crime scene. With the increasing use of computerisation and fingerprint
recognition software, a greater measure of objectivity may be created, as
regards such evidence. As we shall see,17 although DNA evidence is
infinitely more discriminating as a forensic method, an expert is generally
precluded from expressing an opinion as to the relevance of the match in
showing the guilt or innocence of the accused.
12.
The
use of blood grouping as a means of identifying individuals arose mainly as a
result of medical research, particularly blood transfusions.18
The breakthrough came with the discovery of blood groups through Karl
Landsteiner’s work on blood cell agglutination in 1901. Initially it was
discovered that there were three blood groups – A, B, and C (now called O).
Later, Landsteiner found a category that had characteristics of both A and B –
AB. By the 1920s, ABO blood grouping was routinely used on patients being given
blood transfusions and significantly reduced the mortality rates.
13.
The
forensic application of blood grouping was first demonstrated by distinguishing
between human blood and that of other species. In 1902, a French murderer was
sent to the guillotine when tests proved that blood on his clothes was human
and not from skinning a rabbit – as he had claimed.19
14. Later the discovery of different
blood typing systems, such as the rhesus system, increased the power to
discriminate between blood groups in forensic applications. Blood grouping has
been used to exclude alleged fathers in paternity disputes and, more
importantly for present purposes, to exclude a suspect from inquiries on the
basis that blood found on a victim did not match the blood grouping of that
suspect. As an exclusionary method this analysis has been shown to be very
powerful, but as an inclusionary method significant limitations are apparent.
With four ABO blood groups and two rhesus groups it is only possible to
recognise a maximum of eight different types. If, for example, a blood sample
found at the scene of a crime, which is believed to have been left by the perpetrator,
is type AB and two suspects are found, one who has blood type A and one who has
type AB then two conclusions can be drawn: the suspect with type A is
definitely not the source of the scene of crime sample and the suspect with AB may
be the source. However, if we take figures for blood group frequencies in
Western European populations as: A = 42%; B = 9%; AB = 3%; O = 46%,20
then one may say that approximately 1 in 33 people have blood group AB. Despite
this rather basic example, it can be readily observed that this information is
not terribly helpful in identifying who may be treated as a legitimate suspect
– or for that matter determining who is the source of the crime scene stain.
Blood grouping tests only result in fairly high probabilities, particularly
when compared with the likelihoods in the case of DNA.21
15.
Blood
grouping is useful in the preliminary stages of an investigation in order to
provide a screen before more detailed DNA tests are performed. Therefore
suspects may be eliminated so as to remove the need to carry out expensive and
time consuming DNA tests, because in contrast a blood test is relatively quick
and inexpensive. However, with the exponential development in DNA technology22
such as increased automation in profiling, coupled with the ability to use less
intimate samples to obtain a profile23 the costs have reduced and speed
increased. The consequence is that the need for this initial screening process
has been reduced.
16.
Genetics
is the scientific study of how physical, biochemical, and behavioural traits
are transmitted from parents to their offspring. Thus it embraces the
mechanisms of inheritance whereby, although the offspring of sexually
reproducing organisms do not exactly resemble their parents, the differences
and similarities between parents and offspring recur from generation to
generation in various patterns.
17.
Modern
understanding of genetics and heredity is the product of a number of
developments. First, the method of experimentation that emerged in the 17th
Century; secondly, the development and use of the microscope which became
prevalent in the 19th Century; thirdly, the emergence of chemistry and
biochemistry in the 18th and 19th Centuries; fourthly, the publication of The
Origin of the Species by Charles Darwin, the British scientist, who laid
the foundation of modern evolutionary theory; finally, the rediscovery, in
1900, of the work of the Augustinian monk Gregor Johann Mendel, which concerned
principles of hereditary transmission of physical characteristics. Known as
Mendel's laws these were originally formulated in 1865 and became the
theoretical basis for modern genetics and heredity.24 From systematically breeding peas,
he demonstrated the transmission of characteristics in a predictable way by
factors (genes) which remain intact and independent between generations and do
not blend, though they may mask one another's effects.25
1.
Deoxyribonucleic Acid (“DNA”)
18. DNA is found in every one of the
trillions of cells26
in the human body; that is with the notable exception of erythrocytes (red
blood cells) which do not have nuclei. Cells are the basic unit of structure
and function in all living things and consist of protein surrounding a nucleus.
Proteins are large complex molecules made up of amino acids. These acids cause
the protein chains to fold up into specific three-dimensional structures that
define their function within a cell. The nucleus itself is made up principally
of nucleic acid.27
When cells divide into two to reproduce, the nucleus transforms into
thread-like packets, which are the chromosomes. In every cell there are 46
chromosomes arranged in 23 pairs. The ovum and sperm each contain 23 single
chromosomes and at fertilisation these combine to produce a total of 46.28
Accordingly, half of the genetic information is maternal and half is paternal
in origin. 44 of the 46 human chromosomes have been assigned the numerical
values of chromosome pair 1, chromosome pair 2 and so on to chromosome pair 22.
Each individual will therefore have a maternal and paternal copy of chromosome
1, 2, through to 22. The remaining two have been assigned a letter – X or Y.
Females have two X chromosomes, while males have an X and a Y.
19.
The
main constituent of chromosomes is DNA – the other constituent being protein.
In the 1940s, it became apparent that DNA is the principal molecule which
carries genetic information from one generation to the next.29
This, however, was not conclusively established until 1953, when Watson and
Crick deduced the structure of DNA.30 Each molecule of DNA consists of
two strands which coil round each other to form a double helix, a structure
like a twisted ladder: see figure A at paragraph . Each rung of the ladder
consists of a pair of chemical groups called bases linked together by hydrogen
bonds. There are four types of bases (nucleotides) known by their initial
letters - A, G, C, and T.31
The sides of the ladder are comprised of phosphates and sugars. An important
aspect of DNA is that the two strands will only bind according to a specific
rule. Namely, A and T pair with each other and G pairs with C. For example, if
the sequence on one strand is --AGATTCTG-- then the opposite chain must have
the sequence --TCTAAGAC--. Because the bases combine in specific pairs so that
the sequence on one strand of the double helix is complementary to that on the
other, it is the specific sequence of bases which constitutes the genetic
information.32
20.
A
gene is the unit of inheritance, a piece of the genetic material that determines
the inheritance of a particular characteristic, or group of characteristics,
such as hair or eye colour. Essentially, genes are a particular sequence of
base pairs along the DNA strand, as illustrated in figure A, below. The length
or sizes of genes vary, but the average gene consists of 3,000 bases.33
A genome, on the other hand, is the complete set of genetic material of a
particular organism. The human genome has 3.2 billion base pairs. Analysis of
the first draft sequence indicated that the number of genes present throughout
the genome is about 30,000-40,000.34
.jpg)
Figure A35
21. The genetic information that is
carried in the DNA is in the form of a code which determines an individual’s
physical characteristics and directs chemical processes. In other words, the
sequence or particular arrangement of bases along the DNA strand spells out the
exact instructions – these are the genes. All information or instructions
contained in DNA is commonly referred to as the “blueprint for life”,36
as each DNA molecule contains all of the information needed to produce a
complete human body. Each cell that has a nucleus contains the entire genome,
which is the same from one cell to the other.
22.
Until
the mid-1960s it was believed that most people were nearly identical
genetically and that the variations, such as in eye colour and blood grouping,
were exceptions. However, through studies a vast amount of data was collected,
which revealed that there was much more variation than anyone had predicted.
The sequence of the human genome is now thought to be 99.9% the same in all
people.37
But, although humans are essentially only 0.1% different from each other, there
are many sequences in the genome where there is a lot of variation.
Fortunately, for forensic science, those parts of the sequence in the genome
vary to such an extent that the sequences can be used to determine whether two
biological samples containing cells are from the same source. In other words,
it can be shown that where one person has an A at a certain point in their DNA
sequence, another person has a C, a T, or a G. With the notable exception of
identical twins, who share the same genetic code, at a genetic level no two
individuals are exactly alike.38 The important issue of the
uniqueness of a DNA profile will be dealt with in more detail below.39
23. Genes, however, appear to be
concentrated in random areas, or loci, along the genome, with vast stretches of
sequences in between.40
The regions of the DNA molecule which contain genes are known as “coding
regions”. The coding regions from one individual to the next are almost the
same because during evolution they are subjected to selection pressure to
maintain their specific function: one may say they are essentially what make us
human. But no two individuals carry the same DNA sequence (with the exception
of identical twins). The difference is this: only a small part of the entire
human genome encodes instructions for the production and synthesis of proteins41
- see figure B. In consequence, there are “non-coding” areas that do not
contain genes and these are prevalent. It is these areas which are used in
forensic testing.
.jpg)
Figure B42
24. Whereas the coding regions contain
sequences that are almost identical from one individual to another, differences
can be observed in these “non-coding” areas. The non-coding areas are reported
to have little prescribed function (they may have no biological
function) and have not been subjected to the same selection pressures as the
coding regions. These regions or loci are often described as “genetic junk” as
the sequences in these areas mutate more rapidly from one generation to the
next without affecting the function of the DNA or organism. Most mutations in
the non-coding areas are usually transmitted to the offspring, which in turn
leads to a vast increase in genetic variability. It is also in the non-coding
areas that “hypervariable regions” can be found, in other words where there is
a high degree of variation between individuals.43
25.
The
Australian Law Reform Commission (“ALRC”) in its recent report on the
protection of human genetic information in Australia stated:
“In recent years,
genetic scientists have increasingly come to believe that it is the non-coding
DNA that may be the basis for the complexity and sophistication of the human
genome, which permits only 30,000 genes to produce about 200,000 proteins”.44
The ALRC also referred
to the views of a leader in the field, Professor John Mattick, who is quoted as
surmising that non-coding DNA forms: “a massive parallel processing system
producing secondary signals that integrate and regulate the activity of genes
and proteins. In effect, they co-ordinate complex programs involved in the
development of complex organisms”.45
25.
The
important issues of what a DNA profile reveals about an individual and whether
the analysis and storage of biological samples and profiles represents a threat
to privacy will be examined in later chapters. What can be said here is that in
the investigation of crimes, biological samples are collected from crime scenes
in order to determine the possible sources of that sample. Thus, the purpose of
analysis is to differentiate between individuals. Accordingly, the areas of
difference (the non-coding regions) are more pertinent for forensic analysis
than those regions which are highly varied (coding regions). Problems may,
however, arise if some non-coding areas are discovered to disclose rather more
information about an individual than originally envisaged. This is particularly
so if the ‘non-coding’ loci used in forensic profiling are compromised because
they reveal personal information – this is a critical point which will be
examined in detail later in the Paper.46
1.
Nature of Genetic Variation
27.
It
was noted above that the main constituent of chromosomes is DNA and that they
are essentially long strands of DNA tightly packed into bundles.47
Some chromosomes are significantly larger than others and more densely packed
with genes. For example there are 279 million base pairs comprising the largest
chromosome – chromosome 1 – and an estimated 2968 genes.48
Each chromosome has a distinctive placement of genes and non-coding regions
along its length and by virtue of the work carried out by the Human Genome
Project all these locations are now known. One can refer to these locations or
loci as addresses. For example, an address used in forensic profiling
D3S1358 is a stipulated area on chromosome pair 3: D3 refers to a site on pair
3; S refers to the location; and 1358 is the actual address on the strand.49
28.
At
this point, we need to go into some detail about the way in which genetic
variation is assessed and explained because, as will become apparent,50
this is the basis of forensic testing by which an individual’s DNA may be
profiled. Despite the fact that 99.9% of the DNA sequence in humans does not
vary from individual to individual, each human being is unique and there is
some genetic variation. Variation occurs in a number of different ways: for
example, the sequence of base pairs may differ by one of more bases at a
particular locus. This variation is known as “sequence polymorphism” and each
possibility is called an “allele”, for example a stretch of DNA may on one
strand of the double helix take the following form:
---
TTCATGATTA --- (Allele A)
---
TTCATCATTA --- (Allele B)
---
TTCATTATTA --- (Allele C)51
29. A further way in which individuals
may differ at a molecular level – which is the basis of current profiling
techniques – is in terms of the length of a stretch of DNA at a particular
location, ie “length polymorphisms”. The difference in length is
attributable to the changeable number of times a sequence of DNA is repeated in
tandem along a particular stretch of DNA (“a repeat unit”), which are typically
two to five base pairs in length. For example the sequence AATAC at a
particular genetic address may be repeated from 5 to 10 times to produce six
different alleles of repeat unit sizes 5, 6, 7, 8, 9 and 10, as follows:
-AATAC
AATAC AATAC AATAC AATAC- (Allele size 5)
-AATAC
AATAC AATAC AATAC AATAC AATAC- (size 6)
-AATAC
AATAC AATAC AATAC AATAC AATAC AATAC- (size 7)52
And so on to size 10.
One should note here that length variations exhibit greater variation than
sequence variation and are accordingly more discriminating from a forensic
perspective. The repeat sequences are known as variable number of tandem
repeats (“VNTRs”) for relatively large repeat units and short tandem repeats
(“STRs”) for small repeat units. STR profiling has become the preferred method
of forensic analysis, because STRs exhibit greater variation and may be
targeted more easily with probes.
1.
Transmission of Genetic Variation
30. DNA locations appear in duplicate
because chromosomes occur in pairs, so regardless of whether they are the
locations of genes or non-coding areas analysis will unveil results from a
maternal and paternal donor at each site or locus tested: if an individual has
inherited the same item of DNA at a specific locus from both parents then they
are “homozygous” at that location. Alternatively, if the individual has
inherited two different items of DNA at a particular locus then they are
“heterozygous” at that location. If a person is homozygous then his or her sex
cells will contain the same piece of genetic information, in which case only
one allele may be passed on to their offspring. On the other hand, if a person
is heterozygous at a particular location then there is an equal chance that
either allele will be passed on, as illustrated as follows:
|
Allele |
Mother (AA) |
Father (BC) |
Child (AB) |
Child (AC) |
|
A |
|
|
|
|
|
B |
|
|
||
|
C |
|
|
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31.
If
both parents are heterozygous, so that they both have allele BC at a particular
site, then each can pass on either a B or a C. Furthermore, there are three
different descendant types, BB, BC and CC and because there are two ways that
BC may be produced it is expected that half the couple’s offspring would be BC,
a quarter BB, and a quarter CC.
32.
These
kinds of probabilities and the distinction between heterozygous and homozygous
are important in determining the relative uniqueness of a particular DNA
profile, as well as in appreciating relatedness and parentage.53
32. DNA profiling refers to the
identification of individuals through their DNA. All eukaryotic cells (which
are present in an individual’s tissue or bodily fluids) contain an identical
DNA molecule.54
There are trillions of sources of DNA that can be set side by side with other
samples (such as a sample left at a crime scene) to determine the likelihood
that these samples originate from the same individual.55 DNA profiling is used as an
investigative tool that enables inferences to be drawn as to who may have been
present at a particular place, just as inferences may be drawn from the
presence of fingerprints. Profiling can be used to identify, confirm or
eliminate a suspect from an investigation. DNA profiling has also become a particularly
beneficial tool in exonerating those wrongfully convicted. A compelling
illustration of the potency of DNA in exonerating individuals is provided by
the US National Institute of Justice project Convicted by Juries, Exonerated
by Science.56
As implied in the title the study examined cases where wrongful convictions
were obtained and subsequently overturned on appeal through the use of DNA
evidence. This study and the work conducted by Innocence Project57
act as powerful reminders of the fallibility of the justice system,
particularly when a conviction is substantially obtained on the basis of
eye-witness testimony.
33.
Equally,
a DNA match cannot be considered as conclusive evidence of a suspect’s guilt,
as there may be numerous reasons for the match: for example, the match may be
coincidental, as a result of contamination or tampering, or may have been
deliberately planted to implicate. Or indeed – and this is a point which should
be emphasised – the suspect’s DNA may have been innocently left at the scene of
crime. Also the relative strength and usefulness of DNA evidence is dependent
on a number of factors, such as the quality of any biological sample left at a
scene of crime, and to a lesser extent the quantity of material, as well as the
frequency and distribution of the particular alleles within the population.
These considerations are crucial and we shall consider them more fully later in
the Paper.58
34. The realisation that DNA could have
a forensic application was a result of medical research. In 1984, while
studying the genes which code for haemoglobins, Sir Alec Jeffreys of the
University of Leicester observed basic building blocks made of repeated
sequences within the DNA which were 10 or 15 bases long. He isolated two of
these blocks, mass-produced them and made them radioactive. They were then used
as probes to detect what Jeffreys describes as “hypervariable regions” in other
genetic material. Samples were taken from members of a family to determine
whether this method could reveal the relationships. The “hypervariable regions”
appeared as dark bands in columns against a white background on an X-ray film.
By placing the columns of the parents and children side by side it was observed
that all the bands on the children’s film were derived from the mother or
father.59
35. As Dr James Donovan, the former
Director of the Forensic Science Laboratory, notes:
“Forensic science is
largely based on the rule of Edmund Locard, Professor of Medical Jurisprudence
at Lyon, who formulated the principle that ‘every contact leaves a trace’. This
is known … as ‘Locard’s principle’.
There are many
examples of this, a most basic example being a pedestrian struck by a car. The
body breaks the head lamp glass, which is left at the scene and can indicate
the make and model of the car. The body bounces onto the bonnet, melting the
top layer of paint deep within the weave of the victim’s clothing, which allows
the scientist to identify the colour from a database. The colour gives the make
and model of car. Normally the body smashes into the windscreen, breaking it
and leaving glass at the scene. Finally the head crashes into the side pillar
of the windscreen, leaving blood and human tissue on the pillar, which can be
examined by means of DNA profiling. Thus a very definite linkage can be
established between the deceased and the vehicle that killed him/her.”60
DNA profiling is
almost invariably preceded by an examination of scenes of crime (or for that
matter, secondary scenes such as a victim’s or suspect’s home) in order to
forage for bodily fluid, tissue and, more recently hair roots, from which to
generate a DNA profile.
35. The following table provides a
summary of the types of biological evidence from which a profile may be
generated:61
|
Bodily Fluid/Tissue |
Location of DNA |
Typical Items Examined |
|
Blood |
White blood cells (leukocytes) contain DNA; human red blood cells (erythrocytes) do not. |
Clothing, weapons, scene stains and various items in cases where blood has been shed. |
|
Semen |
Spermatozoa, which is the source of DNA in most semen samples; semen from a vasectomised male may still be successfully typed from DNA from epithelial cells lining the male reproductive tract. |
Orifice (oral, vaginal, rectal) and surface (skin) swabs from complainants in sexual assault cases, undergarments, clothing, bedding, condoms. |
|
Saliva |
Buccal cells lining the oral cavity. |
Cigarette butts, used tissues, chewing gum, toothbrushes, stamps and envelope flaps, swabs of bite marks, beer bottles, balaclavas, scarves, eating and drinking utensils, dentures. |
|
Vaginal Secretions |
Cells lining the vaginal cavity. |
Condoms, underclothing, penile swabs, insertion objects. |
|
Skin |
Sloughed off skin cells, dandruff. |
Clothing, fingernail scrapings. |
|
Hair roots |
The root sheath (the bulbous growth at the scalp or body end of the hair contains DNA); if this root is not present, only mitochondrial DNA analysis is an option.62 |
Pulled scalp, facial or pubic hairs. |
|
Urine |
Urine (usually a poor source of DNA; it may contain relatively few epithelial cells). |
Clothing, bedding, neat (undiluted) urine samples submitted for drug testing. |
|
Faeces |
Faeces (a relatively poor source of DNA; it may contain some epithelial cells from the intestine and rectum). |
Faeces, clothing, bedding. |
|
Bones |
Bone marrow. |
Skeletal remains. |
|
Teeth |
Tooth pulp. |
Skeletal remains. |
|
Nasal secretion |
Epithelial cells lining the nasal and sinus cavities. |
Tissues, paper towels, clothing. |
|
Vomitus |
Epithelial cells lining the oesophagus and mouth. |
Vomitus, clothing, rugs. |
|
Other |
Cells from any tissues or organs. |
Remains from mass disasters, biopsy or other hospital-related samples, contact lenses. |
36.
As
is evident from this table, there are a number of sources from which a DNA
profile can be derived. However, the likelihood that a biological sample will
create a DNA profile depends on the material involved. For example, blood has a
90% chance of generating a DNA profile. Saliva on a balaclava has a success
rate of 43% but on a cigarette butt it is 67% while on a weapon handle it has a
success rate of 17%. Hairs have a 25% chance of producing a DNA profile. This
is because hair that falls out is dead at the roots and it is difficult to
obtain a DNA profile from such hairs. In contrast, hair that is plucked has a
much better success rate.63
1.
Present Profiling Techniques
38. The process of analysing a piece of
DNA is a very complex one and one that has developed exponentially since first
discovered. Single locus probes and multi locus probes have now been overtaken
by the use of the polymerase chain reaction (“PCR”) where small samples of
previously unsuitable material may be examined. All of the DNA is extracted and
the particular area or sequence of DNA is then targeted and copied. The result
of this technology has been that it increases the amount of DNA available for
testing and enables even very small stains taken from a scene of crime to be
tested successfully.
39. The particular PCR system that is
used in Ireland, Britain, and New Zealand and in most of Europe is called the
SGM Plus™ profiling system, which is a commercially produced kit validated for
forensic casework.64
Defined areas which can differ from one individual to the next – non-coding STR
regions – are targeted and the resulting profile is referred to as an SGM Plus
profile. Essentially the technical process for DNA profiling involves the following
main steps:
DNA Extraction: the biological material is removed
from the clothing or swab by soaking in water or a buffered solution. The
solution is spun in a centrifuge which pushes the cells to the bottom of the
tube. Unwanted material such as red blood cells and protein is removed and
discarded. The remaining cells are burst through heating or chemical action,
which releases the DNA from inside the cells;
DNA Quantitation: the amount of extracted DNA is
measured using a commercially produced kit. This essentially will reveal
whether primate DNA is present in the sample.
Amplification and
Detection: after
quantitation, an exact amount of DNA is added to the PCR, which amplifies
selected regions of DNA to detectable levels. It is then electrophoresed to
separate the different sized fragments. The fragments are then analysed and the
DNA profile is determined – manually or by computerised software. Once the
profile is generated it is compared with other profiles, such as comparator
profiles taken from suspects or those profiles generated from stains found at
other scenes of crime.
Statistical Assessment and Reporting: matching profiles are assessed to
determine their evidential value.65 This is discussed in greater detail
later in the Paper.66
1. The process can vary in relation to
the time taken to generate a DNA profile. For example, the nature of the sample
may mean that extraction will take longer. However, the process can be broken
down as follows:
i.
Extraction: depends
on sample. Blood sample – 90 minutes; semen stain – approximately 6 hours (or
overnight); hairs – approximately 5 hours (or overnight); cigarette ends –
overnight soak plus 2 hours;
ii.
Quantitation:
about 3 hours;
iii.
Amplification:
about 3 hours;
iv.
Gel Preparation and Loading: about 1 hour to pre-run and load (plus at
least 2 and a ½ hours to pour and polymerise);
v.
Gel Electrophoresis: 2 and a ½ hours;
vi.
Gel Analysis:
2 analysts for minimum of 2 hours each;
vii.
Clerical and Final Checking of Results: up to 1 hour per case.67
As can be seen the
process of generating a DNA profile can take around 24 hours, depending on the
type of sample to be profiled. However, other variables must also be taken into
account: DNA may not be present in the sample or may be completely degraded;
the sample may be mixed to such an extent as to render the resulting profile(s)
useless.68
It is also notable that the period of time in which a DNA profile may be
generated is dependant on the volume of work in the laboratory at the relevant
time. This is both in terms of over demand and under demand. As regards the
latter, because work is carried out in batches, it would be inefficient to run
a gel for just one sample.
2. A DNA profile, when transcribed, in
effect is a digital representation of what an individual’s DNA looks like at
the specific targeted regions, or a measurement of the number of short tandem
repeat (“STR”) units, as follows:
.jpg)
Figure C69
3.
An
individual may have a short four base DNA sequence AGAT repeated six times at a
particular location on one strand of the maternally derived chromosome and
eight times on the corresponding paternal chromosome, which may be written as
6,8 alongside the particular address or locus. By way of example, the results
of DNA analysis that might be presented in a rape case may be illustrated as
follows:70
|
Short Tandem Repeats Region |
|||||||||||
|
STR Loci |
Amel (Sex) |
D3 |
VWA |
D16 |
D2 |
D8 |
D21 |
D18 |
D19 |
THO1 |
FGA |
|
Victim’s Clothing |
X,Y |
17,17 |
17,19 |
13,14, |
17,24 |
12,13 |
29,30 |
14,15 |
13,14 |
6,7 |
21,22 |
|
Victim’s Profile |
X,X |
14,18 |
17,19 |
11,12 |
20,26 |
10,14 |
30,30 |
14,16 |
12,12 |
6,9.3 |
22,22 |
|
Suspect’s Profile |
X,Y |
17,17 |
17,19 |
13,14, |
17,24 |
12,13 |
29,30 |
14,15 |
13,14 |
6,7 |
21,22 |
4.
On
the victim’s profile at STR location THO1 (DNA on chromosome pair 11) there are
9.3 repeat units at the particular locus on one of the pairs. This is what is
known as a “non-conforming” allele with 9 STR repeat units plus two or more
bases. The STR region D3 (DNA on chromosome pair 3) on the suspect’s profile is
17, 17, which means that the number of repeat units are the same on both the
maternal and paternal chromosomes, ie the suspect is homozygous at this
locus.
5. Interpretation of the above casework
example is a two-stage process: first, as can be seen, the scene of crime stain
and the suspect’s profile ‘match’, in that the same alleles are present at all
ten loci tested; secondly, the significance of this ‘match’ must be determined.
As regards the second stage, one must determine how common or rare a particular
profile is in the population or how frequently it is expected to occur. Unless
the DNA from every person in a particular population is examined it is
impossible to determine how many people share any one allele. Instead, an
evaluation of the rarity of a profile is made with the aid of frequency
databases. In other words, a sample population database containing the profiles
of 300 of the Irish population is used to estimate how often an allele occurs
within the population. As one can see from the above casework example a number
of the individual alleles are common to both the victim and the suspect, such
as the STR region VWA (DNA on chromosome pair 12) where they both have the same
number of repeat units at that locus. On the other hand, at most of the loci
tested there is a great deal of variation between the suspect’s profile and
that of the victim.
6. A more detailed account of the
significance of a DNA profile match will be given later in this Paper in the
particular context of presenting DNA evidence in court.71 However, it should be observed
that whilst each allele may be relatively common, even those with a rudimentary
understanding of statistics will know that when a number of common events are
combined the resulting probability of them all happening becomes very small. To
take an apt example, the probability of picking the Ace of Spades from a normal
pack of 52 playing cards is 1 in 52. If this ace is replaced then the
probability of picking the Ace of Hearts is also 1 in 52. However, the
probability of picking the Ace of Spades and then the Ace of Hearts is 1 in
2704 (ie 1/52 multiplied by 1/52). Accordingly, the more events that are
combined the smaller the chance that they will occur. Thus, the chance of
picking the four aces from a pack is 1 in 7,311,616. As regards a DNA profile
of ten loci, the combination of the individual estimates of the likelihood of
each allele occurring in the population will result in a very rare event
indeed. Typically, this probability could be in the order of 1 in several
billions, which implies that any one profile is likely to be very rare in the
general population, if not unique.72
1.
So
far we have been examining the ‘traditional’ STR profiling technique, which is
at present the most potent, but there are two further methods that may be of
use in the particular circumstances of a criminal investigation; these are
mitochondrial DNA (“mtDNA”) and Y chromosome analysis.
1.
Mitochondrial DNA
1. As regards mtDNA analysis, this may
be useful in testing charred remains and bones that are too degraded for
nuclear DNA analysis, as well as testing hair shafts found without roots. (It
is the roots which contain nucleated cells).73
2. We observed previously that DNA is
found in the 46 chromosomes of each nucleated cell.74 However, a small amount of DNA is
also present outside the nucleus – over 16,500 base pairs long.75
There are many small structures in cells, known as mitochondria, that help
provide energy to the cells and which contain their own DNA. The advantage is
that there are many copies of mtDNA present in a cell, they are smaller compact
molecules with few coding regions and are less prone to degradation.76
Where nuclear DNA has degraded and broken down, it may still be possible to
find sufficiently intact parts of the mtDNA. But mtDNA is solely maternally
inherited and, accordingly, mothers, their children, full siblings, maternal
half-siblings, maternal cousins and all on the maternal line will have the same
mitochondrial pattern. Also, because mtDNA is much shorter in length than
nuclear DNA, there are much fewer features from which to observe differences
between individuals. The discriminating power of mtDNA testing is much less
than for DNA profiling. The chance of obtaining a match mtDNA sequence between
two unrelated individuals is approximately 1 in 100.77 This method may be useful in body
identification work, but it is incompatible with STR profiling and databasing,
in that a profile generated from mtDNA is not comparable with an STR profile
generated from a sample with a nucleus.78
1. Y Chromosome
1.
As
regards Y chromosome testing, this method is most useful in cases where male
DNA is overwhelmed by an excess amount of female DNA. For example, in a rape
case it is not uncommon for there to be low levels of spermatozoa mixed with
high levels of the victim’s cells, whereby only a profile from the victim is
obtained. However, by analysing the Y chromosome the male cells may be isolated
and the female cells excluded. Whereas a mother passes on her mtDNA to all of
her children, a father passes on his Y chromosome only to his sons. On the Y
chromosome there are some forensically useful loci, which contain STR and
sequence variations. Although Y chromosome testing does not individualise, as
there will be no distinction between brothers and fathers and sons, it would
give an indication of the source of the sample and perhaps narrow the field to
a certain extent.79
1.
Possible Future Developments
1.
With
the prospect of increasing demand for DNA analysis in a wider range of cases,
from murder, rape and burglary to car theft, as well as the insertion of
profiles on to databases, large numbers of samples may need to be processed.
Accordingly, those operating in this field are continually searching for ways
of reducing the processing times and failure rates. The use of capillary
electrophoresis and mass spectrometry, allowing sorting of DNA fragments in
seconds, and microchip technology, enabling numerous loci to be tested at once,
are just some of the possibilities.80 Instead of sending scene of crime
stains to a laboratory to be analysed, it is envisaged that the police will
have hand-held devices containing microchips able to decode DNA on the spot.
2. Single nucleotide polymorphisms
(“SNPs” or “snips”), which are differences at single base pair positions along
the DNA strand may also be of use in forensic casework.81 SNPs can be measured in very small
sections of DNA, which means that analysis is possible even in degraded samples.
The UK Forensic Science Service (“FSS”) are currently looking into new ways of
automating the forensic analytical process, including the possible use of SNPs
as an alternative to using STRs.82
3.
One
further technique that is being developed is Low Copy Number (“LCN”), which may
enable DNA to be extracted from even previously extracted samples which have
failed to yield sufficient levels of DNA to be profiled.83
This technique can be described as ‘super-sensitive’, but it takes much longer
than SGM Plus™ profiling and is currently used in the UK only in the most
serious cases. The discriminating power is the same as a SGM Plus™ profile and
a LCN profile is also compatible with a SGM Plus™ profile, so can be loaded on
to the database. The difficulty with LCN profiling, as with all forensic
evidence, is that its significance must be considered carefully. Specifically,
because of the sensitivity of the technique, DNA may be detected that is not
connected with the crime.84
4.
These
potential developments in profiling technology and their impact on any DNA
database are very important and must be kept in mind when considering what
options to take, particularly in relation to whether biological samples should
be retained.85
2.
ADVANTAGES AND DISADVAntages of DNA profiling
1.
This
chapter deals with each side of the DNA coin, in that the advantages of
establishing a DNA database, as well as the disadvantages are examined. By way
of background, in Part the very first cases involving DNA evidence are briefly
outlined, together with some more recent Irish examples. In Part the purpose
and benefits of compiling a database of DNA profiles are examined. Then, in
addition to the scientific matters that have been set out in the preceding
chapter, in Part a further prerequisite to recommending appropriate legislation
in this field is outlined: namely the nature of the information that may be
derived from DNA. Finally, in Part the main concerns and fears that are
expressed regarding the use or misuse of such information are explained.
1.
A Brief History of the Use of DNA
2. Shortly after its discovery by Sir
Alec Jeffreys, DNA analysis was used to show that a Ghanaian boy, who had been
denied entry into the UK by the immigration authorities, was in fact the son of
a woman who was a UK resident as was contended. Accordingly, the boy was
entitled to enter the UK.86
3.
The
first criminal case in the UK in which DNA profiling was put to use was in the
prosecution of Robert Melias who was charged and convicted of burglary and the
rape of a 45 year old disabled woman.87 Semen stains found on the victim’s
clothing were analysed and compared with Melias’s genetic material, revealing a
“match”. On 13 November 1987, he was sentenced to 8 years for rape and 5 years
for burglary.
4. The next case was the rape and
murder of two 15 year old schoolgirls – Lynda Mann in 1983 and Dawn Ashworth in
1986. The rapist’s semen stains from the 1983 rape and murder were preserved
(as was usual in such cases) and matched the stains from the second case. A
suspect was arrested and charged for the 1986 case as he had been seen close to
the scene. Sir Alec Jeffreys was asked to check the profile of the suspect in
order to determine whether it matched the scene of crime stains. The results
conclusively showed that the suspect could not have been the rapist.88
The police therefore had to start their investigation all over again. Because
it was probable that the rapist came from a relatively small geographical area
in Leicestershire, the police invited all males in the area to give a blood
sample – now usually called a ‘mass screen’.89 The task involved an analysis of
over 5,000 samples, although a large proportion of those were eliminated
through the conventional blood grouping method, which was much quicker than DNA
analysis at that time. However, 10% of the men had the same blood group as the
stain which was suspected of having been left by the perpetrator, so 500
samples had to be profiled – which was extremely time consuming. This mass
screen failed to identify a suspect and it was only more traditional methods of
investigation that led to the arrest of Colin Pitchfork. A woman overheard her
colleague, Ian Kelly, bragging that he had provided a sample of blood in place
of Pitchfork. By the time it was confirmed by DNA profiling that Pitchfork’s
profile matched the scene of crime stains, he had already admitted to both
murders. In 1988 he was sentenced to life imprisonment.90
5.
Prior
to 1994, although DNA evidence had been used in criminal cases in Ireland, the
biological samples were sent to England to be tested using profiling
technology. However, since 1994 the biology division of the Forensic Science
Laboratory (part of the Department of Justice, Equality and Law Reform) has
conducted the DNA casework. This has included analysis in criminal cases and
immigration cases and in facilitating body identification at Coroner’s
inquests.
6. DNA evidence has now been used in a
number of cases in the Central and Circuit Criminal Courts. The vast bulk have
tended to be dealt with on the basis of a guilty plea entered by the accused or
the DNA evidence has been merely a component part of the evidence.91
For example, in an alleged rape where there is no dispute as to intercourse,
but there are opposing positions taken in relation to consent, the DNA evidence
extracted from semen stains (if any) taken from the prosecutrix will be readily
admitted by the defence. To date there has been no conviction on the basis of
DNA evidence alone.92
7.
The
first Irish case in which the DNA identification process was challenged as a
matter of principle was in The People (DPP) v Mark Lawlor.93
In 1995, Lawlor was convicted of the sexual assault and murder of Rose
Farrelly. The forensic evidence against Lawlor included DNA, from the semen
found on the victim’s clothing, which matched the DNA profile generated from
Lawlor’s blood sample. The profile obtained was estimated to occur in the
population with a frequency of approximately 1 in 100 million. A lengthy voir
dire of several weeks was held in which the validity of the DNA
profiling, its application, as well as the security and integrity of the
samples were challenged. The trial judge permitted the forensic evidence to go
to the jury.
8. A number of serious crimes have been
solved with the use of DNA profiling, which would otherwise not have been
solved, including the highly publicised 1979 murder of Phyllis Murphy. During
the original investigation when DNA profiling had not been developed, blood
samples were taken from 52 men to see if the grouping matched samples taken
from the victim’s body – as explained above, this method is not particularly
discriminating.94
However, with the advent of DNA profiling, those original samples and scene of
crime stains were subjected to fresh analysis. The result was that John
Crerar’s profile ‘matched’ that produced from the semen stains taken from the
victim’s body. Whilst the DNA profile implicated Crerar, other significant
corroborative evidence including a false alibi emerged and a jury subsequently
found Crerar guilty and he was sentenced to life imprisonment.95
Crerar is currently appealing his conviction.
9.
As
of the beginning of 2000, 44 unsolved cases were identified and where DNA
profiles extracted from the scene of crime stains were likely to belong to the
perpetrators the profiles were entered on an “unsolved crime” database – some
of which were solved.96
Since 2000 the number of scene of crime stain profiles that have been put on
this Forensic Science Laboratory database has increased – as of 16th
January 2004 the total number of crime scene profiles stored is in excess of
700. At present DNA casework is concentrated on serious crime, such as murder, rape
and armed robbery.
2.
Purpose and Benefits of a DNA Database
10.
DNA
or genetic databases have been defined as “collections of genetic sequence
information, or of human tissue from which such information might be derived,
that are or could be linked to named individuals.”97 Included in this definition is not
only the genetic information, but also the biological sample (blood, saliva and
other bodily fluid). In his reference requesting the Commission to consider the
establishment of a DNA database, the Attorney General asked the Commission to
consider, in particular, what classes of DNA profiles would make up the
database. This requires the Commission to consider the establishment of a
repository of forensic DNA profiles generated from biological samples, which
can be electronically stored for comparison with casework evidence profiles –
in other words, those generated from biological material found at a scene of
crime. In addition, the use, storage and retention of the original biological
samples are also issues that must be considered.
11. From the early investigation of
crimes – particularly violent crimes, such as murder and rape – investigators
have collected evidence from the scene of crime (both primary and secondary
scenes) and the victim in order, in broad terms, to make out a ‘profile’ of the
perpetrator. In addition, once the perpetrator has been caught, then material,
such as clothing, and objects, such as shoes, glasses and ornaments, and
biological samples and fingerprints taken from that person are retained, as are
statements and confessions, for evidential purposes and for the record.
Evidence and information of this type has been routinely preserved and retained
by law enforcement agencies for a number of reasons, including:
i.
To
link together numerous crimes, such as by the correspondence in the method used
to commit them or by marks/stains left at the scene;
ii.
To
assist law enforcement agencies to identify the perpetrator of a current crime;
iii.
To
enable those who have previously been convicted of an offence to be readily
identified and recaptured in the event that they re-offend, so that recidivism
is reduced;
iv.
To
preclude the use of false or assumed identities and thus to ensure that an
offender’s previous crimes are taken into account when sentence is being
considered in respect of a further offence.
12.
The
most common form of data on offenders until now has been fingerprint records
and photographs together with other vital statistics or ‘Bertillonage’
measurements, such as height and eye colour. The storage of genetic material
and information derived from such material, however, differs from these
conventional methods in a number of ways. DNA itself holds infinitely more
information than fingerprints, such as predictive health information, and
kinship with other persons.98 Before tackling these issues and
in consequence of the differing considerations which attach to the collection,
storage and use of genetic information, it is sensible first to try to assess
the advantages of profiling and subsequently storing these profiles on the
database.
13.
It
is clear that DNA profiling has become an increasingly powerful tool in
criminal investigations. This is demonstrated by the examples given above,99
of perpetrators of serious crimes being brought to justice who might otherwise
have remained free to commit further offences. Equally, the storage of DNA
profiles on a database is considered to be particularly useful as an
intelligence tool in combating current, as well as future, crime by:
i.
Identifying
links between crimes, such as in the case of, for example, stains left at
scenes of crime by serial offenders;
ii.
Allowing
for the rapid exclusion from the ambit of the investigation of suspects who are
already on a database and whose profiles do not match;
iii.
Facilitating
‘cold hits’ - that is where a stain is matched with a profile of the person on
the database who was not a suspect.
Thus, where a stain is
recovered from a scene of crime then comparison of the profile generated from
the stain with those on a database of convicted offenders enables the
investigating authorities to identify relatively quickly if any of those
individuals can be implicated in the current investigation. Moreover, it is
axiomatic that if an investigation can be concentrated on a primary suspect
from the outset, the net need not be cast too widely and in consequence
resources which would otherwise have to be expended on time consuming door to
door enquiries may not be required. A further advantage to the storage of DNA
profiles is that some criminals will desist from criminal activity for fear of
detection through the comparison and exchange of such data.100
14. A popular example that is often
advanced101 as encapsulating the benefits of DNA profiling and
the establishment of a profile database can be given: a young woman is attacked
and raped in her home by a burglar. A local man who was seen in the area at the
time of the offence and who has a previous conviction for sexual assault is
arrested. The DNA profile of the assailant is generated from the seminal stains
on the victim’s vaginal swabs. The profile is checked against a database
containing the profiles of convicted offenders, which includes the primary
suspect’s profile. The original suspect is eliminated, but a ‘hit’ or ‘match’
is found against another man whose profile was entered and retained following
an earlier conviction. This is what is referred to as a ‘cold hit’, meaning
that the person matched was never a suspect for this offence until the match
occurred. One might surmise that this example is a chance occurrence, but this
is not the case. Since the introduction of the DNA database in the UK in 1995,
scores of ‘cold hits’ in stranger rape cases have given useful pointers as to
the person on whom the investigation should focus and many cases have been
solved in consequence.
15. The UK operates a ‘National DNA
Database’102 and holds profiles from individuals suspected of,
cautioned in respect of, or convicted of a “recordable offence”,103 as well as those derived from scenes of crime. The
database can be interrogated (or searched) relatively quickly. On the 15 July
2003 the number of profiles stored on the database reached the 2 million mark
and the number of crime scene profiles was 180,000.104 As of December 2003, the database
contained 2.1 million criminal justice profiles and 218,000 profiles derived
from crime scenes.105 It is expected that there will be approximately 2.4
million profiles of individuals on the database by 31 March 2004.106 It is the British Government’s aim to ensure that the
profiles of all active criminals are held on the database.107 There have been various statistical representations
advanced to illustrate the effectiveness of the database, such as:
i.
the
database provides the police with approximately 1,000 ‘cold hits’ on a weekly
basis - in other words, the potential sources108 of 1,000 profiles taken from
crime scenes are identified through database searches;109
ii.
the
police have recorded a 40% success rate in matching DNA found at the scene of a
crime to profiles held on the database;110
iii.
as
of January 2001 there were around 100,000 matches reported from the database;111
iv.
the
Home Office and the FSS claim that in a typical month the database links suspects
to 15 murders, 31 rapes and 770 car crimes;112
v.
In
2002-03 each crime detected with DNA led to 0.8 other crimes being detected and
the Home Office estimated that 50% of detections led to convictions, 25% of these
resulted in custodial sentences and each custodial sentence prevented a further
7.8 crimes being committed.113
It is evident from
this that the storage of DNA profiles on a database has been extremely
effective in combating crime.
16.
There
have been a number of notable successes in which crimes have been solved, some
many years after they were committed, including:
i.
The
murder of 14 year-old Roy Tutill in Surrey in 1968. The development in
scientific techniques enabled a DNA profile of the suspected killer to be
generated from stains found on Roy’s clothing. The profile was entered onto the
database in 1996. Three years later, Brian Field was stopped by the police on a
drink-driving offence. A routine mouth swab was taken and the resulting profile
was entered on the database. The profile matched against the 1968 scene of
crime stain profile. In November 2001, having pleaded guilty to murder, Field
was sentenced to life imprisonment;114
ii.
The
rape and murder of 14 year-old Marion Crofts in Hampshire in 1981. A laboratory
microscope slide containing the samples collected from Marion’s body lay
untouched for 20 years. In 1999 the FSS used DNA Low Copy Number115 to generate a full profile of the suspected
perpetrator from stains found on some of her clothing. The profile was checked
against the database and in August 2001 a match was found after Tony Jasinskyj
was arrested for another crime and his DNA profile was routinely loaded onto
the database. Jasinskyj was convicted and sentenced to life imprisonment;116
iii.
The
rape of a 21 year-old au pair in North London in 1989. The profile generated
from the scene of crime stain was stored on the database. Nick Keall, a minicab
driver, was arrested for assault on Christmas Day 2001. A sample was taken from
him and his profile was run against the database and a ‘match’ was reported
with the stain from the crime scene of the rape. Keall was convicted and
sentenced to eight years imprisonment.117
17.
It
was reported that the Metropolitan Police were reopening more than 1,500
unsolved rape cases using new forensic techniques to elicit evidence.118 Improvements in DNA technology has meant that
previously unobtainable samples on clothes or at the scene of the rapes could
now be examined and checked against the DNA database. So far, forensic experts
have identified the DNA profiles of 40 men in reviews of 330 unsolved rape
cases.119
18.
In
1995 the New Zealand police force and the Institute of Environmental Science
Research (“ESR”) started to create a DNA database using the same technology as
that developed by the FSS in the UK. Initially profiles were collected from
convicted offenders and volunteer donors. In 1996 the Criminal
Investigations (Blood Samples) Act 1995120 came into force permitting the
authorities to take samples, and since 1998 DNA profiles from scene of crime
samples have been entered onto a Crime Sample Database. In its first few years
in operation it yielded impressive results: of all DNA profiles loaded from
unsolved cases, approximately 32% matched an individual profile present on the
national DNA database and approximately 14% of profiles generated from scene of
crime stains in unsolved cases, when loaded, matched other crime scene profiles
contained in the Crime Sample Database.121 In more recent reviews, the
results are even more impressive. Of all DNA profiles from unsolved crimes
inserted onto the database, approximately 50% of these match a profile present
on the national database. Approximately 30% of profiles generated from scene of
crime stains in unsolved cases, when loaded, match other crime scene profiles
contained on the Crime Sample Database.122
19. Many other countries have also set
up ‘national’ DNA databases for use in criminal investigations: these include
Denmark, Austria and Germany. A point concerning the “forensic vernacular” is
that the term ‘national’ DNA database is used to distinguish this from a State
or regional database, such as those operated in the various states or
territories of certain federations like Australia.
20. A more important distinction is that
the use of the phrase ‘National DNA Database’ is not intended to connote what
is known as a “comprehensive database”. This significant term involves the
collection and insertion on to a database of forensic DNA profiles from the
whole population. This issue will be examined in due course.123
21.
What
can be gleaned from the discussion in the preceding paragraphs is that DNA
profiling and the retention of the profiles on a database is very useful in the
investigation and prevention of crime. Because of the advantages of DNA
profiling and the subsequent retention of these profiles on a database as
described here, it is clear that the development and the operation of DNA
databases is perhaps the most significant breakthrough in the investigation of
crimes since the introduction of fingerprinting. However, before embracing the
concept of the creation of a national database with open arms, we must examine
the countervailing considerations and concerns entailed in profiling and the
creation of a database: the perceived advantages for society in operating an
intelligence DNA database to fight crime should be weighed against the
perceived dangers to civil liberties that the forensic use of genetic
information presents.
3. Personal Genetic Information: the
Context
22. Whenever genetic information is
discussed, strong feelings are aroused, which epitomise the general public’s
sensitivity and anxiety on genetic issues. People feel that genetic information
is particularly private and that it should not be disclosed. Genetic
information is seen as a special category of information, even more sensitive
than traditional medical records, which may contain the most intimate details
concerning an individual’s health. The UK’s Human Genetics Commission (“HGC”),
in its review of the use of personal genetic information, identified several
factors which might seem to distinguish genetic information from other forms,
as follows:
“(1) the almost
uniquely identifying nature of some genetic information, including its capacity
to confirm, deny or reveal family relationships;
(2) the fact that
genetic information could be obtained from a very small amount of material
(such as skin, saliva, blood spot or hair), possibly secured without the
consent of the person;
(3) the predictive
power of some genetic information, especially the predictive power across
generations of certain rare genetic diseases;
(4) the fact that
genetic information may be used for purposes other than those for which it was
originally collected;
(5) the interest which
some genetic information has for others, including relatives who might be
affected by it themselves, insurers and employers;
(6) the importance
that genetic information may have for establishing susceptibility both to rare
inherited diseases and the effectiveness of some treatments;
(7) a further relevant
factor is that of the stability of DNA which can be recovered from stored
specimens or even archaeological material after many years.”124
1. Almost all information concerning
one’s physical characteristics and health is genetic: features such as
ethnicity, height and eye colour are inherited. Genetic information may be
distinguished from other personal information, such as age, occupation,
address, or creditworthiness; however, not all genetic information is
especially sensitive. There are many forms of genetic information, some of
which would not be considered particularly personal or ‘private’. Indeed, the
HGC recognised that there are different categories of genetic information,
which may range from non-sensitive to sensitive.125 The different types of genetic
information may be summarised as falling into the following categories:
i.
The
genotype, which provides at a fundamental level details of DNA or protein that
is inherited from both parents;
ii.
The
phenotype, which is the observable outcome in terms of physical or
physiological characteristics, such as eye colour and blood pressure;
iii.
Family
information, which shows the pattern of inheritance of different phenotypes.126
2. Genotype information may be obtained
only through direct analysis of DNA, whereas phenotype information may be
acquired in many different ways, such as by scientific tests or by visual examination.127 As regards the phenotype information, one may say
that much of this type of genetic information is evident from one’s appearance
and not what is generally deemed to be strictly private. But more precise genetic
information, such as that which may be obtained through scientific tests, may
be regarded as sensitive, for example the likelihood of the inheritance of a
genetic disorder, such as cystic fibrosis or Huntington’s chorea.128 Plainly information about serious inherited diseases
is of an extremely sensitive nature, whereas eye colour or hair colour is not
so sensitive.129 By way of analogy, information about one’s age and
occupation, although personal, would not be considered to be particularly
private and confidential – aside from the fact that this information is widely
known and disseminated. Accordingly, different forms of genetic information may
legitimately be approached from various perspectives and treated in different
ways.
1. DNA profiling and the storage on
databases of DNA profiles, as well as the use of DNA databases, are so
different in character from traditional fingerprinting and storage of records
because DNA itself contains considerably more and much more personal
information than the number and placement, for example, of whorls and ellipses
on the right index finger. Accordingly, it has further been suggested because
of this that, biological samples should not be retained in storage and that
genetic information derived from those samples should also not be kept on
databases. At first glance this view appears particularly compelling. However,
these concerns have often been conflated in respect of the two broadly distinct
topics of genetics and forensic profiling. In other words, the important
distinction between the biological sample and the forensic profile
has been overlooked. As one commentator observes, this has stemmed in the main
from a poor understanding of the science involved and a lack of precision in
characterising the technology, such as by proceeding on the erroneous basis
that a DNA profile contains rather more information that it actually does.130 It is hoped that the explanation of the science
involved in DNA profiling contained in the previous chapter together with the
analysis in later parts of this Paper provides a more secure grounding for
discussion on this crucial topic.131
2. The distinction between the
biological sample and DNA profile is important and will be
reiterated throughout this Paper, but it is now appropriate to highlight the
principal concerns which are usually voiced in relation to genetic information
generally, which include that:
i.
DNA
testing may reveal the presence of a socially stigmatising genetic disorder or
unveil behavioural traits, such as the rape or murder gene (ie behavioural
genetics);
ii.
testing
may disclose information about significant future episodes and possibly
shameful events, such as susceptibility to disease;
iii.
DNA
testing may also divulge information that an individual has chosen to keep
confidential, such as sexual orientation;
iv.
As
to how information of the type suggested in (i) –(iii) might be used, it might
be disclosed to other government departments or even private parties, such as
employers or insurance companies. The fear is that insurers or employers could
use genetic information to deny cover or employment – in effect genetic
discrimination;
v.
Beyond
this is the fear of the possibility that DNA testing may be misused in some way
– the oft cited examples are in a degenerated eugenics movement and Nazi
Germany’s racial hygiene programme, a murderous genocidal ‘ethnic cleansing’
campaign on a massive scale.132
3.
The
science of DNA has been examined and it was explained that the biological
sample will often contain thousands of DNA molecules, being multiple copies of
an individual’s genetic ‘blueprint’.133 By way of illustration, if this
sample was made available to insurers, employers or behavioural geneticists and
subjected to testing, then the privacy of the person who is the source of the
sample would be seriously violated, as conditions or proclivity to illness may
be revealed, which potentially could lead to discrimination and stigmatisation.
Moreover, from a blood sample the presence of HIV/AIDS or a genetic
disorder could be detected. Indeed, access to a collection of biological
samples would no doubt be of interest and value to a variety of research
bodies. This is not a disapproval of this type of research, which may be
beneficial, but access to and disclosure of a person’s genetic data could
equally have harmful consequences. The essential point is that individual
autonomy suggests that an individual’s genetic information should only be used
for the purpose for which it is given or taken. Even on this basis there is
unease and distrust in relation to informed consent and there are many
unresolved ethical issues which arise in medicine, science and biotechnology
generally.134
4.
The
‘private sector fears’ may be relatively easily safeguarded against by denying
access to the samples (as well as the results of any testing), imposing a duty
of non-disclosure and providing severe punishment for breach of confidentiality
and misuse. The ‘public sector fears’ are not as easily safeguarded. The organs
of the state may themselves be the custodians of the biological samples
(whether on a long-term basis or not) and might subject them to testing in
order to find out more about citizens with potentially stigmatising and discriminatory
repercussions.
5.
An
example of the potential misuse of genetic information is provided by the “XYY
syndrome” incident during the 1960s and 1970s, where genetic researchers
discovered a high occurrence of men in mental-penal institutions (secure psychiatric
facilities) who carried an extra Y chromosome. The correlation between an extra
Y chromosome and incarceration was the subject of much discussion and debate
and a mass screen was conducted to identify carriers of an extra Y chromosome.
Those identified were subjected to what has been described as an arguably
“stigmatising study of their behavioural and social characteristics.”135 Such studies also result in a concentration on
genetic factors, which cannot be altered, as the cause of crime and ignore the
environmental factors involved, which could in fact be eliminated.136 Any repeat of this type of ‘study’ on the basis of
more modern genetic testing, would be undesirable.
6.
Incidents
such as this bring to mind the film Gattaca released in 1997.137 This film envisages a future where genetic
engineering enables parents to screen embryos before implantation for the
purpose of ensuring that their children will possess no genetic imperfections.
While this film is perhaps rather far-fetched, future developments in genetic
technology could in fact make it a possibility. In reality, a version of this
situation is already happening with the advent of IVF screening. The Australian
Law Reform Commission in its Report on genetic privacy adverted to the
undesirability of such a situation arising in reality.138
7. One point which must be emphasised before
addressing the actuality or potentiality of these fears in practice, is that at
present we are only beginning to be able to interpret DNA. For example, we know
that if an individual’s fourth chromosome pair contains a particular sequence
that individual will develop Huntington’s chorea. But our understanding is not
always as clear as this because it is often the case that genes work in
combinations and the result is such that we may only be able to say that this
gene or combination of genes are probabilistically linked to specific diseases
or traits. For these reasons, one may legitimately assert that the threat to
privacy through the collection, use and storage of genetic information is only
as great as the extent to which there is the capacity to understand the
information. On the other hand, however, it is fair to say that our capacity to
interpret genetic information has accrued very rapidly and this is likely to
increase in the future, so we must bear the potentiality of these fears in mind
when considering this topic.
8.
Thus,
throughout this Paper in proposing reform of the law, the Commission has tried
to take into account not only the present state of science and the forensic
techniques flowing from it, but also possible developments in the future.
Unfortunately, this complicates presentation and results in the examination of
potential problems that may never in fact arise. Equally, we may fail to
predict certain consequences. In any case, it seems unrealistic not to be aware
that there may be future scientific developments which would impact on the law
in this field. It is of course open to the legislators to respond that they
will legislate for the here and now and will make amendments if and when
scientific change makes these necessary. This, too, seems to be a realistic
approach. But sometimes science moves more rapidly than legislation and in ways
that may make “today’s certainties less obvious tomorrow and tomorrow’s
discoveries perhaps more challenging to lawmakers than today’s knowledge might
seem.”139 Accordingly, there is an attempt to set out both the
position as at present and to highlight any potential developments which may
impact on the choices that could be made in this field.
1.
There
are two categories of persons who may be subjected to scientific testing: those
mandatorily put through testing procedures and those voluntarily tested. These
categories are important in framing our recommendations in Chapter 5 but it may
be open to question whether one can so readily distinguish between the two
categories. If a particularly heinous murder and rape is committed in a
discrete geographical area and the only evidence is the DNA profile extracted
from semen stains found on the victim, the Gardaí may decide to conduct an
intelligence (mass) screen in that area in order to identify the perpetrator or
simply narrow the pool of suspects by eliminating much of the population from
the investigation.140 Those requested to provide a sample may include both
individuals suspected of committing the offence (perhaps because of a previous
conviction and/or registration on the sex offenders register) and those who
fall outside the shadow of suspicion. Regardless of categorisation, however,
the personal rights of all requested (or in default forced) to provide a
comparator sample may be in jeopardy.
2.
Potentially
at least three individual rights may be affected: first, the right to (genetic)
privacy; secondly, the right to bodily integrity; and thirdly, the privilege
against self-incrimination. The extent to which these rights are infringed and
in consequence need to be justified so as to be the subject of legitimate
derogation will be examined here. This chapter can be broadly described as
dealing with general principles and it is later that we deal with the
application of those principles to some practical aspects of DNA profiling and
databasing: under what conditions samples may be obtained and from whom and
when can the profiles be retained (Chapter 5) and whether the samples can and
should be retained indefinitely (Chapter 6). As regards this chapter, in Part
there is a brief examination of the right to privacy, the extent to which it is
infringed by the storage and retention of information about an individual and
in what circumstances there may be a legitimate derogation from the right. In
Part B the right to bodily integrity is considered in the context of DNA
sampling and how, in general terms, this right may involve scrutiny of powers
of the Gardaí in this context. In Part we address the possible application of
the privilege against self-incrimination in this situation. In this regard, we
must also consider the interests of society in the prevention and detection of
crime. The rights of third parties including the victim’s rights to have their
attackers apprehended must also be considered. Therefore, a balance must be
struck between the suspect’s personal rights and the interests of society and the
victim’s rights. The principles which will frame how such a balance will be
struck will be considered in this chapter.
3. In this chapter particular reference
is made to the case law flowing from the Constitution, with which any
legislation must be lawfully compliant and the European Convention on Human
Rights (“ECHR”), which has recently been given effect in domestic law by the European
Convention on Human Rights Act 2003 (“ECHR Act 2003”).141 Section 2 of the ECHR Act 2003 imposes an obligation
on the Irish courts to interpret, in so far as is possible, statutory
provisions and rules of law compatibly with the State’s obligations under the
ECHR. Correspondingly, any legislation recommended in this field must be consistent
with the ECHR. Moreover, section 3 of the ECHR Act 2003 imposes an obligation
on the State and every organ of the State to exercise its functions in a manner
compatible with the ECHR: a facet which will fall to be considered when
addressing the powers of the authorities in this field.
4. The right to privacy, although a
concept that is notoriously vague,142 encapsulates the notion that
individuals should be free to determine for themselves what information to
disclose to others and also that individuals should be free to go about life
without unnecessary intrusion by the State. The right to privacy is plainly
violated when people access genetic or other information about a person who
does not want to reveal private matters or to be subjected to unnecessary
intrusion into their personal affairs. However privacy is not an absolute right
as our discussion of the Constitution and the ECHR below will show. Two
statements of principle are instructive in the specific context of DNA
evidence.
5.
First,
in its submission to the Victorian Parliament Law Reform Committee Inquiry into
forensic sampling and DNA databases, the Office of the Victorian Privacy
Commissioner stated that:
“Privacy and respect
for human dignity need not be abandoned when balancing civil liberties with
community safety. In many ways, privacy principles will enhance the integrity
and legitimacy of DNA profiling by limiting collection to the minimum
necessary to achieve the legitimate aims of law enforcement agencies,
requiring its use to be in accordance with these aims, demanding secure storage
of DNA material, and requiring its destruction or de-identification when the
information is not needed.”143 (Emphasis added)
In this and the
following chapters consideration is given to how a fair and proportionate
balance can be struck between, on the one hand, the privacy rights of the
person who is the source of a DNA sample and the profile generated from that
sample and, on the other hand, the wider societal interests, such as the
prevention of disorder and crime and the protection of the rights of others.
5.
Secondly,
in a case concerning the admissibility of DNA evidence Lord Steyn, made the
following comment:
“It must be borne in
mind that respect for … privacy … is not the only value at stake. The purpose
of the criminal law is to permit everyone to go about their daily lives without
fear of harm to person or property. And it is in the interests of everyone that
serious crime should be effectively investigated and prosecuted. There must be
fairness to all sides. In a criminal case this requires the court to consider a
triangulation of interests. It involves taking into account the position of the
accused, the victim and his or her family, and the public.”144
Although enunciating
general principles in the particular context of the criminal trial, Lord Steyn
expresses the fundamental tension that exists between competing rights in this
field and the need for a system of criminal justice to evolve so as to
ameliorate these conflicts in a fair and proportionate way. While our primary
concern is with the investigatory stage in the detection of a crime, it is
important to make recommendations that address and seek to balance these
underlying tensions in a fair, constitutional and Convention compliant manner.
7.
In
Irish law the right to privacy is an unenumerated right guaranteed by Article 40.3.1
of the Constitution, first recognised in McGee v Attorney General,145 albeit in the particular form of marital
privacy and then in Norris v Attorney General.146 Suspects of crimes and prisoners also enjoy
this right to privacy, as was recently confirmed in The People (DPP)
v Davis,147 a case concerning a prisoner in respect of whom
several photographs were published depicting him in handcuffs and chained to a
warden during his trial. In Kennedy v Ireland148 the plaintiffs complained that
their right to privacy had been infringed because of unjustifiable telephone
tapping by the State. In ruling in favour of the plaintiffs, Hamilton P stated:
“Though not
specifically guaranteed by the Constitution, the right of privacy is one of the
fundamental personal rights of the citizen which flow from the Christian and
democratic nature of the State. It is not an unqualified right. Its exercise
may be restricted by the constitutional rights of others, or by the
requirements of the common good, and it is subject to the requirements of
public order and morality.”149
Thus, there may be a
permissible derogation from the right to privacy, as with many constitutional
rights, on certain justifiable grounds. Broadly speaking, the Constitution
states that this right need only be protected “as far as practicable.” In
balancing the competing interests of a person’s privacy rights and the need to
detect and prevent crime with respect to the establishment of a DNA database, a
proportionality test should be adopted. Such a test was applied in Kane v
Governor of Mountjoy Prison.150 This case concerned surveillance
by the State and is the closest jurisprudence we have to the issues at hand in
this Paper. This case advocates the use of a proportionality test, in a manner
similar to its use in the European Court of Human Rights, to weigh up the
competing interests of public order and the protection of privacy.
7.
In
this regard, we should also discuss briefly the hierarchy of constitutional
rights enunciated in The People (DPP) v Shaw.151 This arises when two
constitutional rights are in conflict. A decision of priority must be made as
to which constitutional right prevails. Kenny J stated here that any such
conflict should be resolved by having regard to the terms of the Constitution,
the ethical values which all Christians living in the Sate acknowledge and
accept and the main tenets of our system of constitutional parliamentary
democracy. In this case, he accepted that the right to life of the
potential/actual victim of crime prevailed over the accused’s right to personal
liberty. However, the majority accepted that such a priority of constitutional
rights should only be applied where the notion of a harmonious interpretation
of the Constitution was not possible. The creation of a DNA database may lead
to a conflict between the defendant’s constitutional rights and those of the
victims and the interests of society generally. However, it is only if a
harmonious interpretation of these rights is not possible that the hierarchy of
constitutional rights should be applied. The principle of proportionality must
firstly be used in an attempt to balance these rights before a hierarchy of
constitutional rights will be adopted.
1.
European Convention on Human Rights
9.
It
has been suggested that both the taking and retention of personal information,
such as fingerprints, photographs and DNA samples and profiles, impinges upon
privacy and therefore raises issues under Article 8 of the ECHR, which
guarantees the right to respect for private and family life, home and
correspondence.152 Although the case law of the European Court of Human
Rights (“ECtHR”) (and until it was abolished in 1998 the Commission (“ECmHR”)),
is still evolving in this field, there have been clear indications that such
activities as searches of the person,153 the taking of personal details,154 photographs of suspects and more recently the
dissemination of CCTV footage interferes with the right to respect for privacy.155
10. So too does the holding of
information about an individual’s private life in the files held by state
authorities or in police registers amount to an interference with the right.156 To be in accord with the ECHR, these interferences
must be justifiable under Article 8(2):
“There shall be no
interference by a public authority with the exercise of this right except such
as is in accordance with the law and is necessary in a democratic society in
the interests of national security, public safety or the economic well-being of
the country, for the prevention of disorder or crime, for the protection of
health or morals, or for the protection of the rights and freedoms of others”.
11.
Thus
in order for a form of DNA database to be justified under Article 8(2), three
requirements must be satisfied. Firstly, any interference must be in accordance
with law.157 This requires that the law should be accessible
enough for the individual to know of the legal rules which must be applicable
to any case. It must also be drafted with sufficient precision to allow a
person to regulate his conduct, foreseeing the consequences of his actions.
Secondly, it must be demonstrated that the interference was adopted for one of
the purposes specified in Article 8(2).158 The retaining of a DNA database aims
to achieve the legitimate purposes listed in Article 8(2) of maintaining
national security, public safety and the economic well-being of the country,
preventing public disorder and crime, protecting health and morals and
protecting the rights and freedoms of others. If we concentrate on “preventing
crime” only, Article 8(2) seems only to allow the State to justify
interferences which are intended to prevent crime and not those which aim to
solve previous crimes. However, as there may be a risk that crimes will be
repeated if the offender is not apprehended, the detection of crime also
assists in protecting public safety and the prevention of crime and the
protection of the rights and freedoms of others.
12. Thirdly, the level of interference
with the right to privacy by a DNA database must be deemed such as is necessary
in a democratic society.159 To assess this, a form of proportionality test is
used. The interference must be in response to a pressing social need and the
means used must not go beyond what is necessary to achieve the objective in
question. Some cases, close to the present subject, illustrate how this test is
applied in practice. The ECmHR in the early case of X v Federal Republic of
Germany160 had to consider whether keeping records,
including fingerprints and photographs, was justified. The ECmHR stated as
follows:
“[T]he keeping of
records, including documents, photographs and fingerprints, relating to
criminal cases of the past is necessary in a modern democratic society for the
prevention of crime and is therefore in the interests of public safety.”161
13.
On
the issue of justification, the case of McVeigh, O’Neill and Evans v UK162 is instructive. The applicants were detained on their
arrival in England from Ireland under the relevant legislation to prevent
terrorism, which was in force at the time, and they were questioned, searched,
fingerprinted and photographed. Although no criminal proceedings were brought,
the applicant’s fingerprints and photographs were retained. The ECmHR
unanimously held that the searching, questioning, fingerprinting and
photography of the applicants during their detention were not in breach of
Article 8, but considered that it was “open to question whether the retention
of … such information amounts to an interference with the applicants’ right to
respect for private life”.163
14. The ECmHR found it unnecessary to
decide whether there was any interference with the right, in view of its
finding that any presumed interference was justified under Article 8(2), on
which it stated:
“Bearing in mind … the
serious threat to public safety posed by organised terrorism in the United
Kingdom, the Commission considers that the retention for the time being
of records such as those at issue in the present case can be considered
necessary in the interests of public safety and for the prevention of crime.”164 (Emphasis added)
Implicit in this conclusion is that the information could only be kept
for as long as it served the legitimate purpose – the prevention of terrorism
in this case. The corollary of this is that where personal data, such as
fingerprints and DNA profiles have been collected in the course of
investigating crime, it should be destroyed once it is no longer necessary for
the legitimate purpose in question.165 The ECmHR in McVeigh
explicitly recognised that its decision entailed the retention of records in
respect of some individuals against whom no suspicion existed. However, it
rationalised this on the following basis:
“[T]aking into account
the nature of the records at issue, it must balance what, in its view, is at
most a relatively slight interference with the applicant’s right to respect for
private life against the pressing necessity to combat terrorist activity.”166
Clearly the desire to
cooperate in the battle against terrorism or potential terrorism, as well as
the minimum level of any interference in private life, influenced the ECmHR’s
decision.
14.
The
recent decision of Rotaru v Romania167 provides that in order for the
retention of personal data by public authorities to be deemed proportionate,
safeguards must exist against the unlawful release of the information. In Friedl
v Austria,168 the retention of photographs was in issue. It was
held by the ECmHR that the use to which the photographs would be subjected was
an important matter to be considered in deciding if the measure was
proportionate. It is therefore apparent that the use to which the profile may
be subjected and the safeguards in existence against misuse are important
factors to be taken into account in applying any proportionality test to the
retention of profiles on a national database. Friedl also illustrates
that it is not only in cases of suspected terrorism that the retention of an
individual’s personal data is justified. The photographs in question were taken
in the course of a demonstration and the applicant was not a suspected terrorist.
Although, of course the information contained in DNA is much more personal than
that ascertainable from a photograph and therefore should be given greater
protection.
15.
The
case of Z v Finland169 is also relevant here. The
applicant in this case was the spouse of a person accused of committing serious
sexual offences. Her complaint concerned the introduction into her husband’s
trial of her medical records, which explained her infection with the HIV virus.
It was accepted here that the interest in the investigation of crime could
outweigh the confidentiality of the medical data. However, it was also stated
here that the more intimate the data, the greater the obligations imposed on
the State to protect confidentiality.170 Therefore, the greater the amount
of personal information contained in a DNA profile, the higher the protection
that should be afforded to it.
17.
Recently,
the English Court of Appeal in R (S and Marper) v Chief Constable of South
Yorkshire171 specifically considered the question of the retention
of a suspect’s DNA profile and sample indefinitely. This decision is examined
in greater detail later when dealing with the specific issue of the retention
of a suspect’s profile.172 For present purposes, some aspects of this decision
will be discussed here. This case was brought under the Human Rights Act
1998 (“HRA 1998”), which incorporates the ECHR in the UK. Section 6 of the
HRA 1998 requires public authorities to act compatibly with the ECHR. In this
case, section 64(1A) of the Police and Criminal Evidence Act 1984 was
challenged on the basis of Articles 8 and 14 of the ECHR. This section permits
authorities to retain suspects’ DNA samples and profiles indefinitely. For
present purposes, it is sufficient to note that section 64(1A) of the PACE Act
was challenged on the basis of Article 8 and Article 14 of the ECHR. In respect
of Article 8, the qualified nature of this right was reiterated. The
proportionality test described above was once again accepted as the test to be
applied to determine whether a measure was compatible with the ECHR. The court
held that retaining DNA profiles on a database pursues the legitimate aim of
crime enforcement. Waller LJ and Sedley LJ observed that the fact that the DNA
profile may be used only for crime enforcement purposes was an important factor
indicating the proportionality of the measure. The cultural traditions of a
particular State as well as the important aim of preventing and detecting crime
were also identified as significant considerations to be taken into account.
18. Germany has specifically dealt with
the difficulties of balancing public order and privacy rights, in relation to
the establishment of a DNA database, through section 82g of the Code of
Criminal Procedure. It has been held by the German Constitutional Court
that the establishment, storage and use of DNA profiles intrudes on the right
of informational self-determination protected under Article 1.1 and 2.1 of the
German Basic Law and the right to informational self-determination in Germany
guarantees one’s authority to decide on the circumstances in which personal facts
may be disclosed.173 It was however held by the court that this intrusion
can be justified if it complies with the proportionality test. It was observed
that a DNA database pursues the legitimate aim of facilitating the solution of
future criminal offences of substantial significance. It was decisive that the
person’s character traits or diseases could not be drawn from the DNA profile.
The Federal Criminal Office is also required under the code to erase the data
if the knowledge is no longer necessary for them to fulfil their tasks.
Finally, the Code contains a strict earmarking regarding the permitted uses of
the collected cell tissue and a requirement to destroy the cell tissue once it
is no longer necessary to create an identifying DNA profile.
19. Irish case law such as Kennedy v
Ireland174 indicates that the right to privacy may be limited by
requirements of the common good and the rights of others. The decision in The
People (DPP) v Shaw175 also indicates that in some
instances a balancing of conflicting rights is appropriate. The comparative
example of Germany is important in demonstrating the various factors that
should be considered in deciding whether a form of DNA database is
proportionate to the aim pursued. The ECtHR’s and the ECmHR’s authority is also
suggestive of three essential factors that must be taken into account in
applying the proportionality test to determine whether interference with the
right to privacy is justified:
i.
the
level of interference;
ii.
the
relative seriousness of the corresponding need; and
iii.
the
category of the applicant.
In relation to the level of interference,
firstly, this is closely related to the nature and sensitivity of the
subject-matter which forms the basis of the substantive right, namely, what
type of information is involved and the sensitivity of that information. It was
emphasised in Z v. Finland176 that the more intimate the data,
the greater the obligations which were imposed on the State. It would seem that
in McVeigh177 the ECmHR considered that fingerprint records
and photographs represented a relatively low level of interference. However, as
was articulated earlier, certain forms of genetic information may fall into
different categories and attract differing considerations.178 The case law of the ECtHR also demonstrates that
consideration of the level of interference with the right also entails
examining the use to which the data may be subjected and the safeguards in
existence against misuse. The decision of the English Court of Appeal in R (S
and Marper) v Chief Constable of South Yorkshire179 also identifies this as a
relevant factor to be taken into account. The corresponding need, secondly,
refers to the purpose of the interference, so, for example, the prevention and
investigation of littering offences would be unlikely to justify the taking,
use and retention of sensitive private information, whereas terrorism, murder
and other such serious wrongdoing would be more likely to suffice. In Ludi v
Switzerland180 the ECtHR held that the closer the circumstances are
to pure criminal activity the less reasonable is the expectation of privacy.
Again in Marper this factor was accepted as important in determining
what level of interference with individual rights was justifiable. Thirdly, the
category within which an individual falls is equally important: the ECmHR was
acutely aware that the applicants in McVeigh had not been found guilty
of any offence.
2.
The Right to Bodily Integrity
20.
Any
database of DNA profiles is of little utility unless in the first place the
Gardaí are able to obtain a comparator sample from which a profile may be
generated. In the absence of consent the investigatory authorities require the
power involuntarily to take a sample for DNA profiling. At common law, any
deliberate physical interference with a person is prima facie tortious
and indeed actionable per se without the need to prove special damages.
At a constitutional level, one may say that any such authority to take a bodily
sample raises issues in relation to the right to bodily integrity of the
citizen under Article 40.3. The European Convention on Human Rights also
provides protection for the bodily integrity of a person. One must examine this
case law in order to decide on the circumstances when it will be permissible
for the Gardaí to take samples compulsorily, a matter which is discussed in
greater detail later in this Paper.181
21. The right to bodily integrity was
first recognised as being inherent in the Constitution in Ryan v Attorney
General.182 It is clear that, in principle, any power authorising
the Gardaí to take a bodily sample, perhaps with the use of reasonable force in
the execution of such authority, would infringe the right to be free from
physical interference unless under sanction of law. It is evident from the
decision in The State (Richardson) v Governor of Mountjoy Prison183 that prisoners also enjoy this right to bodily
integrity. It was held in this case that a woman prisoner had a right not to be
subjected to disgusting sanitary conditions, which were a danger to her health
while in prison. A corollary to the right to bodily integrity is the right to
freedom from torture, inhuman or degrading treatment. It was accepted in The
State (C) v Frawley184 that Article 40.3 embraces this right although it was
also accepted that the right could be limited by requirements of the common
good and under the ‘practicable’ limitation in Article 40.3.
22.
The
decision in The People (Attorney General) v O’Brien185 states that in the absence of exceptional
circumstances, any evidence that is obtained by a deliberate and conscious
violation of a person’s constitutional rights is liable to be deemed
inadmissible in court. Such an instance of an extraordinary excusing
circumstance arose in The People (DPP) v Shaw.186 The need for information to rescue a victim believed
to be in mortal peril arguably justified the obtaining and admission of
evidence acquired in breach of the accused’s constitutional rights.
23.
In
addition to this limitation, the right to bodily integrity is a qualified
right. As observed in AD v Ireland,187 this right need only be protected
“as far as practicable.” In that case, it was held that there was no
requirement on the State to pay compensation in respect of the personal
injuries, which had been inflicted on the plaintiff by a criminal, in order to
vindicate the victim’s right to bodily integrity. The purpose of preventing and
detecting crime could constitute an appropriate justification for limiting this
right to bodily integrity in sufficiently dire circumstances and thus allow
reasonable force to be used in taking bodily samples.
1.
European Convention on Human Rights
24.
As
regards the ECHR, the relevant provisions are Article 8 and Article 3,
although, as will be discussed, it is questionable as to whether Article 3 is
applicable to the present situation. One might envisage that Article 5, which
guarantees the right to liberty and security of the person, might be relevant,
but ECHR jurisprudence in this area has not interpreted security of the person
to encompass bodily integrity.188
1.
Article 8
25.
Respect
for private life has been interpreted under the ECHR as requiring States to
avoid causing adverse effects to a person’s physical integrity. This is evident
from X v Netherlands189 and Peters v Netherlands,190 where the EComHR held that the taking of compulsory
samples is contrary to Article 8. In the latter case, the applicant complained
that the obligation to give urine to the prison authorities in order to have it
examined for the presence of drugs constituted an interference with his right
to respect for his private life under Article 8 and that this interference was
not justified under Article 8(2) of the ECHR. Significantly, the taking of the
urine test was not motivated by the applicant’s personal conduct but
constituted part of a daily programme involving the random testing of
detainees. It was held in Peters that the taking of a urine sample was
contrary to Article 8(1). An identical conclusion was reached in X v Netherlands
in respect of the taking of a blood sample from a driver for testing for
alcohol content.
26.
While
the taking of samples compulsorily involves a breach of the right to bodily
integrity, a key issue is whether this may be justified under Article 8(2),
that is, being necessary in a democratic society for the prevention of crime or
the protection of the rights and freedoms of others.191 It was accepted in X v Germany192 that the right to physical integrity can be limited
in the interest of preventing crime. It was held that a requirement that an
individual undergo a psychiatric examination, even prior to any indictment, was
justifiable. It was observed that:
“[ss] it is the criminal
court’s duty, in the interest of the accused himself and for the protection of
society to investigate any of the circumstances which may be relevant for the
assessment of the criminal responsibility of the accused, it must be accepted
that the measures taken for this purpose are necessary in a democratic society
for the prevention of crime, even if the investigated facts of the accused
person’s private life are not in themselves criminally relevant”.
The compulsory taking of the sample
in Peters v Netherlands193 was also held to be justifiable
under Article 8(2). It was decided that the “necessity” for interference with
the exercise of the right of the convicted person to respect for his private
life must be considered having regard to the ordinary and reasonable
requirements of imprisonment. It was accepted that the “prevention of disorder
or crime” may justify wider measures of interference in the case of a prisoner
than in the situation of a person at liberty.
1.
Article 3
27.
Article
3 provides that “[n]o one shall be subjected to torture or to inhuman or
degrading treatment or punishment”. The prohibition contained in Article 3 is
absolute and cannot be limited in any way. In determining whether Article 3 is
applicable, regard must be had to all the circumstances of the case and to what
society in general tolerates at the time of the complaint.194 It has recently been held by the ECtHR that any
use of physical force on an individual detained by state authorities, which has
not been made strictly necessary by the conduct of the detainee, will be
contrary to Article 3.195 This would suggest that the use of reasonable force
to obtain a bodily sample from a suspect or a convicted offender could
constitute a breach of Article 3 of the ECHR. However, this assertion has been
qualified in later cases. In Raninen v Finland196 the Government conceded that the
handcuffing of the applicant was not strictly necessary. Despite this, the
ECtHR did not consider the effects sufficiently serious to give rise to a
violation under Article 3. It is apparent therefore that the force must not be
strictly necessary and must also be of sufficient seriousness before it will be
deemed to fall within Article 3. It is questionable as to whether the
interference with which we are concerned with here would reach the rather high
threshold set by the ECtHR.197 However, the ECHR is a living
instrument and while at present the force likely to be involved in obtaining a
buccal swab or blood sample does not appear to fall within Article 3, this
could change in the future or in particular circumstances the threshold of
severity might be reached.198
28.
Although
the suspect’s right to bodily integrity may be interfered with to a limited
extent in the event that reasonable force is used to obtain a sample from the
suspect, this interference may be justified under the Constitution and the
ECHR. The EComHR cases of Peters v Netherlands199 and X v Netherlands200 illustrate that the taking of samples can be
justified in the interests of preventing crime and disorder. In order for it to
be justified on this basis, it is likely that the proportionality test set out
above must be satisfied.201 This test was used in X v Germany202 to balance the competing requirements of
preventing crime and the right to bodily integrity. US cases have held that it
is easier to justify an interference with a convicted person’s bodily integrity
rights than a mere suspect’s rights.203 This was also accepted by the
EComHR in Peters v Netherlands.204 The justification given for this
in the US cases is that analysis of a convicted person’s DNA could be necessary
to solve previous crimes and it is also more likely that a person previously
convicted of a crime will commit a further offence.205 Consequently, it is easier to
satisfy the proportionality test in respect of a convicted person than in the
case of a person who is merely a suspect. In relation to a suspected person’s
rights, the position is more uncertain. These principles must be considered
when examining whether and if so, when is it permissible for reasonable force
to be used to extract samples from suspects.206
3. The Privilege Against
Self-Incrimination
29.
Lord
Mustill in a sophisticated analysis stated that the privilege against
self-incrimination or right to silence does not denote any single right, but
rather it refers to a disparate group of immunities; such as “a general
immunity, possessed by all persons and bodies from being compelled on pain of
punishment to answer questions, the answers to which may later be used to
incriminate them.”207 In Saunders v UK,208 Walsh J observed that the
principle was that “a man could not be made the deluded instrument of his own
conviction”.209 The rationale is that:
“The essential and
inherent cruelty of compelling a man to expose his own guilt is obvious to
everyone, and needs no illustration. It is plain to every person who gives the
subject a moment’s thought. A sense of personal degradation in being compelled
to incriminate one’s self must create a feeling of abhorrence in the community
at its attempted enforcement.”210
1.
The
privilege is reflective of the traditional distribution of the burden of proof
in a criminal trial, namely that it is incumbent on the prosecution to
establish guilt beyond a reasonable doubt. In other words, the privilege
absolves the accused from having to face the “cruel trilemma of
self-accusation, perjury or contempt.”211
1. The privilege against
self-incrimination is both a common law privilege and a constitutional right.
The common law privilege can be overridden by a statutory provision requiring
information to be given under penalty for refusal.212 It was accepted in Heaney v
Ireland213 and Rock v Ireland214 that the privilege is also a constitutionally
protected right, that suspects have a right to remain silent in custody,
but that this constitutionally protected right is not absolute and could be
abridged. It was acknowledged that the privilege may have to give way to the
exigencies of the common good, once the means used to restrict the right were
proportionate to the objective to be achieved. Thus, a balance must be struck
between the individual’s right to self-incrimination and the right and the duty
of the State to defend and protect the life, person and property of all its
citizens. The proportionality test will be used to strike a balance between
these two conflicting rights. This test was also applied in Rock v Ireland.215 It was accepted in this case that in order for
a restriction on the privilege against self-incrimination to be justified, it must
not go beyond what is necessary to achieve the objective in question. It can
only interfere with the right to the minimum extent necessary to achieve the
objective in question. In Heaney v Ireland,216 the test was applied by the
Supreme Court in assessing whether section 52 of the Offences Against the
State Act 1939 infringed the privilege against self-incrimination. Section
52 obliges people detained in custody under the 1939 Act to give, under pain of
penal sanctions, an account of their movements and actions during a specified
period. There is in essence a stark choice between giving information and
imprisonment. However, it was held that a proper balance was struck by section
52 between on the one hand the citizen’s privilege against self incrimination
and on the other hand the entitlement of the State to take measures to protect
itself.
1.
European Convention on Human Rights
1. The privilege against
self-incrimination is also protected under the ECHR. The freedom from coerced
self-incrimination is protected as an aspect of the right to a fair hearing in
the determination of criminal charges under Article 6(1) and is implied in the
right to be presumed innocent until proven guilty under Article 6(2). It has
been held in a number of cases that the use of evidence obtained in
infringement of this right violates Article 6.217 These principles were set out in Heaney
and McGuinness v Ireland218 which in effect reversed the
decision of the Supreme Court in Heaney v Ireland.219 Although the ECtHR also accepted the proportionality
test for determining whether any interference with the privilege against
self-incrimination was justified, they reached a different conclusion to the
Supreme Court in applying this test. They held that section 52 of the 1939 Act
was disproportionate to the aim being pursued. This was because the provision
destroyed the essence of the right to protection from self-incrimination. The
degree of compulsion in being compelled to give the information or face
imprisonment destroyed the very essence of the privilege against
self-incrimination. This demonstrates that a stricter test has been adopted in
the ECtHR than in the Supreme Court in respect of the requirement of
proportionality in this regard. As a result of the enactment of the ECHR Act
2003, the State must exercise its powers compatibly with the ECHR.
Consequently, the stricter test advocated by the ECtHR in Heaney must be
used in determining whether any interference with the privilege against
self-incrimination through the use of DNA profiling is proportionate.
1.
DNA Profiling and Self-Incrimination
1. DNA profiling, as described in Chapter
1, leads to the recognition of links between individuals and particular crimes
by comparing DNA profiles, obtained from those individuals and stored on a
database, with DNA profiles obtained from crime scenes. One must examine
whether compulsorily obtaining a DNA profile from a suspect infringes the
privilege against self-incrimination. The question for consideration here is
whether the privilege against self-incrimination extends beyond the traditional
gathering of “testimonial evidence”220 to cover “real evidence”.221 The present judicial consensus is that the privilege
only applies to the gathering of testimonial evidence. It has been held by the
English Court of Appeal in R v. Smith222 that the taking of bodily samples
does not breach the privilege against self-incrimination. This approach has
also been followed in the US. As observed by Holmes J in Holt v US,223 “the prohibition on compelling a man in a criminal
court to be witness against himself is a prohibition of the use of physical or
moral compulsion to exert communications from him not an exclusion of his body
as evidence when it may be material”. Similarly in Saunders v United Kingdom,224 the ECtHR accepted that there was a distinction
between the right of the accused person to remain silent and the use in
criminal proceedings of material obtained through the use of compulsory powers
but which has an existence independent of the will of the suspect for example
breath, urine or bodily samples. The right not to incriminate oneself was held
not to apply to such real evidence samples. As a result, the taking of a bodily
sample does not constitute an interference with the privilege against
self-incrimination.
1. DNA Request Surveillance and
Self-Incrimination.
1. A variation on the discussion in the
last paragraph would occur where investigators seek to rely on a refusal to
consent to a forensic procedure as a sign that the individual has “something to
hide”. This would constitute DNA request surveillance.225 This might breach the privilege
against self-incrimination.226 The revealing of the negative
reaction to the request for a sample could be regarded as self-incriminatory as
it can support an inference that the individual is guilty of crime. It is clear
that DNA request surveillance is a form of compelled rather than voluntary
self-incrimination. Recipients of a request can either submit to that request
or reveal their fear of that surveillance. There is no real choice here. This
could arise, for example, in respect of a suspect who is asked to give
voluntarily a sample or in relation to a situation of mass screening where the
whole population in a particular area is requested to give a sample. In such a
case, the suspect or other person cannot reveal his or her reluctance to give a
sample without incriminating himself or herself. This is different to the case
where a suspect is compelled to submit a sample as the recipient of this
coercive request is not revealing anything by his or her reluctance to give a
sample. In the event of the privilege against self incrimination being
breached, the unconstitutionally obtained evidence should be excluded from
court.227 Evidence obtained in a conscious and deliberate
breach of a person’s constitutional rights must be excluded in the absence of
exceptional circumstances.228 Consequently this evidence can
only be used for investigative purposes.
2. However it must be remembered that
this constitutional right against coercive self incrimination is not absolute.229 It must be balanced with the right and duty of the
State to defend and protect the life, person and property of all its citizens.
The proportionality test described above could be used in deciding whether DNA
request surveillance and the use made of the evidence obtained from it is
constitutional.230 An important consideration in applying such a test is
that the right of the citizen should only be breached to the minimum extent
necessary to achieve the legitimate aim. In certain circumstances, it may be
permissible for such evidence to be admitted into court and for the Gardaí to
use it for investigative purposes. The constitutional and ECHR principles
described above will be used in deciding on the extent of permissible
interference with this privilege. The potential interference of DNA request
surveillance with the privilege against self-incrimination will be taken into
consideration in deciding on the situations in which DNA sampling can take
place and the inferences that can be drawn from a refusal to consent to
sampling.231
4.
DNA sampling: current powers and safeguards
1.
Any
legislation providing for the establishment of a DNA database is of little
significance unless the Gardaí are first able to obtain a sample from which a
profile may be generated. If the decision is taken to compile a database of DNA
profiles, then legislation conferring appropriate sampling powers will need to
be enacted. As we have discussed in Chapter 3, the right to bodily integrity is
intricately engaged when considering such powers and the principles articulated
above,232 will help shape constitutionally permissible and
Convention compliant law in this area. But, before we discuss what, if any, law
to recommend, it is instructive to examine the current legislation concerning
both the comparable fields of photographs, fingerprints and palmprints, as well
as the existing law in relation to taking bodily samples.
2.
The
Commission is also conscious of the publishing by the Minister for Justice of
the ‘Scheme’ of a Criminal Justice Bill 2003.233 This recommends some
amendments to the law in these fields. These recommendations are based on the
suggestions of the Expert Group Appointed to Consider Changes in the Criminal
Law (“Leahy Group”).234 These proposed recommendations will be dealt with in
as far as they are relevant to this discussion.
1.
Photographs, Fingerprints and Palmprints
3. As Walsh argues, “[f]ingerprinting a
suspect without his consent is … an unlawful trespass against the person at
common law” and photographing or measuring a suspect may also amount to a
trespass if physical restraint is used to facilitate this even if it is not
done in violation of his right to privacy.235 Accordingly, appropriate
statutory authority must be conferred on the Gardaí in order to photograph and
take a fingerprint of an individual. The legislative provisions which confer
powers on the Gardaí in this regard are at present contained in a number of
statutory provisions including, as follows:236
i.
Section
6 of the Criminal Justice Act 1984237 which is the most important of
these provisions and is dealt with in the next paragraph.
ii.
Section
7 of the Criminal Law Act 1976238 which concerns individuals
who are detained under section 30 of the Offences Against the State Act 1939
and section 2 of the Emergency Powers Act 1976. This provision is
otherwise identical to that under section 6 of the Criminal Justice Act
1984.
iii.
Section
28 of the Criminal Justice Act 1984239 which deals with those
individuals who have been prosecuted for an indictable offence and made the
subject of an order under the Probation of Offenders Act 1907 or
convicted and otherwise dealt with.
iv.
Measuring and Photography of Prisoners Regulations 1955 – made under the Penal Servitude
Act 1891 – which have been relied upon to obtain fingerprints from those
individuals in custody.240
v.
Section
19 of the Criminal Justice (Miscellaneous Provisions) Act 1997, although
not conferring a power to obtain photographs and fingerprints per se,
enables the Minister for Justice to make Prison Rules providing for “the
photographing and measuring of persons detained in a prison and the taking of
fingerprints and palmprints from such persons during their detention in a prison.”241 Any such copies may also be furnished to the Gardaí.
vi.
Section
11 of the Criminal Justice (Miscellaneous Provisions) Act 1997 provides
for the electronic recording of fingerprints and palmprints taken under any enactment.
4. The main provisions governing the
taking of photographs, fingerprints and palmprints are in relation to those
individuals detained under section 4 of the 1984 Act. Section 6(1)(c) empowers
the Gardaí to “photograph him or cause him to be photographed.” Also section
6(1)(d) empowers the Gardaí to “take, or cause to be taken, his fingerprints
and palm prints.” Section 6(2) provides that these powers may only be exercised
on the authority of an officer not below the rank of superintendent. In the
event of any person obstructing or attempting to obstruct the Garda Síochána in
the exercise of his powers, under section 6(4), that person shall be guilty of
an offence.
5.
It
is unclear as to whether any refusal to cooperate with the Gardaí will only
result in the commission of a criminal offence under section 6(4), or whether
the Gardaí may exercise their powers without the consent of the individual
detained. Although section 6 does not explicitly provide for the use of
reasonable force in default of consent and cooperation, Boyle and Lawless argue
that “an interpretation which denied compulsory powers would render the section
nugatory.”242 It would prevent the police from exercising their
powers in the cases where fingerprint evidence was most necessary - where the
suspect had something to hide and is willing to be convicted of an offence
rather than submit to fingerprinting. The authors also comment that if
compulsory powers are to be exercised under this section, then this should be
prescribed by law with the appropriate limits of such force set out.243 Indeed, the analogous provisions in England and Wales
specifically empower the police, in certain circumstances, to obtain the
fingerprints of a person detained without appropriate consent.244
6.
Indeed,
the Scheme of the Criminal Justice Bill 2003 proposes to amend the
provisions to provide specifically for the use of reasonable force to take
photographs and prints.245
7. A further aspect is the obligation
in section 8 of the 1984 Act to destroy on request every photograph,
fingerprint and palmprint (including all negatives, copies and records).246 Section 8(2) provides that every photograph or print
obtained from a person must be destroyed in the event of proceedings not being
instituted against that person within six months from the obtaining of the
fingerprint or photograph. This applies unless the failure to institute
proceedings is attributable to the person absconding or their whereabouts being
unknown. Section 8(3) requires destruction to be carried out if any proceedings
instituted result in acquittal, discharge or discontinuance. Where a person is
subject to an order under section 1(1) or (2) of the Probation of Offenders
Act 1907, section 8(4) provides that the sample must be destroyed
three years after the making of the order once no offence is committed during
that period. This is provided for by section 8(4)(a). Section 8(5) allows the
person’s solicitor to witness the destruction of the prints and photographs.
However, section 8(7) allows a judge of the District Court to extend the period
in which the prints or photographs may be retained for a further six months if
they are required for the purpose of further proceedings in relation to the
offence. These safeguards are considered below247 when discussing the analogous
provisions which govern bodily samples, as set out in the Criminal Justice
(Forensic Evidence) Act 1990.
8.
There
is no corresponding provision governing destruction as regards those
photographs, fingerprints and palmprints obtained from an individual arrested
and detained under section 30 of the Offences Against the State Act 1939.
Walsh comments that “[t]he clear implication is that they can be retained even
if the suspect is released without charge, or if he is acquitted or discharged
in related criminal proceedings.”248 Walsh also suggests that this may
raise issues in relation to privacy both under the Constitution and the ECHR.
The ECmHR in McVeigh, O’Neill and Evans v UK249 took the view that
retention of such records may be justified for the prevention of terrorism.250 However, it may be open to question whether all
possible offences under the 1939 Act would meet this extremely high threshold
and justify retention of these records.251
9.
The
taking, retention and use of photographs, fingerprints and palmprints are not
necessarily governed by these assorted statutory provisions illustrated above.
They may also be obtained ‘voluntarily’ by the Gardaí during an investigation.
This voluntary method is, as we understand it, the most commonly used in
criminal investigations by the Gardaí. This is certainly the most productive
means of obtaining fingerprints from those whom the Gardaí wish to eliminate
from the investigation and who did not fall within the requisite ambit of
suspicion but the consequence of this method is that the fingerprints are
unregulated by the law. As a result, the sorts of safeguards provided for in
the 1984 Act are not applicable. Indeed, the result of this Gardaí practice is
that ‘volunteers’ are in the same position as those whose photographs and
prints are obtained under section 7 of the Criminal Law Act 1976. This
is anomalous because ‘volunteers’ have not been arrested or detained and are
not necessarily ‘reasonably suspected’ of involvement in an offence, whereas
the latter category include those suspected, arrested and detained for the most
serious offences. One qualification to this statement should be made. As we
understand it, as a matter of practice, where assurances are given that
photographs and prints will not be retained, then they are destroyed. Also if
a volunteer requests that their prints and photographs be destroyed then
the Gardaí, having considered the circumstances, will destroy the records.
10.
However,
doubt has recently been cast on the lawfulness of this method of obtaining
fingerprints by the decision of Mc Mahon J in the Circuit Criminal Court in The
People (DPP) v Carroll.252 It was held in this case that the
obtaining of fingerprints and palmprints by this method is unlawful.
Fingerprints and palmprints obtained under this voluntary method were deemed
inadmissible in this case. It was accepted by the judge that in order for
fingerprints and palmprints to be lawfully taken, they must be obtained under
the legislative provisions enacted for this purpose. In this case, the accused
was arrested under section 4 of the Criminal Justice Act 1984. As a
result, section 6 of this Act was in issue. The judge accepted that the
language in this section was unambiguous and he saw no reason to depart from
its meaning. He noted that there was no provision in the Act allowing for the taking
of fingerprints and palmprints outside it where consent had been given. He held
that there was no legislative lacuna, which would justify the implying of such
a power to take fingerprints and palmprints outside the legislative provisions.
11.
It
is clear from this brief survey of the current framework in relation to the
comparable fields of photographs and prints that there is a need not only to
review this framework, but also to consolidate these provisions. The position
concerning the destruction of fingerprints voluntarily obtained needs to be
clarified. Also, as considered below, fingerprints should not be given a higher
degree of protection than that afforded to DNA profiles.253 Any revision of the law could address this anomaly.
It therefore seems that a review and consolidation should provide for the
comprehensive regulation by the law of the taking and, in particular, the
retention of records.
12.
The Commission is of the view that the taking of photographs and prints
should be governed exclusively by legislation, even in the case of those taken
on a voluntary basis.
2.
Criminal Justice (Forensic Evidence) Act 1990
1.
Forensic Samples outside the 1990 Act
13. The Criminal Justice (Forensic
Evidence) Act 1990 (“1990 Act”), is the primary legislative provision
regulating the taking of bodily samples for “forensic testing.” But section
2(11) of the 1990 Act also states that: “[t]he powers conferred by this section
are without prejudice to any other powers exercisable by a member of the Garda
Síochána.” Thus, the 1990 Act does not comprehensively govern the taking of
bodily samples. There are two further methods: the first is under other
statutory provisions that remain untouched by the 1990 Act,254 such as the powers conferred by the Road Traffic
Acts 1961-1995, which govern the taking of a specimen of an arrested
person’s breath, blood or urine.255 Under these provisions, a person
may be required to permit a designated doctor to take a specimen of his blood
or to provide a specimen of urine for the doctor, where a person has been
arrested under certain provisions of the Road Traffic Acts or where a
member of the Gardaí is of the opinion that the person is under the influence
of drugs.256 Of course it is right that powers exist to take
samples in particular contexts and for specific purposes, such as to determine
the level of intoxication of an individual arrested on suspicion of drink
driving. However, we note here that a DNA profile may also be extracted from,
in particular, blood samples and therefore such a sample could be used to
obtain and then put a DNA profile on a DNA database.
14.
The
second method, aside from other statutory provisions, is the practice of
requesting samples. In principle, this category is dependent on individuals
voluntarily providing a biological sample for analysis. What constitutes an
adequate consent for this purpose has not yet been clarified.257 Prior to the 1990 Act the Gardaí would simply request
individuals to ‘volunteer’ a sample, which would usually be a blood sample for
blood grouping but this could also be used to create a DNA profile for the
purposes of any DNA database. Doubt has been cast on the lawfulness of this
method of obtaining samples by the decision of The People (DPP) v Carroll.258 However, to date this method of obtaining samples has
been accepted as lawful.
15.
The
existence of those “other powers exercisable” by the Gardaí apart from the 1990
Act produces a lacuna in the regulation of the taking, use and retention of
biological samples (and for that matter the profiles generated from them). What
is meant by this is that there are situations where a biological sample may be
obtained in circumstances, which will not attract the safeguards, which are
bestowed by the 1990 Act, such as the obligation under section 4 to destroy the
sample and records.259 It is our understanding that this ‘voluntary’ method
remains the preferred way in which a sample may be obtained for DNA profiling
as the conditions laid down by the 1990 Act are perceived to be too burdensome
and section 2(11) provides a comprehensive ring road circumventing the
carefully designed controls, established by the 1990 Act. Of course the
legislative framework for obtaining comparator samples must be workable, but
the Commission is concerned that the collection, testing and retention of
samples, which could yield very sensitive and personal information260 is almost completely unregulated. It must certainly
be considered, in view of the inherent nature of genetic material and
information as well as the potential uses and misuses, whether it is essential
that samples taken in the law enforcement field should be exclusively regulated
by legislative provisions. Also, as observed above, there are doubts over the
lawfulness of this method of obtaining DNA samples and consequently, it seems
preferable for the obtaining of samples to be governed exclusively by
legislation.
1.
General Scope of the 1990 Act
16.
Section
2(1) of the 1990 Act provides that where a person is in custody under section
30 of the Offences Against the State Act 1939, section 4 of the
Criminal Justice Act 1984 or section 2 of the Criminal Justice (Drug
Trafficking) Act 1996,261 a Garda Síochána may take certain
samples from that person.262
17.
In
addition to those arrested and taken into custody on suspicion of having
committed specific offences under the 1939, 1984 and 1996 Acts, section 2(2) of
the 1990 Act provides that a sample may be taken where ‘a person is in prison’
and who would, but for that imprisonment, be liable to be arrested and taken
into custody for an offence under the 1939, 1984 and 1996 Acts.
18.
The
intended effect of this provision is to put those in prison in the same position,
in respect of the obligation to provide bodily samples, as everybody else.263 As a result, the Gardaí are not, therefore, precluded
from taking a sample from an individual already in prison whilst investigating
offences under the 1939 Act, the 1984 Act or a drug trafficking offence.264 However, section 2(3) ensures that a sample may only
be sought in relation to the investigation of an offence other than the one for
which the person is in prison (or a possible alternative count arising out of
that indictment). For example, where a person is convicted of rape and
imprisoned, the Gardaí may obtain a sample in order to determine whether that
person may be implicated in another offence that falls within the 1984 Act, the
1939 Act, or a drug trafficking offence (as defined by section 3(1) of the Criminal
Justice Act 1994 (“1994 Act”)). One can readily envisage an application
under section 2(3) where the offender is convicted of a crime on the basis of
evidence other than DNA and the authorities did not need to obtain a comparator
sample from him. Meanwhile there are other similarly perpetrated unsolved
offences, which fall within the scope of the subsection, where a biological
stain is recovered that was thought to be left by the perpetrator. In this
situation the power of the Gardaí to obtain a comparator sample may be
essential to solve these crimes. The justification for obtaining a sample here
is to prove or disprove the convicted offender’s involvement in the further
offence on the basis of the evidential significance justification.265
19.
Although,
a convicted offender may be the primary focus of this subsection, O’Connor
notes that “the expression ‘a person in prison’ is sufficiently broad to
include not only a person who has been convicted of an offence but a person who
has been remanded in custody.”266 A person can be remanded in
custody for a minor offence. However, the sample itself must be required for
the purpose of investigating a serious or relatively serious offence before it
can lawfully be taken as is apparent from section 2(3)(b) of the 1990 Act.
Also, under the wording of this section, it appears that the “other offence”
could possibly arise from the same facts although it could not include
alternative counts.
20.
As
regards the scope of section 2 in general, the Minister for Justice observed
during the parliamentary debates, that “[t]he purpose of this Bill is to
provide the Garda Síochána with power to take for forensic testing bodily
samples … from persons suspected of serious criminal offences”.267 This observation is for the most part correct; thus
section 4 of the 1984 Act concerns detention for offences which attract on
conviction punishment by “imprisonment for a term of five years or by a more
severe penalty”.268 Moreover, section 30 of the Offences Against the
State Act 1939 (“1939 Act”) concerns detention for wide ranging and serious
subversive and non-subversive offences.269 However, as O’Connor notes, there
are some offences under the 1939 Act which potentially attract relatively minor
penalties. The author also comments that “it would … seem inappropriate that
where the offence in question is not a serious one that samples should be taken
for the purpose of forensic examination.”270 However, there is a contrary
argument that if the DNA is relevant to the investigation then it may in fact
be appropriate on the basis that it is necessary to prove or disprove the
person’s involvement in the offence.
21.
Broadly
speaking, it is correct that the powers conferred by the 1990 Act to take
bodily samples are primarily aimed at those offences towards the higher end of
the scale of seriousness and not summary or minor offences. This is so even
following the amendments to the scope of offences by the Criminal Justice
(Drug Trafficking Act) 1996, which was passed in order to empower
the Gardaí to tackle the problem of crime spawned by drugs. The Minister for
Justice described the measures as forming “part of a comprehensive anti-drug
package.”271 The offences now include “drug trafficking” offences,
which are defined under section 3(1) of the Criminal Justice Act 1994.272 While all these offences may not constitute serious
offences,273 it is true to say that most of these offences are
serious.
22.
We
consider the scope of offences which attract sampling powers in other
jurisdictions in the next chapter and consider whether the breadth of offences
should remain as currently defined.274
23.
There
should also be a power in existence which allows for another sample to be
obtained in the event of the first sample becoming contaminated, destroyed or
lost. The English law provides a model for the approach that could be adopted
in Ireland. In the UK the taking of another sample from a person is permitted
by the Criminal Justice and Police Act 2001 (Commencement No. 8) Order 2002.
Another sample may be taken from a person if the first sample is insufficient
or unsatisfactory. The taking of another sample is also permitted if the first
sample is lost, destroyed or contaminated or the analysis of the first sample
has proved unreliable. The additional sample must be taken from the person
within one month from the time at which the first sample was obtained.
Consideration should be given to implementing a similar provision in this
jurisdiction to clarify the position.
24. Section 2(1) of the 1990 Act
specifies the types of sample that may be taken as follows:
“[A]ll or any of the
following samples, namely—
(a) a sample
of—
(i) blood,
(ii) pubic hair,
(iii) urine,
(iv) saliva,
(v) hair other than
pubic hair,
(vi) a nail,
(vii) any material
found under a nail,
(b) a swab from
any part of the body other than a body orifice or a genital region,
(c) a swab from
a body orifice or a genital region,
(d) a dental
impression,
(e) a footprint
or similar impression of any part of the person's body other than a part of his
hand or mouth [which is governed by the 1984 Act].”
There is no overt
classification of these types of sample, as there is in PACE, which categorises
samples as either ‘intimate’ or ‘non-intimate’.275 However, two levels of protection
are provided for under the 1990 Act which succeeds in creating a distinction
between intimate and non-intimate samples.
24. Those samples under the 1990 Act
which require further safeguards to be complied with before they can be taken,
and therefore can properly be described as ‘intimate’ samples, are blood,
saliva, pubic hair, a swab from a body orifice or a genital region, and a
dental impression. In respect of these samples, section 2(8) provides that a
sample may only be taken by a medical practitioner, or in the case of a dental
impression, by a dentist. The other forms of samples which are considered less
intimate can be taken by the Gardaí themselves. This distinction between
‘intimate’ and ‘non-intimate’ samples is more apparent on further reading of
section 2(4)(b) in relation to consent. Those intimate samples, listed above,
which entail a more intrusive procedure may be taken only with the appropriate
written consent of the person from whom the sample is sought. No such written
consent is necessary for the ‘non-intimate’ samples.
25. A point that should be emphasised is
that more often than not it is either a blood sample or buccal swab which is
taken from the inside of the person’s mouth, which is required for DNA
profiling.276 A blood sample would of course have to be taken by a
medical practitioner or a registered nurse and the same considerations apply in
respect of a dental impression. It is plain that taking pubic hair, or a swab
from the genital region or from most body orifices, entails a
particularly intrusive procedure. In the context of obtaining a sample for DNA
profiling the preferred method is the mouth swab as it requires no particular
expertise, is painless, can be self-administered and is not of a particularly
intrusive nature. A number of swabs can be taken for initial profiling and
independent testing, if required. However, as the Model Criminal Code Officers
Committee (“MCCOC”) in Australia have explained:
“[W]here the person
from whom the sample is being taken agrees to the procedure it can be very
simple and is not invasive. However, where a person does not consent and
resists the procedure, the procedure would not fairly be described as being non-intimate.
Placing something inside someone’s mouth against the person’s consent is
invasive.”277
27.
The
legislature in the UK has been quick to react and amend PACE to meet the
challenges of DNA profiling and to keep in step with advances in technology:
namely, the improved success in profiling from mouth swabs. Section 65 of PACE
was amended by section 58 of the Criminal Justice and Public Order Act 1994 which
shifted saliva and mouth swabs from the intimate to non-intimate category in
order to facilitate the taking of samples from suspects and offenders without
the need to engage the services of a medical practitioner, which proved
inconvenient.278 An intimate sample is now defined as a dental
impression or a sample of blood, semen, or any other tissue fluid, urine, or
pubic hair, or a swab taken from a person’s body orifice other than the mouth.
Feldman comments that this ‘down-grading’ of what constitutes an intimate
sample lends weight to the “thin end of the wedge” critique of new police
powers, in that the powers are incremental in nature.279
28. Head 12 of the Scheme of the Criminal
Justice Bill 2003 indicates an intention to follow suit in this respect and
shift saliva and mouth swabs into the ‘non-intimate’ category. This
could significantly assist the authorities in obtaining a DNA profile from both
suspects and offenders because a medical practitioner is not needed and consent
is not a prerequisite to obtaining a ‘non-intimate’ sample. However, the
advisability and extent of any force used to obtain even ‘non-intimate’ samples
together with the questions as to what safeguards are necessary must be given
the most careful consideration. This change might also not prove viable in
practice. At present it is considered by Gardaí to be too dangerous to obtain
mouth swabs forcibly.280 However, in the event of a prisoner shaving off hair
to avoid samples being obtained, a buccal swab could prove to be the only
option available to obtain a DNA sample without consent.
29.
A
mention of hair root samples should be made here. As described by MCCOC,
experience in the UK has shown that where a person is implacably hostile to
undergoing a forensic procedure, force is used by officers specially trained in
the art of obtaining hair root samples. These are also arguably the least
invasive ‘non-intimate’ source from which a DNA profile can be generated. Head
12 of the Scheme of the Criminal Justice Act 2003 provides that a hair
sample may be “taken either by cutting hairs or by plucking hairs singly with
their roots.” It also provides that “no more should be plucked than the person
taking the sample reasonably considers to be necessary to constitute a
sufficient sample.”
30.
Section
63A of PACE, as inserted by the Criminal Justice and Public Order Act 1994,
is in similar terms. The revised PACE Code of Practice which ensued has further
clarified the practice of obtaining a hair sample, as follows:
“i) where a hair
sample is being taken for DNA purposes, the suspect should be permitted a
reasonable choice as to what part of the body he wishes the hairs to be taken
from;
ii) when hairs are
plucked, they should be plucked individually unless the suspect prefers
otherwise; and
iii) no more should be
plucked than the person taking them reasonably considers necessary for a
sufficient sample – no fewer than 10 hairs should be submitted.”281
These modifications appear to the
Commission to be sensible and go some way to ameliorating the inevitable
encroachment on bodily integrity and privacy rights that is entailed in
obtaining such a sample.
31.
The Commission is of the view that similar modifications to those in the
revised Police and Criminal Evidence Act 1984 Code of Practice outlining the
procedure for taking a hair sample should be introduced in this field by way of
either Code of Practice produced by the Gardaí themselves or through
Ministerial regulations passed under section 5 of the 1990 Act.
1.
Safeguards Against Arbitrary Sampling
32.
In
addition to the requirement that a comparator sample may only be obtained in
relation to the investigation of an offence which falls within the scope of
those offences set out in the 1990 Act above,282 and, depending on the type of
sample, who may be permitted to take it,283 certain other conditions must
also be met. Although the four topics that follow may be described as either
conditions or prerequisites to taking a sample, they are actually safeguards
against the arbitrary exercise of power by the Gardaí. Because the taking of
bodily samples entails an infringement of the right to bodily integrity and
privacy of the person, it is, of course, proper that a sample may not be taken
merely because it might be helpful to the investigation. There is a need for
safeguards and prerequisite conditions to be in place.
1. Authorisation
33. The first condition is that
authorisation must be given for sampling by an officer not below the rank of
superintendent,284 which may be given orally but must be confirmed in
writing as soon as is practicable.285 This subsection therefore
provides for some element of oversight by a more senior officer.286
1.
Suspicion of Involvement in an Offence
34. The second condition is that the
authorising officer must, under section 2(5)(a), have reasonable grounds:
“for suspecting the
involvement of the person from whom the sample is to be taken—
(i) in a case where
the person is in custody, in the offence in respect of which he is in custody,
or
(ii) in a case where
the person is in prison, in the commission of an offence under the Offences
against the State Act 1939 or an offence which is for the time being a
scheduled offence for the purposes of Part V of that Act or an offence to which
section 4 of the Criminal Justice Act 1984 applies …”
35.
This
condition has the effect of introducing a measure of objectivity to the
process, but as O’Connor notes, there is a disparity between the legal standard
that must be met, on the one hand, before arresting someone for an offence
under section 30 of the 1939 Act and, on the other hand, before obtaining a
sample from such an individual. The difference is that suspicion is a
prerequisite for arrest, whereas reasonable suspicion is needed before being
able to obtain a bodily sample.287 Presumably, some extra
information or evidence, such as that obtained through interviewing the
suspect, must be obtained before a ‘suspicion’ is transformed into a
‘reasonable suspicion’.
1.
Tend to Confirm or Disprove Involvement
36. In addition to reasonable grounds
for suspecting the involvement in those offences set out in the legislation,
the authorising officer must, under section 2(5)(b), also have reasonable
grounds:
“for believing that
the sample will tend to confirm or disprove the involvement of the person from
whom the sample is to be taken in the said offence.”
This is an important
safeguard against the unnecessary taking of samples from suspects. In
other words, it is only to be used in cases where there is biological evidence
found on the victim or at the scene of crime thought to be left by the
perpetrator. Moreover, it would seem that such material must also be capable of
either yielding a DNA profile or other comparative analysis. This also prevents
the Gardaí from conducting a fishing expedition for evidence which may
implicate the suspect in an offence other than the one for which he is
detained:– if the authorities wish to obtain evidence for a different offence
then, quite simply, the individual should be arrested for that offence and a
sample taken under the appropriate provisions.
1.
Explanation to Suspect
37.
Under
section 2(6), before the Gardaí may take a sample (whether ‘intimate’ or
‘non-intimate’) from those detained (but not those in prison),288 or seek the consent of such a person they must inform
that person:
“(a) of the
nature of the offence in which it is suspected that that person has been
involved,
(b) that an
authorisation has been given under subsection (4) (a) of this section
and of the grounds on which it has been given, and
(c) that the
results of any tests on the sample may be given in evidence in any
proceedings.”
These provisions
mirror the warning given under the Judges’ Rules in the context of
incriminating statements and clearly intend to communicate to the detained
person their predicament and the purpose and effect of sampling. O’Connor suggests
that “[t]he obligation to inform stems, perhaps, from a recognition of the
human dignity of the person and as a preliminary to the taking of a sample,
particularly an intimate sample, a person should be given information of the
kind specified in the paragraph.”289 This stage is also a step towards
obtaining the consent of the individual where required, but it may be open to
question, in view of the inherently coercive nature of the criminal
investigation, whether consent is in fact always freely given.290
37.
The
information must be given in a form that is readily understandable and not
overly complicated having regard to the particular circumstances of the person
submitting to the taking of the sample. In this respect, the recommendations of
the Parliament of New South Wales Legislative Standing Committee on Law and
Justice (“NSW Review”) are instructive.291 It recommended that the request
for consent to the taking of the sample should be in an understandable form. It
also recommended that a plain English version of the consent information that
should be provided should be drafted.
38. The Commission recommends that the
explanation for the reason and basis for taking samples must be given in a
readily understandable manner, using plain language.
39.
In
respect of the taking of samples generally, the Human Rights Commission (“HRC”)
suggested that a number of safeguards should be complied with when taking
bodily samples.292 Given that the Commission is broadly in favour of
these safeguards, it is useful to set these out here. They are as follows:
“(i) the taking of
bodily samples should be carried out in circumstances affording reasonable
privacy to the suspect;
(ii) the taking of
bodily samples should be carried out in the presence or view of a person who is
of the same sex as the suspect;
i.
the
taking of bodily samples should not be carried out in the presence or view of a
person whose presence is not necessary for the purposes of the forensic
procedure;
ii.
there
should be no questioning during the taking of bodily samples;
iii.
the
taking of bodily samples should not involve any cruel, inhuman or degrading
treatment;
iv.
the
taking of bodily samples should be carried out by specified professionals
including nurses, medical practitioners, and dentists depending on the
procedure;
v.
a
child or incapable person should be entitled to have present a parent,
guardian, legal practitioner or other independent person who is not a member of
the Garda Síochána during the taking of the bodily samples;
vi.
the
number of members of the Garda Síochána present during the taking of bodily
samples must not exceed that which is reasonably necessary to ensure that the
procedure is carried out effectively;
vii.
the
taking of bodily samples must be video recorded in all circumstances unless the
suspect objects to the video recording and the suspect must be informed of the
reasons for the video recording;
viii.
the
suspect should have the right to an interpreter where he or she does not speak
English as his or her first language;
ix.
the
suspect should have the right of access to legal advice of his or her choice to
decide the implications of refusing to give a bodily sample.”293
It submitted that
these safeguards should be provided for in a set of formal guidelines in a
Schedule appended to the proposed Bill or by Ministerial order. The Commission
agrees that safeguards similar to those suggested by the HRC should be
implemented in the form of a Code of Practice. Such safeguards would ensure
that an appropriate balance is struck between the bodily integrity rights of
the suspect and wider societal interests.
2.
One
element that is omitted from the suggestions of the HRC is information
regarding the type of forensic procedure and therefore the type of sample that
is proposed to be taken. The type of sample is important in terms of the
intrusiveness of the procedure used to obtain it. An individual may be
vehemently opposed to one procedure but not another. Some people have a fear of
needles and would accordingly be unlikely to consent to a blood sample being
taken – even by a pin prick on the finger – whereas, they may be comfortable with
providing a mouth swab or some hair root samples for analysis. The absence of
choice has been highlighted by the Australian Law Reform Commission in its
Report on The Protection of Human Genetic Information in Australia.294 This is a matter that is of particular relevance when
contemplating a forensic procedure in the absence of consent.295
3.
The Commission recommends that safeguards similar to those recommended
by the Human Rights Commission, in respect of the taking of bodily samples,
should be provided for in a Code of Practice. In addition to these safeguards,
so long as the particular forensic test may be conducted on the sample, the
Commission is of the view that a certain amount of latitude should be given to
individuals to choose the type of sample to be obtained.
1.
Consent and Reasonable Force
43. Section 2(4)(b) provides that those
‘intimate’ samples may only be taken if “appropriate consent” has been given in
writing.296 Section 2(10) defines “appropriate consent” as
meaning:
“(a) in the
case of a person who has attained the age of 17 years, the consent of that
person;
(b) in the case
of a person who has not attained the age of 17 years but has attained the age
of 14 years, the consent of that person and of a parent or guardian of that
person; and
(c) in the case
of a person who has not attained the age of 14 years, the consent of a parent
or guardian of that person.”
This subsection raises
a number of issues in relation to what amounts to appropriate consent. These
issues are examined in more detail by Feldman in the context of the analogous
provisions contained in PACE.297 For example, Feldman argues that
there are serious doubts as to whether it is proper to allow a parent or
guardian to give consent on behalf of a child who is competent, as in Gillick,298 and is refusing consent. This and further issues are
also examined by O’Connor, who questions whether a 13 year old’s constitutional
right to bodily integrity may be infringed where that child objects to the
taking of a bodily sample, but whose parents or guardians consent under section
2(10)(c). As a result, the Australian Law Reform Commission (“ALRC”)
recommended that a forensic procedure should only be carried out on a child of
12 years or more if the child and the parents consent to it.299 O’Connor also highlights that there may be a
difficulty if one parent consents to the taking of an intimate sample, but the
other does not.300 In addition to this, section 23 of the Non Fatal
Offences Against the Person Act 1997 provides that a minor who has attained
the age of 16 may consent to surgical, medical or dental treatment without the
consent of their parents or a guardian. However, under section 2(10) of the
1990 Act, a person must be 17 before they can give an effective consent on
their own behalf.
43. As well as that, any child or parent
consenting on behalf of the child must be given the information in a form that
can be understood by them. The ALRC criticised the fact that in the Australian
legislation there was no requirement to give any information to the child on
the procedure even though they would be the subject of this procedure.301 It is therefore also important that the information
be imparted to the child in a form which is understood.
44. As we also noted above,302 for those samples that fall within the ‘non-intimate’
category there is no obligation on the Gardaí to obtain the consent of the
individual concerned. Implicit in this is that the Gardaí may use reasonable
force to obtain a ‘non-intimate’ sample.303 One view is certainly that if
it is intended to empower the Gardaí to use reasonable force and in consequence
interfere with an individual’s personal rights and freedoms, as guaranteed by
the Constitution and the ECHR, then this should be done explicitly – to use
ECHR vernacular, prescribed by law and the parameters for such force should be
clearly set out.
45. Head 10 of the Scheme of the Criminal
Justice Bill 2003 proposes that, in addition to the taking of photographs
and prints, reasonable force may be used to obtain ‘non-intimate’ samples,
where necessary.304 There are some potential difficulties with this, in
particular the use of reasonable force in obtaining a mouth swab. The power
exists in the UK to do this, but it is considered dangerous not only for the
person seeking to obtain the sample (the subject may bite them), but also for
the individual from whom the sample is sought to be obtained, as injury may be
suffered.
46. Moreover, it has been stated that “a
prisoner, as a result of being imprisoned, is peculiarly vulnerable to
arbitrary and unlawful action.”305 The same may be said of those
merely in custody on suspicion of having committed an offence. The nature of
custody, as with imprisonment, is such that those individuals detained are the
most at risk of having their rights violated and, accordingly, are in need of
extra protection from the arbitrary exercise of power. Not only does the nature
of detention give one cause to question the reality of consent, but also the
appropriateness of the use of even ‘reasonable’ force.
47.
The
Human Rights Commission in its Observations on the Scheme of the Criminal
Justice Bill 2003 has recently made a number of recommendations in respect
of the use of force to obtain non-intimate bodily samples.306 It recommended that “authorisation to take a sample
without the consent of the person under investigation should not be given by a
member of the Garda Síochána unless he or she is satisfied that the carrying
out of the forensic procedure without consent is justified in all the
circumstances”.307 In assessing whether the carrying out of the forensic
procedure is justified in all the circumstances, the Garda should be required
to balance the public interest against the right to privacy and the right to
bodily integrity of the suspect. The HRC set out a number of matters to be
considered in balancing these interests including the seriousness of the
offence, the religious and cultural beliefs of the suspect, whether there is
another means by which evidence confirming or disproving the involvement of the
suspect in the offence can be attained and also the suspect’s reasons for
refusing consent.
48.
In
addition to this, in order for the interference with the individual’s bodily
integrity to be justified,308 appropriate safeguards should be
implemented to ensure that force in excess of reasonable force is not used. In
this respect, we endorse the recent recommendations of the Human Rights
Commission on this provision.309 It observed in respect of the
power to use reasonable force to obtain bodily samples that:
“The use of force by
members of the Garda Síochána should only occur when it is strictly necessary
and to the extent required for the performance of their duty. In particular,
where persons suspected of having committed a crime are in detention the use of
force should only occur in exceptional circumstances”.310
The HRC commented that
in order for the infringement to be a proportionate interference with an
individual’s right to bodily integrity, certain safeguards should be
introduced. It suggested that there should be adequate police training in the
taking of samples, comprehensive custody records should be kept and that a
prisoner should have a right of access to a medical practitioner. It has argued
that the use of reasonable force in obtaining bodily samples should only be
used on the basis that video-recording facilities are installed at Garda
stations, or alternatively, there should be an obligation on the Gardaí to take
a suspect to a station where there are such facilities.311 A further safeguard which would go some way towards
protecting the rights of suspects would be to permit their solicitor to be
present at the interview and when either consent is sought or cooperation is
required.
49. The Commission recommends the
implementation of safeguards to ensure that the power to use reasonable force
is not arbitrarily exercised. These safeguards should be similar to those
suggested by the Human Rights Commission and could be implemented in the form
of a Code of Practice.
51.
Section
2(9) of the 1990 Act makes it an offence for a person to obstruct or attempt to
obstruct the Gardaí or any other person acting under the powers conferred by
section 2(1). This subsection, together with section 3 which permits adverse
inferences to be drawn from any refusal to consent to a forensic procedure,
without reasonable cause, is aimed at encouraging the person detained to
consent and submit to a forensic procedure. Not only do they commit an offence
if they make it difficult for the Gardaí to obtain a sample, but any refusal of
consent to giving a non-intimate sample can count against them subsequently.
52.
Although
these two sections represent the elements of enforcement and compulsion in the
1990 Act, it is arguable, in view of the proposed increased use of force in
obtaining non-intimate samples from which a DNA profile may be generated,
whether these provisions will come into play at the later stage of proceedings.
One can readily envisage that the mere existence of a possible further offence
being pursued and an adverse inference being drawn will act as motivation to
comply, so much so that refusal of consent and obstruction may be rare.
53. One issue that arises in respect of
section 3 is its potential interference with the individual’s privilege against
self incrimination. Drawing an adverse inference in this instance is a form of
“DNA request surveillance”.312 It involves seeking to rely on a
refusal to consent to a forensic procedure as a sign that the individual has
“something to hide”. However, it is also apparent that the privilege against
self incrimination can justifiably be limited in the public interest. The
legitimate aim of crime investigation is furthered here. On the basis of the
principles enunciated earlier, it seems that the limit on the privilege is
proportionate.313 First, under this provision, no one can be convicted
on the basis of inferences alone. Secondly, under this provision, there is no
obligation to draw inferences. These limits on the power to draw inferences
lead the Commission to conclude that the measure is proportionate.
1.
Destruction of Samples and Records
54. The important subject of the
destruction of samples and records is governed by section 4 of the 1990 Act,
which states:
“(1) Subject to subsection
(5) of this section, every record identifying the person from whom a
sample has been taken pursuant to section 2 of this Act shall, if not
previously destroyed, be destroyed as this section directs and every sample
identified by such record shall be destroyed in like manner.
(2) Where proceedings
for any offence in respect of which a person could be detained under section 30
of the Offences against the State Act, 1939, or section 4 of the Criminal
Justice Act, 1984, are not instituted against the person from whom the sample
was taken within six months314 from the taking of the sample and
the failure to institute the proceedings within that period is not due to the
fact that he has absconded or cannot be found, the destruction of the record
and the sample identified by such record shall be carried out on the expiration
of that period unless an order has been made under subsection (5) of
this section.
(3) Where proceedings
have been so instituted and the person is acquitted or discharged or the
proceedings are discontinued, the destruction of the record and the sample
identified by such record shall be carried out on the expiration of twenty-one
days after the acquittal, discharge or discontinuance unless an order has been
made under subsection (5) of this section.
(4)(a) Where a person
from whom a sample has been taken is the subject of an order under subsection
(1) or (2) of section 1 of the Probation of Offenders Act, 1907, the
destruction of the said sample and every record identifying such sample shall
be carried out on the expiration of 3 years from the making of the order;
provided that he has not been convicted of an offence to which section 4 of the
Criminal Justice Act, 1984, applies during that period.
(b) Paragraph (a) of
this subsection shall not apply to an order under section 1 (2) of the
Probation of Offenders Act, 1907, discharged on the appeal of a person against
conviction if on appeal his conviction is affirmed.”
This section has the
effect of imposing an imperative against the retention of both records and
samples relating to those individuals who for various reasons, as provided for
in section 4, may be regarded as innocent of the offence for which the samples
were taken in the first place. For example if the person who is the source of
the comparator sample has been acquitted of the offence for which the sample
was taken, records and samples must be destroyed within 21 days after the acquittal.
54.
The
most important part of section 4 is subsection (2), which permits the
authorities to hold on to samples and records during the investigation of an
offence. The current time limit is 6 months, but it is proposed in head 12 of
the Scheme of the Criminal Justice Bill 2003, on the foot of a
recommendation from the Leahy Group, that this be extended to 12 months. It was
observed in the Leahy Report that:
“[t]here are balancing
considerations to be taken into account here, principally the operational desirability
of retention of samples set against what must be accepted as the principle that
there can be no open-ended retention of identifiable samples from unconvicted
suspects. On balance, we propose that the existing period of retention should
be extended to twelve months, with provision for further retention on judicial
authorisation.”315
Presumably this is
intended to allow the Gardaí more time to investigate an offence and collect
evidence against a suspect. Six months is not seen as an adequate time within
which to investigate an offence. Maintaining the retention period at six months
would therefore result in an excessive amount of requests for judicial
authorisation to extend the period for which the sample may be retained, a
power which is discussed below.
1.
These
provisions are analogous to the legislation governing the retention of
photographs, fingerprints, and palmprints: in section 8 of the Criminal
Justice Act 1984.316 However, whereas section 8(5) gives the individual
concerned (or their solicitor or someone authorised by them in writing) the
right to witness the destruction, there is no equivalent provision in the 1990
Act. This could be as a result of the practical difficulties of destroying the
sample and also because, the destruction in this instance, where work has been
completed on the sample, is carried out by the Forensic Science Laboratory as
opposed to the Gardaí. However, there does seem to be an anomaly in affording a
lesser degree of protection to DNA than to fingerprints. DNA reveals
significantly more personal information about an individual than a fingerprint.
2. By way of saver, section 4(5) of the
1990 Act provides that the court may, on application, authorise retention for a
longer period than 6 months in the event of there being a good reason why the
samples should not be destroyed. It is notable that this differs from the 1984
Act. Section 8(7) of the 1984 Act, dealing with fingerprints and photographs,
limits such an extension to a further six months only. Again, this anomaly may
be explained on the basis that during the Oireachtas debates concern was
expressed that limiting the period to six months would deprive those from whom
a sample was taken from authorising their records to be kept on file. The
argument is that a known individual may wish to take this option in preference
to being asked to provide fresh samples on a regular basis. This could be
catered for by including a consent provision and by placing the profile of such
a person on a volunteer database.317
3. This is a matter that falls to be
considered in the next chapter when recommending law in this field, but it is
worth mentioning that the Council of Europe Committee of Ministers recommended
that “[s]amples and other body tissues, or the information derived from them,
may be stored for longer periods: (i) when the person concerned so requests …”318
4.
Another
concern which should be mentioned here is that at present there is scope to
obtain samples outside the legislative framework.319 The safeguards which attach to
samples obtained under the legislative provisions do not apply to ‘volunteers’.
These ‘volunteers’ may include not only ‘suspects’ but also those who provide
prints to exclude themselves and assist the investigation. For example, the
victim’s sexual partner in relation to a sexual assault case or a victim’s
flatmate (or even friends who have visited) in a burglary case. The anomaly is
that the safeguards that exist in the legislative framework do not apply to
those donations.
5.
Ensuring
that the taking of bodily samples is solely governed by legislation would also
offer clarification in respect of the status of the bodily samples. Once the
bodily samples are obtained under the legislative framework, they become
evidence or potential evidence in the criminal investigation as opposed to the
property of the person from whom the sample was taken. Consequently, questions
of ownership do not arise in this instance. The samples are merely part of the
evidential process of solving crime.
6.
The Commission recommends that, as with fingerprints, the taking of
bodily samples should be governed by legislation which should encompass all
samples, even those taken on a voluntary basis.
5.
the taking of the DNA samples and the retention of the DNA profiles
1.
This
chapter and Chapter 6 are at the very centre of this Paper. As explained, the
essential steps in the use of DNA are the taking of the samples and its
analysis to yield a profile. Thereafter, the question arises as to whether the
profile and samples should both be retained or only the profile or neither. In
the present chapter, we address the question of whether, and subject to what
conditions, the sample may be taken and the profile both used and retained. We
emphasise that this chapter concerns the retention and use of DNA profiles
only. This is so even though much of the comparative legislation considered
will refer to the retention or destruction of both samples and records. In the
following chapter, we deal with the further question of whether the sample
itself should be retained.
2. In this chapter, we adopt an
essentially thematic approach and draw upon not only those general policy
considerations set out in Chapter 2 and the legal principles discussed in
Chapter 3, but also any relevant comparative material. As we have already
observed, the composition of any database of DNA profiles is primarily
dependant on whether the authorities may lawfully obtain a bodily sample from
an individual from which a profile can be generated. As part of the examination
of the present law in relation to carrying out forensic procedures (and
obtaining photographs and prints), outlined in the previous chapter, we
highlighted a number of anomalies that need to be addressed, some of which are
included in the Scheme of the Criminal Justice Bill 2003. However,
ancillary to the issue of whether the authorities may obtain a bodily sample in
order to generate a profile, the composition of a DNA database also depends on
whether the authorities are permitted to retain this profile for storage and
search on a database. The present law, as indicated in the previous chapter, is
framed in such a way that retention is the default position. In other words
while there are legislative provisions which direct (in certain widely drawn
circumstances) that the profiles (and samples) must be destroyed, not all
profiles and samples have been taken under statutory authority and in these
cases, the samples may be retained. Indeed, convicted offenders (other than
those dealt with under the Probation of Offenders Act 1907) and
volunteers are in the same position in relation to both bodily samples and DNA
profiles and prints and photographs, in that there is nothing directing that
these should be destroyed. We have indicated that the present situation is less
than satisfactory and our view is that no bodily samples and DNA profiles (and
for that matter photographs and prints) should be outside the purview of
legislation and the safeguards that come with regulation by statute.320
3.
As
regards the presentation of this chapter, in Part A, we examine whether
forensic DNA profiles can be retained at all in principle. In Part B, the
underlying justifications for both sampling an individual and retaining the
resulting DNA profile are outlined. In Parts C-E, we consider how these
justifications might apply to the sampling of and retention of profiles
obtained from suspects (including those subsequently convicted), those already
convicted, and various categories of ‘volunteer’. In these Parts we survey what
choices have been made in other jurisdictions and consider some of the key
provisions which provide for sampling and retention and destruction of
profiles. We also examine some of the important decisions of foreign courts in
relation to the most crucial constitutional conundrums that face policy makers
in this field. We consider whether a comprehensive database which would include
the entire population should be established. Finally, we discuss the issue of
retrospection. This entails examining whether the profiles obtained voluntarily
outside the ambit of the 1990 Act and the profiles obtained under the 1990 Act,
which have not yet been destroyed, may be retained under our proposed
legislative framework.
1.
Retention of Forensic DNA Profiles in Principle
4.
Before
we turn to the specific issues of the sampling of various categories of persons
and the retention of their DNA profiles and the justifications for this
sampling and retention, it must be discussed whether DNA profiles should be
retained at all in principle.
5. The distinction between the
biological sample and the profile should be emphasised. This distinction is
very important in determining whether the sample or the profile or both should
be kept or destroyed. Accordingly, before considering the various options that may
be taken in respect of each, it is appropriate to go into some detail about
what a profile reveals about the source of the sample.
6. From the outset the same observation
that was made above,321 is equally applicable here: namely, the threat to
privacy through the collection, use and storage of genetic information is only
as great as the extent to which we are able to understand the information. This
argument has been well made out by Redmayne in the context of a DNA database,
as follows:
“[E]ven if we were
given information about a person’s entire DNA sequence, there would be
relatively little we could say for certain about him or his future. In the
context of the privacy implications of the DNA database, an even more important
point is that the database does not even contain the entire sequence. It only
contains DNA profiles: information about the DNA at several loci (sites) on the
genome. These loci form only a tiny portion of a person’s DNA. The extent to
which the database is a threat to privacy, then, depends on whether these
profiles contain important information about the lives of the donors of the
profiles.”322
7. The discussion above on current
profiling techniques and generally about DNA, indicated that it is the
non-coding areas of the DNA molecule that are used in forensic work.323 We explained that the reason for targeting non-coding
rather than coding regions was because there is more variation between
individuals in the non-coding areas and that these therefore provide a more
suitable basis for identifying and differentiating between individuals. Genetic
privacy did not feature in this as a specific issue. However, with the gradual realisation
that non-coding regions may be more important and reveal much more than
previously envisaged, genetic privacy has become a very serious concern. After
all if the loci used in forensic profiling are truly non-coding then the
storage on databases of DNA profiles represents no more of a threat to privacy
than the storage of fingerprints and photographs. But, if the genetic
information that cannot at present be interpreted were to become capable of
interpretation in the future, then many of the concerns voiced in relation to
the retention of samples may be equally applicable in respect of profiles.
8.
The
prospect that a forensic profile may be interpreted and that sensitive
information may be derived about the source is not an entirely remote prospect.
Although not used in forensic profiling, some STR loci which were thought to be
non-coding may be linked to diseases, for example fragile X syndrome, myotonic
dystrophy and Kennedy’s disease.324 Even more worrying is the
suggestion that one of the most commonly used loci in forensic profiling, THO1,
may be associated with bi-polar illness.325 One commentator has suggested
that if this association is confirmed then the use of THO1 in profiling should
be discontinued in order to avoid inadvertent disclosure of what is obviously
very sensitive genotype information. This association has not yet been shown to
exist and there remains a large degree of conflict arising from differing
scientific studies.326 All that can be said is that there are examples where
STR loci originally thought to be ‘non-coding’ may be shown to reveal quite
personal information about the source. These are compelling reasons for being
extremely cautious in claiming that a forensic profile will never give rise to
any privacy concerns. Consequently, the security, confidentiality and isolation
of the forensic profile is a matter which should be approached with caution.
9.
The
threat to privacy through the retention of DNA profiles is not, however,
restricted to the potential discoveries highlighted in the preceding paragraph,
as there are more immediate ethical concerns. Whilst a profile reveals only a
snippet of information about an individual’s DNA at a number of loci along the
vast DNA strand, the profile conclusively proves parentage and relatedness.327 By way of example, the remains of the Romanovs were
identified using samples provided by the British Royal family and DNA testing
in immigration disputes is now commonplace.328 Because a DNA profile reveals and
confirms parentage and relatedness with such a high degree of certainty it is
not difficult to envisage that the retention of a vast collection of profiles
(particularly on a searchable electronic database) will give rise to some
concerns about the privacy and confidentiality of information about a family,
as it would be possible not only to confirm but also to disprove relatedness.
Again the threat to what one may term ‘familial privacy’ is dependent on the
relative inclusiveness of any database of profiles. If the database contained
the entire population or even a substantial proportion of it, access to that
database would enable someone to uncover potentially damaging information about
families. Even with the most stringent security measures in operation the mere
existence of a vast collection of profiles is a serious concern. Revelations
that the man indicated as the father of a child on the birth certificate of
that child is not in fact the biological father and also revelations that
siblings are only half-siblings could cause unquantifiable distress.
10. However, if the database were to be
made up of profiles taken from a relatively small and distinct group - for
example those convicted or suspected of serious offences - then the threat
would be correspondingly reduced. Some may argue that this is discriminatory,
in the sense that such an approach would discriminate between those convicted
or suspected of crimes and those who are not. This represents one of the
crucial issues to be addressed in this Consultation Paper, but before this
subject is tackled in full it is worth noting that, whilst arbitrary
classifications and grouping is objectionable, differences in treatment between
different groups does not as such amount to discrimination, whether under the
Constitution or the ECHR. The crucial issue is whether differentiation in treatment
can be justified on some objective criteria, including the questions of
reasonableness and proportionality. Indeed, the law currently ‘discriminates’
in relation to the long term storage of fingerprint records between offenders
and those who have never come to the attention of the authorities. In any
event, regardless of the nature of any database of profiles, which we consider
later in this chapter, it is clear that access to and disclosure of profile
information should be closely regulated and confined.
11. The Commission is of the view that,
at present, the secure storage of DNA profiles is not, in principle,
objectionable.
2. Justifications for Sampling and
Retention of Records
12.
At
this point, it is useful to examine the underlying rationale and justifications
for the sampling and retaining of DNA profiles. This will enable us to deduce
the categories of persons, whose profiles should be retained on the database.
In Chapter 2 we set out some general observations in relation to why
investigatory authorities collect and retain certain information and evidence
from all manner of individuals, but particularly those suspected of
perpetrating crime.329 In this part it is appropriate to examine in more
detail these underlying rationales since they purport to justify the
interference with the rights to privacy and bodily integrity that the taking of
samples and their retention necessarily entails.330
1.
Evidential Significance Justification
13. At present, the justification for
first obtaining a DNA profile under the Criminal Justice (Forensic Evidence)
Act 1990 is that it will “tend to prove or disprove involvement in an
offence.”331 In other words, the profile must have some
‘evidential significance justification’ in the investigation, for example
because biological material thought to have emanated from the perpetrator has
been found at the scene of crime. Comparator profiles are required not only to
identify a potential suspect, but also to eliminate from further investigation
as a prime suspect those who have been present innocently at the scene. Where a
hair root sample (from which a profile may be generated) is found near the
broken window of a house that has been burgled, it is essential to establish
that the hair does not belong to anyone living in (or perhaps even those who
have recently visited) the house. If the hair root sample is unaccounted for,
in the sense that the source has not been identified as emanating from those
innocently present, then perhaps in the absence of other evidence, this may
provide a vital lead to the investigators. If an individual was observed close
to the scene of the burglary, then a comparator sample would be required from
that person in order to carry out a comparison with the supposed “crime stain”
or hair root profile so as to determine whether that person or that person’s
hair can be placed at the scene.
14. This justification, which is in the
main applicable to obtaining samples, is particularly cogent in relation
to the investigation of past and present crimes. This is because a profile may
be compared to those profiles generated from biological material found at the
scene of either the present crime or an historic crime.332 However, in relation to the investigation of a future
crime, any evidential significance that the profile may have is speculative.
1.
Intelligence Gathering or Database Justification
15. Where the concern is with
facilitating the detection of future crimes, the principal rationale is the
intelligence gathering or database justification, which is more broadly
applicable to retaining profiles than obtaining them. This argument is
that retaining profiles, especially on a database in a searchable format, is
not only a useful intelligence tool for investigating crimes which have been
committed but also could have some deterrent value as regards the criminal
activity of those whose profiles are stored on the database. The tool therefore
has a dual function.
16.
As
regards the first function, the storage of profiles has two applications:
first, where there is no match between the scene of crime stain profile and any
of the database profiles, the investigatory authorities may exclude those
individuals whose profiles are stored from further investigation;333 and secondly, where there is a match between a
profile from a crime scene stain and a database profile, this provides useful
intelligence334 to investigators, who may then seek to detain and
question the individual concerned. This latter application may also be more broadly
described as enabling the State to combat recidivism or ensure that those who
repeatedly re-offend are apprehended quickly and dealt with appropriately.
17.
Secondly,
it is also possible that the storage on a database of profiles may have a
deterrent effect on those contemplating criminal activity although in most
cases this seems rather far-fetched (especially considering that
proportionately a large number of offenders for which DNA evidence would be
relevant would be sexual assaults).335 The effectiveness of profiling
and the storage of profiles on a database are such that perpetrators are likely
to be identified and linked to a crime even through the discovery of a single
hair root sample at the scene. Although, it should also be noted that the
countervailing argument is that criminals may become more adept at preventing
their biological material being left at the scene of crime in the first place.
18. The difficulty is where one should
draw the line: just because the storage of DNA profiles on a database may
fulfil these two functions of detection and deterrence, can this justify
retaining profiles across a broad spectrum of circumstances or for that matter
justify the retention of everyone’s DNA profile? This is as much a policy
matter as it is a jurisprudential question and we pick up this thread when
considering the substantive issues below.
1.
‘True
Identity’ or Person Identification Justification
19.
The
final justification is in essence based upon the need to establish the true
identify of the individual concerned. Apparently, in a significant number of
cases those suspected of involvement in an offence when detained give a false
name and details which are not always readily discoverable and then, once
released on their own recognisance or on police bail, that individual may evade
further action. Indeed, this was one of the main justifications provided by the
Minister for Constitutional Affairs and Lord Chancellor, Lord Falconer, to the
UK Parliament’s Joint Committee on Human Rights in explaining the proposals
contained in the Government’s Criminal Justice Bill to further extend
the power to take and retain fingerprints and samples.336
20.
This
argument has until now been primarily deployed in order to justify the carrying
out of routine fingerprinting and photography and other traditional
identification procedures on those arrested. An examination of US jurisprudence
in relation to fingerprinting and other forms of ‘inventory’ would seem to
suggest that in this context constitutional propriety is taken for granted. For
example, in Napolitano v United States337 the 1st Circuit Court
of Appeals stated that the “[t]aking of fingerprints [prior to bail] is
universally standard procedure, and no violation of constitutional rights”.
Also in Smith v United States338 the District Circuit Court
of Appeals stated that “it is elementary that a person in lawful custody may be
required to submit to photographing … and fingerprinting … as part of routine
identification processes.”
21.
Moreover,
in the particular context of DNA databasing, the 4th Circuit Court
of Appeals in Jones v Murray339 pointed to “universal approbation
of ‘booking’ procedures that are followed for every suspect arrested for a
felony, whether or not the proof of a particular suspect’s crime will involve
the use of fingerprint identification”. The court also highlighted the state
interests in “preserving a permanent identification record of convicted
felons”. But as Kaye observes, the court, in concluding that the collection of
DNA genotypes (like fingerprints) was justified to link an offender to a crime,
“lost sight of the original rationale for fingerprinting and spoke only of
‘resolving past and future crimes” in that “it is a well recognized aspect of
criminal conduct that the perpetrator will take the usual steps to conceal not
only his conduct, but also his identity.”340 Clearly, as Kaye implicitly says,
the court in this case seems to be conflating both the (less embracing)
evidential significance and database justifications, set out at (2) and (3)
above, with the (more embracing) ‘true identity’ justification.
22.
Despite
this lack of specificity in analysis and in the application of the ‘true
identity’ justification there remains some merit in its potential deployment in
relation to the routine sampling of those individuals who have been arrested on
suspicion of involvement in an offence.
23.
However,
the Commission concludes this section by noting that this justification is of
future rather than present significance. At present the main sources of
identification include documentation in the possession of the individual
concerned, such as a driving licence, or fingerprint and photograph records
held by the authorities. In relation to the latter sources, the Gardaí are the
custodians of fingerprint and photograph databases and may relatively quickly
take a suspect’s fingerprints and photograph him or her after which the
databases may be interrogated – this can be done with increasing efficiency
with the extended use of fingerprinting technology, such as Live Scan, coupled
with the efforts of the Criminal Records Bureau to store both fingerprints and
photographs on an integrated and searchable electronic database. If a suspect
is photographed and fingerprinted as part of routine “booking” procedures, then
their ability to avoid further prosecution by providing false information is
significantly curtailed. Of course suspects may change their appearance or
provide a false name and address, but short of self-mutilation it would be
extremely difficult to conceal their fingerprints, which are unique – even in
the case of identical twins.341 Thus, fingerprint records provide
a practical and effective way of establishing the ‘true identity’ of an
individual.
24. However, DNA profiling is a
significantly more discriminating means of distinguishing between individuals
than, for example, blood grouping.342 But in order to be an effective
method of establishing the ‘true identity’ of an individual, a DNA profile, at
a practical level, must be readily obtainable and any database of profiles
would also have to be readily accessible. The present technology is such that a
profile takes rather a long time to generate – around 24 hours depending on the
type of sample to be profiled and the workload of the laboratory,343 whereas a fingerprint scan can be done in a matter of
minutes. Equally, the technology is not at the stage whereby a profile can be
generated – or for that matter a fingerprint scan can be obtained – using
handheld devices. If and when this technology is developed then the true
identity argument in favour of routine profiling (as well as fingerprinting)
becomes more forceful. The rapid improvement in DNA techniques makes such advances
imminent and forethought is required.
1.
Threshold
25. As discussed in the preceding
chapter the current sampling threshold set by the 1990 Act is broadly that of
an arrestable offence.344 In the main the sampling powers conferred by the Act
are applicable in respect of those detained for offences attracting a potential
sentence of five years (or more serious punishment), offences under the 1939
Act, as well as various drug trafficking offences. We consider here what
thresholds have been set by other jurisdictions in relation to the obtaining of
samples from suspects and in light of such practice whether the existing
threshold should be reconsidered.
26.
What
appears to be usual international practice has been to concentrate on obtaining
samples from those suspected of the most serious of offences. For example in
Germany the authorities may, for the most part, only obtain samples from those
suspected or arrested for an “offence of substantial significance.”345 This term includes all serious offences plus a
limited number of minor offences, which are themselves relatively serious. For
an offence to fall within this second category, it must be attributable to a
sphere of medium delinquency, it must disturb the public peace severely and it
must be capable of substantially affecting the population’s feeling of legal
security. Examples of minor offences falling within this provision include
dangerous bodily injury and theft in a particularly serious case.
27.
Also
under the Canadian Criminal Code a warrant to obtain bodily samples may
only be obtained if there are reasonable grounds to believe that a “designated
offence” has been committed.346 Designated offences, which fall
into the two categories of primary and secondary, are enumerated in the Criminal
Code and include the more serious crimes, such as facilitating terrorist
activity, murder, manslaughter, sexual assault (which are primary), child
pornography, indecent acts and assault (which are secondary).347 The distinction between the two categories of offence
is important in terms of whose profile may be retained and stored on the DNA
database.
28.
In
New South Wales section 3 of the Crimes (Forensic Procedures) Act 2000 provides
that a DNA sample may only be obtained from individuals who are suspected of a
“prescribed offence” or who have been convicted of a serious indictable
offence. A prescribed offence is defined as an indictable offence or any other
offence that the State has prescribed by regulation.348 Although the scope of DNA
sampling procedures may be widened by the State passing regulations designating
offences, sampling is concentrated on the more serious offences. Indeed, the
Parliament of New South Wales Legislative Standing Committee on Law and Justice
in its Review of the Crimes (Forensic Procedures) Act 2000 (“NSW
Review”)349 considered that less serious summary offences should
not result in DNA sampling and recommended that no additional offences be
prescribed for the purposes of section 3.350 The NSW Review also expressed
concern about the use of secondary legislation to expand the range of offences
that might result in a suspect being subjected to a forensic procedure and took
the view that such public policy decisions should be made only after full
parliamentary debate. Accordingly, the NSW Review recommended that the
Attorney-General remove the enabling provision from section 3, thus ensuring
that any further prescribed offences are added only after debate and by primary
legislation.351
29. Originally in England and Wales
(which is from where the 1990 provisions were essentially derived) the Police
and Criminal Evidence Act 1984 (“PACE”), which governs the powers of the
police, set the threshold at the level of a ‘serious arrestable offence’.352 This threshold has now been down-graded by subsequent
amendment to a ‘recordable offence’.353 A recordable offence is one which
is potentially punishable with imprisonment of any length as well as certain
other specified non-imprisonable crimes such as loitering or soliciting for the
purposes of prostitution, possessing a weapon with a blade or a point in a
public place, or tampering with a motor vehicle.354 Following this first series of
amendments to PACE, in the Criminal Justice and Public Order Act 1994
(the second being through the Criminal Justice and Police Act 2001), the
Home Office issued a Circular on the National DNA Database,355 which stated as follows:
“The new PACE
provisions allow CJ [comparator] samples to be taken in all recordable
offences. Chief officers have agreed that all offenders committing recordable
offences will be profiled but that, in the first instance, the police should
only obtain samples from offenders in the categories:
i) offences against
the person;
ii) sexual offences;
and
iii) burglaries.
This does not,
however, preclude forces from obtaining CJ samples for other recordable
offences for inclusion on the database nor does it compel forces to take
samples in all the above categories or in all cases in selected categories. All
forces should have a clearly stated policy for sampling.”356
30. The result of this shift in the
requisite level of seriousness of offences has been that the number of profiles
stored on the database has increased exponentially since 1995. Indeed the
number recently passed the 2 million mark and the Home Office circular issued
in 1995 envisages that, in time, the database will hold up to approximately 5
million records.357 As Lord Woolf CJ noted in R (S and Marper) v Chief
Constable of South Yorkshire “[s]o far as the prevention and detection of
crime is concerned, it is obvious the larger the databank of fingerprints and
DNA samples available to the police, the greater the value of the databank will
be in preventing crime and detecting those responsible for crime”.358
31.
It
should, however, be emphasised that the law applicable in England and Wales is
the exception rather than the rule and that the majority of States confine
forensic sampling to the more serious offences. The position in the UK has in
fact attracted considerable criticism. Indeed the Human Genetics Commission
recently commented that “the emphasis in forensic profiling should primarily be
on its use for serious criminal offences particularly those involving personal
injury to another”.359 They expressed concern that DNA samples could be
compulsorily taken from those suspected of minor offences for example
shoplifting and fraud. They encouraged a greater public dialogue on the issue
and urged the UK Government to review their decision to increase the range of
offences for which a sample may be taken.
32.
As
the Irish Council for Civil Liberties commented “Given the invasive nature of
taking DNA samples, non-consensual testing should generally be strictly limited
to persons convicted of serious offences”.360 This is the present position
under the Criminal Justice (Forensic Evidence) Act 1990. The 1990 Act
allows for the taking of samples from persons suspected of committing crimes
under the Offences Against the State Act 1939, the Criminal Justice
Act 1984 and the Criminal Justice (Drug Trafficking) Act 1996.
Broadly speaking the powers conferred by the 1990 Act are aimed at offences
towards the higher end of the scale of seriousness.361 The penalty for the majority of
these offences is imprisonment for a period of at least five years. As is
evident from the Oireachtas debates, the intention of the legislature was
always to confine these powers to serious offences.362
33.
It
is suggested therefore that samples should only be obtained from those
suspected of committing offences of a serious nature. Permitting the obtaining
of samples from those suspected of very minor offences would constitute a
disproportionate interference with their bodily integrity and privacy rights.
Generally, individuals suspected of very minor offences363 may not even be questioned under the present law.
Allowing the compulsory taking of their DNA is a greater encroachment on their
rights than questioning. Given the interference with the privacy and the bodily
integrity rights of the suspect entailed by these provisions, they should be
confined to, at the very least, relatively serious offences so as to meet the
test of proportionality. In addition to this, on a practical note, it has
recently been observed by one commentator that the expense of DNA profiling is
not justified where it is expended merely to apprehend minor offences.364
34.
It
has been suggested that the present provision, which outlines the offences for
which it is permissible to take a bodily sample, could be replaced by a
provision enabling samples to be extracted where a person is suspected of an
“arrestable offence”. An “arrestable offence” is defined by the Criminal Act
1997 as “an offence for which a person of full capacity and not previously
convicted may, under or by virtue of any enactment, be punished by imprisonment
for a term of five years or by a more severe penalty and includes an attempt to
commit any offence”. The Commission however submits that the definition of “arrestable
offence” does not cover a sufficiently broad spectrum of offences. Persons
detained under section 2 of the Criminal Justice (Drug Trafficking) Act 1996
may not be suspected of offences which meet the threshold of “arrestable
offence” but nonetheless could be suspected of relatively serious offences,
which the acquisition of DNA may be necessary to solve.365 Given that persons suspected of committing these
offences may be detained in custody, the objections to obtaining DNA samples
from them seem unpersuasive. It would be arbitrary and irrational to preclude
the obtaining of a DNA sample in these few cases.
35.
The
Commission concludes that there should be no alteration to the present
situation in respect of the offences for which it is possible to obtain DNA
samples from suspects. It should be possible to obtain bodily samples from a
suspect when they are in custody under section 30 of the Offences Against
the State Act 1939, section 4 of the Criminal Justice Act 1984 or
section 2 of the Criminal Justice (Drug Trafficking) Act 1996.
36.
The Commission does not recommend any amendment to the present position
by which a person must (subject to limited exception) be suspected of an
“arrestable offence”, that is one carrying a penalty of at least five years
imprisonment, to authorise the taking of a forensic sample.
1.
Retention of Profiles in General
37.
In
examining what profiles should be retained on the database, one must discuss
the two competing arguments that are made in this context. First, it has been
argued that the storage of DNA profiles taken from citizens is unjustifiable.366 It is argued that the right to privacy implies that
citizens should be entitled to control their own personal information and live
life in privacy and not in a “total surveillance state”.367
38.
On
the other hand, it has been argued that the retaining of the profiles of the
entire population would significantly assist crime investigation and would
consequently enhance citizens’ civil liberties.368 This argument is discussed in
greater detail later in this chapter.369 Clearly a comprehensive (or
inclusive) databank of fingerprints, palmprints, photographs, DNA profiles,
retinal scans, and other biometric information, together with other details,
such as names, addresses, employment history, and criminal records, would serve
a number of purposes. These may include the detection of crime, benefit fraud,
and illegal immigration.
39.
This
Paper aims to effect a compromise between these two opposing positions.
Although both these competing positions have merit, it is suggested that
neither can be pursued in isolation. While it is necessary for the interests of
society in crime investigation to be safeguarded, it is also imperative that
there should be no unjustified intrusion into and interference with an
individual’s right to privacy and bodily integrity. Ultimately, this is, as the
case law under the ECHR indicates, a question of proportionality and
reasonableness.
40.
The
difficulty in determining the proportionality of a measure cannot be
underestimated.370 For example, it is apparent that the retention of a
violent offender’s DNA profile, which may be used to link them to future as
well as past crimes (and perhaps deter them from committing further offences)
on the basis of an amalgamation of the evidential significance and database
justifications appears reasonably justifiable and proportionate. A more testing
scenario is the retention of a profile from someone who has committed fraud or
another non-violent ‘white-collar’ crime. It is, moreover, particularly
difficult to justify the retention of a profile from someone who has not been
(and perhaps, therefore, is unlikely in the future to be) involved in criminal
activity involving the transfer or abandonment of biological material. Although
in the future such a profile could in fact be useful to ascertain the identity
of the individual. One must also observe that our idea of what crimes may and
may not require forensic examination to forage for biological material for DNA
analysis is becoming increasingly blurred because of the lightning speed at
which the technology is advancing. For example, even a fraud case may involve
the inadvertent abandonment of biological material, such as by the fraudster
licking the envelope, within which one of the crucial documents relating to the
fraud was sent to the victim, and thereby leaving skin cells present in the
saliva.
41.
Moreover,
the answer to the question of what is legitimate and necessary may change
depending on the challenges of a given social and political climate. For
example, the Omagh bombing of 1998 may have persuaded the Oireachtas to enact
provisions in the Offences Against the State Act 1998, at which it might
otherwise have baulked. Similarly, the emergence of global terrorism has
enabled the UK administration to propose and its legislature to enact laws that
in a pre-9/11 context would be viewed as quite draconian, but are now regarded
as both legitimate and necessary. The English High Court has also recently
stated that use of the wide powers conferred by the Terrorism Act 2003
to stop and search demonstrators at an international arms-fair in east London
had been justified “in light of the threat of terrorism.”371
1.
Retention of Profiles of Suspects
42. The 1990 Act is silent on what is to
happen to the samples and profiles taken from those suspects who are convicted
and not dealt with under the Probation of Offenders Act 1907.372 However, section 4 of the 1990 Act does direct that,
in respect of those individuals who are subjected to a forensic procedure such
as the taking of a sample for DNA, as part of the investigation of an offence
but who are not ultimately convicted of any offence, the bodily samples and
records relating to those samples must be destroyed. It can therefore be
inferred as a result of the rule that if a provision expressly covers one
situation and does not mention another cognate case, it is to be taken not to
embrace the related case (the expressio unius est exclusio alterius
rule), that if these suspects are convicted, their profiles can be retained.373 Consequently, there does not appear to be any
prohibition in the legislation on the indefinite retention of the profiles of
suspects who have been convicted but not dealt with under the Probation of
Offenders Act 1907. In this section, we examine the situation in respect of
suspects who are not subsequently convicted.
43.
A
brief survey of the options taken in other jurisdictions in relation to
suspects not convicted is instructive. In New South Wales, section 88 of the Crimes
(Forensic Procedures) Act 2000 requires that forensic material taken under
the Act must be destroyed if:
“(i) An interim order
is disallowed after the procedure is carried out;
i.
A
serious indictable offender has his or her conviction quashed and the sample
was taken after a court order;
ii.
In
the case of a suspect, 12 months has elapsed since the forensic material
was taken and proceedings have not been instituted against the suspect for the
offence, or proceedings have been discontinued;
iii.
In
the case of a suspect for who there is a warrant for arrest, the warrant
expires or 12 months has elapsed since the suspect was apprehended;
iv.
The
suspect is convicted but no conviction is recorded.”
This
particular legislation, as noted above, has recently been the subject of an
extensive review. The NSW Review made a number of recommendations on the
destruction of profiles and samples, including that both the samples and
profiles of those suspects who have been exonerated, acquitted or otherwise
cleared should be destroyed and the Committee took the view that retention is
not justified when an individual is no longer a suspect.374
44.
In
New Zealand, the Criminal Investigations (Bodily Samples) Act 1995
provides for the destruction of DNA samples and related records on acquittal,
or on withdrawal of a charge.375 Under section 60(f) a sample must
be destroyed 12 months after it has been taken if within that period there has
been no charge in relation to the investigation. Section 61 of the Act allows
for the extension, on an application to the High Court, of the period within
which a sample may be retained, where a person has not been charged with an
offence within 12 months of the taking of the sample. In order to extend the
period of retention, the High Court judge must be satisfied that there is still
good cause to suspect that the person committed the offence, that there is good
reason why he or she has not yet been charged, and that it is important to the
investigation of the offence that the bodily sample and the profile be
retained. This latter provision is somewhat analogous to section 4(5) of the
Irish Criminal Justice (Forensic Evidence) Act 1990 and ensures that the
framework is not a straitjacket on the authorities investigating difficult and
complex cases which may entail delays in bringing a prosecution.
45.
At
the more inclusive end of the spectrum, in England and Wales, the Criminal
Justice and Police Act 2001 (which amends the Police and Criminal
Evidence Act 1984 (“PACE”)) removes the prohibition on the retention
of fingerprints or samples, including DNA samples, after the person from whom
they have been taken has been acquitted, or a decision has been taken not to
prosecute. The amended section 64(1A) of PACE also allows fingerprints or
samples to be retained and used in the investigation of other unrelated
offences. Under section 64(1B) of PACE, fingerprints and information derived
from samples may be retained on a database and speculative searches carried out
against them.
46. These powers are the broadest
granted in relation to the retention of samples and profiles and have led some
to argue that they permit excessive intrusion on privacy rights. Indeed, a
leading UK human rights organisation, Justice, in its response to the proposals
when the 2001 Act was published as a Bill, stated as follows:
“[T]here are
significant questions as to whether the indefinite retention of fingerprint and
DNA samples … would be considered to be a proportionate interference with
privacy rights under Article 8 of the Convention. Although the Court and
Commission of Human Rights have held that the retention of records, where there
has been an acquittal or a decision not to prosecute, may be justified where
the information is necessary for the investigation and prevention of terrorist
offences, this has been stressed to be in the context of the serious threat to
public safety posed by organised terrorism in the UK at that time. There are
considerable doubts as to whether a similar principle would apply in relation
to the investigation of the broad spectrum of criminal offences.”376
47.
Interestingly,
although profiles obtained in Scotland are submitted to the UK National DNA
Database, the law in England and Wales is not mirrored north of the border. In
Scottish law, there still exists an obligation on the authorities to destroy
samples and profiles taken from persons suspected of an offence, but who are
subsequently acquitted or not prosecuted.377 The Human Genetics Commission
(“HGC”) in its report on the use of personal genetic information highlighted
the compliance difficulties in relation to the destruction of those ‘Scottish
profiles’ that are loaded on the UK database378 – a matter that we will address
in the Irish context379 when considering oversight and regulation.
48.
However,
while the Human Genetics Commission criticised the fact that the UK legislation
allows for the retention of samples from suspects after they are
acquitted or charges are dropped, they did not condemn the provision allowing
the profiles of persons to be retained in these instances. The HGC
recognised the importance of the distinction between the samples and the
profiles. While a sample can potentially contain the whole of an individual’s
genetic make-up, the personal genetic information contained in a profile is at
present extremely limited.380 As a result, the arguments in
favour of the destruction of samples are considerably stronger than those in
respect of the deletion of the profiles derived from them. The Commission
recommends the destruction of all comparator samples after the conclusion of
the trial for which they were obtained.381
49. The issue of the retention of DNA
profiles and samples lawfully taken from people who have been investigated but
not convicted of any offence has recently been considered by the Court of
Appeal of England and Wales in the light of the Human Rights Act 1998 in
the case of R (S and Marper) v Chief Constable of South Yorkshire and
Secretary of State for the Home Department (“Marper”).382
50.
The
facts of these conjoined appeals were as follows. S, a 12 year old boy, with no
previous convictions, was arrested on a charge of attempted robbery. He had his
fingerprints and DNA sample taken but subsequently he was acquitted of the
offence. In the other appeal, Marper had been arrested and charged with
harassment of his partner. His fingerprints and DNA sample were also taken.
Subsequently the CPS issued a notice of discontinuance. The legal
representatives of S and Marper applied to the Chief Constable of South
Yorkshire to have their fingerprint records and DNA samples and records
destroyed. However, pursuant to section 64(1A) of Police and Criminal
Evidence Act 1984 (as amended by the Criminal Justice and Police Act
2001), which retrospectively permitted the authorities to retain such
records and samples, the Chief Constable refused to accede to these requests.
51.
Counsel
on behalf of the claimants argued that the retention of the samples breached
Article 8 of the ECHR on the right to privacy and Article 14 of the ECHR on the
right to non-discrimination.
52.
All
three judges in the Court of Appeal accepted that retention did interfere with
Article 8 rights. Waller LJ was convinced by the submissions of Liberty that
“there is a breach of Article 8(1) in the retention and use of samples
independent from the original breach of that Article in the taking of the
samples in the first place.”383 For Lord Woolf CJ, whether there
was any interference depended much upon the cultural traditions of a particular
state and in view of these he concluded that “fingerprints and samples are
material which is regarded as being personal to the individual from whom it is
taken and so requires legal justification before it can be retained.”384 In recognising that the retention of personal
information represents a further and continuing invasion of the right to
respect for one’s private life, Sedley LJ took into account “the strong
cultural unease in the United Kingdom about the official collection and
retention of information about individuals.”385
53.
It
therefore fell to the court to determine whether the interference was justified
by reference to Article 8(2).386 The Court of Appeal accepted that
the justifications advanced in Article 8(2) were in issue. By virtue of section
64(1A), the retained profiles may only be used for the purposes of the
prevention or detection of crime, investigation of an offence or the conduct of
an investigation. The “prevention of disorder or crime” is specifically
expressed in Article 8(2) to be a concern which justifies interference with the
right to privacy. The Court of Appeal then went on to consider whether the
interference with Article 8 was proportionate and held that it was. Lord Woolf
CJ held that this was so because only the fingerprints and samples that were
lawfully taken could be retained. He also stated that there was no less harmful
means by which the objective could be achieved. The interference in question
here did not go beyond what was necessary for the objective in question to be
achieved. Both Waller LJ and Sedley LJ were influenced greatly in holding that
the measure was proportionate by the fact that the profile could not be used
for any purpose other than crime enforcement purposes. Liberty had submitted
that science could in the future enable DNA analysis to prove an individual’s
propensity to commit certain crime and the wording of the section was
sufficiently broad to encompass the use of DNA for this purpose. They also
alerted the court to the risk that the samples and profiles could be used in an
unlawful manner. However, Waller LJ dismissed the first concern by holding that
any change in the law or practice must comply with the Convention. He dismissed
the concern about risk of unlawful use by refusing to assume any unlawfulness.
He also held that the risks in question here were outweighed by the benefits in
achieving the aim of preventing crime.
54. The potential infringement of
section 64(1A) with Article 14 of the ECHR, which protects against
discrimination, was also considered. The Court of Appeal unanimously decided
that there was no breach of Article 14. There was no discrimination in the
obtaining of the samples as it was necessary to obtain these samples for the
investigation of the offence. The presumption of innocence did not preclude
people from being investigated for offences so the fingerprints and samples
were lawfully taken in the course of the investigation. Once these samples were
lawfully obtained, there was an objective difference between citizens who had
their samples or fingerprints taken and those who did not. What distinguishes
them is the fact that the suspects have already had their fingerprints taken.
The different treatment was deemed to be fully justified as unless the samples
or fingerprints matched those alleged to be responsible for an offence, no
harmful consequences would flow from the retention.
55.
Implicit
in the Court of Appeal’s decision in Marper is a measure of judicial
respect for the legislature. Lord Woolf CJ observed that “it is important that
the courts show appropriate deference to the body whose decision has the
advantage of being able to rely on unimpeachable democratic credentials”.387
56.
This
approach is comparable to the “margin of appreciation” test in ECHR
jurisprudence, which provides that “by reason of their direct and continuous
contact with the vital forces of their countries, the national authorities are
in principle better placed to evaluate the local needs and conditions”.388 As Sir John Laws points out the margin of
appreciation is not relevant in the domestic context.389 As a result of the ECHR Act 2003, the ECHR will in
the future be administered in Ireland by Irish judges. Consequently, the margin
of appreciation will not be applicable in this context.
57.
Nevertheless,
a similar doctrine of domestic judicial deference has emerged in the UK case
law on the Human Rights Act 1998. It seeks to maintain the distinction
between appeal and review thus ensuring that the courts do not take over the
role of primary policy and decision-maker. For example, areas that may require
“judicial reticence”390 include social or economic policy391 and allocation of resources.392 In the development of Irish
constitutional law, the courts have adopted similar “rules of prudence”.393
58.
While
expressing judicial deference in the specific context of Marper, a
further feature of Lord Woolf CJ’s judgment is the explicit recognition that
there is nothing in the ECHR setting a ‘ceiling’ on the level of respect which
a jurisdiction is entitled to extend to personal rights. Accordingly, there may
be situations where the standards of respect for the rights of the individual
may be higher than those required by the ECHR.
59.
As
discussed earlier,394 the European Commission on Human Rights (“ECmHR”)
confronted, in the case of McVeigh, the issue of retaining personal data
taken from an individual, including photographs and fingerprints, where that
individual was not convicted of any offence. In that case the ECmHR was
satisfied that not only did the purpose of the retention pursue a legitimate
aim, but that the measure permitting retention (for the time being) was
proportionate in view of the threat posed by terrorism in the UK. One
commentator has suggested that the ECmHR may also have been influenced by the
fact that the personal data retained was used for identification purposes only
and kept separately from criminal records.395 In light of this case and
considering that the Irish courts have a duty to take into account the
jurisprudence of the Strasbourg institutions,396 it is evident that it is
permissible for profiles of persons who are suspected of terrorism to be
retained on a database, even if charges are not subsequently brought.
60.
At
present, the ECtHR has yet to decide on the compatibility of measures allowing
suspect’s profiles to be retained indefinitely on national databases with the
ECHR. It has yet to decide whether concerns other than that of preventing
terrorism can justify the retention of acquitted suspects’ fingerprints and DNA
profiles indefinitely. The Court of Appeal in the UK has in Marper however
affirmed the compatibility of measures allowing for the indefinite retention of
suspects’ profiles with the ECHR.
61.
On
this important issue, the Commission favours the retention of the profiles of
suspects indefinitely. We are of the opinion that this approach strikes a fair
and proportionate balance between the rights of the individual citizen and the
interests of society. In order for a measure to be a proportionate interference
with an individual’s rights, it must not go beyond what is necessary for the
objective in question to be achieved.397 In this instance, this is the
prevention and detection of crime. We consider that this recommendation
constitutes a proportionate interference with the suspect’s right to privacy in
accordance with the principles detailed in chapter 3.398 The three considerations which
should be taken into account in applying the proportionality test are: the
level of interference with the right, the relative seriousness of the
corresponding need and the category of the applicant. The discussion in the
next few paragraphs illustrates that these considerations demonstrate that our
proposal is a proportionate interference with an individual’s rights. There are
a number of limiting elements to our recommendation, which ensure that the
measure is indeed a proportionate interference with these rights.
62.
First,
we have recommended that samples may only be taken from those who are suspected
of the commission of serious crimes. As observed in the previous
paragraph, the category within which the individual falls is important in
determining if the measure is proportionate. The Commission therefore does not
suggest moving to the situation in the UK, where under the changes made in the
2001 Act, a sample can be taken from persons suspected of committing a
“recordable offence”. Some offences which constitute “recordable offences” are
rather trivial.399 Our proposal ensures that it is only those who are
suspected of committing serious offences that are exposed to the retention of
their profiles on the database.
63. Secondly, one of the grounds for the
Court of Appeal’s decision in Marper was that the profiles on the
database could only be used for crime investigation purposes. The court
observed that this demonstrated that the measure was proportionate. The level
of interference with the right is an important factor to be taken into account
in applying the proportionality test. The Commission proposes that the use of
the profiles be confined to crime investigation purposes and the identification
of deceased and severely injured people.400 The level of interference with
the right to privacy is consequently quite limited. Any attempt to utilise
these profiles for additional purposes, for example to reveal the individual’s
genetic characteristics, would be prohibited by these proposals. As is
discussed below, the uses to which the database may be subjected should be
defined in precise terms.401 This will ensure that the
permitted purposes outlined in the legislation will not be extended beyond
those which are compatible with the ECHR because of ambiguity. Consequently,
unless the suspect commits a further offence, he or she will not suffer any
disadvantage from the retention of a profile on the database.
64. Any possibility of misuse, a concern
which Liberty identified in its submission to the court in Marper, will
be precluded in all but the most exceptional of cases, by virtue of the
safeguards the Commission is proposing in Chapter 8. Misuse under these
conditions designed to ensure security would be unlikely, easily detectable and
would carry harsh consequences. The small risk involved should not outweigh the
benefits attained by the retention of the profiles of suspects indefinitely.
65.
The
seriousness of the corresponding need is another important factor to be taken
into account in applying the proportionality test. The significance of the
objective to be achieved is evident here. Retaining the profiles of suspects on
the national database would increase the number of profiles on the database and
correspondingly the number of offenders likely to be detected. The need to reduce
the incidence of serious crimes and to detect the offenders of those crimes
committed is undoubtedly an important objective. Any less inclusive database
may not be cost effective. Given the substantial safeguards recommended by the
Commission to ensure the security of the database,402 the cost of operating the
database will prove extensive. In order for this substantial cost to be
justified, the benefits afforded by the databank should justify the cost
involved. Therefore, the databank must be composed of a significant number of
profiles or it would simply not prove viable and the plan to establish a
database might not be feasible.
66.
Finally,
it must be observed that the Commission is merely recommending the retention of
the profiles of suspects. We suggest in the next chapter that in most
cases the comparator samples should be destroyed after the conclusion of the
trial for which they were obtained. This is in contrast to the decision of the
Court of Appeal in Marper and most appropriately explains the trenchant
criticism by Justice, quoted above.403 Retaining the profiles only, as
opposed to the profiles and the samples, is a further limiting provision which
assists in maintaining the proportionality of the measure.
67.
The Commission recommends that the DNA profiles obtained from
individuals in custody under section 30 of the Offences Against the State Act
1939, section 4 of the Criminal Justice Act 1984 and section 2 of the Criminal
Justice (Drug Trafficking) Act 1996 may be retained indefinitely on the
national database.
68.
The
advantages of sampling convicted people are twofold. First, the profiles
obtained can be checked against profiles of past crime scene stains to see if
the convicted person had some link with these offences. Secondly, the storing
of the profiles on the database could in the future implicate a convicted
person in a crime and could consequently, although arguably improbably, deter the
convicted person from committing a crime. At present the taking of samples from
convicted persons in prison is permitted under section 2(2) of the Criminal
Justice (Forensic Evidence) Act 1990. Both the intelligence gathering or
database justification and the true identity justification are embraced here.404 It is proposed that in the event of suspects being
convicted, their profiles may be retained. We intend to examine now whether the
sampling and retention of profiles of convicted persons is justifiable, where
their DNA profile has not been obtained as a suspect.
1.
Retrospectivity
69.
A
preliminary issue that must be addressed is whether the proposed scheme for
sampling should be prospective. At present, the Criminal Justice (Forensic
Evidence) Act 1990 permits the retrospective sampling of convicted
offenders.405 This issue is relevant to both whether the convicted
person can in this instance be made to give a sample and also whether, if the
sample is taken, the profile extracted can be retained on the database. It is
an important principle of the criminal law that no one should be subjected to a
penalty that was not available at the time they were convicted. This principle
is specifically provided for in Article 7 of the ECHR.406 Also, Article 15.5 of the
Constitution prohibits retroactive penal legislation. This Article is a
prohibition on the enactment of retrospective laws declaring acts to be an
infringement of the law, which were not unlawful previously. It is not a
prohibition on the enactment of retrospective legislation generally. Article
15.5 is not therefore directly applicable here. Kelly comments however that a
prohibition on the imposition of a penalty that was not available at the time
the offence was committed is probably inherent in the right to be tried in due
course of law under Article 38.1 of the Constitution.407 This was affirmed recently by the
judge in Enright v Ireland,408 where it was accepted that there
was a prohibition against a law, which increases the penalty after the date of
the commission of an offence.
70.
It
is therefore important to examine whether the measure in question is a penalty
here for the purposes of Article 7 of the ECHR and Article 38.1 of the
Constitution. Justice Action put the argument this way in its submission to the
NSW Review “it was not intended by the original magistrate, when those people
were sent to gaol, that they would lose their right to bodily integrity and
genetic privacy, and would be subject to DNA surveillance for the rest of their
lives”.409 It regarded the obligation to submit to a DNA test as
an additional penalty to that imposed on conviction.410 However, if the sampling
requirement is regarded as merely preventative rather than punitive, it will
not constitute a ‘penalty’ within the meaning of Article 7. This is evident
from Ibbotson v United Kingdom411 where the EComHR held the
registration requirements for the Sex Offenders Act 1997 were
preventative rather than punitive and therefore not a ‘penalty’. A similar
argument could be made in respect of the sampling requirement which is imposed
to deter the convicted person from committing further offences. The substance
and severity of the measure must also be examined in order to determine whether
it is a ‘penalty’.412
71.
On
balance, the Commission does not regard the measure as a “penalty”. This is
because the measure will only have punitive effects if the convicted offender
has already committed offences or does so in the future. In addition to this,
the taking of a sample is not enforceable by a term of imprisonment in default.413 It is also compulsorily imposed upon suspects even
though they have not been convicted of an offence. This illustrates that it is
not intended to have a punitive effect. Rather, this is just a form of
evidence, which has been collected using a more sophisticated device than was
available at the time of the offence. It is evident therefore that Article 7 of
the ECHR and Article 15.5 and Article 38.1 of the Constitution do not prohibit
the taking of a sample from a person who is at present convicted of an offence.
1.
Threshold
72.
One
must examine whether the offences for which it is permissible to obtain samples
from convicted people should be the same as those for which it is possible to
take samples from suspects. It is easier to justify interference with a
convicted person’s right to bodily integrity than a suspect’s right.414 Consequently, while the threshold for obtaining
samples from suspects is that of serious offences only, it may be justifiable
to sample all convicted offenders who are in prison. This is the position
adopted in South Australia under section 30(3)(a) of the Criminal Law
(Forensic Procedures) Act 1998, which simply has the prerequisite that the
convicted person is in prison at the time that it is sought to obtain the
sample. The Commission agrees with this provision. It strikes an adequate
balance between the convicted person’s rights and the interests of a
law-abiding society in crime investigation. We do not extend this
recommendation to convicted offenders who are serving non-custodial sentences.
To extend it to non-custodial and suspended sentences would constitute too
great an infringement on the convicted person’s rights. The fact that the
convicted person has received a sentence of imprisonment illustrates that the
offence is not so minor as to preclude compulsory sampling.
1.
Safeguards
73.
At
present, a sample can only be taken from a person in custody or in prison where
they are suspected of having committed certain offences or if the sample would
tend to confirm or disprove their involvement.415 It could be argued that while
these safeguards should remain in the case of samples taken from suspects, the
situation is necessarily different in respect of convicted persons. In the
latter instance, the purpose for which the samples are taken is different. In
the case of suspects, samples are only taken if it is necessary to solve the
offence which the person is suspected of committing, although once they are
obtained, they may be retained for the purpose of detecting other crimes. In the
case of convicted people, samples are taken not only to link them to any past
crimes but also to enable the Gardaí to use the profile extracted to detect any
future crimes the convicted person may commit.
74.
This
issue has recently been addressed in a number of cases in the USA. These cases
concerned the obtaining of DNA samples from convicted persons irrespective of
whether they are suspected of committing another offence and whether this
intrusion breaches their Fourth Amendment rights. Two rationales have been used
in the US cases to justify this interference. The first rationale is the
reasonableness justification. In Boling v Romer416 and Shaffer v Saffle,417 it was held that the interest of society in the
identification of those arrested in order to solve current as well as past and
future crimes outweighed any claims to protection under the Fourth Amendment.
Particular emphasis was placed on the fact that prison inmates forfeit some of
their rights on being convicted and only minimal intrusion would be involved in
the DNA sampling. The second rationale used is the “special needs exception”.
This provides that a search may be reasonable even when it is predicated on
less than probable or individualised suspicion where special needs, beyond the
normal need for law enforcement, render those requirements impractical. These
cases demonstrate that it is possible to justify the taking of compulsory
samples from convicted people in this instance. However, it should also be
noted in respect of the US position that recently the US Circuit Court of
Appeals has ruled that the federal mandatory DNA testing statute is
unconstitutional on the basis that individualised suspicion must be present for
a measure to be reasonable and also that the “special needs exception” does not
apply in this instance as the measure aims merely to detect ordinary criminal
wrongdoing.418 On balance, however, the position in the US seems to
favour the obtaining of samples in this instance. The majority of US cases
favour this position.
75. We agree with the reasoning of the
earlier US cases. It is easier to justify interference with a convicted
person’s right to bodily integrity than with a suspect’s right.419 This is evident from Irish law, the case law of the
ECtHR and the US case law outlined above. Therefore, while it may not be
justifiable to take a suspect’s sample unless it may help to prove or disprove
involvement in an offence, the taking of a convicted person’s sample is
justifiable in wider circumstances. The fact that a person has been convicted
increases the likelihood that they may have committed other offences and will
commit further offences so it is justifiable to take a sample to detect either
of these occurrences. A convicted person has also by unlawful conduct in effect
waived the right to avoid having a DNA sample taken.
1.
Non-Custodial Sentences
76.
One
must examine whether the power to take samples from convicted people should
extend beyond those currently in prison. Section 2(2) of the Criminal
Justice (Forensic Evidence) Act 1990 provides that only convicted offenders
who are in prison may be subjected to the compulsory taking of samples.
Attempts have been made in other jurisdictions to subject convicted persons who
are not in prison to similar procedures. For example in the UK under section 27
of the Police and Criminal Evidence Act 1984, a person convicted of a
recordable offence who is not in custody may be required to attend the police
station to submit to fingerprinting. It is also possible to fingerprint
individuals who have been given non-custodial sentences in this jurisdiction
under section 28 of the Criminal Justice Act 1984. However, the
Commission does not intend to recommend the enactment of a similar provision in
respect of DNA samples. Such a measure would constitute a disproportionate
interference with individuals’ rights in that it would subject even people convicted
of extremely minor offences to a routine invasion of their privacy and bodily
integrity. It would not be justifiable under the principles in respect of
privacy rights.420 It could also have a potential impact on an
individual’s liberty rights under Article 40.4 of the Irish Constitution and
Article 5 of the ECHR and it could prove extremely difficult and costly to
implement in practice.
77. The Commission recommends that a
person convicted of an offence, who is in prison, may be subject to DNA
sampling without their consent. This sampling should be subject to the
safeguards and rules set out in the Criminal Justice Act 1984 and the Scheme of
the Criminal Justice Bill 2003. However there should be no need, in the case of
convicted offenders in prison, to show that the taking of the sample was
required to prove or disprove involvement in an offence nor to prove that it is
suspected that the convicted person committed an offence in addition to the
offence, which caused the incarceration.
78.
The
NSW Review recently recommended that in the event of a convicted offender’s
conviction being quashed, the DNA profile should be erased.421 The Commission agrees with this sentiment in respect
of profiles obtained after the conviction of the person. Where profiles are
obtained while the person is a suspect, the quashing of their conviction should
not result in the erasure of their profiles. This is because the Commission
recommends that the profiles of suspects should be retained indefinitely
irrespective of whether they are convicted or not.422 However, in the event of profiles
being obtained while the person is convicted, they should be destroyed if the
conviction is subsequently quashed. The justifications listed above collapse
when it is discovered that the defendant is in fact not guilty of the crime of
which he was convicted. The power to obtain samples from convicted persons is
also considerably wider than that for suspects. It is therefore suggested that
where an accused’s conviction is quashed under section 2 of the Criminal
Procedure Act 1993 and the profile was obtained while he or she was
convicted, the profile should be removed from the database.
79. The Commission recommends that on
the quashing of an accused’s conviction, where the profile was obtained while
they were in prison, the profile should be deleted from the database.
80.
One
must examine the length of time for which a profile obtained from a convicted
person may be retained on the database. Should it be retained even after the
convicted person has served their prison sentence? It is instructive to examine
the comparative law in this regard. In Australia, there is no provision
preventing the use of profiles obtained from convicted people for matching
purposes after the convicted person has served their prison sentence.423 In the UK, under section 64(3AA) of the Police and
Criminal Evidence Act 1984 there is no obligation to delete the profiles
from the database at any stage even if the conviction has been spent. In New
Zealand similarly, under the Criminal Investigations (Bodily Samples) Act
1995, there is no need to destroy profiles obtained from convicted people.
The Commission is of the view that a similar approach should be followed in
Ireland.
81.
Again,
as discussed above, it is easier to justify interference with a convicted
person’s rights than with a suspect’s. It was accepted in McVeigh, O’Neill
and Evans v UK,424 that the category of applicant is an important factor
to be taken into account when deciding whether a measure is proportionate. Retaining
a convicted person’s profile on a database indefinitely could have significant
crime detection and prevention functions. It could allow the police to detect
any future offences committed by the convicted person or could deter the person
from committing any further offences. The benefits obtained by retaining this
profile justify the interference with the convicted person’s privacy rights.425 Another important factor is the fact that the profile
can only be used for the limited purpose of crime enforcement, as observed in Marper.426
82. The Commission recommends that a
convicted offender’s profile be retained indefinitely on a national database.
83.
Taking
samples from volunteers for crime investigation purposes is a widespread
practice. It may be necessary to take samples from volunteers for a range of
reasons. In any crime investigation where DNA is involved, it is imperative to
take samples from the victim and from all other people who had contact with the
scene but are not yet suspects in order to ensure that the DNA present at the
scene does not originate from them. This is based on the evidential
significance justification.427 However, it has been recommended
by the Commission that the taking of all samples should be exclusively governed
by legislation and should encompass all samples, even those taken on a
voluntary basis.428 This was based on the concern that many samples are
taken voluntarily and are thus unregulated by legislation. We outline here the
circumstances in which such sampling may take place.
84.
The
comparative law indicates that provision is made in most international
legislation for the sampling of volunteers. However, in these jurisdictions
there are also a number of provisions which require the consent of the
volunteer before any sample can be taken. In the UK, under sections 63(1) and
(2) of the Police and Criminal Evidence Act 1984, a sample may be taken
from any person provided that the appropriate consent is given in writing. In
New Zealand, the police may request a volunteer to give a sample under section
30(1) of the Criminal Investigations (Bodily Samples) Act 1995. However,
in order for the consent to be a valid one, the police are obliged to provide
the volunteer with a notice containing a number of statements. These must set
out the purpose for which the sample is required, a statement that the person
is under no obligation to consent to the taking of a sample, a statement that a
person may consult a lawyer before consenting to the taking of the sample and a
statement that the sample will be retained on the national databank and used
for the investigation of offences. The consent must also be in writing, signed
by the person, given orally and recorded on a videotape by virtue of section
34(1) of the Act.
85.
In
Australia under section 23XWR of the Crimes Act 1914 as amended, a
volunteer must be informed of a number of matters before they can give an
informed consent to the forensic procedure. The constable must advise the
person that they may consult a legal practitioner before giving consent, that
the forensic procedure may produce evidence that can be used in a court of law
and that the information may be retained on a database, on which there will be
some discussion later. The consent must be given in the presence of an
independent person. Similarly, Part 8 of the NSW Crimes (Forensic
Procedures) Act 2000 requires that the consent of a volunteer be informed
and given in writing in the presence of an independent person.
1.
The
Commission agrees with the thrust of these provisions. Taking a blood sample
from someone who is not suspected of the commission of the crime without their
informed consent could constitute an infringement of their right to bodily
integrity.429 Therefore, safeguards akin to those in New Zealand or
in Australia should be introduced to ensure that the consent of the volunteer
is informed and real. In the event of a failure to follow these safeguards, any
evidence obtained from the volunteer could be inadmissible in the absence of a
subsequent informed consent and the profile would have to be destroyed.
However, as part of the direction, the individual should also be informed of
their moral, albeit not legal, duty to assist in solving the crime. The sample
could be necessary to convict the perpetrator of the crime.
2.
At
present, where consent is required under the 1990 Act in respect of the taking
of samples from individuals under the age of 17, section 2(10) provides that
the consent of that person and their parents or guardian is necessary if that
person has attained the age of 14. If the person is under 14, the consent of
the parents or guardian is adequate. The definition of “appropriate consent”
set out in section 2(10) should form the basis for the consent required from
volunteers under the proposed scheme.
3.
It
is also important that samples are not taken unnecessarily from volunteers.
Individuals should only be requested to provide bodily samples if their samples
are likely to be useful for the investigation of an offence. Such an intrusive
procedure should only be carried out if it is necessary. It is probable that
volunteers may feel under pressure to provide a sample when they are requested
to do so by the Gardaí. Consequently, such a request should not be made too
readily.
4.
It
is also possible that a request to submit to giving a sample in this instance
could constitute a breach of the individual’s privilege against self
incrimination.430 A failure to consent to DNA profiling could lead the
Gardaí to suspect the individual of committing the crime even though they did
not initially have such suspicions. This could result in the individual’s
arrest and the compulsory taking of a sample under section 2 of the Criminal
Justice (Forensic Evidence) Act 1990. While the breach of the individual’s
privilege against self incrimination in this instance could be justified under
the principles enunciated earlier,431 this is only if the infringement
is pursuing a legitimate aim. It could not be deemed to be pursuing a
legitimate aim unless the request for the sample was likely to be necessary for
the investigation of an offence. In order to minimise the breach to the
individual’s privilege against self incrimination, failure to consent should
also be precluded from constituting a reasonable ground for suspecting a
person’s involvement in an offence so as to justify the taking of a compulsory
sample from them under section 2 of the 1990 Act and head 10 of the Scheme of
the Criminal Justice Bill 2003. This provision would be similar to
section 84 of the NSW Crimes (Forensic Procedures) Act 2000, which
provides that evidence of a refusal or failure to consent or withdrawal of
consent to a procedure is not admissible as evidence in court against the
person. This would not preclude its use for investigative purposes.
5. The Commission recommends that the
taking of samples from volunteers should only occur under legislative cover and
with the exception of the provision for the compulsory taking of samples below,
only if they consent and the sample is likely to be useful for the
investigation of a specific offence. Volunteers should be defined as persons
from whom samples are taken who are not suspects or convicted offenders. In
order for their consent to be valid, it must be informed, in writing and they
should be given an opportunity to consult a legal practitioner before they
agree to provide a sample. For it to be an informed consent, they should be
notified of the purpose for which the sample is to be provided, the use that
will be made of it and the fact that they are under no obligation to provide a
sample. Failure to consent should also be precluded from constituting a
reasonable ground for suspecting a person’s involvement in an offence so as to
justify the compulsory taking of a sample from them under section 2 of the 1990
Act and head 10 of the Scheme of the Criminal Justice Bill 2003.
6.
We
now turn to the question of whether individuals who are not suspected of
committing offences or have not been convicted of an offence may in any
instance be compelled to provide profiles for the purpose of the
investigation. Several circumstances can be contemplated whereby such profiles
could become necessary. For example, it may be necessary to acquire samples
from investigators or other people who were innocently present at the crime
scene to ensure that the crime stains are not composed of their DNA. While in
most instances, such individuals will willingly provide samples, they may
sometimes refuse. This could considerably hamper the investigation. A question
arises as to whether such individuals should be compelled to provide a sample
in this situation.
7. The comparative law in general does
not allow for such a power. In the UK, which is the jurisdiction with the most
extensive powers in respect of the taking of samples, there is no provision
authorising the compulsory collection of samples from non-suspects. In the
Commission’s view, a general provision allowing for the routine taking of
samples from non-suspects would be incompatible with the individual’s right to
privacy and bodily integrity.432 We have identified three factors
that should be taken into account in applying any proportionality test in
deciding whether any interference with a person’s right to privacy is
justified.433 Firstly, the level of interference with the
individual’s rights must be considered. The level of interference is extensive
here given the intimacy of the data involved. Secondly, the seriousness of the
corresponding need must be considered. In this situation, the need in question
is the apprehension of a criminal. While this is a serious need, the aim in
question will generally be capable of being achieved without the level of
interference involved here. Taking a sample from the suspect in most cases will
be sufficient. However, on the other hand, it may be imperative to rule out
that the profile from an ostensible crime stain in fact belongs to an innocent
person who came on the scene or is from a member of the investigating team.
Finally, the category of the prospective donee must be considered. In this case
the donee is a non-suspect and therefore any interference with their rights
must be strongly justified.
8.
On
the basis of these considerations, the Commission believes that it is only in
exceptional cases that the Gardaí should be entitled to take a sample
compulsorily from an unwilling non-suspect. The Gardaí should be required to
obtain judicial authorisation before they can take a sample from such a
non-suspect. The exceptional cases where the taking of a sample of a
non-suspect would prove justifiable are those where the non-suspect is refusing
to consent in order to obstruct the course of justice. It is only where the
non-suspect is attempting to obstruct the course of justice that the coercive
taking of a sample may justifiably be conducted. In such an instance, the
non-suspect is unconcerned with the infringement of his or her individual
rights and consequently, the interference with his or her individual rights
cannot outweigh the legitimate aim of preventing and detecting crime. The
Gardaí should be required to prove this desire to obstruct the course of
justice on the balance of probabilities. The court, in determining whether the
individual is seeking to obstruct the course of justice, should examine the
reasons for the individual’s refusal to consent. It should also assess the
seriousness of the alleged crime for which the sample is necessary in order to decide
whether the seriousness of the corresponding need justifies the compulsory
taking of a sample from a non-suspect in this instance. It should examine
whether the sample is truly necessary for the conduct of the investigation. If
it is not so necessary, then it should not be obtained without consent, even if
the individual is seeking to obstruct the course of justice. The DNA sample
should also only be used for the purposes of the investigation in question and
should be destroyed once it is no longer necessary for this investigation and
any ensuing proceedings. It should not be retained on the national database.
9.
The Commission recommends that samples from persons other than suspects
or convicted persons may only be taken without the consent of the person where
a court order authorises the taking of the sample on the basis that the person
is endeavouring to obstruct the course of justice in refusing to give the
sample and the sample is necessary for the investigation of a serious offence.
1.
Retention of Profiles of Volunteers Generally
1. When a volunteer provides a sample,
it should not automatically be assumed that such a sample may be inserted onto
the national database. While an individual may consent to the taking of a
sample where it will assist a particular investigation, this may not extend to
allowing their profile to be placed on a database for an indefinite period. For
example, while an assault victim will generally be receptive to providing a
sample for the purposes of the recognition of the victim’s own profile in the
case against the alleged attacker, there is less likely to be consent to the
use of this profile for unrelated purposes. In other words, while a person may
accept the obtaining of this sample for the evidential significance
justification, consent may not be forthcoming for its retention for the
intelligence gathering justification. This is particularly so in the case of
volunteers who provide samples in the course of mass screens. Such persons
could in fact be strongly opposed to the use of their profile for insertion
onto a national database. It is therefore important that before the volunteer’s
profile is inserted onto the database that a full and informed consent is given
to this retention and that full information is given about the implications of
having the profile on the database, including its use for speculative searches.
2. The Commission recommends that a
volunteer’s profile may only be retained on the national database, where an
informed consent has been given for this. A volunteer should be advised of all
the implications that this insertion will involve including the fact that it
may be used for the purpose of future searches.
3.
Provision
should also be made for volunteers who, though unconnected with any particular
crime, wish their profiles to be inserted onto the national database to
eliminate them from suspicion from any future crime. Such people believe that
the retention of their profiles on the database effectively secures them from
unjustified suspicion and in general, this retention enhances their overall
confidence in the Gardaí and legal system.434 It is apparent that there can be
no objection to enabling these individuals to submit their samples for
retention on the database. No infringement of their individual rights is in
issue here and allowing them to submit a profile may enhance their human rights
and public security. Permitting the submission of a profile in these
circumstances could be regarded as a form of freedom of expression under
Article 40.6 of the Irish Constitution and Article 10 of the ECHR.
Alternatively, it could be regarded as a protection of an individual’s personal
rights under Article 40.3 of the Constitution.
4. The Commission recommends that any
individual, even a person unconnected with a particular investigation, should
be permitted to have their profile retained on the national database.
1.
Withdrawal of Consent
1.
In
the UK, section 63A(1D) of the Police and Criminal Evidence Act 1984
provides that a consent by a volunteer to the retention of their profile cannot
be withdrawn. This provision is at variance with the situation in other common
law jurisdictions. In New Zealand under section 36 of the Criminal
Investigations (Bodily Samples) Act 1995, a person can withdraw their
consent to the use of their sample at any stage after the sample has been
obtained. Under section 23XWT(2) of the Australian Crimes Act 1914 as
amended, a volunteer can withdraw their consent to the retention of the
forensic material or the DNA profile.
2.
There
are clearly benefits to prohibiting the withdrawal of consent in the case of
volunteers. It would lead to the detection of more crime because volunteers
would be prevented from seeking the removal of their profiles from the database
in the event of them committing or planning to commit any offence. However,
this proposal, if implemented, would also have significant costs. It was
observed by the Office of the Victorian Commissioner in a submission to the
Australian Law Reform Commission that after a serious crime is committed, there
is potential for the shock to induce volunteers to consent to the retention of
their profiles when they would not otherwise do so.435 The Human Genetics Commission
also noted the potential for coercion to be exercised in obtaining the initial
consent.436 Individuals may believe that if they do not consent
in these circumstances, the suspicions of the Gardaí will be aroused. While
requiring an informed consent in this instance could considerably reduce the
risk of such coercion, it could never be completely eliminated. Consequently,
retaining the profiles of such innocent people after they have ceased to be
willing entails a significant interference with their privacy and bodily
integrity rights.
3.
Such
an intrusion cannot be regarded as a proportionate interference with their
rights as these people are innocent and there is no reason to suspect that they
will commit any crimes in the future. The category of the person involved is an
important factor to be taken into account in applying the proportionality test.437 The slight increase in crime detection that this
prohibition on withdrawal would involve could not justify the significant
intrusion with the rights of these individuals. In any event, refusing to allow
volunteers to withdraw their consent to the retention of their profiles could
in fact reduce the number of profiles retained on the database. The prohibition
on the withdrawal of consent could prove counter-productive as in practice it
might deter people from initially consenting to the retention of their profiles
on the database.
4. The Commission recommends that
volunteers be permitted to withdraw their consent to the retention of their
profiles on the national database.
1.
The Volunteer’s Index
1.
In
Australia, volunteer’s profiles may be inserted onto either an ‘unlimited
purposes’ or a ‘limited purposes’ index.438 The ‘limited purposes’ index
precludes the matching of profiles within this index against profiles in other
indexes except with the informed consent of the volunteer. The ‘unlimited
purposes’ index allows speculative searches to be conducted between the
volunteer’s index and all the other indexes. In Australia, the volunteer may
submit to the addition of his profile to either index. However, this
distinction between the two indexes has attracted criticism from a number of
sources in Australia.439
2.
The
Commission do not consider that there is any need for two separate indexes
containing the profiles of volunteers. Instead, volunteers should be required
simply either to consent to the retention of their profiles on the national
database or not to consent to this. If they consent to the submission of their
profile to the database, this consent will enable the profile to be used for
any of the purposes detailed in the new legislation.440 If they are opposed to the use of
their profile for any of these purposes, they should withhold their consent to
its retention on any index. The provisions concerning informed consent
suggested by the Commission would ensure that any consent was free and fully
informed. Requiring the volunteer to decide between the retention of a profile
on a ‘limited purposes’ database, on an ‘unlimited purposes’ database or on no
database at all is unnecessarily complex. This choice would on occasion confuse
the volunteer and therefore result in mistaken decisions being made.
3. The Commission recommends that if a
volunteer consents to the retention of their profile on a national database
then it may be utilised for any of the purposes permitted.
1.
The
advantages and disadvantages of mass testing a population in an endeavour to
find a suspect have been extensively discussed. A mass screen involves inviting
individuals, sometimes only those of a specified sex and age, within a particular
area to submit to DNA testing in an attempt to find the perpetrator of a crime.
Those in favour of mass testing refer to the case of Colin Pitchfork, where
Pitchfork’s evasion of giving his sample in such a mass screen eventually
resulted in the discovery of his guilt.441 A friend of Pitchfork’s was
overheard boasting that he had provided a sample in place of Pitchfork. This
convinced the police to investigate Pitchfork. Without the mass screen here,
perhaps Pitchfork’s guilt would never have emerged. The evidential significance
justification supports the use of mass screens.442 An example of a successful mass
screen in this jurisdiction is the case of The People (DPP) v David Lawlor.443 In this case a successful mass screen resulted in the
identification of David Lawlor as the murderer of Marilyn Rynne. He was
subsequently convicted. However, there are also cases where despite the taking
of samples from huge numbers of people, the screen has been completely
unsuccessful. For example, in the UK in the investigation of Sara Cameron’s
murder, samples were taken from 4500 people in a mass screen. Despite this, no
one has as yet been charged with the offence.444 In Australia, criticism was
directed at the sampling of a community of 500 people when it emerged
subsequently that the offender was one of the suspects questioned initially in
the investigation.445 This case caused the NSW Review to comment that “mass
screenings should only be used as a last resort”.446 The Review criticised the use of
this procedure because traditional forms of investigation could be more useful
and impinge less on police resources. They also recognised that those who
failed to consent to the procedure on conscientious grounds could suffer abuse
by the community and could also be the subject of suspicion from the police for
this reason alone. This could induce people to submit to testing purely to
avoid this criticism and suspicion. This would constitute a form of indirect
compulsion. Obtaining samples from people in these circumstances could perhaps
constitute an unjustifiable breach of their rights to privacy and bodily
integrity.
2. The fact that a person’s refusal to
consent to giving a sample could open them to suspicion suggests that the
privilege against self incrimination could be infringed in such an instance.447 Clearly, the privilege may justifiably be limited in
certain cases.448 However, while it may be justifiable for the
privilege to be limited in cases where a person is suspected of a crime, the
concern here is that mass screening could prompt self-incrimination even by
non-suspects. Such compulsion at times might not constitute a proportionate
interference with a person’s privilege against self-incrimination.
3.
The
Irish Council for Civil Liberties in its submission to the Commission on this
topic also expressed concerns regarding mass testing.449 Echoing the NSW Review, they
suggested that mass testing was a waste of resources and that the money would
be better spent on more traditional forms of investigation. They expressed the
opinion that examples from other jurisdictions showed that there was no link
between mass screening and the finding of the perpetrators. The Council
favoured a system “whereby DNA evidence from a crime scene can be compared only
to the DNA profiles of suspects in the crime and oppos[ed] any system of mass
screening with no reasonable cause”.
4.
The
Commission accepts these concerns have validity. Mass screening is a ploy which
should be used sparingly and after due consideration. However, given the
potential for exceptional cases, the Commission considers that the necessity to
resort to such screening is an operational decision for investigating Gardaí.
The NSW Review suggested that before the police can engage in a mass screen,
they should be required to acquire judicial authorisation.450 Such authorisation would only be granted in exceptional
cases. While this approach would ensure that the necessity of conducting a mass
screen was determined before it was proceeded with, we are of the opinion that
the Garda Síochána are in a better position than the courts to evaluate the
usefulness of conducting such a screen. Deciding whether the significant costs
of mass testing are outweighed by the benefit likely to be achieved is a matter
peculiarly within the knowledge of the Gardaí. The Commission considers that
the conducting of a mass screen should be subject to the approval of a Garda
Superintendent in the district where it is proposed to carry out the testing.
The Superintendent should consider a number of factors in deciding whether to
permit the testing to be carried out. In particular, permission for a mass
screen should only be given if it is expedient to detect the perpetrator of the
crime. Consideration should be given as to whether the same objective could, in
practice, be achieved by less intrusive and costly means. Care should also be
taken to ensure in sanctioning the mass test that the range of people who may
be requested to provide a DNA sample is as narrowly defined as possible. The
potential impact of the mass testing on a person’s rights to bodily integrity
and privacy should also be a consideration in the decision. Given the expense
which would be incurred in conducting a mass screen, it is evident that it is
only in exceptional cases, where it is expedient, that mass testing should be
undertaken.
5. The concerns regarding the potential
breach of the non-suspect’s privilege against self-incrimination in a mass
screen should also be addressed.451 We have already suggested in
respect of volunteers that a failure to consent to a forensic procedure should
not be capable of constituting reasonable grounds for suspecting the
involvement of a person in an offence so as to justify requiring them to give a
sample under the 1990 Act and head 10 of the Scheme of the Criminal Justice
Bill 2003.452 This recommendation would also apply to those
requested to provide a sample in a mass screen. This would guarantee that the
interference with the individual’s privilege against self incrimination is
minimal.
6. The Commission recommends that a
Garda Superintendent or acting Superintendent be required to approve in writing
a mass screen before it may be conducted. In addition to this, evidence of a
person’s failure to consent to testing during a mass screen should not be
admissible in court.
1. A number of commentators have argued
for the establishment of a comprehensive database, that is a compulsory one
involving every person in the State. It has been claimed that retaining the
profiles of all individuals in the country could enhance rather than diminish
the civil liberties of the individual.453 This is because retaining the
profiles of every individual on the database would eliminate any suggestion of
discrimination in respect of a class of persons whose profiles are held. This
would also help at times to ensure that the innocent were not subject to
unjustified suspicion. It could avoid miscarriages of justice by helping to
exclude possible suspects from connection with a crime stain.454 The law-abiding citizens would also have their civil
liberties enhanced in that they could live in a safer and more secure society
as such a database would ensure that an increased number of criminals would be
likely to be apprehended. As a result of these concerns, Kaye and Inwinkelried
have commented that “the balance of advantage seems to favor creating a
comprehensive database”.455
2.
Sedley
LJ recently observed by way of obiter comments in Marper that he
“would certainly not assume that a comprehensive national DNA database or
samples bank, if one were to be lawfully compiled, would constitute an
unacceptable invasion of privacy”.456 He suggested in this decision
that the establishment of a comprehensive database could be compatible with the
Articles in the Convention because such a database would help to ensure that
only the guilty were convicted.
3. However, the Commission submits that
such a measure could involve a disproportionate interference with the privacy
and bodily integrity rights of innocent citizens. The proportionality test
would not be satisfied in this instance.457 Given that we are recommending
the retention of the profiles of convicted offenders and those suspected of
“arrestable offences” on the database indefinitely, mandating the creation of a
comprehensive database would be difficult to justify as ‘necessary in a
democratic society’. It is suggested that the advantages such a database would
offer, which are detailed above, could not outweigh the significant intrusion
into an individual’s personal rights. In order for a comprehensive database to
be regarded as proportionate, the law enforcement gains to be achieved by the
establishment of a comprehensive database, as opposed to a more limited one,
would have to justify the significant intrusion on the rights of privacy and
bodily integrity of innocent persons.
4.
The
three considerations involved in determining proportionality weigh heavily
against the establishment of such a database.458 Firstly, the level of
interference with the individual’s rights is considerable. The corresponding
need is not very serious given that it is unlikely that most of these citizens
will commit further offences. Finally, it is persons that have never committed
nor were ever suspected of committing offences that are affected here. If any
individual wants to be exculpated from a crime, then the individual can submit
a sample for this purpose of having their profile obtained and excluded from a
match with a crime stain. The profile need not be retained on the database for
potential miscarriages of justice to be avoided. Consequently, we believe that
a comprehensive database is a disproportionate interference with the rights of
innocent individuals. Maintaining a database of the profiles of convicted
offenders and suspects would suffice for law enforcement purposes.
5.
In
addition to this, the cost of creating and maintaining such an extensive
database is prohibitively expensive. Taking samples from almost 4 million
people and deriving profiles from these samples would be a very expensive
process. The benefits received from such an expenditure would have to be
substantial for this expenditure to be justified. It is submitted that they are
not. As observed above, it is unlikely that the majority of these individuals
will commit further offences. Consequently, obtaining and retaining the DNA
profiles of the entire population is unjustifiable.
6. The Commission does not recommend
the establishment of a comprehensive DNA database because its establishment
would weigh disproportionately against individual rights and be excessively
expensive and its benefits would not be significant in terms of crime
prevention.
1.
Many
DNA samples have already been obtained and stored by the Gardaí and the
Forensic Science Laboratory. They will be hoping to insert these profiles onto
any national database. Potential problems arise here. The majority of these
samples and profiles were in fact obtained voluntarily outside the 1990 Act. In
the event that the profiles were obtained under the 1990 Act, their destruction
would have been mandatory after six months under section 4. Some doubt has been
cast on the lawfulness of this voluntary method of obtaining samples but to
date it has been accepted as a lawful practice.459 If it were to be seen as unlawful
in the future, these samples could not be used as evidence in court. If the
obtaining of these samples is accepted as lawful, whether these voluntary
samples can be retained depends on whether at the time the individuals
proffered them they were given an indication that their profiles would be
retained indefinitely and perhaps inserted onto a database. If a person
consented to the retention of their profile indefinitely, the profile could be
retained. If however they implicitly consented merely to the use of their
profile for the purposes of the investigation in issue, then the profile should
have been destroyed on the conclusion of the investigation. At present the
Forensic Science Laboratory possesses in excess of 700 DNA profiles, which
include crime scene profiles.
2.
In
practice, it is probably impossible and certainly impractical in the majority
of cases to determine what conditions the volunteer consented to. It is
therefore suggested in respect of these profiles that they be retained subject
to the right of the volunteer to withdraw consent if they wish the profile to
be destroyed. As these profiles were obtained on a voluntary basis, they should
also be destroyed if so desired. This would ensure that the intentions of those
responsible for submitting the profiles are fulfilled. It would also not hamper
the crime investigation functions of the Gardaí unnecessarily.
3.
In
respect of the profiles other than those of convicted offenders that were
obtained under the 1990 Act but have not been destroyed as the six month period
for which they may be retained has not expired, it is necessary to examine
whether any new legislation should be retrospective in application and
therefore apply to these profiles. It should be observed that Article 15.5 of
the Constitution does not contain any general prohibition on the enactment of
retrospective legislation.460 However, the profiles obtained
other than those of convicted offenders under section 2 of the 1990 Act were
given on the basis that they would be destroyed after six months in the absence
of a court order. This is the position irrespective of whether they were
obtained with or without consent. As a result, there is no justification for
their continued retention beyond this period. In respect of the compulsory
taking of samples, this power to take a sample was subject to the condition
under the 1990 Act, which required the destruction of the samples after six
months. Samples could only be taken under this Act for the purpose of the
specific investigation. There was no provision in the Act for their use to
detect other offences for which the suspect was responsible. These individuals
had a legitimate expectation that the profiles would be destroyed after six
months in the absence of a court order. To alter these provisions
retrospectively would constitute an unjustifiable interference with the privacy
rights of each individual.
4. The Commission recommends that the
profiles obtained voluntarily outside the ambit of the 1990 Act may be retained
indefinitely unless the volunteer withdraws consent to their retention. In
respect of the profiles obtained under the 1990 Act, these should be destroyed
within the period specified by the Act.
6.
The biological samples – RETENTION OR DESTRUCTION?
1.
In
Chapter 5, we considered the issue of retaining DNA profiles and we will now
discuss whether the samples themselves should be retained or destroyed. The
important distinction between the samples and the profiles has already been
discussed.461 A further distinction that is made is in respect of
the two categories of biological samples that primarily feature in this field,
namely a scene of crime stain and a comparator sample. Although, both
potentially could contain much or all the genetic information about the source
of the sample,462 the purpose and therefore the position of each in a
criminal investigation is strikingly different. As will be emphasised
throughout this chapter, a scene of crime stain has usually been left or
discarded, whereas a comparator sample is provided (not always consensually)
for the purpose of exculpating or implicating the source of the sample in some
way or otherwise assisting the investigation. It should perhaps be noted that
although this distinction may not be clear-cut especially when an unidentified
sample is subsequently attributed to the source, the Commission’s view is that
each sample may legitimately be treated differently. Moreover, even though this
distinction may give rise to difficulties in both presentation and evaluation,
we consider it preferable to simply dealing with the two categories of sample
together.
2.
This
chapter is divided into two Parts. In Part A, we examine whether the scene of
crime stains should be retained after a profile has been created from them. In
Part B, we discuss whether the comparator samples should be retained after the
conclusion of the trial for which they were obtained.
1.
Retention of Scene of Crime Stains
3. Clearly, the physical evidence from
a crime scene must be retained whilst the investigation continues and is not
closed. The basis upon which biological samples found at the scene are
initially retained is essentially the same as with other physical evidence
(such as clothing, weapons, and non-biological stains), namely in order to
allow examination and test analysis to be carried out, either at the behest of
the defendant or at the request of the prosecuting authority in the hope that
with improved technology, a conclusive outcome may be obtained. The careful
retention of the stains recovered from a scene of crime may also facilitate the
defendant and enable a retained sample to be independently tested so that the
result of the further test is available for the trial or perhaps for a
subsequent appeal against any conviction founded on such evidence. In this
regard Murphy J, in McGrath v DPP,463 stated:
“It must be remembered
that it is a commonplace in criminal trials for a defendant to rely on ‘holes’
in the prosecution case, for example, a failure to take fingerprints or a
failure to submit evidential material to forensic examination. If in such a
case, there is sufficient credible evidence, apart from the missing evidence,
which, if believed, would justify a safe conviction, then a trial should
proceed, leaving the defendant to seek to persuade the jury or justices not to
convict because evidence which might otherwise have been available was not
before the court through no fault of his. Often the absence of a video film or
fingerprints or DNA material is likely to hamper the prosecution as much as the
defence.”464
4.
There
is a long line of authority that imposes a legal duty on the investigatory
authorities to preserve material evidence. In Dillon v O’Brien and Davis465 Palles CB stated that: “the interest of the State in
the person charged being brought to trial in due course necessarily extends as
well to the preservation of material evidence of his guilt or innocence as to
his custody for the purpose of trial.”466 Also in The Queen v
Lushington, ex parte Otto467 Wright J stated:
“[I]t is undoubted law
that it is within the power of, and is the duty of, constables to retain for
use in Court things which may be evidence of crime, and which have come into
the possession of constables without wrong on their part. I think it is also
undoubted law that when articles have once been produced in Court by witnesses
it is right and necessary for the Court, or the constable in whose charge they
are placed (as is generally the case), to preserve and retain them, so that
they may be always available for the purposes of justice until the trial is
concluded.”468
In Murphy v DPP469 Lynch J approved of these authorities, stating that
they “established that evidence relevant to guilt or innocence must so far
as is necessary and practicable be kept until the conclusion of the trial.”470
4. More recently, the Supreme Court
considered this issue. In Braddish v DPP471 the accused was charged with
robbery and arrested on the basis of CCTV footage which purportedly identified
him. He requested a copy, but was told that it had been returned to the owners
because the prosecution did not intend to rely on it. The Supreme Court
restrained the further prosecution of the accused on the basis that he was
entitled to see the video, as it might exculpate him. In explaining the duty on
the Gardaí to seek out and preserve all evidence that had a bearing on guilt
and innocence, Hardiman J stated:
“It is a
well-established principle that evidence relevant to guilt or innocence must, so
far as necessary and practicable, be kept until the conclusion of a trial.
This principle also applies to the preservation of articles which may give rise
to the reasonable possibility of securing relevant evidence.”472
6. This case law concerns the retention
of evidence up to the end of the trial (and by necessary implication any
appeals process), but we should also address whether the scene of crime stains
should be retained in other situations, such as where the crime has been solved
and the perpetrator convicted or, rather more controversially, when the person
who is the source of the sample is acquitted or not prosecuted.473 The Council of Europe Committee of Ministers to
Member States on the use of analysis of DNA within the framework of the
criminal justice system recommended that “[s]amples and other body tissues, or
the information derived from them, may be stored for longer periods: … (ii)
when the sample cannot be attributable to an individual, for example when it is
found at a scene of an offence.”474 In practice, samples taken from
the scene of a crime are usually kept and current attitudes appear to be
inclined towards long-term storage. Indeed, this would aid the Court of Criminal
Appeal in reviewing alleged miscarriages of justice following the invocation of
the procedure set out in the Criminal Procedure Act 1993. The
Commission’s initial view is that there is nothing objectionable in this
option, so long as the samples are stored in appropriately secure conditions
and the sources are not readily identifiable.
7.
The Commission is of the view that where biological samples are found at
the scene of a crime they should be retained, principally as a safeguard in the
event that an individual convicted of the offence to which the sample relates
alleges that a miscarriage of justice has occurred and wishes to challenge the
veracity of the original evidence.
2. Retention of Comparator Samples
8.
When
retained, comparator samples are preserved, labelled and stored in a deep
freeze facility. These samples could be accessed or disclosed in the future –
perhaps by reason of changed attitudes – and subjected to the type of testing
that would in accordance with present attitudes impermissibly violate the
privacy of the source of the sample by revealing deeply sensitive information.
9. In view of this danger in respect of
future usage, comparator samples obtained under the Criminal Justice
(Forensic Evidence) Act 1990 are governed by section 4. Section 4(1)
safeguards against the retention of not only the comparator sample and record
identifying the person from whom the sample was taken, but also “every sample
identified by such record”.475 For example, under section 4(3),
if the person from whom the sample is taken is acquitted, then “the destruction
of the record and the sample identified by such record shall be carried out on
the expiration of twenty-one days after the acquittal …”.476
10. Section 4 gives rise to a potential
conflict with the views we have already expressed: namely that biological
samples taken from the scene should be retained on a long-term basis.477 Section 4(1) refers to “every sample identified by
such record”, which would include a scene of crime stain attributable to, for
example, someone acquitted of the offence for which the comparator sample
relates. Whilst it may be perfectly proper for the authorities to be precluded
from retaining comparator samples taken from a number of suspects who are not
convicted of any offence, biological material taken from a scene of crime may
form part of vital evidence in the case. If there are, for example, three
different samples found at the scene of a murder, one being attributable to the
victim and the remaining two being from unknown sources: one, two or none may
have committed the offence, but it is simply not known until they can be found
and investigations can be made in relation to their presence at the scene. Say
two suspects are found and comparator samples are taken and a match is
confirmed with the samples found at the scene. Following questioning (and
perhaps other evidence in the case, such as an eye-witness account) suspect ‘A’
is charged and convicted, whereas suspect ‘B’ is not proceeded against, perhaps
because there is a perfectly innocent explanation for suspect B’s presence at
the scene. Under the present law, suspect A’s comparator sample, the records
relating to that sample, and any scene of crime stain attributed to suspect A
may be retained. However, under section 4(2) suspect B’s records, comparator
sample, and the scene of crime stain attributable to him – which will no doubt
be identified by records reporting the match – must be destroyed. Should
suspect A wish to challenge his conviction on the basis of the scientific
evidence, maybe on the basis of analysis with new technology or it is simply
that he wishes to point the blame at someone else who was there (such as
suspect B), then he will be seriously disadvantaged if the original evidence
taken from the scene of crime is destroyed. For these reasons, we have
recommended above that the scene of crime stains should be retained.
11.
As
regards comparator samples, where section 4 does not direct the authorities to
destroy the records or samples, such as in the case of where a person is
convicted of the crime, it would appear that the default position is that the
records and samples may be retained indefinitely. There is a clear distinction
in the treatment of those convicted and those who are only ever suspected of an
offence – a feature that accords with our scrutiny of ECHR jurisprudence in
Chapter 3.478 There is nothing in the current law to preclude the
authorities from collating profiles derived from samples taken from those
convicted and then storing them in a searchable database. Indeed, Walsh made
the following comment on the 1990 legislation:
“The availability of a
police power to take bodily samples in the course of criminal investigations
[the subject of Chapter 4] could result in the establishment of a databank of
the most personal information on people who have come to the notice of the
police. While this might appear attractive to those engaged in the prevention
and detection of crime, it clearly has the potential to inflict enormous damage
on the extent to which the personal rights of the citizen are protected. The
1990 Act has struck a balance between competing interests by making provision
for the destruction of bodily samples, and the results obtained from those
samples, in a wide range of situations.”479
Despite the current
legislative framework, which was enacted at a time when our understanding of
DNA was only developing, the Commission must consider in this Paper all the
options that could be taken: including, whether in principle the samples of
even those convicted of an offence should be retained at all.
11.
Fears
concerning genetic privacy have prompted many commentators to suggest that not
only should analysis of DNA be confined to discovering information that is
socially insignificant480 but that the samples themselves should be destroyed
once the DNA profile has been generated and the trial has concluded (any by
implication any appeals process). Indeed, even in 1992, the Council of Europe
Committee of Ministers recommended that:
“Samples or other body
tissues taken from individuals for DNA analysis should not be kept after
rendering of the final decision in the case for which they were used, unless it
is necessary for purposes directly linked to those for which they were
collected.”481
13.
In
the US there is a variable policy regarding retention of samples: some State
laboratories retain them where others destroy them.482 In Belgium, Germany, Norway, and
Switzerland various provisions exist requiring samples to be destroyed. This
may be once a profile has been generated and entered on to the database or a
defined period of time after entry or as soon as the sample is no longer needed
for comparison.483 In the UK there is no difference in treatment between
the biological sample and the DNA profile as both are retained.484
14.
Waller
LJ in the Marper case485 expressed the principal aims of
retaining DNA samples after the conclusion of the trial, as follows:
“[T]he retention of
samples permits (a) the checking of the integrity and future utility of the DNA
database system; (b) a re-analysis for the up-grading of DNA profiles where new
technology can improve the discriminating power of the DNA matching process;
(c) re-analysis and thus an ability to extract other DNA markers and thus offer
benefits in terms of speed, sensitivity and cost of searches of the database;
(d) further analysis so as to be able to identify any analytical or process
errors.”486
The Court of Appeal
found the aims of retention to be persuasive and, accordingly, went on to
consider the retention of samples together with that of profiles. The Court of
Appeal’s rulings on the issue of whether the authorities could indefinitely
retain the samples and profiles of suspects have already been addressed in
detail.487 However, the UK Human Genetics Commission (“HGC”) in
its report on the use of personal genetic information also highlighted the
principal reasons why samples are retained, as follows:
i.
for
Quality Assurance purposes, that is so as to be able to monitor the performance
of the profile supplier;
ii.
in
the event of a database match to check the veracity of the match using the
original sample;
iii.
to
retest the sample with newer and more discriminating methods;
iv.
to
investigate challenges to or errors in the original profile.488
But the HGC found
these reasons unconvincing. The HGC suggested how these aims could be achieved
without the need to retain all biological samples (and with them the inherent
risks identified previously in this Paper).489
15. As regards (i) the HGC felt that
quality assurance could be conducted adequately on a smaller scale or with
samples made anonymous. In relation to (ii) and (iv), confirming matches and
correcting errors could be achieved by taking new comparator samples. Any
person convicted on the basis of DNA evidence who wishes to challenge the
veracity of the profile would no doubt be more than willing to provide a fresh
sample in order to generate a new (and presumably correct) profile. In any
case, the sampling process is such that when a ‘hit’ is obtained on a database
profile a second comparator sample is always taken (from which a profile is
generated) to verify the ‘hit’. This has the effect of safeguarding against spurious
results, any mishandling or erroneous labelling of samples, or any error in
loading profiles onto the database. Another reason for always taking a second
sample is that the match will ultimately need to be presented at the trial of
the accused in the event that there is a ‘not guilty’ plea. Revealing that the
match was obtained through a database hit may be potentially prejudicial and
should be avoided.490
16.
The
main practical objection – (iii) – to the destruction of comparator samples
once a profile has been generated and loaded onto a database, is that the
profiles from both the scene of crime stain and the comparator sample are both
products of current technology and they may become obsolete in the event of further
technological advancement in profiling. This appears, on the face of it, to be
a legitimate concern in response to any proposals that insist on the
destruction of comparator samples, especially when one considers that DNA
profiling technology has developed so rapidly within a relatively short period.
However, because of this development the technology is such that it is arguable
that there is no need to seek advancement, especially when one considers that
current methods of profiling produce match probabilities of 1 in several
billions.491 Would a more discriminating method really be
worthwhile? Moreover, new samples could be taken at this stage with the
advantage being that the samples will be taken in the context of improved
understanding. There should be a procedure in place to enable new samples to be
taken if such a concern arose. A further and more immediate point for the
Government is that, whilst taking a new sample at a later date may be
inconvenient and perhaps costly, so too, no doubt, is the storage and
organisation of a large number of samples in appropriate conditions. But, what
is clear to the Commission is that any cost-benefit analysis of this nature
must factor in the compelling issues of privacy and public trust and confidence
in DNA profiling.
17.
A
logical corollary to the practice of obtaining a second comparator sample is
that the original sample plays a relatively nominal role in the whole process
after the profile has been generated.492 Indeed one cannot readily infer a
legitimate purpose for retaining every single comparator sample. The only
purpose of retaining all comparator samples following the final disposition of
the case would be either to put that sample to some future secondary use or as
a safeguard against loss of data (the profile information).
18. We have explained the distinction
between the comparator sample and the profile that is generated from the
sample, particularly what each reveals about the source of the sample at
present and in terms of potential revelations.493 It is apparent from this
discussion that the concerns described earlier,494 at present, resonate in
particular with the sample to a far greater extent than with the profile. The
sample may be subjected to further testing in the future, but once generated
the profile can only be further interpreted in light of contemporaneous
knowledge. The Commission therefore concludes that it is the biological sample
itself which is a major cause of concern, particularly in terms of safeguarding
privacy.
19. Paradoxically, it is the need to protect
the privacy of the source of the sample that may, on one view, militate in
favour of the retention of comparator samples: if it is subsequently discovered
that a forensic profile reveals much more personal information about the
source, then a different technique, that does not reveal so much, will need to
be developed to replace the existing profiling technology. The retention of
samples, although carrying inherent risks to privacy, would facilitate the
transition from an objectionable technique to a new and acceptable method,
without necessarily rendering nugatory all the previous investment in the
collection of samples.
20. This suggestion may be implausible,
but as has been shown earlier it is not outside the realm of possibility,
particularly when one considers that our understanding of the ‘junk’ DNA is
fairly primitive. However, this scenario of retention is also predicated on the
assumption that the entire profiling technique must be abandoned according to
the dictates of privacy which then would favour a newer, less revealing method.
What is perhaps more likely is that one or perhaps two of the current forensic
loci are subsequently found to reveal or be linked to a disease,
disorder or disposition, for example, of a particularly sensitive nature. In
this latter scenario three potential options are available:
i.
wholesale
replacement of the technique with a newer method, as above;
ii.
deletion
of the information on and discontinuing use of the one or two loci, but
preservation of the other loci (so that there will be a reduction from
10 to 9 or 8). Then target new loci that will not reveal sensitive
information and yet will maintain the discriminatory value of the technique.
Any matches on retained loci will lead to a second sample being taken
and a new (full) profile will be generated;
iii.
encryption,
de-identification or non-disclosure of the information.
Only option (i) would
call for retention, whereas (ii) and (iii) would not. Option (iii) would
provide relatively little protection as much would depend upon the
effectiveness of regulation and trust in the custodians of any database of
profiles.
21.
Although
the discussion here is speculative and therefore dependent on future events,
which may not eventuate, it appears to the Commission that option (ii) is
preferable – at least in the short to medium term. Not only will this option
not require the retention of samples, but deleting part of the profile and
targeting different loci will ensure that sensitive and private information is
not retained or disclosed. Moreover, continuing to use the permissible loci
means that the profile (and incidentally the investment in the technology) is
not completely lost.
22. It is useful to note that as a
result of the development of profiling techniques a number of profiles that
have been held on the UK’s database are representative of older methods, such
as the SGM profiling system, which targeted only 6 loci instead of the
10 loci which are now targeted using the SGM Plus method.495 Matches have occurred on these older profiles, some
of which have been spurious,496 others not, but they have either
been confirmed or disproved following profiling of a second comparator sample.
Moreover, because a second sample is taken the evidentiary significance of the
match is not denigrated in any way. But should all current forensic loci be
compromised in some way or the basis upon which profiling is currently
conducted change (such as by a move away from STRs to SNPs)497 then it would be a fair assessment to conclude that
option (ii) together with destruction may not be desirable.
23. A further consideration in relation
to the concern that there may be a new basis for profiling is that the UK (with
whom there will inevitably be cross-jurisdictional investigations involving DNA
evidence) are unlikely to change wholesale from STR SGM Plus profiling to, for
example, SNPs profiling, particularly when one considers that this will entail
re-profiling of the in excess of 2 million samples which are currently retained
by the FSS.
1.
Conclusion on Sample Retention in Principle.
24.
In
considering this subject the Commission is acutely aware that the prospect of
governmental organisations having the power to collect, analyse, and retain
(perhaps for future analysis) an individual’s genetic material may to most
people be particularly unpalatable. The indefinite retention of samples could
discourage people from volunteering a sample in order to help with an
investigation (or for that matter consenting to a forensic procedure). It is
necessary for the sample to be retained until the conclusion of the trial in
order for it to be presented as an exhibit in court. However, after the trial,
it should be destroyed. Destroying the comparator sample after a profile has
been generated and verified and a final decision in the particular case has
been rendered would go a long way in allaying concerns about misuse and
possible future analysis, as well as inspiring public confidence in DNA
profiling and the establishment of a profile database.
25. The Commission is, in principle,
inclined towards destruction of comparator samples once a profile has been
generated, verified and stored and the trial in respect of which the sample was
obtained has concluded. Limited and anonymised samples should be retained for
longer periods of time, but not indefinitely, in order to ensure that the
profiling methods are accurate, for quality assurance purposes and to assist in
the regulation and accreditation of providers of forensic profiles and the
custodian of any database.
7.
THE PERMISSIBLE USES OF THE DNA SAMPLES AND PROFILEs
1.
We
will now examine the permissible purposes for which both the biological samples
and the profiles may be used. While the Commission is recommending, subject to
limited exception, the destruction of the comparator samples after the
conclusion of the trial for which they were obtained, in this chapter we intend
examining the analysis that may be conducted of these samples prior to their
destruction. This chapter is extremely important as the use to which the
samples and profiles can be put indicates the persons from whom the samples may
be taken and the length of time for which the samples may appropriately be
retained. This chapter is concerned with the analysis that may be conducted on
the DNA samples and the uses to which the database may be put. As is evident
from the discussion in Chapter 5, the purposes for which a DNA database may be
used is an important factor to be taken into account in assessing the
proportionality of any measure providing for the taking of samples from
individuals.498 If the purposes for which the samples and database
may be subjected are limited, it follows that the range of persons from whom
samples may be obtained is wider. This is also implicit in the reasoning of R
(S and Marper) v Chief Constable of South Yorkshire.499 Consequently, this analysis is important in
underlining our reasoning in Chapter 5 and Chapter 6.
2.
This
chapter is composed of two Parts. In Part A, we examine the analysis of the DNA
samples that may be undertaken. In Part B, we discuss the uses to which the DNA
database may be put.
1.
Permissible Analysis of Biological Samples
3. We consider first what type of
forensic analysis is permissible in respect of biological material left at a
scene of crime. We note that DNA found at a scene of crime may be from a person
who was not the perpetrator of the offence, but happened to be present for some
innocent purpose. This factor is also crucial when determining the evidential
significance of finding an individual’s DNA at the scene.500 As a caveat to what is suggested in the following
paragraphs, any further analysis of a scene of crime stain beyond the
generation of a profile should only be contemplated in the most exceptional
cases and where it is believed that the scene of crime stain comes from the
perpetrator of the offence. In other words, where the authorities are at a loss
as to how the investigation may be directed and, perhaps, as a precursor to an
intelligence (mass) screen.501
4.
In
the future it could become straightforward to subject a scene of crime stain to
analysis which will identify common characteristics, such as ethnicity, skin,
hair and eye colour, stature, weight, age and facial characteristics. This
could create a ‘genetic photo-fit’. Being able to find out that the person
whose DNA was left at the scene of crime may have certain physical
characteristics would undoubtedly be useful intelligence in the investigation
of an offence, particularly when the investigating authorities have not found
other evidence to lead them to the perpetrator.
5. The UK Forensic Science Service
(“FSS”) has already conducted research into ethnic inference, as well as other
commonplace characteristic markers. There have been two pilot studies by the
FSS into ethnicity prediction: one in the West Midlands and the other in South
Yorkshire.502 In the first, ethnic predictions were made for 176
solved cases submitted to the FSS by the police. These were processed ‘blind’,
in that the FSS did not know the ethnicity of the offenders until afterwards.
The results were categorised as follows:
i.
Those
where a major ethnic group was indicated as being the origin of the DNA – 27%;
ii.
Those
where an ethnic group could be excluded as being the origin of the profile –
35%;
iii.
Those
where no significant inference could be made – 38%.
Of the 109 profiles
that were ethnically predictable, categories (i) and (ii), four were incorrect,
which is unsurprising in view of the fact that the method of prediction is
based on probabilities and those individuals of ‘mixed race’ will produce
anomalous results.
6.
In
the second study 110 cases were taken, some of which were ongoing and some were
solved. The result was that, in 52% of the cases, ethnicity could be inferred
and was considered useful in the investigation.
7.
As
a result of this research the FSS run an ethnic inference service as well as a
red hair prediction service, the latter being over 80% accurate. The ethnic inference
test is based on DNA sequences associated with the gene pool of a population,
such as British Afro-Caribbeans who display a greater number of distinctive
characteristics. Using DNA sequences, the probability of a person’s ethnicity
can be calculated by comparing their SGMplus profile with the relevant
population database. The prediction is generated using a FSS software package
known as ALFIE (allele frequency for the inference of ethnicity). The frequency
of an SGMplus profile in each of the five British ethnic groups –
white-European, Afro-Caribbean, Indian Subcontinent, South East Asian and
Middle Eastern – is calculated.503 The red hair prediction test, on
the other hand, is based on the difference in the DNA of the MC1R gene
(melanocortin 1 receptor) that determines hair pigmentation. A mini-sequencing
technique detects variations in the coding sequence of this gene. It is
anticipated that, together with the research being conducted by the Human
Genome Project, other genes may be identified that determine other human
features, such as eye colour, skin colour, and perhaps even facial structure.504
8.
The
question that arises is: when it appears from genetic markers that the source
of the scene of crime stain is likely to belong to a person from a particular
ethnic group would the constitutional right to be held equal before the law in
Article 40.1 prohibit the Gardaí from using this information as an
investigatory lead enabling them to focus enquiries on members of that
particular group? US jurisprudence in relation to the Fourteenth Amendment is
of help here, where the validity of using ethnicity as an identifying feature
in a criminal investigation appears always to have been presumed.505 Kaye and Imwinkelried note that if the police were
unable to use physical evidence of ethnicity they:
“could not rely on an
eyewitness’s report that a person fleeing the scene of a crime was Hispanic, on
a victim’s report that a rapist was white, or on a linguist’s analysis of
accent or word choice in a recorded death threat that suggested that the caller
was African-American”.506
9. Evidently ethnicity is a legitimate
consideration in deciding whom to approach as a suspect when descriptions of
the perpetrator of an offence include ethnicity.507 What would probably be
unconstitutional and repugnant would be using information about ethnicity in a
way that targets or discriminates against people. However, research conducted
into the variation of particular alleles or genetic markers across ethnic
groups and the use of this information in improving forensic detection methods
would appear to be constitutionally permissible. The reason is that inferences
as to ethnicity should not lead to the targeting of minorities or disadvantaged
groups because an investigation should essentially be an objective exercise.
Indeed, genetic photo-fit profiling may rectify any tendency to pursue one or
other ethnic group unfairly or disproportionately.
10.
This
type of forensic analysis presents few constitutional conundrums, as any
potential violation of the unidentified individual’s privacy is likely to be
outweighed by the greater societal good in investigating and solving the crime:
especially when the scene of crime stain is from a particularly serious or
heinous offence. Moreover, the category of genetic information, which is in the
main phenotype, being observable characteristics, is not of a particularly
sensitive nature.
11.
A
more difficult question is where to draw the line between the permissible
analysis that furthers the criminal investigation and impermissible analysis.
For example, the analysis of DNA to identify physical characteristics of
perpetrators may represent the thin end of the wedge and analysis may ‘creep’
towards identifying genetic disorders and personality and behavioural traits.
This goes beyond physical characteristics, such as for instance ethnicity and
racial features.508 The danger is that advances in our understanding of
genetics, whilst having beneficial implications in respect of the treatment of
genetic disorders might also have potential ramifications conducive to
discrimination and stigmatisation.509
12.
One
view is that this type of analysis provides essential information in solving
crime. However, there exists much public sensitivity concerning genetic
privacy, which would demand compelling justifications for conducting any
further analysis beyond inferring physical characteristics, which one may
categorise as non-sensitive phenotype information.510 Owing to the fact that the
relevant field of science is at an early stage of development it is not
possible to be categorical about the advisability of this form of intelligence
gathering. However, there is a view that the analysis of a scene of crime stain
should only be conducted for the purpose of detecting, investigating and
preventing crime, so as to aid the authorities to catch a perpetrator or
improve profiling techniques and statistical frequency databases. Accordingly,
the Commission submits that the authorities for the present should be precluded
from conducting any kind of medical/behavioural research using the samples; but
this should not prevent further forensic analysis for the legitimate purpose of
furthering the investigation and prevention of crime and improving forensic
techniques.
13.
One
further aspect to the analysis of DNA left at or associated with a scene of
crime concerns the dissemination of the results of testing (that is over and
beyond the profile itself), particularly as the information may be of different
levels of sensitivity. As a policy matter, the Commission feels that the
results should not be disseminated further than is necessary for the
investigation and prosecution of the offence. This follows from the fact that
the justification for this intrusion on the right to privacy is that it is
necessary to solve crime. So, for example, if the investigatory authorities
were to subject a scene of crime stain to testing that revealed the source to
have a particular genetic disorder or contagious disease, which could form the
basis of an investigatory lead, the authorities would have to be extremely
careful as regards the disclosure of this sensitive type of information.511 This is immediately apparent when one considers that
a victim’s or an innocent third party’s DNA may be mixed with the perpetrator’s
DNA. Although that is not to say that perpetrators have no right to privacy.
Results obtained from further testing should therefore only be revealed to and
by the investigatory authorities where the results relate to the potential
perpetrator and are useful for the purpose of investigating the offence.
14.
The Commission is of the view that the analysis of biological samples
taken from a scene of crime should be limited to purposes that further the
criminal investigation and that the results of any analysis should be kept
under the most careful custody. Analysis of coding regions should be allowed to
determine non-sensitive phenotype information in respect of common characteristics,
such as eye colour and skin colour.
15.
In
contrast to samples provided with the informed consent of the donor in the
context of medical, scientific and biotechnological research or for that matter
biological material discarded or at least found at a scene of crime, samples
provided in the context of a criminal investigation are not always given
consensually.512 These comparator samples513 are provided for a specific
purpose, namely for comparison with a biological sample left at a scene of
crime. As we have already observed,514 the objective is either to
exculpate or to point towards presence at the scene, and even, inferentially,
guilt. This comparator sample has not been abandoned in the way that a scene of
crime stain has been discarded. A comparator sample that is taken from a
suspect or volunteer is in an entirely different category, as a sample of blood
or the cells on a mouth swab or rather more specifically the genetic
information contained within these samples, is uniquely attributable to one
individual. Consequently, there is a sound view that because of the nature of
the material and what may be derived from it different considerations should be
contemplated.
16.
Whilst
current profiling techniques examine only the non-coding parts of the DNA
molecule, advances in forensic science suggest that the non-coding areas may
contain information relevant to health or diseases or other characteristics.515 The Australian Law Reform Commission has expressed
its concern about the potential extension of forensic analysis of comparator
samples to physical and behavioural characteristics.516 The Human Genetics Commission
also commented on this issue, as follows:
“It appears to us that
there is a clear distinction between using DNA for comparison or identification
purposes (which the public broadly accepts) and using it to predict the
characteristics of a person. We take the view that the public might have
concerns about such uses and that it should be subject to wider debate”.517
1.
There
would be little use in determining the colour of the hair or ethnic origin of
the donor where this is already known. This phenotype information or
information regarding observable characteristics would only be useful to
discover from and through testing the source of a sample left at a scene, but
once a suspect is found this information is apparent. It is only the genotype
information that is not discoverable through visual examination and it is this
information that is arguably the most sensitive.518 Accordingly, an individual should
have the right to keep this private and the authorities should be precluded
from gaining access to this data. Therefore, unlike the scene of crime stain,
which may legitimately be subjected to further testing in the interests of
furthering a criminal investigation in exceptional circumstances, a comparator
sample should not be subject to analysis beyond that which is necessary to
establish the likelihood that the donor of the comparator sample is the source
of the scene of crime stain. After all, the knowledge that ‘suspect X’ has a
particular genetic disorder does little or nothing to show whether he or she
was at the scene, let alone whether he or she is in actual fact guilty of the
particular offence being investigated.
2.
This
safeguard against the unnecessary diminution of the right to privacy, or more
specifically reduced control over one’s personal genetic information, is not
controversial. Indeed this type of protection exists in the laws of other jurisdictions,
such as Germany.519 German law precludes the analysis of DNA to draw
conclusions as to personality traits, dispositions or diseases.520
3.
However,
German law does not explicitly restrict analysis to the non-coding DNA regions.
This is so as to avoid limiting or precluding future scientific development. At
present it is the non-coding regions that are of particular use for analysis
because they contain the most variation.521 The coding regions contain
substantially less genetic variation between individuals and are not especially
useful when attempting to distinguish between possible sources of a scene of
crime stain. However, should it be discovered in the future that the non-coding
regions and in particular the loci used in forensic profiling are not truly
‘non-coding’, then it may become necessary to discontinue the use of these
areas.522
4. The Commission recommends that any
legislation providing for the analysis of DNA samples for comparison with
biological samples left at the scene of a crime should exclude testing which
might reveal information about genetic disorders, personality and behavioural
traits and predispositions. The Commission does not recommend that analysis of
these DNA samples should be restricted explicitly to the non-coding regions.
1.
Permitted Uses of the DNA Database
1.
It
is imperative that the permitted uses of the DNA database be clearly defined to
avoid the possibility of ‘function creep’. ‘Function creep’ in essence refers
to “a situation where the permissible uses of a DNA profile gradually expand”.523 Widespread concern has been expressed over the
possibility of ‘function creep’. As observed by the Irish Council for Civil
Liberties “[i]n order to be human rights compliant, any system of DNA retention
particularly in the area of criminal justice, must be strictly limited in its
purpose and must not be allowed to fall victim of the phenomenon of “function
creep”.524 In particular, there is concern that the information
on the database will be disseminated to both public and private organisations.
At present the information which can be derived from the profile is quite
limited.525 However, there is concern that research may show that
these profiles reveal more about an individual than was previously realised. It
has been suggested that some STR loci which were thought to be
non-coding may be linked to diseases, for example Kennedy’s disease.526 As well as this, whilst a profile reveals very little
information about an individual’s DNA, the profile does conclusively prove
parentage and relatedness.527 The misuse of the information on
the database is a very real concern and not just a theoretical argument. Indeed
in Iceland and Tonga, the Governments actually sold genetic information to
multinational corporations without the consent of those who gave samples.528 The safeguards that should be put in place and
adopted to ensure that the profiles are used solely for the purposes permitted
by the legislation are discussed later.529
2.
In
order to avoid this possibility of “function creep”, the purposes for which the
database may be used should be clearly defined in legislation. In particular,
the dissemination of the information on the database to public or private
bodies for purposes beyond those stipulated should be expressly prohibited. The
crime enforcement purposes for which the database may be utilised are discussed
later in the chapter.530 Before we examine these uses, we discuss whether the
profiles derived from samples may be used for the identification of deceased
and severely injured persons.
1.
Identification of Deceased Persons
1.
DNA
identification is increasingly used as a means of ascertaining or confirming
the identity of unknown deceased persons.531 The DNA of the deceased person
can be matched with DNA from their personal articles or from their close
personal relatives to determine their identification. In the event however of a
mass disaster and in certain other circumstances, it could prove useful to
match the profiles from the deceased persons with the profiles on the database.
This will only be possible if the body is not too degraded for nuclear DNA
analysis. If the body is too degraded for nuclear DNA analysis, it may be
possible to identify the person through mitochondrial DNA (“mtDNA”) analysis.
However, a profile generated from mtDNA is not comparable with an STR profile
so in this instance it will not be possible to search the profile of the
deceased person against the profiles on the database.532 Even if nuclear DNA analysis is
possible, given that the national database will only contain a portion of the
profiles of the population of the country, this mechanism often may not solve
the mystery of the identity. However, if the profile of the deceased person is
in fact retained on the database, it constitutes a rapid, non-invasive and
efficient mechanism for identifying the deceased person.
2.
In
Australia, an index has been established which contains the profiles of missing
individuals and their relatives and of unknown deceased persons. Part 1D of the
Crimes Act 1914 as amended allows for unrestricted matching
between profiles contained in the ‘missing persons’ index and all other indexes
of the DNA database system.533
3.
The
Commission accepts that the profiles of the unidentified deceased should be
matched against the convicted offenders’, suspects’ and volunteers’ indexes of
the database. While the outcome of these speculative searches is varied, given
the limited number of individuals whose profiles will be retained on the
national database, there are no countervailing disadvantageous factors which
outweigh the benefits that this attempted matching of profiles may achieve. The
privacy and bodily integrity intrusions entailed by this measure are minimal.
The individuals whose profiles may be utilised for this purpose are deceased.
4.
It
is imperative however that permitting the use of the DNA database for the
identification of deceased people does not enable it to be used for other
purposes, such as, for example, the determination of the paternity of the child
of a deceased person. Using the database for the purpose of determining
relatedness and parentage in this instance could cause severe distress to the
family of the deceased person and could constitute an unjustifiable
infringement of their right to privacy. Instead, the database should be used
for the purpose only of identifying the deceased person and no other
information concerning this person should be released.
5.
The Commission recommends that the profiles of deceased’s persons may be
matched against the convicted offenders’, suspects’ and volunteers’ indexes of
the database for the purpose only of identifying these persons and not for any
other purpose such as paternity determination.
1.
DNA Profiling of Deceased Persons
1.
The
Commission also recommends that it should be possible to make a court
application seeking the searching of a deceased’s profile against the profiles
on the crime scene index. This recommendation encompasses both known and
unknown deceased persons. In the UK under PACE, it is possible to take a sample
from a dead body if there is reasonable suspicion that the deceased person may
have committed the offence.534 In Ireland, the court should be
authorised to make an order allowing for the use of the database for this
purpose in appropriate cases. There is a public interest in the resolution of
outstanding offences. Discovering that a deceased person’s profile matches a
crime scene profile may enable the Gardaí to resolve and close the case and
prevent resources being wasted. It is also in the victim’s interest.
2.
There
should however be a requirement to show that there is a reasonable suspicion
that the deceased committed the offence before a court order is made. In
addition to this, given that such an order may naturally cause distress to the
relatives of the deceased and impinge on the traditional respect for the
dignity of the dead, the judge should be given discretion in deciding whether
or not it is an appropriate case in which to make such an order. It is only
where the public interest in the resolution of the outstanding offence
outweighs these considerations that the court should allow a sample to be taken
and the deceased’s profile to be searched against the crime scene profiles on
the database. The deceased’s profile should not be retained on the database
beyond the time that it is necessary to deduce whether there is a match or not.
3. The Commission recommends that the
profile of a deceased’s person may be matched against the crime scene index
where a court authorises this on the basis that there are reasonable grounds
for suspicion that the deceased was responsible for the crime and it is an
appropriate order to make having regard to all the circumstances of the case.
1.
Identification of Severely Injured Persons
1.
There
will also be rare instances where a person is so severely injured that they are
unable to identify themselves. Where this arises, determining their identity
will probably be desirable. In most cases, it is likely that the injured
individual would wish for their identity to be disclosed. However, there may be
cases where this is not so. In the event of the individual being in a position
to consent or to refuse to consent to the discovery and disclosure of their
identity, no problems will arise as their wish can be respected. In the
majority of cases where DNA matching is required to ascertain the identity of
the injured person, the person will be incapable of giving an informed consent
to the disclosure. The Commission suggests that in this situation a person with
a proper interest in the matter should be entitled to make a court application
seeking the identification of the person from the database. A court order could
then be granted allowing for the searching of the database for the identity of
the person where the court deems it appropriate. Of course as with the
identification of deceased persons, it is unlikely that a match would be
attained from the database. However, allowing for the searching of the severely
injured person’s profile against the profiles on the database could prove
useful in certain circumstances. This would ensure that an appropriate balance
is maintained between the right of the injured person to consent to the
disclosure of their identity and the need for the identity of this individual
to be revealed in certain circumstances.
2. The Commission recommends that in
the event of a person being so severely injured as to be unable to indicate
their identity, a person with a proper interest in the matter should be
entitled to make a High Court application seeking the identification of the
person from the DNA database.
1.
Crime Investigation Purposes
1. Apart from the identification of
deceased and severely injured persons, it is suggested that the database be
confined to use for crime investigation purposes. This is because only crime
investigation purposes could justify the significant infringement on an
individual’s privacy and bodily integrity rights and their privilege against
self incrimination that the taking of samples and retaining of profiles
involves. Using the profiles for crime investigation purposes advances the
legitimate aim of safeguarding the interests of society and the victims of
crime. These interests justify the limited infringement on the individual’s
rights involved. In the event of a constitutional right to paternity
determination being recognised, it is suggested that this DNA database may not
be used for the purpose of determining the identity of a person’s parents.
2.
The
database’s primary function in the criminal investigation system is to enable
‘speculative searches’ to be conducted. This essentially involves searching for
matches between the profiles on the crime scene index and those on the other
indexes. The attainment of a match in these circumstances is referred to as a
‘cold hit’. It allows a person to be connected to a crime about which there was
no previous suspicion of the person’s involvement.
3. The database may also need to be
accessed for other reasons ancillary to this primary function. In order to
avoid any uncertainty, each individual purpose for which it is necessary to
have access to the database should be specified in the legislation. Section 92
of the NSW Crimes (Forensic Procedures) Act 2000 provides a commendable
example of such an approach. This section sets out unambiguously and concisely
the purposes for which the database may be accessed. The suggested permitted
purposes, in the Irish context, which might justify the accessing of the
database by the custodian are:
1. To conduct forensic matches or
speculative searches (as described above).
2. To make the information available to
the subject to whom the information relates.
3. To establish and administer the DNA
database system.
4. To examine a contention that any
conviction is a miscarriage of justice under section 2 of the Criminal
Procedure Act 1993 or that a conviction should be overturned on appeal.
5. To investigate a complaint by the
overseeing body of the database.
6. To compile statistics for the
overseeing body on the operation of the database.
7. To exchange the profiles between
jurisdictions as sanctioned by the legislation.
8. To identify unknown deceased
persons.
9. To identify severely injured persons
where the court sanctions it.
10. Or any other related purpose.
1.
This
approach however can be criticised for being unduly restrictive in that it does
not enable the database to be utilised for any additional purposes apart from
those related to the present purposes which are discovered to be useful on the
operation of the database. Indeed in NSW itself, section 93 of the 2000 Act
enables regulations to prescribe additional purposes for the database. There is
no restriction on the additional purposes which can be prescribed in this
regard. However, the Commission disagrees with this approach. Any additional
useful purposes that become evident with time should be prescribed by primary
legislation. While normally a topic may not command legislative attention with
any frequency, with DNA we do not think it is right to be governed by this
practice and make guesses in a rapidly evolving area. Indeed, any attempt to
enact a provision mirroring that in NSW could in fact be unconstitutional.
Article 15.2.1° of the Constitution limits the power of the Oireachtas to
delegate law-making functions to Ministers or other bodies. This is evident
from the decision of City View Press Ltd v AnCO,535 where the Supreme Court held that the test for
determining whether delegated legislation is an unconstitutional delegation of
parliamentary power is whether it does more than merely give effect to the
principles and policies contained within the legislation itself. If it does,
then it is an unconstitutional delegation of power. It is therefore apparent
that if a provision similar to that adopted in Australia were enacted in
Ireland, it could be unconstitutional.
2.
In
the UK, the legislation provides that the samples can be utilised for “purposes
related to the prevention or detection of crime, the investigation of an
offence or the conduct of an investigation”.536 No further definition is given in
the legislation as to the precise purposes for which the database can be
accessed. In the Marper case537 Liberty submitted that this
section was broad enough to enable in the future information in relation to an
individual’s propensity to commit crime to be obtained from the sample and to
be used in a criminal trial. Waller LJ answered these concerns by observing
that any change in the practice of the police force, for example by deriving
information in respect of an individual’s propensity to commit crime from the
samples, would have to comply with the ECHR. He also observed that unlawfulness
should not be assumed. Given that it is recommended by the Commission that the
samples should not be retained beyond the conclusion of the trial, the fears of
Liberty are less likely to arise in Ireland.538 At present, very little
information can be derived from the profile itself.539 However, there is the potential
for the discovery that the profile contains more information than is currently
recognised. It is suggested therefore that the purposes for which the
information on the database may be utilised should be clearly defined. The “any
other related purpose” proviso suggested above would ensure that the definition
of the permitted purposes is not so constrained that the functioning of the
database would be impaired.
3.
Kaye
and Inwinkelried also believe that permitting the database to be utilised for
“crime investigation purposes” could be interpreted to allow the database to be
used for research purposes relevant to crime detection and prevention.540 While the profiles are likely to be of less use for
research purposes than the samples, they could still be informative. Whether
any meaningful research can be conducted on the profiles should be reviewed by
an expert group set up for this purpose. The advantages and disadvantages of
utilising the database for these purposes are dependant on the value of the
scientific research that could be conducted on the profiles and this is beyond
the scope of this Paper. However, the Commission does not, in principle, have
any objection to the use of anonymous profiles for research purposes related to
criminal investigation, where this is deemed useful. If it is intended to use
the profiles for this purpose, this should be specifically addressed in the
legislation. At present, the Commission intends to confine its recommendations
to the criminal investigation and identification purposes of the database.
4. The Commission recommends that the
database should only be used for crime investigation purposes and the
identification of deceased and severely injured people. The specific purposes
for which the database may be used should be detailed in legislation.
1. It has been suggested that DNA from
a family member could alert the Gardaí to the identity of the actual offender.
This is a consequence of the similar genetic make up of relatives. As a result,
the Gardaí may wish to perform a forensic procedure on a close relative of a
suspect, where the suspect is not available for testing. For example, the
murderer of Pauline Floyd, Geraldine Hughes and Sandra Newton was recently
detected through his family.541
2.
Permitting
the acquisition of a sample from a suspect’s close relatives, whether on a
voluntary or compulsory basis, could enable the Gardaí to circumvent the
safeguards in the Criminal Justice (Forensic Evidence) Act 1990 and the
Scheme of the Criminal Justice Bill 2003. This near match could create a
reasonable suspicion that one or other of the family members was responsible
for the commission of the offence. The near match could then be utilised to
subject the actual suspect to compulsory sampling.542 This evading of the safeguards in
the legislation is apparent irrespective of whether the sampling is voluntary
or compulsory.
3.
The
compulsory taking of a sample could also impact considerably on the family
member’s privacy and bodily integrity rights, although it is mostly in respect
of the voluntary giving of samples that these concerns would arise. This is
because the taking of samples compulsorily from family members would generally
prove unnecessary as in such cases a sample could be taken from the suspect.
The only situation where this might arise is if the suspect is located outside
the jurisdiction. In any event, the compulsory taking of samples would
generally be prohibited as a result of the recommended provisions in respect of
persons who are not suspects or convicted offenders. The exceptional
circumstances where a non-suspect could be subjected to compulsory sampling
would not be implicated here, unless the relative was endeavouring to pervert
the course of justice.543 The Commission does not believe that an exception
should be made for the rare cases where the compulsory taking of a sample of a
relative is necessary to implicate an individual in a crime.
4.
We
suggest however that a sample obtained voluntarily from a perpetrator’s
relative may be used to implicate the perpetrator in a crime because this would
not involve an infringement of the suspect’s privacy rights. Rather,
information is obtained from another person and this is used to trigger an
investigation. In this instance, the information attained would merely be used
to take a sample from the individual without their consent under the 1990 Act.
Of course the situation would be different if the partial match was admitted
into court as evidence. This could constitute an unjustifiable breach of the
suspect’s privacy rights. But in the absence of the partial match’s admission
into court, the use of it to further the investigation cannot be regarded as
objectionable. Using information obtained from another individual to further
the investigation cannot per se be regarded as objectionable. An analogy
can be drawn here with identification evidence. A victim may be shown
photographs of convicted offenders. The victim may assert that the photograph
resembles their attacker but that they were younger than the person in the
photograph. There can be no objection to pursuing the convicted offender’s
younger brother in this instance.
5. The Commission recommends that a
sample obtained voluntarily from a perpetrator’s relative may be used to
implicate the perpetrator in the crime but that no compulsory power should be
introduced to the effect that such a relation may be compelled to give a
sample.
6.
A
related situation is that a database search may implicate an offender’s
relatives rather than the actual accused. This arose in the US in Flowers v
State.544 In this case, the crime scene profile did not match
the DNA profile of a suspected rapist but ultimately the similarity between the
suspect’s DNA and the DNA of the trace evidence alerted the police to the
original suspect’s brother and the brother’s DNA profile did match. In this
situation, it has been argued that the investigation is a disproportionate
interference with the individual’s rights on the basis that their privacy
rights have been intruded on without proof of the commission of any act by them
which justifies this intrusion.545 Kaye and Inwinkleried however
disagree with these comments. They assert that “relatives, like other
individuals, have no right to be free from legitimate investigation just
because suspicion is triggered by information obtained from another person”.546 The Commission accepts these observations and does
not regard the use of a partial match as a breach of an individual’s privacy
rights. In any event, any limited breach of the individual’s privacy would be
justified on the basis that this is necessary for the investigation of a crime.
7. If this situation were to arise in
Ireland, the “partial match” would be used as grounds for requiring the
relative to give a sample on the basis that the near match gave rise to a
reasonable suspicion that he was responsible for the commission of the offence.547 In this situation, the safeguards of the 1990 Act are
not evaded as they are in the instance discussed above. The evidence has not
been obtained in a manner which endeavoured to avoid the safeguards of the 1990
Act. Rather, the evidence was obtained lawfully and then used to further the
investigation. Consequently, we see no objection to the use of the evidence for
this purpose.
8. The Commission recommends that it be
permissible to use a DNA “partial match” from a relative to justify implicating
a suspect.
1.
Information Sharing and the International Dimension
1.
In
1997, the EU Council of Ministers Resolution stated that “exchanging DNA
analysis results may be a way of making a significant contribution to crime”.548 It is important for this objective to be achieved
that the national databases are compatible with each other. This involves
ensuring that countries all use the same fixed set of loci for the
purpose of formulating a DNA profile. Otherwise, the DNA profiles would not be
interchangeable. At present, this is the situation across Europe. However, it
is important to emphasise that compatible systems are a precondition before any
international cooperation in respect of DNA can occur in practical reality.
2.
The
Commission will now consider whether the profiles on the database may
permissibly be given to other jurisdictions or to a European or international
body for insertion onto a database. Whether the national database may be
composed of profiles obtained from other jurisdictions must also be considered.
Both Europol and Interpol encourage the exchange of profiles between
jurisdictions.
3.
At
present, Interpol are considering the establishment of an Interpol DNA
Database. Under this database, Member States would submit profiles to the
database and these profiles would then be compared with those already on the
database to detect a match.549 The conditions which will have to
be met before profiles may be inserted on to such a database have not yet been
established. Similarly, while Europol have not as yet established a European
DNA database, there is a clear intention to establish one in the near future.
This is apparent from the EU Council Resolution of the 9 June 1997 on the
Exchange of DNA Analysis Results.550 This Resolution specifically
addresses the establishment of a European database. It states that such a
database should be established after the conditions for the exchange of the DNA
analysis are realised. It also encourages the creation of a system of information
sharing whereby DNA profiles would be exchanged. The Council of Europe
recommendation however clearly provides that the samples and profiles derived
from them can only be retained where a person has been convicted of an offence.
Except in cases of terrorism, any samples and profiles obtained during the
investigation of an offence should be destroyed in the event of the person not
being charged with an offence or being acquitted of the offence.551 Under the Resolution, it is only where the
jurisdiction in question satisfies these conditions that its profiles may be
inserted onto a European database, if such a database is created. If this
Resolution is complied with, despite the fact that it is not legally binding, Ireland
will be ineligible to place its profiles derived from suspect’s samples on the
database being used for the exchange of information, if the Commission’s
recommendations are followed. Also in order for a jurisdiction to match a DNA
profile with that of a profile in another jurisdiction, both jurisdictions
should under the Resolution satisfy the above conditions.
4.
In
the event of Ireland signing up to any arrangement to establish a European or
international database, it must ensure that the transfer and searching of the
DNA data processes are in compliance with its law. It may be possible to limit
its access to profiles on the database to certain countries and to exclude the
profiles from other Member States. Also in exchanging profiles with other
jurisdictions, it must be ensured that the profiles obtained were acquired in a
manner that is lawful under Irish law. For example, if the UK obtains and
retains profiles from persons suspected of committing minor crimes and Ireland
does not, how can it be lawful for Ireland to rely on profiles obtained by the
UK from these suspects? The Commission recognises that there are advantages to
utilising a wider database for the purpose of matching crime stains with
profiles. It should lead to the apprehension of a greater number of criminals
than would otherwise be detained. The UK database is composed of 2.1 million
profiles and given the proximity of the UK to Ireland, it is likely that some
of these criminals are operating within Ireland. Depriving Ireland of the advantages
of such a database could therefore hamper crime investigation.
5.
Despite
this, the Commission does not believe that it should be permissible to use the
profiles obtained from another database when these profiles could not be
legally retained on a national database here. The crime investigation benefits
have already been considered in deciding on the profiles that can be retained
on our database. If this were allowed, individuals whose profiles are retained
on international databases would be more susceptible to criminal charges than
persons whose profiles were obtained in Ireland. This is arguably a breach of
Article 40.1 of the Constitution and potentially breaches the privacy or bodily
integrity rights of the persons involved as it affords a lesser degree of
protection to individuals whose profiles are inserted onto an international
database or obtained from another jurisdiction. As there can be no objection to
the using of profiles obtained in the UK that comply with Irish legal
standards, the Commission does not suggest that the UK database may never be
used to obtain profiles. Rather, we submit that it is only those profiles that
are obtained in compliance with Irish law that may be used. This addresses the
question of the profiles obtained from other jurisdictions that can be retained
on our national database.
6.
In
addition to that, we must examine whether Irish profiles can be imparted to
other jurisdictions. There are potential problems with this course of action.
In offering Irish profiles to other jurisdictions, it must be ensured that the
safeguards adopted in respect of the security and permitted uses of the
profiles are also implemented in the receiving jurisdiction. The Australian Law
Reform Commission has recently recommended that in the event that information
stored on a DNA database system is disclosed to Interpol or any foreign agency,
the Commonwealth must take reasonable steps to ensure that the information
transferred will not be held, used or disclosed by the recipient inconsistently
with the national minimum standards.552 The Commission agrees with this
recommendation. Implementing this recommendation would ensure that the profiles
exchanged were handled in a manner compatible with Irish law.
7. The Commission recommends that the
State should only obtain profiles from other jurisdictions, where these
profiles have been collected and retained in a manner compatible with Irish
law. It also recommends that the State should accede to an international database
if the profiles present on the database may be lawfully used for these purposes
under Irish law. In the event of any profiles being submitted to an
international database or exchanged with another jurisdiction, reasonable steps
should be taken to ensure that the information disclosed is not used in a
manner which infringes Irish law
oversight,
Regulation, quality control and accreditation
8.
oVersight, Regulation, quality control and accreditation
1.
The
Commission’s recommendations in the previous three chapters have been premised
on the security of the samples and the database. The most persuasive argument
against the establishment of a national database is that the information on it
may be open to misuse. As observed by the Irish Council for Civil Liberties
“[o]ne of the key dangers posed by the extension of the use of DNA technology
beyond the area of identification is that genetic information could be used by
public or private agencies to discriminate against certain persons or groups”.553 However, if the database is securely protected and
ring fenced electronically, the arguments against the retaining of a relatively
large amount of profiles are refuted and met and law-abiding citizens should
have nothing to fear from its creation and maintenance as a vital protection
against and tool in the detection of crime. In this chapter, we will examine
the manner in which the database and the samples may be kept secure. It is only
if the database is secure that our recommendations regarding the categories of
persons whose profiles may be retained can be regarded as a proportionate
interference with the rights of an individual.
2.
The
evidential concerns that impact on the reliability of a DNA match are discussed
in Chapter 9. This chapter is also concerned with minimising the risk of
concerns about reliability arising. Ensuring that the samples and the profiles
are managed in an independent and competent manner will mean that the validity of
a DNA match will rarely be in doubt. This will enhance the public’s confidence
in DNA for crime investigation purposes and make the case for a database of
convicted offenders and suspects more compelling.
3.
In
Part A of this chapter we address the important issue of who will act as
custodian over the DNA database and samples and to what external oversight this
body should be subject. In Part B, we discuss the roles and responsibilities of
the custodian of the database and samples. The most important of these
functions is to ensure that the database and samples are secure. In Part C, we
appraise the quality control and quality assurance procedures the Forensic
Science Laboratory at present follows. Finally, in Part D the procedures which
should be followed in conducting a crime scene examination are reviewed.
1.
Oversight and Regulation of the DNA Samples and Database
4.
In
setting up a national database, the body who will act as custodian over the
database and the samples must be named in the legislation. This body will have
the vital function of ensuring the security of the database and also of
guaranteeing the accuracy of the results on it. It will manage the destruction
of the profiles where appropriate. It will be required to ensure that the DNA
samples are protected from interference and destroyed where this is deemed
necessary. It is therefore crucial that this custodian be independent and
competent and that the public have confidence in its ability to carry out this
task. This body must also be subject to impartial scrutiny to ensure that it is
carrying out its functions competently. Legislative arrangements for an
independent and objective monitoring of the entire DNA database will be
necessary to inspire and ensure public confidence in its operation, security
and capacity for efficiency, integrity and confidentiality.
5.
In
Ireland, the Forensic Science Laboratory (“FSL”) is an associated office of the
Department of Justice, Equality and Law Reform.554 It is independent from the Gardaí
and consequently not subject to direction from the Gardaí. The FSL has shown
itself to be competent, efficient and in practice independent from the Gardaí.
There is, for example, an internationally recognised accreditation system in
use at the laboratory.555 If the FSL both analysed the samples and acted as
custodian of the database, the costs of maintaining such a database would be
significantly reduced as there would be no need to establish a new body to act
as custodian of the samples or a separate body responsible solely for the
custody of the database.
6.
However,
it is crucial that the public has confidence in the operation of the DNA
database. DNA profiling is conducted not just for the prosecution but also to
exonerate people from suspicion in certain instances. Given the necessary
cooperation and close coordination that exists between the Gardaí and the FSL,
the FSL may not be perceived publicly as being distinct from and independent of
the Garda Síochána. Indeed, the Minister for Justice has also recently spoken
about the close partnership between the FSL and the Gardaí.556 Before discussing the manner in which public
perceptions could be addressed, we will examine the position that has been
adopted in other jurisdictions.
7.
In
the US, the Federal Bureau of Investigation (“FBI”) operates the national
Combined DNA Index Systems (“CODIS”) database with an external public advisory
committee that consists of experts in ethics and a Supreme Court judge. The
operation of CODIS is also subject to external monitoring and auditing by the
Department of Justice Office of the Inspector General. Such an audit was
conducted in 2001 and contained criticisms regarding the FBI’s oversight of
CODIS-participating laboratories.557 A similar approach is followed in
Canada. There the Royal Canadian Mounted Police operates the national database
with an advisory committee and a representative of the Privacy Commissioner of
Canada. The database is also subject to external oversight from the Privacy
Commissioner.
8.
In
Australia, there are two databases for law enforcement purposes. These are the
Australian Federal Police database and the National Criminal Investigation DNA
database (“NCIDD system”). The Australian Federal Police database is the
Police’s own database.558 The NCIDD system aims to encourage inter-jurisdictional
matching of DNA profiles. CrimTrac is the executive agency responsible for
operating the NCIDD system. The Australasian Police Minister’s Council defines
CrimTrac’s policies and appoints members to its board of management. CrimTrac’s
operation of the NCIDD system is overseen by the CrimTrac User Advisory Group
(“UAG”). UAG is composed mainly of police representatives and forensic
scientists. This is a body which has in reality no institutional independence
from the police force. Complaints against CrimTrac can be made to the State’s
Privacy Commissioner under the Privacy Act 1988559 or to the State Ombudsman.
However, these officials can only investigate complaints regarding activities
within that State and have no jurisdiction to deal with complaints that cross
State borders. The Australian Law Reform Commission (“ALRC”) has accepted that
the oversight afforded by the Privacy Commissioner and the State Ombudsman is
insufficient.560 As a result of this, the ALRC has recommended that
CrimTrac’s board of management should include independent members, such as
nominees of the Office of the Federal Privacy Commissioner and the Commonwealth
Ombudsman. It was also suggested that an audit should be conducted periodically
by an independent body of all the DNA database systems. In respect of the
retention of DNA samples, at present in Australia the laboratories, which are
responsible for conducting the forensic analysis, retain the DNA samples.561 In respect of the retention of the DNA samples, the
ALRC suggested that an independent body should be responsible for the custody
of the samples rather than the laboratories which at present actually conduct
the forensic analysis.562
9.
In
the UK, the national database is controlled by the Forensic Science Service
under a Memorandum of Understanding with the Association of Chief Police
Officers (“ACPO”) and with the support of the Home Office. The Forensic Science
Service (“FSS”) also supplies profiles for the DNA database. The impartiality
and operation of the database is overseen by the National DNA Database Board.
This is chaired jointly by the FSS Chief Executive and the ACPO DNA
representative.
10.
The
fact that the FSS acts as both user and custodian of the DNA database has been
extensively criticised. Recently, the House of Lords Select Committee on
Science and Technology recommended that “the Government should establish an
independent body, including lay membership, to oversee the working of the
National DNA Database, to put beyond doubt that individuals’ data are properly
used and protected”.563
11.
A
similar recommendation has been made by the Human Genetics Commission (“HGC”).564 The HGC criticised the present arrangements because
the only bodies that are involved in the oversight of the database are the FSS,
the relevant Home Office policy section and ACPO, who are all responsible to
the Home Secretary. Within this arrangement, there is no provision for any real
external oversight. The HGC accepted that the FSS provided a secure and
efficient profiling and database service to the police force. However, due to
the potential conflict of interests, the HGC made four recommendations. First,
that membership of the National DNA Database Board should be expanded and
should encompass lay members. Secondly, the creation of a new independent
advisory body, including lay representation, with oversight of the whole
process from the taking of samples and the production of profiles to the
operation of the database. This body could report to the National DNA Database
Board. Thirdly, that the operation of the National DNA Database and the role of
the custodian should be made independent of the FSS. The custodian should have
to report to an enhanced management board rather than the FSS Chief Executive.
Significantly, their fourth recommendation advocated the creation of a new
independent body to operate a single databank of samples with strictly
controlled access. Finally, the HGC recommended that “at the very least, the
Home Office and ACPO establish an independent body, which would include lay
membership, to have oversight over the work of the National DNA Database
custodian and the profile suppliers”.565
12.
As
a result of this Report, membership of the National DNA Database Board has been
extended to include representatives of the Home Office and the HGC. While this
is a welcome development, it does not go nearly as far as the recommendations
of the HGC.
13.
In
respect of the DNA samples specifically, the HGC also referred with approval to
the UK Government’s undertaking during the passage of the Criminal Justice
and Police Act 2001 to give consideration to the creation of an independent
body to hold the samples.566
1.
The Custodian of the Database and DNA Samples
14.
It
is arguable because of the public perception of close coordination between the
FSL and the Gardaí that an independent agency should be established which would
act as custodian of the database. The UK HGC observed that allowing the one
body both to supply the profiles and to act as custodian of the database could
lead to a potential conflict of interests.567 This concern would be less likely
to arise if an independent agency acted as custodian of the database, while the
FSL continued to profile the samples. This agency could have sole
responsibility to manage the database and give either a ‘match’ or a ‘no match’
response to a request for hits. Such an approach would entail the FSL
submitting profiles to the agency and the agency then entering the profiles
onto the database. However, this approach would still not alleviate the
perception regarding the manner in which the creation of the profiles is
carried out. The FSL could still be perceived to be closely associated with the
Garda Síochána. The FSL would still be intricately connected to the independent
agency in submitting to it profiles on a regular basis. There is also a need
for the security of the samples to be reviewed by a third party, whoever is the
custodian of the database.
15.
Consequently,
the Commission suggests that an independent statutory body be established,
which would incorporate the FSL and also a department responsible for the
custody of the database. This body should be known as the Forensic Science
Agency. Establishing such a body would ensure that both the obtaining and
matching of the profiles is carried out by a body perceived publicly as
independent. Moreover, the Gardaí would then be required to pay the independent
laboratory directly for their services. This would ensure that the Gardaí only
seek tests from the Forensic Science Agency where it is necessary to do so.568 It is imperative that any matches attained on the
database are communicated to the Gardaí by virtue of a secure compatible
computerised system.569 They should be communicated by this means to the
Forensic Liaison Office, which can then communicate the result to the relevant
Gardaí. If an independent body was established with the functions of both
supplying the profiles and acting as custodian of the database, there would be
no conflict of interests entailed by the performance of the body of both these
functions. The importance of having an independent body to perform these
functions was, as we have noted, also recognised both by the House of Lords
Select Committee on Science and Technology and the HGC, as detailed above.
16.
The
proposal would involve the creation of a state sponsored body along the lines
of for example, the Environmental Protection Agency or the Irish Medicine
Board.570 Broadly speaking, the term ‘state sponsored body’
denotes an authority which discharges specialised, central functions, yet which
is set at a distance from the Government and Ministers. They enjoy an arm’s
length relationship with the Minister. Typically, the relevant Minister defines
the body’s policy objectives but it is left free from interference in its day
to day matters. In respect of the independent body recommended here, the
legislation establishing the body could outline its roles and responsibilities.
17.
The
Forensic Science Agency should be governed by a Board composed of individuals
who are chosen to give the benefit of their expertise and independence. For
example, this Board should include an employee of a reputable human rights
organisation, a person who has experience in forensics but who is independent
of the present Forensic Science Laboratory and the Government and a person who
has expertise in the area of data protection. The post of Chief Executive
Officer of the Forensic Science Agency should be occupied by the Director of
the Forensic Science Laboratory. The Chief Executive Officer should not be a
member of the Board. However, they should be in attendance at all Board
meetings.
18.
However,
it is also necessary for the functions that this independent body would perform
to be overseen by a supervisory person. An external review could be conducted
on a regular basis – perhaps yearly – which would examine the operation of the
database and make recommendations for any changes that should be implemented.
This review could be carried out by the Office of the Data Protection
Commissioner or other oversight Commissioner as occurs under the Interception
of Postal Packets and Telecommunications Messages (Regulation) Act 1993.
The Data Protection Commissioner recently observed that he was supportive of
measures that are demonstrably necessary to protect against crime and terrorism
but such measures must be proportionate and have regard to the human right to
privacy.571 This Commissioner may therefore be the appropriate
independent officer for this position. The Commission considers it desirable that
an independent officer be given responsibility for conducting external reviews
of the functions of the custodian of the DNA database. This would ensure that
the security and integrity of the database was maintained. This is also a
similar approach to that which has been adopted in the US and Canada and to the
approach which it is suggested the Australian legislature should adopt. It also
meets the criticisms directed by the Human Genetics Commission at the UK
approach.
19.
In
addition to this, it is imperative that the work of the laboratory in profiling
and storing the samples be overseen by an external body. The laboratory, which
would be responsible for the storage of these samples, would be accredited
under the ISO 17025 standard,572 as outlined below.573 It would therefore be subject to reviews by the Irish
National Accreditation Board (“INAB”)574 as to the quality control
mechanisms in existence. The proposed authority would be responsible for
ensuring that the samples are maintained in appropriate conditions. They could
also review the security of the storage of the samples and the procedures
regarding their destruction when assessing whether the laboratory should
continue to be accredited.
20. The Commission recommends the
enactment of legislation under which the Forensic Science Laboratory would be
incorporated into an independent statutory body called the Forensic Science
Agency. It should be governed by a Board composed of a number of individuals
with relevant and varied expertise but who are independent of the Government.
This body would be responsible for both the profiling and storage of the crime
scene and comparator samples. Its functions in this regard would be subject to
reviews by the Irish National Accreditation Board. A department of the Forensic
Science Agency would be in charge of custody of the database. Matches obtained
through this database should be communicated to the Gardaí by virtue of a
secure computerised system. The body’s function of managing the database would
be subject to external oversight from an oversight commissioner.
21.
At
present, there are no private laboratories conducting forensic analysis for
crime investigation purposes operating within this jurisdiction. In the UK,
there are several laboratories fulfilling this function. It is possible that a
private laboratory or a number of such laboratories may seek to conduct
forensic analysis in Ireland in the future. This will become more probable in
the future when the cost of DNA profiling has decreased. As a result, the
appropriate legislative framework must be in place to guard against
incompetence or abuse by these organisations. While the emergence of private forensic
laboratories is to be encouraged in that the competitiveness could enhance
service, the private laboratories should be subject to similar controls to the
independent body described above. The safeguards which we recommend should be
adopted in the remainder of this chapter are equally applicable to private
laboratories to the extent that they are relevant to their functions.
22.
The
private laboratories will not be in need of the same regulation as the proposed
independent body as their functions will not be as broad as those of the
independent body. The private forensic laboratories will merely be responsible
for generating a profile from the samples. Once the profile has been generated,
it should be forwarded to the custodian of the database. Records of it may be
retained until the conclusion of the trial in respect of which the profiling
was carried out. The crime scene and comparator samples should also be
dispatched to the independent body for appropriate storage or destruction,
depending on the case in hand, after their functions in respect of them have
been completed. The Irish National Accreditation Board would be responsible for
reviewing the relevant standards for private laboratories in terms of quality
assurance to the ISO 17025 standard, while the external commissioner
recommended for the State body to subsume the FSL would monitor other relevant
elements, including ensuring general public confidence in a private testing
laboratory.
23. In the event of any private forensic
laboratory establishing itself in this jurisdiction, it should also be subject
to oversight, in respect of its limited functions, from the Irish National
Accreditation Board and the external oversight Commissioner, which the Commission
has recommended oversee the workings of the new independent body.
2.
Roles and Responsibilities of the Custodian
24. In the case of Whalen v Roe,575 the US Supreme Court rejected an attack on the
constitutionality of storing information on a database that was “personal in
character and potentially embarrassing or harmful”.576 The database in this case was an
electronic record of prescriptions for dangerous drugs, together with a record
of the medical information and names and addresses of the patients for whom
such drugs had been prescribed. The purpose of the database was to aid the
authorities in investigating overuse and abuse of drugs by patients. The court
deemed that the privacy of the patients was sufficiently protected by:
i.
The
statutory and regulatory duty to avoid unwarranted disclosures;
ii.
The
physical measures to ensure the security of the data; and
iii.
The
fact that there had been no marked breaches of confidentiality.
We shall discuss in
the next few paragraphs how it can be ensured that points (i) and (ii) are
satisfied in respect of the DNA database. Kaye and Imwinkleried argue that such
security safeguards as restricted access and the duty of non-disclosure
represent the constitutional minimum that must be provided and that storing DNA
samples (and for that matter profiles) for law enforcement purposes should be
constitutional in these circumstances.577 This demonstrates that in order
for the retention of a profile on a database to be a justifiable interference
with an individual’s privacy rights,578 the security of that profile must
be guaranteed.
25.
The
custodian will have the important function of guaranteeing the security of the
database. This will involve ensuring that the profiles on the database are not
used for any purposes other than the uses permitted by the legislation.579 If profiles were used for purposes other than for
those permitted by legislation, for example genetic testing for predisposition
to illness or for insurance purposes, then this would amount to a
disproportionate interference with an individual’s privacy rights under Article
40.3 of the Constitution.580 At present, a DNA profile
consists only of the non-coding regions of DNA,581 which reveal very little about an
individual.582 However, there is concern that research may show that
these profiles reveal more about an individual than was previously envisaged.583 Security measures are therefore imperative to avoid
the release of this information.
26.
It
is useful to examine at this point whether the information contained on any DNA
database need comply with the Data Protection Act 1988 (“1988 Act”) and
the Data Protection (Amendment) Act 2003 (“2003 Act”). It is evident
that the definition of “data” includes the information contained on a DNA
database. Section 2(a)(ii) of the 2003 Act defines “data” as including
“automated and manual data”. “Automated data” means, by virtue of section
2(a)(i), information that “is being processed by means of equipment operating
automatically in response to instructions given for that purpose” or is
“recorded with the intention that it should be processed by means of such
equipment”. It is also clear that the information contained on a DNA database
is “personal data” within the meaning of section 2(a)(iv). This provides that
“personal data means data relating to a living individual who is or can be
identified either from the data or from the data in conjunction with other
information that is in, or is likely to come into, the possession of the data
controller”. This encompasses the data contained on a DNA database. In fact
this data could constitute “sensitive personal data” under section 2(i)(a) as
it could contain information regarding the racial or ethnic origin of the
individual concerned.
27.
Consequently,
in creating any DNA database, there must be compliance with the requirements of
the Data Protection Acts. Section 2A(c)(i) of the Data Protection Act
1988, as inserted in by the Data Protection (Amendment) Act 2003,
allows processing to take place where it is necessary for the administration of
justice. The processing of the information on a DNA database would fall within
this provision. However, the 1988 Act states that the data may only be kept for
one or more specified and lawful purposes and should not be used or disclosed
in a manner incompatible with those purposes. It also holds that the data
should be adequate, relevant and not excessive in relation to the purposes for
which it is provided and should not be kept any longer than is necessary for
that purpose.584 It also specifically provides that “appropriate
security measures shall be taken against unauthorised access to, or alteration,
disclosure or destruction of, the data and against their accidental loss or
destruction”.585 However, section 5(1)(a) of the 1988 Act provides
that a person shall not have the right to access personal information regarding
himself or herself if it is kept for the purposes of preventing, detecting or
investigating offences. All the records created by the Gardaí and the Forensic
Science Laboratory in the course of carrying out their duties in respect of the
DNA samples and profiles would be protected by these data protection
provisions. The Data Protection Acts also offer some protection to the
security of the information contained on the database.
28.
While
the protection afforded by the Data Protection Acts is welcome, it is
submitted that the provisions contained in these Acts do not sufficiently
guarantee the security of the information on the database as they do not
specify the security measures that should be adopted for this purpose. In this
regard, the Commission does not intend to specify the precise measures which
should be adopted for this purpose. Instead expert advice should be obtained
with a view to acquiring information on the most secure mechanism for
safeguarding the integrity of the database. Nonetheless, the Commission
proposes to make some suggestions as to the form these security mechanisms
should take. It is crucial that only a limited number of people have access to
the database. It is also important that the database is securely protected to
ensure intruders do not gain access to the database. It should be kept
separately from the Laboratory. A special magnetic strip card should be devised
to ensure that only those authorised to do so may enter. This card would be accompanied
by a code to ensure that where the card is lost, it is not possible for an
unauthorised user to gain access to the database. In the future, the
development of methods such as fingerprint scanning and perhaps even iris
scanning could be used to provide heightened security. Passwords would be
provided for those authorised to use the database. It is suggested that only a
limited number of people should be given access to this database. One of these
would include the oversight commissioner. Others would be individuals appointed
by the independent body who would have no other position in the agency. Members
of the Board of the Forensic Science Agency should also be able to inspect the
database. It is suggested that two of these authorised users should be required
to submit their passwords before the database can be accessed. The profiles
should be retained on the database in an anonymous form. The database could
also be established as a stand alone network. Physical security systems could
be set up to trace all the use of the database. The database with the stored
profiles should be electronically isolated so that it is immune from hackers or
any other unauthorised intrusion.
29. The Commission recommends that
strong security measures should be implemented to ensure that the information
on the database is used only for the permitted purposes set out in the
legislation. In setting up a database, provision should be made for adequate
resources for the responsible Board to engage expert advice to ensure proper safeguards
are used.
30. While it is essential that the
database be protected from unauthorised access, it is perhaps even more
important that the crime scene and comparator samples be securely guarded
against intrusion. Firstly, failure to provide adequate security may result in
tampering with the samples, thereby leading to the implication of an innocent
person in a crime or the exculpation of the perpetrator. It is easier to
interfere with a sample than with a profile on a database. Interfering with a
profile requires a detailed forensic knowledge, whilst tampering with DNA
samples does not. Secondly, the sample could be used for purposes other than
the purpose for which the sample was given. The Council of Europe Committee of
Ministers 1992 Recommendation noted that ‘[s]amples collected for DNA analysis
and the information derived from such analysis for the purpose of the
investigation and prosecution of criminal offences must not be used for other
purposes’.586 The main concern here is that access could be gained
to the sample by unauthorised agencies and they could subject the sample to
further testing, thereby infringing the individual’s privacy rights.587 While at present a profile consists only of the
non-coding regions of a person’s DNA and therefore reveals very little personal
information about an individual, the sample contains the whole of the
individual’s DNA and could potentially contain a large amount of very personal
information concerning an individual. As a result of these concerns, in its
submission to the Australian Law Reform Commission Inquiry, the Human Genetics
Society of Australasia commented that the “[s]torage of genetic information
requires stringent oversight and management, supported by clear guidelines,
mechanisms of enforcement, transparent practices and enforceable penalties for
breaches.”588
31.
The
ALRC in its Report on genetic privacy sets out a number of ways in which the
security of the samples can be guaranteed.589 Firstly, the most reliable method
of ensuring that the sample is not interfered with is to destroy it. On the
sample’s destruction, the possibility of misuse of the sample is eliminated. We
have already discussed the merits of destroying crime scene samples and
comparator samples after the conclusion of the trial and have recommended that
the crime scene sample be retained.590 This is in accordance with a
strong line of authority which requires that all physical evidence from a crime
scene must be retained up to the end of the trial.591 We believe that this principle
should also apply in respect of the retaining of DNA evidence. It should also
be preserved after trial as further developments in DNA technology could
provide a basis on which a convicted person could challenge his conviction.
However, while the Commission recommends the retention of the crime scene
sample in this instance, it has also suggested that comparator samples should
be destroyed after the conclusion of the trial for which they were obtained.592 The implementation of this recommendation would
ensure that the opportunities for misuse of the comparator sample are
significantly reduced.
32.
As
suggested above, all samples should be retained by an independent body prior to
their destruction. These samples should be retained in secure and appropriate
accommodation within the laboratory of the independent agency. At present, the
samples in the Forensic Science Laboratory are retained in locked freezers.
However, the Commission believe that more stringent mechanisms should be in
existence to safeguard the integrity of these samples. As with the security of
the database, the Commission does not intend to make specific recommendations
as to the precise security mechanisms that should be adopted to guarantee the
security of the samples. Instead it is suggested that expert advice be obtained
in this regard. We merely offer, by way of illustration, some suggestions as to
the form the security measures could take. The samples should be identified by
virtue of an identification code rather than a person’s name. In addition, they
should be stored in a room that is accessible only by a magnetic strip card and
a PIN. Within the room of their storage, they should be retained within locked
freezers, as is currently the situation. Electronic access to these
compartments should be given to a limited number of individuals with positions
of responsibility within the agency. Electronic access with varying levels of
security and combinations should be required to access the samples. On each
occasion in which an authorised person enters the laboratory, they should be
required to enter the purpose of their visit in a log book provided for that
purpose. A CCTV camera or digital equivalent within the laboratory would record
all the activity within it. A supervisor would be responsible for accounting
for all the actions within the laboratory and investigating any suspicious
behaviour.
33. The Commission recommends that
stringent and effective safeguards be put in place to ensure that all biological
samples are stored under appropriately secure conditions. Expert advice should
be sought regarding the precise form that these measures should take.
34. Laboratory staff must also be
deterred from using information derived from either the DNA sample or profile
for purposes other than the purposes permitted by the legislation. Unauthorised
disclosure of this personal information should be made a criminal offence. An
analogy can be drawn here with the Data Protection Acts 1988-2003, which
provide that the unlawful disclosure of information is a criminal offence. A
specific offence in respect of DNA should be created. An offence of unlawfully
disclosing information from a DNA database exists in Australia. Section 23YO(1)
of the Crimes Act 1914 prohibits a person from accessing information
held on a DNA database system ‘or any other information revealed by a forensic
procedure’ performed on a suspect, offender or volunteer and intentionally or
recklessly causing the disclosure of the information for purposes other than
those allowed for by the section.
35.
An
alternative to the Australian approach is the creation of a strict liability
offence regarding the disclosure of information from the DNA samples or that
contained on the database. The individual responsible for the disclosure of the
information could be deemed liable for the disclosure even if intention or
recklessness is not proved. Alternatively, the custodian of the national
database could be held automatically liable for the disclosure of information
even if it is not proved exactly who was responsible for the leak. It should
however be observed that at present it is only in exceptional cases that there
is resort to strict liability. It is generally confined to situations where
strong policy justifications make the imposition of strict liability
imperative.593 These situations include environmental, occupational
safety and consumer protection laws. Strong policy considerations are embraced
in respect of the disclosure of personal information from a national database
or the DNA samples. An individual’s rights to privacy are in issue and it is
apparent that the disclosure of the personal information contained on the
database could have severe consequences. It is therefore imperative that
effective measures are taken to prevent this occurring. Strict liability in
this instance could have a deterrent effect and thus ensure that all measures
are implemented to prevent the improper release of information.
36.
However,
the Commission does not consider that a strict liability regime is required as
strict security measures should be implemented even in the absence of strict
liability. The supplementary measure of strict liability would not deter the
party to a greater extent than an offence requiring intention or recklessness
to be proved would. An alternative approach is to hold the individual or the
laboratory strictly liable in the absence of proof that all reasonable measures
were taken to prevent the release of information. This casts the onus of proof
on the accused. This is the approach taken in the Safety, Health and Welfare
at Work Act 1989. In this Act, the duties of the employers to employees are
expressed in terms of doing what is “reasonably practicable” and taking
“reasonable care”.594 The Commission however does not accept that this
approach should be adopted in respect of the unlawful disclosure of information
from the samples or the database. It is probable in this situation that the
organisation or individual would be deemed to have recklessly caused the
disclosure of the information in any event. Failure to take reasonable measures
to prevent the release of information is likely to constitute recklessness.
Even if it does not, strict liability is unlikely to result in a greater
compliance with the safeguards, which will be in place. Prohibiting the
intentional or reckless disclosure of the information would be sufficient in
this regard. It would be unjust in this instance to subject individuals or the
Laboratory to the possibility of incurring a criminal conviction without any
fault on their part. Implementing a form of strict liability in this instance
could operate in an excessively onerous manner without any real corresponding
benefit.
37.
The
Commission has therefore concluded that an offence of intentionally or
recklessly causing the disclosure of the personal information derived from the
samples or the information on the database should be created. This offence
would give rise to summary proceedings for which a fine or imprisonment could
be imposed on conviction. This would operate as a strong deterrent thus
safeguarding the information contained on the database.
38. The Commission recommends that an
offence of intentionally or recklessly causing the disclosure of the
information derived from the samples or the information contained on the
database for purposes other than those provided for by legislation should be
enacted into law.
39. The Commission has already
recommended that certain categories of profiles should be deleted after a
certain amount of time and that comparator samples be destroyed after the
conclusion of the trial for which they were obtained.595 We discuss here the need for a
system to ensure that these profiles and samples are destroyed when so required
by the legislation.596
40.
In
Australia, suspects’ profiles are entered on to the database system with a
default destruction date of 12 months from the date at which the sample was
obtained. Two months before the destruction date, the computer reminds the
laboratory of the need to destroy the profile and sample. The laboratory must
then contact the police investigators involved to check as to the status of the
case. If no extension has been granted under the relevant provision, the sample
must be destroyed. This is a workable approach which would not be excessively
time consuming. The Australian Law Reform Commission also recommended that in
the event that a person has been eliminated from suspicion or the police have
decided not to proceed with the prosecution of a person, the police
investigators should inform the laboratory of this and the profile should be
destroyed.597 This ensures that the profile is not kept for any
longer than absolutely necessary. In respect of the samples it similarly
suggested that a computerised system be implemented which would record
anonymously the samples that are retained by the laboratory. Such a system
could be operated from the laboratory which stored the samples. This system
could alert the laboratory to the need to destroy the samples after a specified
period.
41.
There
is also a requirement for some form of external oversight to ensure that the
profiles and samples are destroyed within the period that will be mandated by
the legislation. The oversight Board would be responsible for overseeing the
destruction of the profiles in this jurisdiction. In relation to the samples,
this oversight could be carried out by the Irish National Accreditation Board
(“INAB”) in deciding whether it should continue to be accredited. INAB would
have the expertise and independence necessary to ensure that the samples are
destroyed when necessary and that they are completely and not just partially
destroyed.
42.
Ensuring
the destruction of the profiles and samples when required by law avoids the
situation that arose in Attorney General’s Reference (No. 3 of 1999).598 Here the prosecution sought to rely on a match
obtained through a profile on the database which should have been deleted but
was not in fact deleted. It was accepted that the sample, which ought to have
been destroyed, could not be used in evidence against the person because of
section 64(3B)(a) of the Police and Criminal Evidence Act 1984. However,
the House of Lords did not agree that a similar result followed where the
profile that ought to have been destroyed was the basis of further
investigation. The House of Lords held that the court had discretion in
deciding whether this evidence was admissible. The Commission does not agree
with this approach because it appears to reward the police force for breaching
the rules laid down in the legislation. One commentator has observed that this
decision in fact encourages the police to hold DNA unlawfully.599 It also results in a lack of equality between people
whose profiles are retained unlawfully on the database and those whose profiles
are lawfully removed. The former are subject to the risk of prosecution on the
basis of a DNA match while the latter are not. In the event of our proposals in
this section being implemented, such a case would be very unlikely to arise in
Ireland.
43.
The Commission recommends that reminders as to destruction dates should
be installed on computers to ensure that the profiles and samples are destroyed
as provided for by legislation.
44. As observed by one commentator, due
to the high statistical probabilities of DNA evidence,600 more challenges are likely to be
directed at the chain of evidence “such as the collection of the sample, the
handling of the relevant samples, the procedures which safeguard the integrity
of the process at the laboratory and the computer processes which will govern
the matching of the samples within the databases”.601 It is therefore imperative to
ensure that procedures are in operation that both guarantee and demonstrate the
veracity of the DNA analysis. Indeed in both People v Castro602 and Minnesota v Schwartz603 it was the failure to follow the appropriate
laboratory procedures that resulted in the exclusion of the evidence.
45.
The
accuracy of a DNA analysis depends on the quality control and quality assurance
procedures in the forensic laboratory. Quality control refers to measures to
help ensure that each DNA analysis result meets a required standard of quality.
Quality assurance refers to monitoring, verifying and documenting laboratory
performance. As expressed by the Council of Europe Committee of Ministers “DNA
analysis is a sophisticated scientific procedure which should only be performed
by laboratories possessing the appropriate facilities and experience”.604 The Forensic Science Laboratory in Ireland adopts a
clear quality policy statement. Its quality manual states clearly “[i]t is the
policy of the Forensic Science Laboratory to achieve and maintain a high
standard of quality and to carry out and report the results of its work in an
objective manner using good professional practice”.605 The clearly defined objectives of
this quality control system are the prevention of errors by formalising the
quality management system to ensure quality management is applied to work, the
creation of a mechanism by which, if errors do occur, the errors can be tracked
and the modifications can be made to the system to reduce the possibility of
recurrence and the continuous monitoring of the system to create a mechanism
for the improvement of the quality of the work produced by the laboratory.
These three objectives ensure the main tasks of any quality control system are
defined.
46. Laboratory accreditation programmes
are a useful technique for ensuring quality control and assurance in the DNA
analysis process. Indeed, at the Tenth International Symposium on Human
Identification in Florida, it was stated that “accreditation is the one and
only way to assure quality control”.606 These programmes set high
standards and procedures and ensure that there is external oversight of
compliance with them. The Council of Europe’s 1992 Recommendation states that
any accredited laboratory which controls DNA analysis should satisfy the
following criteria:
- high professional
knowledge and skill, coupled with
appropriate quality
control procedures,
·
scientific
integrity,
·
adequate
security of the installations and of the substances under investigation,
·
adequate
safeguards to ensure absolute confidentiality in respect of the identification
of the person to whom the result of the DNA analysis relates,
·
guarantee
that the conditions laid down by this Recommendation are followed.607
Finally,
the Recommendation provides that the member states should have a mechanism in
operation for the oversight of the accredited laboratories.
1. The FSL has obtained ISO 17025
accreditation608 in relation to the work practices and procedures in
the processing of cases involving DNA.609 Consequently, the work of the FSL
must comply with the minimum standards set by this programme in analysing DNA.
This accreditation programme involves establishing and inspecting protocols and
procedures for matters such as documentation, security, methodology, laboratory
equipment calibration, evidence management, reporting, validation methods and
training. A quality manual is provided to all members of the FSL outlining the
clauses of ISO 17025. Each member of the FSL must comply with these procedures.
2.
Approximately
five cases are processed by the FSL per week. These cases consist of
approximately sixty samples. A procedure for the storage of casework obtained
is clearly set out in the documentation of the FSL. For DNA cases, exhibits are
stored in sealed tamper evident bags in the DNA central store until the DNA
scientist examines them. Blood samples and other biological material are stored
in freezers or fridges depending on the appropriateness of each of these for
the sample involved. There is also a necessity for case-file compiling and
retention to ensure that all documents can be identified as coming from a case
number and there is a system in place for them to be reviewed. Such a system is
operated by the FSL. There is a procedure in place for identifying individual
cases within the laboratory and for identifying items that pertain to each
case. This is to ensure that samples are not wrongly identified as coming from
a source from which they do not in fact come.610
3.
These
procedures are not useful unless there is a procedure in place which ensures
that there is compliance. The oversight over the FSL is threefold. First,
internal audits are conducted within the laboratory to ensure that there is
compliance with the procedures. These reviews are conducted by a member of a
different department from the department which carried out the work. A quality
manager in each department oversees the auditing and follows up any
non-compliance.
4. However, there is still a need for
external auditing to ensure that the public have full confidence in the
integrity of the FSL. External auditing is conducted by the Irish National
Accreditation Board (“INAB”). INAB, the national accreditation body, is
responsible for accreditation in accordance with ISO 17025 and EN 45001. The
FSL must comply with ISO 17025 and EN 45001 to retain its INAB accreditation.
In addition, it must have a documented quality management system, calibrated
equipment, traceability of measurement, a technically valid test and
calibration procedures. An organisational structure with defined technical and
quality responsibilities must be in place and the impartiality and technical
competence of personnel must be demonstrated. Independent experts in the
relevant fields assess the laboratories to ensure compliance with these
procedures and the regulations.611 These assessments occur generally
on an annual basis although INAB may also conduct surprise reviews of the
laboratory’s work. A laboratory is required to afford INAB such reasonable
assistance and compliance as is necessary to enable INAB to observe compliance
with these regulations and the other criteria laid down by INAB. It is
significant that INAB can withdraw accreditation if it finds lack of compliance
with the appropriate standards. This form of external review is therefore very
effective. A review by this body maintains confidence in the overall procedures
of the Laboratory.
5.
Thirdly,
external proficiency trials are conducted by outside organisations to monitor
the performance of the laboratory. Approximately six to eight of these quality
assurance trials are conducted on a yearly basis. The European Network of
Forensic Institutes (“ENFSI”) Board is responsible for providing two of these
trials.612 ENFSI has established a code of conduct which
requires practitioners to fulfil a number of duties and responsibilities and
adhere to high standards of integrity and competence. Although ENFSI has no
legal status, the FSL endeavours to ensure that its practitioners comply with
this code of conduct. Significantly, these guidelines require forensic
practitioners to take the necessary action if they have good grounds for
believing that there is a situation that could result in a miscarriage of
justice. The ENFSI Board’s proficiency trials will review the forensic practitioner’s
conduct in this regard. In the event of any other private laboratory operating
in this area, they should be required also to be accredited under ISO 17025 and
they should be subjected to equally stringent procedures.
6. It is accepted by the Commission
that the procedures, which provide for oversight of the Forensic Science
Laboratory’s performance, in particular those under the Irish National
Accreditation Board, comply with best international standards. The new
independent agency, which the Commission recommends be established, should be
required to follow the same procedures. The Commission recommends that the
quality control and quality assurance procedures be kept under review to ensure
that the appropriate high standards are maintained.
1. One of the major problems which
affects the probative value of DNA evidence is contamination.613 It is also one of the primary reasons which will lead
to DNA evidence being excluded from the trial. DNA profiling is very sensitive
and therefore contamination substantially increases the risk that the sample
given may not have come from the accused but from another source.614 It is consequently very important that the crime
stain is not contaminated in any manner during the process of detection,
collection or preservation. In this regard, it is necessary to keep under
review the procedures adopted by the Gardaí in respect of crime stains to
ensure that they meet the added complications DNA evidence presents. As
recommended by the Interpol DNA Monitoring Expert Group, the scene of crime
strategy must be reviewed in the light of experience which demonstrates what
material can now provide a DNA profile.615 In the absence of appropriate
procedures, DNA from unusual sources would not be detected. In addition to
this, quality control mechanisms must be assessed to ensure that they meet the
demands of DNA profiling.
2.
For
these purposes, it is very important that every Garda involved in the process
from discovery of the crime scene to the relinquishment of the evidence to the
Forensic Science Laboratory is properly trained and competent.616 The Interpol DNA Monitoring Expert Group has
suggested that “countries should organize training, competence assessment, and
accreditation for those people involved in work with DNA evidence”.617 It is apparent therefore that certain additional
training measures need to be introduced to guarantee against the contamination
of the DNA evidence. It is important that ordinary Gardaí who may be the first
to arrive at a crime scene are given appropriate training on the basic
principles of DNA evidence. In particular, they should be alerted to the need
to preserve the scene and to prevent contamination and they should be aware of
the mechanisms available to do this while carrying out the first actions at the
scene. A training video on collecting DNA evidence could be introduced into
Garda offices and training packages could offer training for Gardaí on avoiding
the contamination of DNA evidence. It is of particular importance that the
scene of crime examiners are well trained, skilled and professional. A special
training programme could be designed to provide the scene of crime examiners
with a detailed knowledge on the particular problems presented by the
collection of DNA evidence.
3.
It
is accepted by the Commission that the procedures adopted by the Gardaí in
respect of crime scene examinations are of a high standard. However, these
procedures need to be kept under review to ensure that the appropriate
standards are being maintained and that they meet the added complications which
DNA evidence presents. While the Commission recognises that it does not have
the experience or expertise necessary to suggest the precise changes that may
be required to be implemented as a result of the advent of DNA, it intends to
make some suggestions that could be considered and perhaps implemented in this
respect. During the evidence collection process, those involved in the
collection of the samples should wear appropriate barrier clothing to avoid the
contamination of the evidence. In particular, masks must be worn if the
examiner is suffering from a cold.618 Otherwise, contamination could
occur by the shedding of body fluids. The equipment used to obtain the samples
must also be clean. Traditional cleaning methods are not always effective in
removing DNA. Interpol has suggested that specially designed sampling kits with
disposable ‘DNA free’ equipment and packaging should be used at the crime
scene.619 The evidence should be placed in sealed bags on
acquisition. These bags containing the sample should be labelled immediately to
avoid the need for reopening. Once the bags are sealed, they should not be
opened for any reason before they are handed over to the laboratory. Each item
must be packed individually and packaging should not be reused. It is also
suggested that materials and samples from suspects should be kept separate from
those from victims to avoid any risk of cross-contamination.
4.
There
is also the risk that a suspect may be falsely implicated through tampering
with the crime scene.620 The measures above would assist in reducing this
risk. In addition to this, the scene of crime examiner must seal the exhibits
with evidence sealing tape621 so that any tampering with the
sample is evident. Maintaining the continuity of the samples also reduces this
risk. Items of evidence should also be stored in secure laboratory areas with access
limited to authorised personnel. Keeping the analysis of the samples separate
from the investigation also reduces the risk of tampering. It is therefore
important for these purposes that the FSL is a separate agency from the Garda
Síochána.622
5.
While
the measures described above significantly reduce the risk of contamination,
they do not eliminate it. In order to ensure that a large proportion of these
mistakes are detected, the record of the chain of evidence in respect of each
item must be strictly maintained by the Gardaí and the scientists in the
Forensic Science Agency from collection until final disposition of the samples.
It is important that the record of the chain of custody of the exhibit
materials and samples is carefully maintained and kept for production in court.
The importance of proving the chain of evidence in court in respect of the DNA
samples is evident from the decision of The People (DPP) v Mark Lawlor.623 In this case, the trial judge examined in detail the
chain of custody of the DNA samples. Evidence was given as to the collecting of
the samples, their transportation to the Garda Síochána Technical Bureau, the
handing over of them to the Forensic Science Laboratory and the matching
process. The Court of Criminal Appeal emphasised in this case the need for
evidence to be provided of all the handling of the sample from collection until
its use at the trial before it will be admitted into court. It is consequently
imperative that the Garda Síochána and the Forensic Science Laboratory maintain
records of all their dealings in respect of the crime stains obtained.
6.
In
addition to this, those involved in the investigative process and the victims
should give samples. Their profiles would then be used to eliminate innocent or
accidental contamination of the crime stains. In the UK a Police Elimination
Database has been established for this purpose.624 In the UK, Police Regulations,
brought into force in April 2003, require all new recruits to provide DNA
samples for the Police Elimination Database. If police officers do not provide
profiles for this database, they are not permitted to attend crime scenes. The
Police Elimination Database is entirely separate from the National DNA
Database. Consequently speculative searches of the profiles on the Profile
Elimination Database against profiles from unsolved crimes are not carried out.
A profile from the elimination database may only be matched with a specific
crime scene profile when there is a real belief that there may have been
contamination. It seems practical to have such an elimination database in this
jurisdiction to reduce loss of time and effort if the profile of a Garda turns
up from an accidental ‘crime stain’ at the scene. In this regard, the UK
approach seems commendable. However, given that the risk of contamination can
never be eliminated and that it may not be possible to detect this
contamination, this should be considered when deciding on the evidential
safeguards that should attach when DNA evidence is admitted into court.625
7.
It
is not proposed to make any detailed recommendations as to the exact procedures
that should be followed in obtaining crime scene samples. In this regard, it is
important to note that an Advisory Forum has been established by the Garda
Síochána for the purpose of ensuring that the benefits of forensic science for
crime investigation purposes are maximised. Any review of the crime scene
examination procedures could be conducted by this Forum or its successor. The
persons involved in this Forum should have the appropriate expertise to carry
out such a review. However, it is suggested that the present scene of crime
strategies should be reviewed by appropriate experts in the light of the
increasing sensitivity of DNA technology.
8. The Commission recommends that the
Advisory Forum, which has been established or its successor, should be
responsible for keeping under review the procedures adopted by the Garda
Síochána in respect of crime scene examinations to ensure that they meet the
technical advances, the technological improvements and the added complications
DNA evidence presents.
1.
In
order to engage in any consideration of the principles that are relevant to the
establishment of a DNA database, the suspect’s right to a fair trial under
Article 38.1 of the Irish Constitution626 and Article 6(1) of the ECHR must
be considered.627 In particular, it is important to examine how
evidence of a DNA match should be dealt with in court. This issue will be
particularly important on the establishment of a national database, where
suspects may be identified simply on the basis of a match on a DNA database
between a crime scene sample and the sample of an individual who may not
previously have been suspected of that crime. This chapter outlines the reasons
why such a ‘cold hit’ is fallible. Even at very high levels of probability,
from time to time errors will arise. It is therefore very important to
emphasise at this stage that DNA evidence is not a substitute for proper police
investigation. As observed by the New South Wales Privacy Commissioner in his
evidence to the NSW Review “[o]ne of the things that concerns me is an
increasing reliance on the technology in all of these things to the exclusion
of adequate attention paid to all of the other traditional investigative ways
of gathering evidence”.628 On the creation of a national database, the Gardaí
will still be reliant on traditional forms of investigation and a DNA match is
not a substitute for these traditional forms of investigation. As observed by
the Director of the Forensic Science Laboratory “DNA is indeed a powerful aid
but must be used in conjunction with good police intelligence and
investigation”.629
2.
This
chapter therefore examines six problems that can arise with DNA evidence. The
concerns that impinge on the probative value of a DNA match are considered in
Part A. The value of holding a DNA evidential hearing is examined in Part B.
The merits of requiring corroboration or a corroborative warning are also
discussed in this Part. Then the problems in respect of illegally and
unconstitutionally obtained DNA evidence are highlighted. In Part C, the manner
in which evidence should be presented at trial is considered and an explanation
is proffered on the statistical presentation of a DNA match. Finally, the
desirability of giving a judicial warning in cases involving DNA evidence is
discussed.
1.
The Probative Value of a DNA Match
3. DNA evidence is often perceived by
the public as unique and infallible.630 This is not the case. As
discussed previously,631 DNA analysis creates a profile which is based on 10
loci only. A DNA profile is not a profile of all 3.3 billion pieces of code
found in the DNA. While a profile of all 3.3 billion pieces of code would be
unique except in the case of identical twins, a profile based on ten loci cannot
be assumed to be unique. Nonetheless, it is evident that the present DNA
profiling system is indicative of a probability in the order of less than one
in a thousand million or less than one in a billion that a randomly selected,
unknown, unrelated person would share this profile with the matching person.
There is widespread acceptance within the scientific community as to the
reliability of the science of DNA evidence in general.632 Where an unadulterated crime
scene sample is matched with a similarly unadulterated sample obtained from a
person, it is highly unlikely that there is an error. As submitted recently by
the Senior Managers of the Australian and New Zealand Forensic Laboratories to
the NSW Review, “[t]he current STR (short tandem repeat) technology is robust,
highly reliable and most importantly provides a high degree of discrimination
between individuals.”633 Other commentators have also recently endorsed the
scientific validity of the DNA technology.634 At present there is no scientific
publication available which disputes the validity of the underlying scientific
theory in respect of the DNA profiling system.
4.
The
courts have also accepted the reliability of the DNA technology in general. In
Ireland, the reliability of the DNA profiling technology was accepted in The
People (DPP) v Mark Lawlor.635 Recently in The People (DPP)
v Horgan636 the defence employed scientists in an attempt to
denigrate the actual science involved. This resulted in a very lengthy trial
but the court ultimately reinforced the validity of the science used. In
Britain, Lord Taylor CJ introduced his decision in R v Gordon637 with the words “[w]e do not doubt the validity and
value of DNA evidence in general”. In the Australian case of R v Krager638 the reliability and accuracy of the DNA technology in
place was accepted due to the absence of scientific evidence disputing this
reliability. It was commented by Hunt CJ in the Australian case of R v
Pantoja639 that “DNA testing has been accepted by the courts for
some years as an acceptable scientific technique for the identification of the
source of bodily tissues”. Similarly in New Zealand in R v Pengelly640 the scientific reliability of DNA testing was accepted
without question. The same conclusion has been drawn in the US.641 It is apparent from this that, irrespective of the
problems concerning DNA evidence which are discussed below, DNA technology in
general is a valuable tool in criminal cases and will continue to be used in
the future. In reality while the reliability of the results of this profiling
technique have been called into question, the theory of the DNA profiling
technique has not been refuted.
5.
On
the establishment of a DNA database, evidence of matches between a suspect’s
DNA profile and a DNA profile from a crime scene would be adduced in court. Of
course, such a match does not mean that the suspect committed the crime. While
a match constitutes evidence that the suspect is the source of the sample, it
does not always in the absence of other evidence show that the defendant has
committed the crime. This was clearly expressed by Cripps JA in the Australian
case R v Green.642 He stated that the ‘match’ in this case only proved
that it was ‘possible’ that the defendant was responsible for the crime not
that he actually was the offender. As he observed, in this case “the “matching”
results could not, in the absence of other evidence, prove beyond reasonable
doubt that the appellant was the person responsible for semen stains”.643
6.
There
are six reasons why a match may not conclusively show the guilt of the defendant.
There could be explanations for a match other than that the crime scene sample
originated from the defendant. Firstly, the match could have arisen due to an
error on the part of the laboratory staff in conducting the DNA analysis. An
error could be made at any stage in the DNA profiling. There is the possibility
of errors being made at the DNA extraction, quantification and amplification
and detection stages.644 Mislabelling samples is also a potential human error
that could occur.645 While protocols and precautions can be introduced to
reduce the amount of errors,646 the potential for human error can
never be completely removed. Miscarriages of justice can therefore arise if a
match is regarded as proving the defendant’s guilt. It is useful at this point
to provide an example of how such a miscarriage of justice could arise. There
is an incidence of a clerical error occurring in a Las Vegas forensic
laboratory. This arose when a man in a detention centre accused another of
raping him. DNA profiles were taken from both men and their profiles were
entered on to the State DNA database. One man’s profile matched two unsolved
sexual assaults and he was charged with these offences. It emerged that the
man’s name had accidentally been switched with his cellmate’s name when
entering the profiles on to the DNA database. This resulted in a false match.647
7. Secondly, contamination of samples
can also lead to error matches. This could arise where a member of the
laboratory staff accidentally contaminates the sample.648 For example, they could
inadvertently mix the sample with other samples. The sample could also become
contaminated through inadequate storage facilities in the laboratory in
question. The sensitivity of the present profiling technology means that there
is an increased risk of accidental contamination.649 This recently arose in New
Zealand where traditional investigative methods discovered that the suspect
could not have committed the offence. This was despite the fact that his
profile had matched the crime scene profile. Despite reviews by a number of
bodies, the cause of the contamination was not detected.650 It was ultimately accepted by a Ministerial Inquiry
that the incorrect results were almost definitely caused by accidental contamination
that occurred during the early stages of processing the DNA sample.651
8. Thirdly, Young refers to
pre-analytical error, which arises when the results are abnormal because of the
way the specimen was treated before the laboratory received it.652 Forensic samples may be old, of low volume or have
been kept in bad conditions prior to laboratory analysis. Specimens may also
have been subjected to “burial in damp-earth, freeze-thaw action, baking and
irradiation under the sun, contamination by animal deposits, bacterial or other
microbial infestation and all manner of other treatments”.653 Such pre-analytical treatment of a forensic sample
may lead to less definitive results being obtained than those, which would be
acquired from a “fresh” sample. In R v Juric654 the Victorian Court of Appeal
noted the difference between a pure and unadulterated sample that can give rise
to statistical improbabilities running into the millions or even billions and a
sample so old and adulterated that an expert is prevented from giving an
opinion on the statistical probabilities. Therefore, contamination may impact appreciably
on the reliability of DNA evidence. It is also questionable whether
contaminated samples are of sufficient accuracy to be used as evidence
implicating the accused at all. This will, in practice, depend on the extent to
which the sample is degraded. Even if the match is of sufficient accuracy to be
admitted, a match from a contaminated sample will always be of less probative
value than a match from a ‘fresh sample’.
9.
Fourthly,
even where there is no error in handling the sample and there is indeed a match,
it is possible that this is a chance match or an accidental match. A DNA
profile consists of only a small section of an individual’s DNA and so might
not be unique. It is, theoretically at least, possible that two individuals
other than identical twins could have the same sample.655 It is more likely that such a
“chance match” would occur among close relatives.656 The chance of such a coincidence
significantly decreases as the number of loci examined along the DNA
molecule increases. At present, ten loci are examined in creating a DNA
profile. In respect of a profile calculated on the basis of ten loci,
the probability that a randomly selected, unknown, unrelated person would have
the same DNA profile as the suspect is stated in the courts to be 1 in a
thousand million or 1 in a billion. The situation has been summed up as
follows “[i]t is agreed that there is a chance that there are two individuals
who share the same profile, no matter how remote that chance is, but as stated
previously, no two unrelated individuals have ever been found to match at
greater than six loci”.657 So although it is extremely unlikely, it is possible
for a chance match to occur. As stated by Kaye and Sensabaugh Jr “even if two
samples have the same genotype, there is a chance that the forensic sample came
– not from the defendant – but from another individual who has the same
genotype”. However, in the UK, no true chance matches entailing full SGM Plus™
profiles have been identified.658 Presenting a match statistically
to show the probability of the match being a ‘chance match’ is discussed in
greater detail later in the chapter.659
10.
Fifthly,
a match could have resulted from tampering with the crime scene. This could
arise if the actual offender, a police investigator or other person leaves the
suspect’s genetic sample at the crime scene. This is not as improbable as it
seems given the ease with which such a substitution could take place. While it
is very difficult to lift a fingerprint from one place and leave it in another
place, transferring DNA evidence is a relatively easy task. It could involve
the picking up of a cigarette butt with saliva on it or taking a hair from
someone’s coat and depositing it at a crime scene. Although the risk of
tampering by police investigators could be minimised by proper procedures being
in place to prevent it,660 “only the blinkered, the foolish and those who are
myopically pro police would discount the fabrication of evidence”.661 In any event, appropriate safeguards cannot alleviate
the risk of a sample being planted by a person unconnected with the police
force. At present, we know of no instance where such misconduct has led to the
conviction of an innocent person. But the risk of such an eventuality cannot be
ruled out and significantly decreases the value of DNA evidence in the absence
of other evidence suggesting that the accused was at the crime scene. This risk
of tampering also reinforces the importance of establishing an independent and
secure repository for the DNA database.662
11. Finally, the suspect could have been
at the crime scene for a number of innocent reasons – including having come
accidentally across the victim. Presence at a crime scene does not
automatically establish criminal culpability. In many instances, the suspect
will be a friend or relative of the victim and, in such cases, the probative
value of a DNA match may be very limited as there are valid reasons why the
suspect would have been at the location. As a result, it must be remembered
that technology is not a ‘quick-fix’. It is still necessary to have a properly
resourced police force that will need to conduct traditional investigation and
evidence gathering.
1.
Holding a DNA Evidential Hearing
12.
It
is evident from this discussion that a DNA match, while probative, is not
unassailable. This is particularly the case where a DNA match is obtained
through a database and prior to this match, the accused was not a suspect in
the crime. We therefore must consider whether a match of DNA obtained through a
national database should be admissible in court. The unanimous view of the
courts has been to hold DNA evidence in general to be admissible. This was
accepted in Ireland in The People (DPP) v Mark Lawlor663 and in The People (DPP) v Horgan.664 However, DNA evidence will not be sufficiently
reliable to be admitted into court in all cases. The circumstances in which a
match will be held inadmissible due to its unreliability have not been spelt
out in the Irish courts.
13.
In
the US, the first serious challenge to the admissibility of DNA evidence arose
in People v Castro.665 It was acknowledged in this case
that DNA evidence will generally be admitted into court on the basis that it
satisfies the United States v Frye666 test. It was accepted that
pre-trial hearings must be held to determine whether the testing laboratory
performed the accepted scientific techniques in analysing the forensic samples
in the particular case. The New York Supreme Court in People v Castro667 proposed a comprehensive discovery regime concerning
DNA testing whereby all the evidence concerning the testing, sampling, chain of
custody etc would be admitted and considered in the pre-trial hearing. After a
12 week pre-trial admissibility hearing, the judge ruled that the results were
so demonstrably unreliable as to be inadmissible in this case. It has been
suggested that a similar test should be applied in the Irish context.668
14.
Pre-trial
hearings are also held in other jurisdictions to decide on the admissibility of
the DNA evidence in question. In R v Doheny and Adams669 it was held that the risk of laboratory error,
the method of DNA analysis used and the basis of subsequent statistical
calculation should be examined before trial to decide if the evidence should be
admitted. A similar approach is adopted in Australia in considering whether the
evidence should be admitted into court. In R v Tran670 DNA evidence was excluded as a result of dubious
methodology, possible contamination or crossovers of tracks, incomplete bands
on the autorad, controversial interpretation of faint results, contested
statistical interpretation and the absence of an appropriate database. Holding
an evidential hearing to decide whether the match is sufficiently reliable to
be admitted would go a long way to rectifying the problems detailed above with
respect to laboratory errors and sample contamination. It also avoids the
problem of leaving conflicting expert testimony about the reliability of
specific DNA testing methods as a factual matter for the jury to decide. This
is problematic as it may lead to the jury “being overawed by the scientific
garb in which the evidence is presented”671 and therefore accepting the
evidence even though it is unreliable.
15.
The
procedure for holding an evidential hearing or a trial within a trial in
Ireland was laid down in The State v Treanor.672 The trial before the jury is
adjourned at the stage at which the evidence would normally be put before the
jury. The jurors will withdraw while the trial within a trial is being held. In
the case of an issue about a DNA match, the evidential hearing may be capable
of being held at the beginning of the trial. This may be desirable as if the
evidence is deemed inadmissible, the prosecution may not wish to proceed with
the case.673 Unfortunately, this will not always be possible as
the evidential background to the issue to be tried in the absence of the jury
can only be established by the evidence given in court before the jury.
However, where it is just and convenient, this evidential hearing should be
heard at the beginning of the trial. Such a procedure would ensure that a match
would only be introduced into court in the event of its being reasonably
reliable. It would avoid the problem of juries being presented with prejudicial
evidence which should not have been admitted into court. These concerns are of
particular importance in respect of a match made by virtue of a database. In
such an instance, the match may be the crucial evidence in the case so it must
be ensured that it is sufficiently reliable before it is introduced into court.
The evidence will be deemed sufficiently reliable if it can safely be used by
the jury to reach a conclusion as to the guilt or innocence of the accused.674
16.
It
is also important to ensure that a written record of this evidential hearing is
created and published. In the absence of a written record, valuable
jurisprudence in respect of DNA evidence would be of no assistance to future
judges dealing with similar DNA evidence difficulties. The absence of a record
of it could result in a lack of consistency and perhaps anomalies.
17. The Commission recommends that if an
issue as to the admissibility of DNA evidence is likely to arise or arises in a
case, then consideration should be given to dealing with such an issue at a
preliminary hearing or at an early hearing if this is just and convenient in
the particular circumstances.
18. It will now be considered whether
DNA evidence is sufficient on its own to warrant a conviction. Certain types of
evidence are seen as particularly weak or suspect and so additional supportive
or corroborative evidence is required. In these situations, two solutions can
be adopted. Firstly, corroborative evidence could be required by law. In such a
case, corroborative evidence must actually be present in order for the jury to
convict on certain evidence.675 Secondly, a corroboration warning
may be required to be given by the judge on summing up. In such a case, the
jury are advised not to convict in the absence of corroboration but if they are
satisfied of the accused’s guilt beyond reasonable doubt, they can convict even
in the absence of corroborative evidence. In some cases such warnings are mandatory676 and in others they are discretionary.677
19. In The People (DPP) v Howe678 Butler J, in withdrawing a case from the jury,
did not invoke any express ruling that DNA evidence should not be used on its
own to ground a conviction. It was accepted by the forensic scientist who gave
evidence in this case that the head of forensic science in the UK had stated
that an accused should never be convicted on DNA evidence alone. However, while
Butler J accepted that he was entitled to express this opinion he stated that
“what amounts to proper evidence on which to base a conviction is not a matter
for him”. Thus Butler J appeared to leave open the question as to whether DNA
evidence alone would ever be sufficient to ground a conviction. But in Howe
itself, he based his direction on two evidential gaps. Firstly, in Butler J’s
view, the forensic scientist in this case had no qualifications in statistics
and therefore in the determination of the probability of identical DNA coming
from another person.679 Secondly, the prosecution had not disproved the
possibility that the accused had a brother, who could have had similar DNA.
20.
It
is evident from the discussion above that a ‘match’ does not always
conclusively establish the guilt of the accused.680 The match, for example, could
have arisen as a result of laboratory error or there could be an innocent
explanation for the presence of the crime stain. These concerns are
particularly important in respect of a match obtained through a national
database. Consequently, when it is sought to rely on DNA evidence alone,
independent supporting evidence or a warning as to the lack of such supporting
evidence should be required. We will now examine whether independent material
supporting evidence should be necessary in every case where DNA evidence is in
issue or whether a warning as to the lack of supporting evidence is sufficient
in this regard.
21.
While
supporting evidence of a DNA match has been perceived as desirable in the UK,
no court in that jurisdiction has yet actually held that there should be a
mandatory requirement of corroboration in all cases where DNA evidence is
sought to be relied on without any independent material evidence. Instead, a
more flexible approach has been adopted in the UK. Each case is considered on
an individual basis in order to decide if corroboration is necessary in the
particular case. This is evident from the case of R v Watters.681 This was a case where the prosecution sought to rely
almost solely on DNA evidence. The Court of Appeal concluded in this case that
the DNA evidence alone was not enough to ground a conviction in this particular
case. This decision however was clearly grounded in the facts of the case. This
is evident from the following:
“Every case of this
kind has to be judged on its own facts. There is no rule that enables the court
to say, when a figure reaches a certain level it is safe to leave it to the
jury, but below that it is not. But in every case one has to put the DNA
evidence in the context of the rest of the evidence and decide whether taken as
a whole it does amount to a prima facie case”.
In this case, it was the possibility
that the DNA originated from the accused’s brothers that led the court to
refuse to admit the DNA evidence in the absence of material independent
supporting evidence.
22.
It
should be observed that there is no requirement for additional evidence in the
cases of other less reliable forms of evidence including identification
evidence682 and accomplice evidence.683 As DNA evidence is of greater
probative value than this evidence in that it is based on objective scientific
evidence rather than fallible human recollection or evidence tainted by the
animosity of a former friend, it should not be subjected to more onerous
admission requirements than the other more traditional forms of evidence.
23.
While
it is accepted that in a large volume of cases, DNA evidence alone will not be
enough to ground a conviction, it is evident that a DNA match could in certain
instances prove the guilt of the defendant beyond reasonable doubt. Lord
Denning in Millar v Minister for Pensions684 advanced a definition of
reasonable doubt. He stated:
“It need not reach
certainty but it must carry a high degree of probability. Proof beyond a
reasonable doubt does not mean proof beyond a shadow of doubt. The law would
fail to protect the community if it admitted fanciful possibilities to deflect the
course of justice. If the evidence is so strong against a man as to leave only
a remote possibility in his favour, which can be dismissed with the sentence
‘of course it is possible but not in the least probable’ the case is proved
beyond reasonable doubt, but nothing short of that will suffice”.
1.
It
was accepted by the trial judge in The People (DPP) v Cotter685 that proof beyond reasonable doubt did not embrace
moral certainty but something short of mathematical or moral certainty. This
was held to be the correct direction. On the basis of this direction, it is
apparent that a DNA match of an unadulterated sample, where there is no
innocent explanation for the match, could in certain circumstances prove the
guilt of the defendant beyond reasonable doubt. An example of such an instance
could be where a rape victim is found dead covered with the blood of the
accused and with traces of his semen in her vagina. The DNA evidential hearing
will provide an adequate means of ensuring that the evidence is sufficiently
reliable before being introduced. Whether corroboration is necessary should be
left to the judge to decide on the basis of the facts in each individual case.
2.
However,
due to the factors that can impact on the probative value of the match and the
perceived infallibility of DNA evidence, it is suggested that a warning should
be given in all cases in which a verdict depends solely on DNA evidence of the
dangers of convicting on DNA evidence alone. There are however problems with
alerting the jury to the absence specifically of corroboration in the case.
Corroborative evidence has a very technical meaning and does not embrace all
evidence which tends to incriminate the accused. In R v Baskerville it
was defined as “independent testimony which implicates the accused by tending
to connect him with the commission of the crime …. which confirms in some
material particular not only the fact that the crime has been committed but
also that A committed it”.686 A review of the law on
corroboration is beyond the scope of this Paper but given that there has been
widespread criticism of the corroboration warning requirement,687 it is suggested that it should not be extended to
this area. Indeed the view of one commentator in Ireland is that the
requirement of corroboration or a corroboration warning should not be extended
to any new areas.688 In respect of DNA evidence specifically, even weak
evidence may become highly probative when taken in conjunction with a DNA
match. For example, evidence which shows that an accused was present in the
general location of a crime is not corroborative evidence but clearly can be relevant
in showing that the accused was in the vicinity, particularly in the instance
of strong DNA evidence. Consequently, the additional evidence which would
render any warning unnecessary should not be required to fulfil any technical
meaning. It should simply be evidence which tends to show that the accused
committed the offence. The jury should not be warned of the dangers of
convicting in the absence of corroborative evidence. Rather, they should be
warned of the danger of convicting in the absence of any evidence other than
the DNA evidence. Such a warning should be mandatory.
3.
Finally,
it must be reiterated that while the Commission does not recommend that there
should be a mandatory requirement for additional evidence in all DNA evidence
cases, there will be cases where such supporting evidence will be necessary. In
these cases, the judge should exercise his or her discretion and withdraw the
case from the jury. In all other cases, a warning should be given as to the
dangers of convicting on DNA evidence alone.
4. The Commission does not recommend
that there should be a prohibition on convicting on DNA evidence alone. Rather,
it recommends that in all cases where it is sought to rely on DNA evidence
alone, the jury should be warned of the dangers of convicting on this evidence
in the absence of other supporting evidence. However, they should be advised
that they may convict on this evidence if they are satisfied beyond reasonable
doubt of the defendant’s guilt.
1.
Illegally and Unconstitutionally Obtained Evidence
1.
A
related question is whether a match obtained through a profile which is
acquired in breach of the rules, which govern how it is to be obtained, and is
placed on the national database should be admissible in court. The situation
would in essence depend on whether the breach of the rules is unconstitutional
or illegal. If the evidence was obtained as a result of a deliberate and
conscious violation of the suspect’s privacy or bodily integrity rights, any
evidence obtained from the breach would automatically be excluded, in the
absence of extraordinary excusing circumstances. This follows from the
principle set down in The People (DPP) v Kenny.689 However if the evidence was illegally as opposed to
unconstitutionally obtained, the evidence would not be automatically
inadmissible. In such an instance the judge has discretion in deciding whether
to admit the evidence into court as is evident from the decisions of the
Supreme Court in The People (DPP) v O’Brien690 and The People (DPP) v Mahon.691 The Regulations with Regard to Treatment of
Persons in Garda Custody (“Custody Regulations”)692 introduced under the Criminal
Justice Act 1984 are also instructive in this regard. Section 7(3) of the Criminal
Justice Act 1984 provides that if evidence is obtained in breach of the Custody
Regulations, this breach will not of itself make the evidence inadmissible.
This is an alternative way of dealing with the problem of illegally obtained
evidence.
2.
The
admissibility of illegally obtained DNA evidence has been examined in the UK
and New Zealand. Section 78 of the UK Police and Criminal Evidence Act 1978
provides that evidence may be excluded if “having regard to all the
circumstances, including the circumstances in which the evidence was obtained,
the admission of the evidence would have such an adverse effect on the fairness
of the proceedings that the court ought not to admit it”. In Attorney
General’s Reference (No. 3 of 1999)693 the House of Lords examined
whether a match, obtained through a profile placed on a database which should
have been deleted and was not in fact deleted, should be admissible. In this
case, a match was obtained from a sample which was required to be destroyed
under section 64(1) of the Police and Criminal Evidence Act 1984.
Section 68(3B)(b) prohibited the use of information, derived from a sample
required to have been destroyed under section 64(1), for the purposes of the
investigation of any offence. It was held by the House of Lords, in reading
section 64(3B)(1) in the light of section 78, that the judge had a discretion to
admit the unlawfully obtained evidence and that this would not amount to an
interference with the defendant’s rights under Article 6 or Article 8 of the
ECHR. In any event, the ECtHR has held in Khan v United Kingdom694 that in assessing whether a particular piece of
evidence should be admissible, the court should look at the proceedings as a
whole to determine if they are fair. This case concerned unlawful surveillance
by the police. This was held to be a breach of Article 8 but this breach did
not affect the fairness of the trial. Consequently, the evidence obtained was
admissible in court.
3.
It
was affirmed recently in R v Shaheed695 that a similar balancing test
applies in New Zealand in respect of DNA evidence obtained illegally. The court
would have to decide, by balancing the relevant factors, whether exclusion of
the evidence was in the circumstances a proportionate response to the breach of
the right that had occurred. In conducting the balancing test, appropriate
weight should be given to the fact that there was a breach of the individual’s
rights. Other factors such as the value of the right implicated, the manner in
which this right was infringed and the need for a credible system of justice to
be in existence should also be considered. In this case, the accused was
compelled to undergo a blood test. There was a direct connection between the
breach and the obtaining of the sample. The accused was only connected with the
crime as a result of the unconstitutional taking of the sample. The court
therefore decided that the evidence should be excluded. R v Shaheed696 shows the relevant factors, which the court must take
into account, in deciding whether DNA evidence should be admissible in cases
where it has been obtained illegally.
4. The Commission recommends that, as
at present, where DNA evidence is obtained illegally, but not in breach of a
person’s constitutional rights, the trial judge should be empowered to
determine, as a matter of discretion, whether to admit it in evidence.
1.
Presentation of the Evidence at Trial
1.
As
is evident from the discussion earlier697 regarding the perceived
infallibility of DNA evidence, measures must be taken to prevent the whole
process becoming “a black box into which scientific evidence is placed at one
end and the verdict in a criminal case is produced at the other”.698 A related problem with DNA profiling is its inherent
complexity. This is seen in the scientific nature of the evidence and also in
the need for a statistical presentation of the significance of a match.699 As observed by Justice Action in their submission to
the NSW Review “[e]ven if forensic evidence is presented accurately, honestly
and completely it does not mean that judges and juries will understand it”.700 Due to the adversarial nature of the court room,
there may be two groups of experts presenting conflicting evidence, which can
lead to jury confusion and misunderstanding.701 In addition to this, forensic scientists
are required to present their DNA evidence in a particular form and are not
entitled to express an opinion on the likelihood of the defendant being
responsible for the crime in question.702 This can also lead to jury
confusion. It is evident therefore that guidance must be provided on the manner
in which such evidence should be presented in court to avoid this jury
confusion.
1.
Presentation of the Statistical Evidence
1.
In
the event of the evidence being admitted into court, there must be an
examination of the means in which its statistical significance will be
presented. While a detailed account of the methods used for calculating the
frequency of the profiles and the significance of the matches falls outside the
scope of this Paper, a brief mention of this area is necessary. A failure to
present the DNA match obtained from the DNA database in a statistically
accurate way would infringe the suspect’s right to a fair trial under Article
38.1 of the Constitution. The significance of a match is usually indicated by
the calculation of a ‘match probability’. However, it must be emphasised that
there is no one way of assigning a statistical probability to a case. There are
a number of ways in which such a calculation could be carried out.703 As observed by one commentator “the apparent
certainty of the statistical match evidence that appears so impressive is very
clearly not so certain as it looks”.704
2.
There
are essentially two ways in which scientists can present their evidence.
Firstly, they can present it as a ‘match probability’. The match probability is
the probability that a randomly selected, unknown, unrelated person would have
the same DNA profile as the suspect.705 The smaller the probability or
the less the possibility of an adventitious match, the greater the likelihood
that the two samples came from the same person. The forensic scientist requires
some knowledge of the frequency within which the alleles occur within a
population, and so population databases are used for this calculation. In this
jurisdiction, the DNA Population Database most commonly used in criminal cases
is that of the Forensic Science Laboratory. The present system involves
calculating a match probability for each of the ten loci that make up a given
profile. Then the match probabilities for the individual loci are multiplied
together. For a DNA profile of ten loci, the combination of the individual
estimates of the likelihood of each allele occurring in a population will
result in a very rare event indeed. In respect of a match calculated on the
basis of ten loci, the probability that a randomly selected, unknown, unrelated
person would have the same DNA profile as the suspect is 1 in a billion. In
reality, the probabilities that arise in this instance are in the order of one
in billions but both the UK Forensic Science Service and the Irish Forensic
Science Laboratory have adopted a policy of not calculating case specific
probabilities. Instead they use conservative estimates of the figures involved.
The Irish and UK laboratories quote the probabilities in court as being in the
order of one in a thousand million or one in a billion.706
3.
In
calculating any match probabilities, the effects of relatedness should be
factored in. There is a far greater probability of a chance match occurring in
the event of the parties being relatives than if they are strangers.707 For example in respect of a match calculated on the
basis of ten loci, a match probability of 1 in a billion may translate to 1 in
10000 in respect of a pair of brothers.708 The failure to factor in the
effects of relatedness when presenting the statistical evidence to the jury
recently led the Court of Criminal Appeal in Allen v DPP709 to order a retrial. The forensic scientist in this
case observed that there was a greater likelihood of finding genetic
similarities in close blood relatives than in unrelated people. However, the
failure to adduce evidence to specify the statistics concerning the probability
of a chance match occurring, in the event of the two people being brothers,
resulted in the Court of Criminal Appeal ordering a retrial.
4.
The
likelihood ratio is an alternative means of evaluating the prospect of a chance
match. This involves conducting a measure of the strength of the evidence
regarding the hypothesis that the two profiles came from the same source. Here
we find that the profiles of the person contributing the evidence sample and
the suspect are both x. Two hypotheses are considered: (1) the source of the
evidence and the suspect are the same person and (2) the source of the evidence
is a randomly selected person unrelated to the suspect. The likelihood ratio is
the probability under hypothesis (1) that the suspect profile and the
evidence-sample profile will both be x, divided by the corresponding
probability under hypothesis (2).710 This approach is used in Ireland
in cases where the DNA profile is mixed or the defence specifically requests
the use of this method.
1. One error that is made in presenting
evidence is known as the ‘prosecutor’s fallacy’. This error could be made by
the forensic scientist in presenting the evidence. Alternatively, it could be
made by counsel or by the judge in summing up the evidence. Or it could be made
by the jury in applying the evidence even though the evidence has in fact been
presented and summed up correctly. Two difficult questions can be asked
concerning evidence of a match between a defendant’s profile and the profile
obtained from a crime scene. Firstly, what is the probability that the
defendant’s DNA profile matches the crime scene profile, given that he is
innocent? Secondly, what is the probability that the defendant is innocent,
given that his or her DNA profile matches the crime scene profile? The first
question assumes the innocence of the defendant and asks about the chance of
getting such a match; the second assumes the defendant’s profile matches and asks
about guilt or innocence. The ‘prosecutor’s fallacy’ involves inadvertently
giving the answer to the first question as the answer to the second.711 Expressed in another way, “the “prosecutor’s fallacy”
is that the statistics of the match necessarily translate into the equivalent
chance of the accused being guilty.”712
2. This mistake arose firstly in People
v Collins.713 In this case the prosecutor obtained a robbery
conviction against a couple by equating the probability that a random couple
would possess a series of observed characteristics with the probability that
the accused couple did not commit the robbery. This is a classic example of the
prosecutor’s fallacy. Counsel and judges must be made aware of how to approach
the interpretation of the statistical evidence so as to avoid this error. Also,
when DNA evidence involving probabilities is presented, it must be followed by
an explicit warning against misinterpretation. A more recent example of such a
mistake occurred in Pringle v The Queen.714 In this case, the Privy Council
accepted that it was in the trial judge’s “province of her expertise to say what
the statistical likelihood was of the same sections or bands of DNA being found
in the male fraction of the vaginal swab as was found in the appellant’s blood
sample. But it was not for her to express an opinion as to the probability that
it was his spermatozoa that were found in the deceased’s vagina”. This
is an example of how the ‘prosecutor’s fallacy’ could arise in practice.
Consequently, in order to avoid the prosecutor’s fallacy, the judge should
highlight to the jury that the match probability expressed by the forensic
scientist is the probability that a randomly selected, unknown, unrelated
person would have the same DNA profile as the suspect rather than the
probability that the accused did not commit the crime.
1.
Controversy
has also arisen over whether Bayes’ Theorem should be used in formulating
probabilities. This is a standard mathematical formula which essentially
explains how to assess information, such as evidence, within the laws of
probability. Applying Bayes’ Theorem in this context would involve multiplying
the likelihood ratio by the prior odds (their assessment of the probability of
the defendant’s guilt before hearing the DNA evidence). This would then produce
the posterior odds, the calculation that the defendant is guilty given the DNA
evidence and the other evidence presented at trial.715 However rather than subjecting
the jury to a very complex analysis of statistics, it could be more appropriate
simply to inform the jury that the DNA match is not evidence of the defendant’s
guilt and that they must take all the evidence into account in deciding whether
the guilt of the defendant has been proved beyond reasonable doubt. The use of
this theorem was initially accepted in R v Adams716 in the UK but its use was ultimately rejected by the
Court of Appeal. This was on the basis that the use of Bayes Theorem would
plunge the jury into inappropriate and unnecessary realms of theory and
complexity deflecting them from their proper task.
1.
The
solution adopted in the UK concerning the manner in which statistical evidence
should be presented was set down in R v Doheny and Adams. 13 guidelines
were set out by the Court of Appeal regarding the presentation of a DNA match.717 These guidelines detail the manner in which the
significance of a match should be statistically presented. The complexities of
the Bayes Theorem are avoided and the guidelines also ensure that the
‘prosecutor’s fallacy’ is consigned to legal history. The match probability is
calculated. A relative frequency statement is used as the means of presenting
the significance of the match. This entails providing information about the
frequency with which the profile is expected to appear within the population.
An example of such a statement is “Fifty people in the UK are expected to have
this DNA profile”. Alternatively a related statement could be made namely that
“it is expected that one person in a million has this DNA profile”. The latter
statement is one of relative frequency. However there are problems with this
approach. DNA profiling now involves calculating a profile on the basis of ten
loci. In Doheny and Adams, a profile was calculated on the basis
of six loci only. Evett has commented that probabilities of the order of one in
trillions, which arise from calculations based on ten locus profiles, require
assumptions that cannot be assessed by statistical experiment in the light of
the size of the existing databases. These numbers may be correct in a
mathematical sense but they are without any real meaning in the context of
criminal proceedings.718 For this reason, the Irish Forensic Science
Laboratory and the UK Forensic Science Service have adopted a policy of not
calculating case-specific match probabilities for full profiles. The relative
frequency statement did constitute a simpler method of explaining probabilities
to jurors but problems now arise with this approach under the new SGM Plus
system. If the court accepts that the relevant population to consider is one of
10 million males, unrelated to the defendant, then the match probability of one
in a billion illustrates that, apart from the defendant, the expected number of
males that would have the same profile as the crime stain is 0.01. Naturally, a
jury would find such a statement excessively difficult to comprehend so in
practice a frequency statement is no longer used in respect of profiles calculated
on the basis of ten loci.719
2.
There
are other problems with the guidelines adopted in R v Doheny and Adams.720 This form of presentation does not make any
provision for the effects of relatedness.721 Nor does it deal with the
question as to what population database should be used for calculating the
probabilities. It also does not detail whether account should be taken of the
fact that the match came from a database in calculating the probabilities.722 As a result, we do not intend to recommend the
adoption of these guidelines.
3. It is not proposed to make any
recommendation as to the statistics that should be used in presenting a DNA
match. Such a recommendation would fall outside the Commission’s area of
expertise. However, we accept that an expert group should be set up to examine
the manner in which the statistics should be presented to the jury. The
Expert Group should discuss how the evidence should be presented from a
scientifically sound basis and also to conform to the standards required in a
criminal trial. The importance of formulating guidelines on the statistics
concerning DNA is illustrated by the recent decision of Butler J in The
People (DPP) v Howe.723 One of the grounds on which the judge directed
the jury to acquit was that the forensic scientist had no qualification in
statistics. The judge suggested that he was not properly qualified to determine
the probability of DNA evidence coming from another person. A contrary
decision on this matter has been reached in subsequent cases, where it has been
accepted that a forensic scientist has sufficient knowledge of statistics to
present the significance of a DNA match accurately.724 The latter position has also been
adopted in other jurisdictions, where it has been accepted that evidence from a
statistical expert is not necessary for DNA evidence to be admitted.725 The decision in Howe illustrates the
inconsistencies that arise in the absence of guidance on the statistical
presentation of a DNA match.
4.
Whatever
statistical presentation of the evidence is decided on, the guidelines set out
by the British Columbia Court of Appeal in Latcha v R726 would be useful. These guidelines provide that it
must be made sufficiently clear to the jury that the estimates are not intended
to be precise, that they are the products of mathematical and scientific
theory, not concrete facts, that they do not purport to define the likelihood
of guilt, that they should only be used to form a notion of the rarity of the
genetic profile of the accused and most importantly, that the DNA evidence must
be considered along with all the evidence in the case relating to the issue of
identification. These guidelines explain the situation in respect of the
significance of a match in a concise and understandable way and ensure the jury
are not blinded by the statistics involved. They also import the useful aspects
of the R v Doheny and Adams727 decision – namely the need to
consider the statistical evidence in the light of all the evidence in the case.
5. The Commission recommends that
following consultation with an expert group on the statistical presentation of
a DNA match, guidance should be provided in the form of Rules of Court or a
Code of Practice on the presentation of a DNA match statistically. Whatever
guidelines on the statistical presentation of the significance of a match are
decided on, the judge in summing up the evidence should alert the jury to the
fact that the estimates are not intended to be precise, that they are the
products of mathematical and scientific theory, that they do not purport to
define the likelihood of guilt and that the statistical evidence must be
considered along with all the evidence in the case.
1.
It
is evident from this that presenting the significance of a DNA match in
statistical form is an extremely complicated procedure. Consequently, it is
likely that the jury may misunderstand the evidence irrespective of the manner
in which it is presented. The jury could also fail to understand the
implications of a DNA match and there is, as a result, often a need to improve
their understanding of the DNA evidence. While defence counsel have the
opportunity to test the veracity of the DNA evidence through cross-examination,
the jury may fail to understand the evidence presented to them or to consider
the DNA match in the light of all the other evidence in the case.728
2. There are a number of ways in which
jury understanding of the probative value of DNA evidence can be assisted.
Firstly, they could be provided with a simple booklet explaining DNA evidence
generally. Secondly, a standard educational video explaining the value of DNA
evidence could be shown to them before the trial. Finally, the trial judge
could be required to give a direction at the end of the trial on the probative
value of the DNA evidence. This could be a similar warning to that given in
respect of visual identification evidence.729 The Commission accepts that there
are merits in requiring a basic standard direction in all cases in which a DNA
match is involved, subject to adjustments to cover the actual facts and issues
in the case. Such a warning would assist the jury in weighing the complex
evidence they are presented with and ensure that they do not reach any false
conclusions.
3.
However,
we also accept the concerns of the South Australian Court of Criminal Appeal in
R v Krager,730 which held that there should be no requirement
for a general warning to be given in all cases. While there could be particular
circumstances which call for a special warning, this would depend on the facts
of the case. It was accepted that it was undesirable to impose an obligation on
trial judges to give a warning to the jury except where such a warning was
necessary. A standard warning would also fetter the trial judge’s discretion
unduly and hamper adjusting the warning to the facts of the case. This could
result in a breach of the defendant’s right to a fair trial. The court also
noted that including a standard warning had the effect of adding further
complexity to the case. Cases can be envisaged where the probative value of the
DNA match has been explained adequately to the jury during the trial and
requiring a warning could in this instance confuse rather than enlighten them.
The Commission agrees with the decision in R v Krager in this regard.
4.
While
we believe that in most cases a warning will be required to assist the jury in
weighing up the value of the DNA evidence, we do not seek to impose a general
obligation on the trial judge to give such a warning. We proffer two exceptions
to this recommendation. Firstly, the trial judge should be required to give
guidance on the statistical presentation of a DNA match due to the inherent
complexities of this area. Secondly, where the prosecution seek to rely on DNA
evidence alone, the dangers of convicting on this evidence solely should be
explained to the jury. In all other circumstances, the merits of giving a
warning and the form of any such warning should be left to the discretion of
the judge.
5. However, it is useful at this point
to outline some of the issues on which the judge could consider informing the
jury if he deemed it desirable in the particular case in hand. In summing up,
the judge could give a direction as to the probative value of the DNA match.
The contents of this direction could highlight to the jury that DNA evidence is
not infallible and should be approached with caution. It could explain that a
match does not conclusively prove the guilt of the accused. It could also
outline the problems that can arise with a DNA match. These difficulties
include the risk of laboratory error, coincidental or chance matches and an
innocent explanation being present for the match. The judge should be wary
about informing the jury that the match arose as a result of a speculative
search on the database, unless the defence mentions this in the first instance,
as this is potentially prejudicial. The judge could also advise the jury to
consider the DNA evidence in the context of all the other evidence in the case.
In addition, where there are additional circumstances which may impact on the
probative value of the DNA match, these circumstances should also be included
in any warning. Careful directions could be given in respect of the expert
evidence that arises in each particular case. Attention could also be drawn to
the extraneous evidence which provides the context which gives the ratio its
significance. Problems with the crime scene sample, for example degradation or
contamination, could be addressed in any warning. This would ensure that the
jury have a clear understanding of the probative value of the match.
6. The Commission therefore recommends
that it should be left to the trial judge to decide whether a judicial warning
on the DNA evidence is required in any particular case. The Commission proffers
two exceptions to this recommendation. Firstly, where the prosecution seeks to
rely on DNA evidence alone, the dangers of convicting on this evidence on its
own should be explained to the jury. Secondly, the statistical significance of
a DNA match should be explained carefully to the jury.
10. SUMMary of provisional
recommendations
1.
The
provisional recommendations contained in this Paper may be summarised as
follows:
Chapter 4 – DNA
Sampling: Current Powers and Safeguards
2.
The
Commission is of the view that the taking of photographs and prints should be
governed exclusively by legislation, even in the case of those taken on a
voluntary basis. [Paragraph ]
3.
The
Commission is of the view that similar modifications to those in the revised Police
and Criminal Evidence Act 1984 Code of Practice outlining the procedure for
taking a hair sample should be introduced in this field by way of either Code
of Practice produced by the Gardaí themselves or through Ministerial
regulations passed under section 5 of the 1990 Act. [Paragraph ]
4.
The
Commission recommends that the explanation for the reason and basis for taking
samples must be given in a readily understandable manner, using plain language.
[Paragraph ]
5.
The
Commission recommends that safeguards similar to those recommended by the Human
Rights Commission in respect of the taking of bodily samples should be provided
for in a Code of Practice. In addition to these safeguards, so long as the
particular forensic test may be conducted on the sample, the Commission is of
the view that a certain amount of latitude should be given to individuals to
choose the type of sample to be obtained. [Paragraph ]
6.
The
Commission recommends the implementation of safeguards to ensure that the power
to use reasonable force is not arbitrarily exercised. These safeguards should
be similar to those suggested by the Human Rights Commission and could be
implemented in the form of a Code of Practice. [Paragraph ]
7.
The
Commission recommends that, as with fingerprints, the taking of bodily samples
should be governed by legislation which should encompass all samples, even
those taken on a voluntary basis. [Paragraph ]
Chapter 5 – The
Taking of the DNA Samples and the Retention of the DNA Profiles
8.
The
Commission is of the view that, at present, the storage of DNA profiles is not,
in principle, objectionable. [Paragraph ]
9.
The
Commission does not recommend any amendment to the present position by which a
person must (subject to limited exception) be suspected of an “arrestable
offence”, that is one carrying a penalty of at least five years imprisonment,
to authorise the taking of a forensic sample. [Paragraph ]
10.
The
Commission recommends that the DNA profiles obtained from individuals in
custody under section 30 of the Offences Against the State Act 1939,
section 4 of the Criminal Justice Act 1984 and section 2 of the Criminal
Justice (Drug Trafficking) Act 1996 may be retained indefinitely on the
national database. [Paragraph ]
11.
The
Commission recommends that a person convicted of an offence, who is in prison,
may be subject to DNA sampling without their consent. This sampling should be
subject to the safeguards and rules set out in the Criminal Justice Act 1984
and the Criminal Justice Bill 2003. However there should be no need, in
the case of convicted offenders in prison, to show that the taking of the
sample was required to prove or disprove involvement in an offence nor to prove
that it is suspected that the convicted person committed an offence in addition
to the offence, which caused the incarceration. [Paragraph ]
12.
The
Commission recommends that on the quashing of an accused’s conviction, where
the profile was obtained while he was in prison, the profile should be deleted
from the database. [Paragraph ]
13.
The
Commission recommends that a convicted offender’s profile be retained indefinitely
on a national database. [Paragraph ]
14.
The
Commission recommends that the taking of samples from volunteers should only
occur under legislative cover and with the exception of the provision for the
compulsory taking of samples below, only if they consent and the sample is
likely to be useful for the investigation of a specific offence. Volunteers
should be defined as persons from whom samples are taken who are not suspects
or convicted offenders. In order for their consent to be valid, it must be informed,
in writing and they should be given an opportunity to consult a legal
practitioner before they agree to provide a sample. For it to be an informed
consent, they should be notified of the purpose for which the sample is to be
provided, the use that will be made of it and the fact that they are under no
obligation to provide a sample. Failure to consent should also be precluded
from constituting a reasonable ground for suspecting a person’s involvement in
an offence so as to justify the compulsory taking of a sample from them under
section 2 of the 1990 Act and head 10 of the Scheme of the Criminal Justice
Bill 2003. [Paragraph ]
15.
The
Commission recommends that samples from persons other than suspects or
convicted persons may only be taken without the consent of the person where a
court order authorises the taking of the sample on the basis that the person is
endeavouring to obstruct the course of justice in refusing to give the sample
and the sample is necessary for the investigation of a serious offence.
[Paragraph ]
16.
The
Commission recommends that a volunteer’s profile may only be retained on the
national database, where an informed consent has been given for this. A
volunteer should be advised of all the implications that this insertion will
involve including the fact that it may be used for the purpose of future
searches. [Paragraph ]
17.
The
Commission suggests that any individual, even a person unconnected with a
particular investigation, should be permitted to have their profile retained on
the national database. [Paragraph ]
18.
The
Commission recommends that volunteers be permitted to withdraw their consent to
the retention of their profiles on the national database. [Paragraph ]
19.
The
Commission recommends that if a volunteer consents to the retention of their
profile on a national database then it may be utilised for any of the purposes
permitted. [Paragraph ]
20.
The
Commission recommends that a Garda Superintendent or acting Superintendent be
required to approve in writing a mass screen before it may be conducted. In
addition to this, evidence of a person’s failure to consent to testing during a
mass screen should not be admissible in court. [Paragraph ]
21.
The
Commission does not recommend the establishment of a comprehensive DNA database
because its establishment would weigh disproportionately against individual
rights and be excessively expensive and its benefits would not be significant
in terms of crime prevention. [Paragraph ]
22.
The
Commission recommends that the profiles obtained voluntarily outside the ambit
of the 1990 Act may be retained indefinitely unless the volunteer withdraws
consent to their retention. In respect of the profiles obtained under the 1990
Act, these should be destroyed within the period specified by the Act.
[Paragraph ]
Chapter 6 –The
Biological Samples – Retention or Destruction?
23.
The
Commission is of the view that where biological samples are found at the scene
of a crime they should be retained, principally as a safeguard in the event
that an individual convicted of the offence to which the sample relates alleges
that a miscarriage of justice has occurred and wishes to challenge the veracity
of the original evidence. [Paragraph ]
24.
The
Commission is, in principle, inclined towards destruction of comparator samples
once a profile has been generated, verified and stored and the trial in respect
of which the sample was obtained has concluded. Limited and anonymised samples
should be retained for longer periods of time, but not indefinitely, in order
to ensure that the profiling methods are accurate, for quality assurance
purposes and to assist in the regulation and accreditation of providers of
forensic profiles and the custodian of any database. [Paragraph ]
Chapter 7 – The
Permissible Uses of the DNA Samples and Profiles
25.
The
Commission is of the view that the analysis of biological samples taken from a
scene of crime should be limited to purposes that further the criminal
investigation and that the results of any analysis should be kept under the
most careful custody. Analysis of coding regions should therefore be allowed to
determine non-sensitive phenotype information in respect of common
characteristics, such as eye colour and skin colour. [Paragraph ]
26.
The
Commission recommends that any legislation providing for the analysis of DNA
samples for comparison with biological samples left at the scene of a crime
should exclude testing which might reveal information about genetic disorders,
personality and behavioural traits and predispositions. The Commission does not
recommend that analysis of DNA samples should be restricted explicitly to the
non-coding regions. [Paragraph 7.20]
27.
The
Commission recommends that the profiles of deceased’s persons may be matched
against the convicted offenders’, suspects’ and volunteer’s indexes of the
database for the purpose only of identifying these persons and not for any
other purpose such as paternity determination. [Paragraph ]
28.
The
Commission recommends that the profile of a deceased’s person may be matched
against the crime scene index where a court authorises this on the basis that
there are reasonable grounds for suspicion that the deceased was responsible
for the crime and it is an appropriate order to make having regard to all the
circumstances of the case. [Paragraph ].
29.
The
Commission recommends that in the event of a person being so severely injured
as to be unable to indicate their identity, a person with a proper interest in
the matter should be entitled to make a High Court application seeking the
identification of the person from the DNA database. [Paragraph ]
30.
The
Commission recommends that the database should only be used for crime
investigation purposes and the identification of deceased and severely injured
people. The specific purposes for which the database may be used should be
detailed in legislation. [Paragraph ]
31.
The
Commission recommends that a sample obtained voluntarily from a perpetrator’s
relative may be used to implicate the perpetrator in the crime but that no
compulsory power should be introduced to the effect that such a relation may be
compelled to give a sample. [Paragraph ]
32.
The
Commission recommends that it be permissible to use a DNA “partial match” from
a relative to justify implicating a suspect. [Paragraph ]
33.
The
Commission recommends that the State should only obtain profiles from other
jurisdictions, where these profiles have been collected and retained in a
manner compatible with Irish law. The Commission also recommends that the State
should accede to an international database if the profiles present on the
database may be lawfully used for these purposes under Irish law. In the event
of any profiles being submitted to an international database or exchanged with
another jurisdiction, reasonable steps should be taken to ensure that the
information disclosed is not used in a manner which infringes Irish law.
[Paragraph ]
Chapter 8 –
Oversight, Regulation, Quality Control and Accreditation
34.
The
Commission recommends the enactment of legislation under which the Forensic Science
Laboratory would be incorporated into an independent statutory body called the
Forensic Science Agency. It should be governed by a Board composed of a number
of individuals with relevant and varied expertise but who are independent of
the Government. This body would be responsible for both the profiling and
storage of the crime scene and comparator samples. Its functions in this regard
would be subject to reviews by the Irish National Accreditation Board. A
department of the Forensic Science Agency would be in charge of custody of the
database. Matches obtained through this database should be communicated to the
Gardaí by virtue of a secure computerised system. The body’s function of
managing the database would be subject to external oversight from an oversight
commissioner. [Paragraph ]
35.
In
the event of any private forensic laboratory establishing itself in this
jurisdiction, it should also be subject to oversight, in respect of its limited
functions, from the Irish National Accreditation Board and the external
oversight Commissioner, which the Commission has recommended oversee the
workings of the new independent body. [Paragraph ]
36.
The
Commission recommends that strong security measures should be implemented to
ensure that the information on the database is used only for the permitted
purposes set out in the legislation. In setting up a database, provision should
be made for adequate resources for the responsible Board to engage expert
advice to ensure proper safeguards are used. [Paragraph ]
37.
The
Commission recommends that stringent and effective safeguards be put in place
to ensure that all biological samples are stored under appropriately secure
conditions. Expert advice should be sought regarding the precise form that
these measures should take. [Paragraph ]
38.
The
Commission recommends that an offence of intentionally or recklessly causing
the disclosure of the information derived from the samples or the information
contained on the database for purposes other than those provided for by
legislation should be enacted into law. [Paragraph ]
39.
The
Commission recommends that reminders as to destruction dates should be
installed on computers to ensure that the profiles and samples are destroyed as
provided for by legislation. [Paragraph ]
40.
It
is accepted by the Commission that the procedures, which provide for oversight
of the Forensic Science Laboratory’s performance, in particular those under the
Irish National Accreditation Board, comply with best international standards.
The new independent laboratory, which the Commission recommends be established,
should be required to follow the same procedures. The Commission recommends
that the quality control and quality assurance procedures be kept under review
to ensure that the appropriate standards are being complied with. [Paragraph ]
41.
The
Commission recommends that the Advisory Forum, which has been established or
its successor, should be responsible for keeping under review the procedures
adopted by the Garda Síochána in respect of crime scene examinations to ensure
that they meet the technical advances, the technological improvements and the
added complications DNA evidence presents. [Paragraph ]
Chapter 9 – DNA
Evidence
42.
The
Commission recommends that if an issue as to the admissibility of DNA evidence is
likely to arise or arises in a case, then consideration should be given to
dealing with such an issue at a preliminary hearing or at an early hearing if
this is just and convenient in the particular circumstances. [Paragraph
]
43.
The
Commission does not recommend that there should be a prohibition on convicting
on DNA evidence alone. Rather, the Commission recommends that in all cases
where it is sought to rely on DNA evidence alone, the jury should be warned of
the dangers of convicting on this evidence in the absence of other supporting
evidence. However, they should be advised that they may convict on this
evidence if they are satisfied beyond reasonable doubt of the defendant’s
guilt. [Paragraph ]
44.
The
Commission recommends that, as at present, where DNA evidence is obtained
illegally, but not in breach of a person’s constitutional rights, the trial
judge should be empowered to determine, as a matter of discretion, whether to
admit it in evidence. [Paragraph ]
45.
The
Commission recommends that following consultation with an expert group on the
statistical presentation of a DNA match, guidance should be provided in the
form of Rules of Court or a Code of Practice on the presentation of a DNA match
statistically. Whatever guidelines on the statistical presentation of the
significance of a match are decided on, the judge in summing up the evidence
should alert the jury to the fact that the estimates are not intended to be
precise, that they are the products of mathematical and scientific theory, that
they do not purport to define the likelihood of guilt and that the statistical
evidence must be considered along with all the evidence in the case. [Paragraph
]
46.
The
Commission recommends that it should be left to the judge to decide whether a
judicial warning on the DNA evidence is required in the particular case at
hand. The Commission proffers two exceptions to this recommendation. Firstly,
where the prosecution seeks to rely on DNA evidence alone, the dangers of
convicting on this evidence on its own should be explained to the jury.
Secondly, the statistical significance of a DNA match should be explained
carefully to the jury. [Paragraph ]
APPENDIX LIST OF LAW REFORM COMMISSION PUBLICATIONS
|
First Programme for Examination of Certain Branches of the Law with a View to their Reform (December 1976) (Prl 5984) |
€0.13 |
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Working Paper No 1-1977, The Law Relating to the Liability of Builders, Vendors and Lessors for the Quality and Fitness of Premises (June 1977) |
€1.40 |
|
Working Paper No 2-1977, The Law Relating to the Age of Majority, the Age for Marriage and Some Connected Subjects (November 1977) |
€1.27 |
|
Working Paper No 3-1977, Civil Liability for Animals (November 1977) |
€3.17 |
|
First (Annual) Report (1977) (Prl 6961) |
€0.51 |
|
Working Paper No 4-1978, The Law Relating to Breach of Promise of Marriage (November 1978) |
€1.27 |
|
Working Paper No 5-1978, The Law Relating to Criminal Conversation and the Enticement and Harbouring of a Spouse (December 1978) |
€1.27 |
|
Working Paper No 6-1979, The Law Relating to Seduction and the Enticement and Harbouring of a Child (February 1979) |
€1.90 |
|
Working Paper No 7-1979, The Law Relating to Loss of Consortium and Loss of Services of a Child (March 1979) |
€1.27 |
|
Working Paper No 8-1979, Judicial Review of Administrative Action: the Problem of Remedies (December 1979) |
€1.90 |
|
Second (Annual) Report (1978/79) (Prl 8855) |
€0.95 |
|
Working Paper No 9-1980, The Rule Against Hearsay (April 1980) |
€2.54 |
|
Third (Annual) Report (1980) (Prl 9733) |
€0.95 |
|
First Report on Family Law – Criminal Conversation, Enticement and Harbouring of a Spouse or Child, Loss of Consortium, Personal Injury to a Child, Seduction of a Child, Matrimonial Property and Breach of Promise of Marriage (LRC 1-1981) (March 1981) |
€2.54 |
|
Working Paper No 10-1981, Domicile and Habitual Residence as Connecting Factors in the Conflict of Laws (September 1981) |
€2.22 |
|
Fourth (Annual) Report (1981) (Pl 742) |
€0.95 |
|
Report on Civil Liability for Animals (LRC 2-1982) (May 1982) |
€1.27 |
|
Report on Defective Premises (LRC 3-1982) (May 1982) |
€1.27 |
|
Report on Illegitimacy (LRC 4-1982) (September 1982) |
€4.44 |
|
Fifth (Annual) Report (1982) (Pl 1795) |
€0.95 |
|
Report on the Age of Majority, the Age for Marriage and Some Connected Subjects (LRC 5-1983) (April 1983) |
€1.90 |
|
Report on Restitution of Conjugal Rights, Jactitation of Marriage and Related Matters (LRC 6-1983) (November 1983) |
€1.27 |
|
Report on Domicile and Habitual Residence as Connecting Factors in the Conflict of Laws (LRC 7-1983) (December 1983) |
€1.90 |
|
Report on Divorce a Mensa et Thoro and Related Matters (LRC 8-1983) (December 1983) |
€3.81 |
|
Sixth (Annual) Report (1983) (Pl 2622) |
€1.27 |
|
Report on Nullity of Marriage (LRC 9-1984) (October 1984) |
€4.44 |
|
Working Paper No 11-1984, Recognition of Foreign Divorces and Legal Separations (October 1984) |
€2.54 |
|
Seventh (Annual) Report (1984) (Pl 3313) |
€1.27 |
|
Report on Recognition of Foreign Divorces and Legal Separations (LRC 10-1985) (April 1985) |
€1.27 |
|
Report on Vagrancy and Related Offences (LRC 11-1985) (June 1985) |
€3.81 |
|
Report on the Hague Convention on the Civil Aspects of International Child Abduction and Some Related Matters (LRC 12-1985) (June 1985) |
€2.54 |
|
Report on Competence and Compellability of Spouses as Witnesses (LRC 13-1985) (July 1985) |
€3.17 |
|
Report on Offences Under the Dublin Police Acts and Related Offences (LRC 14-1985) (July 1985) |
€3.17 |
|
Report on Minors’ Contracts (LRC 15-1985) (August 1985) |
€4.44 |
|
Report on the Hague Convention on the Taking of Evidence Abroad in Civil or Commercial Matters (LRC 16-1985) (August 1985) |
€2.54 |
|
Report on the Liability in Tort of Minors and the Liability of Parents for Damage Caused by Minors (LRC 17-1985) (September 1985) |
€3.81 |
|
Report on the Liability in Tort of Mentally Disabled Persons (LRC 18-1985) (September 1985) |
€2.54 |
|
Report on Private International Law Aspects of Capacity to Marry and Choice of Law in Proceedings for Nullity of Marriage (LRC 19-1985) (October 1985) |
€4.44 |
|
Report on Jurisdiction in Proceedings for Nullity of Marriage, Recognition of Foreign Nullity Decrees, and the Hague Convention on the Celebration and Recognition of the Validity of Marriages (LRC 20-1985) (October 1985) |
€2.54 |
|
Eighth (Annual) Report (1985) (Pl 4281) |
€1.27 |
|
Report on the Statute of Limitations: Claims in Respect of Latent Personal Injuries (LRC 21-1987) (September 1987) |
€5.71 |
|
Consultation Paper on Rape (December 1987) |
€7.62 |
|
Report on the Service of Documents Abroad re Civil Proceedings -the Hague Convention (LRC 22-1987) (December 1987) |
€2.54 |
|
Report on Receiving Stolen Property (LRC 23-1987) (December 1987) |
€8.89 |
|
Ninth (Annual) Report (1986-1987) (Pl 5625) |
€1.90 |
|
Report on Rape and Allied Offences (LRC 24-1988) (May 1988) |
€3.81 |
|
Report on the Rule Against Hearsay in Civil Cases (LRC 25-1988) (September 1988) |
€3.81 |
|
Report on Malicious Damage (LRC 26-1988) (September 1988) |
€5.08 |
|
Report on Debt Collection: (1) The Law Relating to Sheriffs (LRC 27-1988) (October 1988) |
€6.35 |
|
Tenth (Annual) Report (1988) (Pl 6542) |
€1.90 |
|
Report on Debt Collection: (2) Retention of Title (LRC 28-1988) (April 1989) |
€5.08 |
|
Report on the Recognition of Foreign Adoption Decrees (LRC 29-1989) (June 1989) |
€6.35 |
|
Report on Land Law and Conveyancing Law: (1) General Proposals (LRC 30-1989) (June 1989) |
€6.35 |
|
Consultation Paper on Child Sexual Abuse (August 1989) |
€12.70 |
|
Report on Land Law and Conveyancing Law: (2) Enduring Powers of Attorney (LRC 31-1989) (October 1989) |
€5.08 |
|
Eleventh (Annual) Report (1989) (Pl 7448) |
€1.90 |
|
Report on Child Sexual Abuse (LRC 32-1990) (September 1990) |
€8.89 |
|
Report on Sexual Offences against the Mentally Handicapped (LRC 33-1990) (September 1990) |
€5.08 |
|
Report on Oaths and Affirmations (LRC 34-1990) (December 1990) |
€6.35 |
|
Report on Confiscation of the Proceeds of Crime (LRC 35-1991) (January 1991) |
€7.62 |
|
Consultation Paper on the Civil Law of Defamation (March 1991) |
€25.39 |
|
Report on the Hague Convention on Succession to the Estates of Deceased Persons (LRC 36-1991) (May 1991) |
€8.89 |
|
Twelfth (Annual) Report (1990) (Pl 8292) |
€1.90 |
|
Consultation Paper on Contempt of Court (July 1991) |
€25.39 |
|
Consultation Paper on the Crime of Libel (August 1991) |
€13.97 |
|
Report on the Indexation of Fines (LRC 37-1991) (October 1991) |
€8.25 |
|
Report on the Civil Law of Defamation (LRC 38-1991) (December 1991) |
€8.89 |
|
Report on Land Law and Conveyancing Law: (3) The Passing of Risk from Vendor to Purchaser (LRC 39-1991) (December 1991); (4) Service of Completion Notices (LRC 40-1991) (December 1991) |
€7.62 |
|
Thirteenth (Annual) Report (1991) (PI 9214) |
€2.54 |
|
Report on the Crime of Libel (LRC 41-1991) (December 1991) |
€5.08 |
|
Report on United Nations (Vienna) Convention on Contracts for the International Sale of Goods 1980 (LRC 42-1992) (May 1992) |
€10.16 |
|
Report on the Law Relating to Dishonesty (LRC 43-1992) (September 1992) |
€25.39 |
|
Land Law and Conveyancing Law: (5) Further General Proposals (LRC 44-1992) (October 1992) |
€7.62 |
|
Consultation Paper on Sentencing (March 1993) |
€25.39 |
|
Consultation Paper on Occupiers’ Liability (June 1993) |
€12.70 |
|
Fourteenth (Annual) Report (1992) (PN 0051) |
€2.54 |
|
Report on Non-Fatal Offences Against The Person (LRC 45-1994) (February 1994) |
€25.39 |
|
Consultation Paper on Family Courts (March 1994) |
€12.70 |
|
Report on Occupiers’ Liability (LRC 46-1994) (April 1994) |
€7.62 |
|
Report on Contempt of Court (LRC 47-1994) (September 1994) |
€12.70 |
|
Fifteenth (Annual) Report (1993) (PN 1122) |
€2.54 |
|
Report on the Hague Convention Abolishing the Requirement of Legalisation for Foreign Public Documents (LRC 48-1995) (February 1995) |
€12.70 |
|
Consultation Paper on Intoxication as a Defence to a Criminal Offence (February 1995) |
€12.70 |
|
Report on Interests of Vendor and Purchaser in Land during the period between Contract and Completion (LRC 49-1995) (April 1995) |
€10.16 |
|
An Examination of the Law of Bail (LRC 50-1995) (August 1995) |
€12.70 |
|
Sixteenth (Annual) Report (1994) (PN 1919) |
€2.54 |
|
Report on Intoxication (LRC 51-1995) (November 1995) |
€2.54 |
|
Report on Family Courts (LRC 52-1996) (March 1996) |
€12.70 |
|
Seventeenth (Annual) Report (1995) (PN 2960) |
€3.17 |
|
Report on Sentencing (LRC 53-1996) (August 1996) |
€10.16 |
|
Consultation Paper on Privacy: Surveillance and the Interception of Communications (September 1996) |
€25.39 |
|
Report on Personal Injuries: Periodic Payments and Structured Settlements (LRC 54-1996) (December 1996) |
€12.70 |
|
Eighteenth (Annual) Report (1996) (PN 3760) |
€7.62 |
|
Consultation Paper on the Implementation of The Hague Convention on Protection of Children and Co-operation in Respect of Intercountry Adoption, 1993 (September 1997) |
€12.70 |
|
Report on The Unidroit Convention on Stolen or Illegally Exported Cultural Objects (LRC 55-1997) (October 1997) |
€19.05 |
|
Report on Land Law and Conveyancing Law; (6) Further General Proposals including the execution of deeds (LRC 56-1998) (May 1998) |
€10.16 |
|
Consultation Paper on Aggravated, Exemplary and Restitutionary Damages (May 1998) |
€19.05 |
|
Nineteenth (Annual) Report (1997) (PN 6218) |
€3.81 |
|
Report on Privacy: Surveillance and the Interception of Communications (LRC 57-1998) (June 1998) |
€25.39 |
|
Report on the Implementation of the Hague Convention on Protection of Children and Co-operation in Respect of Intercountry Adoption, 1993 (LRC 58-1998) (June 1998) |
€12.70 |
|
Consultation Paper on the Statutes of Limitation: Claims in Contract and Tort in Respect of Latent Damage (Other Than Personal Injury) (November 1998) |
€6.35 |
|
Twentieth (Annual) Report (1998) (PN 7471) |
€3.81 |
|
Consultation Paper on Statutory Drafting and Interpretation: Plain Language and the Law (LRC CP14-1999) (July 1999) |
€7.62 |
|
Consultation Paper on Section 2 of the Civil Liability (Amendment) Act, 1964: The Deductibility of Collateral Benefits from Awards of Damages (LRC CP15-1999) (August 1999) |
€9.52 |
|
Report on Gazumping (LRC 59-1999) (October 1999) |
€6.35 |
|
Twenty First (Annual) Report (1999) (PN 8643) |
€3.81 |
|
Report on Aggravated, Exemplary and Restitutionary Damages (LRC 60-2000) (August 2000) |
€7.62 |
|
Second Programme for examination of certain branches of the law with a view to their reform: 2000-2007 (PN 9459) (December 2000) |
€6.35 |
|
Consultation Paper on the Law of Limitation of Actions arising from Non-Sexual Abuse Of Children (LRC CP16-2000) (September 2000) |
€7.62 |
|
Report on Statutory Drafting and Interpretation: Plain Language and the Law (LRC 61-2000) (December 2000) |
€7.62 |
|
Report on the Rule against Perpetuities and Cognate Rules (LRC 62-2000) (December 2000) |
€10.16 |
|
Report on the Variation of Trusts (LRC 63-2000) (December 2000) |
€7.62 |
|
Report on The Statutes of Limitations: Claims in Contract and Tort in Respect of Latent Damage (Other than Personal Injury) (LRC 64-2001) (March 2001) |
€7.62 |
|
Consultation Paper on Homicide: The Mental Element in Murder (LRC CP17-2001) (March 2001) |
€6.35 |
|
Seminar on Consultation Paper: Homicide: The Mental Element in Murder (LRC SP 1-2001) |
- |
|
Twenty Second (Annual) Report (2000) (PN 10629) |
€3.81 |
|
Consultation Paper on Penalties for Minor Offences (LRC CP18-2002) (March 2002) |
€5.00 |
|
Consultation Paper on Prosecution Appeals in Cases brought on Indictment (LRC CP19-2002) (May 2002) |
€6.00 |
|
Report on the Indexation of Fines: A Review of Developments (LRC 65-2002) (July 2002) |
€5.00 |
|
Twenty Third (Annual) Report (2001) (PN 11964) |
€5.00 |
|
Report on the Acquisition of Easements and Profits à Prendre by Prescription (LRC 66-2002) (December 2002) |
€5.00 |
|
Report on Title by Adverse Possession of Land (LRC 67-2002) (December 2002) |
€5.00 |
|
Report on Section 2 of the Civil Liability (Amendment) Act 1964: The Deductibility of Collateral Benefits from Awards of Damages (LRC 68-2002) (December 2002) |
€6.00 |
|
Consultation Paper on Judicial Review Procedure (LRC CP20-2003) (January 2003) |
€6.00 |
|
Report on Penalties for Minor Offences (LRC 69-2003) (February 2003) |
€6.00 |
|
Consultation Paper on Business Tenancies (LRC CP 21-2003) (March 2003) |
€5.00 |
|
Report on Land Law and Conveyancing Law: (7) Positive Covenants over Freehold Land and other Proposals (LRC 70-2003) (March 2003) |
€5.00 |
|
Consultation Paper on Public Inquiries Including Tribunals of Inquiry (LRC CP 22 – 2003) (March 2003) |
€5.00 |
|
Consultation Paper on The Law and the Elderly (LRC CP 23 – 2003) (June 2003) |
€5.00 |
|
Consultation Paper on A Fiscal Prosecutor and A Revenue Court (LRC CP 24 – 2003) (July 2003) |
€6.00 |
|
Consultation Paper on Multi-Party Litigation (Class Actions) (LRC CP 25 – 2003) (July 2003) |
€6.00 |
|
Consultation Paper on Corporate Killing (LRC CP 26 – 2003) (October 2003) |
€6.00 |
Consultation Paper on Homicide: The Plea of Provocation (LRC CP 27 –
2003) (October 2003) €6.00
Seminar on Consultation Paper: Law and the Elderly (LRC SP 2-2003)
(November 2003) -
Twenty Fourth (Annual) Report (2002)
€5.00
(PN 1200)
Consultation Paper on General Law
of Landlord and Tenant
(LRC CP 28 – 2003) (December 2003)
€10.00
Report on Judicial Review Procedure
(LRC 71-2004) (February 2004) €10.00
1 See Hageman, Prevett and Murray DNA Handbook
(Butterworths Canada Ltd 2002) at 6-12.
2 See for example the UK
Forensic Science Service The National DNA Database – Annual Report 2002-2003
at 26. Available at:
http://www.forensic.gov.uk/forensic/entry.htm.
3 Crick The Astonishing Hypothesis: The Scientific Search for the
Soul (Touchstone 1994) Chapter 1.
4 In this chapter we have drawn on material provided by a number of
experts in this field who generously gave of their time to speak to the
Commission. These include Professor David McConnell of the Smurfit Institute of
Genetics and Fellow of Trinity College Dublin, Dr Maureen Smyth and Dr Louise
McKenna of the Forensic Science Laboratory. The Commission are also grateful to
the Director of the Forensic Science Laboratory, Dr Sheila Willis, for her
assistance and allowing us to visit the laboratory and to witness first-hand
how this all translates into practice.
5 People v Casey (No 2) [1963] IR 33 at 39-40 per Kingsmill Moore
J, who gave the classic warning about visual identification, which has been widely
used before common law juries. The leading case on this in the UK is R v
Turnbull [1977] QB 224.
6 See paragraphs -.
7 For a discussion of these methods and their use in criminal proceedings
see Ebisike An Appraisal of Forensic Science Evidence in Criminal
Proceedings: A Research Study (Greenway 2000). For a more colourful
historic account of forensic science see Wilson Written in Blood: A History
of Forensic Detection (Grafton Books 1989).
9 Ibid at 246.
10 Harrison “The Detection of
Fingerprints on Documents” [1958] Crim L R 591.
11 Ebisike An Appraisal of Forensic
Science Evidence in Criminal Proceedings: A Research Study (Greenway 2000)
at 18. See also Lane The Encyclopaedia of Forensic Science (Headline
1992) at 173-203.
12 Early attempts to identify an
individual systematically were made by Adolphe Bertillon, who developed the
system of “anthropometry” or “Bertillonage” in 1882. His system required that
measurements of various parts of the body and photographs be taken and notes
made of scars and other body marks (known as his spoken portrait or portrait
parlé) in order to distinguish individuals. Indeed, by 1888 Bertillon’s method
had become so successful that a new department of identity was set up, of which
he was appointed chief. However, despite this Bertillonage was flawed because
it required such intricate measurements to be taken. Errors made comparison of
results difficult and it was not unknown for individuals to have the same
measurements. Accordingly, fingerprints, which were much easier to use,
gradually replaced Bertillonage completely.
13 Wall Genetics and DNA
Technology: Legal Aspects (Cavendish 2002) at 6.
14 Ebisike An Appraisal of Forensic
Science Evidence in Criminal Proceedings: A Research Study (Greenway 2000)
at 20.
15 For an analysis of the nature of
scene of crime evidence and how such evidence may be successfully marshalled
see Lee, Palmbach, and Miller Henry Lee’s Crime Scene Handbook (Academic
Press 2001).
16 For more detail of the
classification of fingerprints see Lane The Encyclopaedia of Forensic
Science (Headline 1992) at 188-193.
17 See paragraph .
18 The oft cited first blood transfusion
was of Pope Innocent VIII in 1492, but this is doubtful since William Harvey
did not describe his blood circulation model until 1628. Transfusions were
attempted with varying degrees of success and by the end of the 19th
century a patient’s chances of surviving was 50%.
19 Wilson Written in Blood: A
History of Forensic Detection (Grafton Books 1989) at 198.
20 Wall Genetics and DNA
Technology: Legal Aspects (Cavendish 2002) at 46. However, it should be
noted that some small and isolated population may differ. Wall notes that the
frequency of group B in some Asian populations has been reported to be around
36%.
21 See paragraphs and -.
22 See paragraph .
23 See paragraph .
24 “From his experiments with peas, he
demonstrated that parent plants showing different characters produced hybrids
exhibiting the dominant parental character, and that the hybrids themselves
produced offspring in which the parental characters re-emerged unchanged and in
precise ratios. After the rediscovery of Mendel's work in 1900, Mendelism was
often thought, wrongly, to be the antithesis of the Darwinian theory of natural
selection; in fact, Mendel had demonstrated the primary source of variability
in plants and animals, on which natural selection could then operate” The
Oxford World Encyclopedia (Oxford University Press 1998).
25 Mendel “Versuche über
Pflanzen-Hybriden” (1866) 4 Verhandlungen des naturforschenden Vereined
Abhandlungen Brünn 3-47.
26 It is estimated that the human body
is made up of around 100,000,000,000,000 cells.
27 In 1911, the biochemist Phoebus
Aaron Theodore Levene discovered that there were two types of nucleic acid
called ribose (RNA) or deoxyribose (DNA) depending on whether they contain
sugar. It was difficult to tell what was happening inside, until it was
discovered that by staining a nucleus with dye it could be seen that the cells
divide.
28 It should be noted that spermatozoa
– the male reproductive cells – contain only half the normal compliment of DNA,
so an analysis of a single spermatozoa would only produce half the components
of the man’s profile. However, semen detected in routine forensic casework
normally contains numerous spermatozoa that exhibit together the full profile:
see further Hageman, Prevett, and Murray DNA Handbook (Butterworths
Canada Ltd 2002) at 7.
29 In 1944, the Canadian
bacteriologist Oswald Theodore Avery proved that DNA was the fundamental
substance that determined heredity: Avery, MacLeod, McCarthy “Studies of the
chemical nature of the substance inducing transformation of pneumococcal types.
Induction of transformation of deoxyribonucleic acid fraction isolated from
Pneumococcus Type III” (1944) 79 J Exp Med 137-158.
30 Watson and Crick “Molecular
Structure of Nucleic Acids: A Structure for Deoxyribonucleic Acids” (1953) 171 Nature
738-740.
31 Meaning adenine, guanine, cytosine,
and thymine.
32 The structure of DNA has enabled
scientists to understand one of the key facts of life: how cells continuously
divide and reproduce with relatively few genetic errors. Essentially, when
cells divide into two, the two strands split down the centre, then seek to
renew themselves by using the building elements provided by each cell. Each
half of the ladder or strand provides a template which guarantees an exact copy
of the original double helix: see figure B, below. The structure of DNA itself
shows that it is suited to carrying out the three main functions of genes: the
capacity to store information; to replicate (the structure demonstrates its
capacity to self-replicate); and to mutate in accordance with evolutionary
pressures.
33 Human Genome Management Information
System Genomics and Its Impact on Science and Society: The Human Genome
Project and Beyond – A Primer (March 2003): http://www.ornl.gov/hgmis/publicat/primer/.
The largest known human gene, dystrphin, is made up of 2.4 million bases.
34 Ibid at 3. The Human Genome
Project originally estimated that the number of genes present in the human
genome was around 80,000-100,000: The International Human Genome Sequencing
Consortium “Initial Sequencing and Analysis of the Human Genome” (2001) 409 Nature
860-921.
35 Image courtesy of the US Department
of Energy Genomes to Life Program. Available at http://www.ornl.gov/hgmis.
36 It has also been described as an
individual’s coded “future diary”: Annas “Privacy Rules for DNA Databanks:
Protecting Coded ‘Future Diaries’” (1993) 270 Journal of the American
Medical Association 2346.
37 Human Genome Management Information
System Genomics and Its Impact on Science and Society: The Human Genome
Project and Beyond – A Primer (March 2003): http://www.ornl.gov/hgmis/publicat/primer/.
38 It should, however, be noted that
the more closely related individuals are, the more closely they resemble each
other. Accordingly, brothers have 50% of their genes identical by descent,
whereas cousins have 25% of their genes identical by descent. Relatedness and
its effect on DNA profiling and the presentation of DNA evidence will be dealt
with more fully at paragraph .
39 See paragraphs -, - and -.
40 Human Genome Management Information
System Genomics and Its Impact on Science and Society: The Human Genome
Project and Beyond – A Primer (March 2003): http://www.ornl.gov/hgmis/publicat/primer/
at 3.
41 Ibid at 3.
42 Image courtesy of the US Department
of Energy Genomes to Life Program. Available at http://www.ornl.gov/hgmis.
43 See paragraph .
44 See Australian Law Reform
Commission and the Australian Health Ethics Committee Report – Essentially
Yours: The Protection of Human Genetic Information in Australia (ALRC 96,
2003) at paragraph 2.8.
45 Ibid at paragraph 2.8.
46 See paragraphs -.
47 See paragraph .
48 Human Genome Management Information
System Chromosome FAQs. Available at:
http://www.ornl.gov/TechResources/Human_Genome/posters/chromosome/faqs.html.
49 See further Hageman, Prevett and
Murray DNA Handbook (Butterworths Canada Ltd 2002) at 7.
50 See paragraphs -.
51 See Hageman, Prevett and Murray DNA
Handbook (Butterworths Canada Ltd 2000) at 7.
52 Ibid at 9.
53 See Hageman, Prevett and Murray DNA
Handbook (Butterworths Canada Ltd 2000) at 6-12.
54 This is already noted at paragraph .
55 It should be made clear that what
is being described here is the concept of ‘match probabilities’ and this has a
particular relevance in relation to presenting DNA evidence to a court at a
subsequent prosecution. This will be dealt with at paragraphs -.
56 The National Institute of Justice Convicted
by Juries, Exonerated by Science: Case Studies in the Use of DNA Evidence to
Establish Innocence After Trial (June 1996). Available at:
http://www.ncjrs.org/pdffiles/dnaevid.pdf.
57 As of 28 February 2003, 123
convicted offenders have been exonerated in the US following post-conviction
DNA testing:
58 See paragraphs - and -.
59 Jeffreys, Wilson and Thein
“Hypervariable ‘Minisatellite’ Regions in Human DNA” (1985) 314 Nature 67-73
and Jeffreys, Wilson and Thein “Individual-Specific ‘Fingerprints’ of Human
DNA” (1985) 316 Nature 76-79.
60 Donovan “The Obtaining, Examining,
Analysis and Retaining of Forensic Samples in Criminal Investigation” (2001)
MLJI 25.
61 Taken from Hageman, Prevett and
Murray DNA Handbook (Butterworths Canada Ltd 2002) at 22-23.
62 See paragraph .
63 See Parliament of New South
Wales Legislative Standing Committee on Law and Justice Review of the Crimes
(Forensic Procedures) Act 2000 Report No 18 (February 2002) at paragraph
2.15.
64 The initial STR technique
introduced in 1994 involved targeting 4 loci, which was then improved to
produce the more discriminating second generation multiplex (SGM) system that
targeted 6 loci and the sex marker.
65 Walsh “The Basic Science of DNA”
Seminar Paper delivered at NZLS Seminar: Update on DNA and UK Forensic Science
Service Lawyers’ Guide to DNA (Version 1) at 6. For a more detailed
guide see White (eds) Crime Scene to Court: The Essentials of Forensic
Science (Royal Society of Chemistry 2002), Ebisike An Appraisal of
Forensic Science Evidence in Criminal Proceedings: A Research Study
(Greenway 2000) at 32-36 and Hageman, Prevett, Murray DNA Handbook (Butterworths
Canada Ltd 2002) at Chapter 2.
66 See paragraphs - and the more detailed
consideration of the evidential issues addressed in Chapter 9.
67 See the Forensic Science Service Introduction
to DNA at 15.
68 See paragraphs -.
69 Image courtesy of the Forensic
Science Service. Available at:
http://www.forensic.gov.uk/forensic/entry.htm.
70 Table courtesy of the Forensic
Science Laboratory, Ireland.
71 See paragraphs -.
72 The SGM Plus™ technique, which
targets 10 loci, has an average discrimination rate of 1 in a billion – see the
UK Forensic Science Service website:
http://www.forensic.gov.uk/forensic/foi/foi_docs//36L_DNA_LCN.pdf.
The
SGM profiling kit produced a less discriminating result, as only 6 loci were
targeted.
73 See Brignon, Bastien and Pfitzinger
“Forensic DNA Typing of Single Hair Samples: Mitochondrial DNA Sequencing of
Hypervariable Region HV1/HV2” Paper delivered at the First International
Conference on the Forensic Human Identification in the Millennium held in
London on 23-26 October 1999.
74 See paragraph .
75 See Hageman, Prevett and Murray DNA
Handbook (Butterworths Canada Ltd 2002) at 35.
76 See Tully “Mitochondrial DNA: A
Small but Valuable Genome” Paper delivered at the First International
Conference on the Forensic Human Identification in the Millennium held in
London on 23-26 October 1999.
77 See FSS website:
http://www.forensic.gov.uk/forensic/foi/foi_docs/41L_Mitochondrial.pdf.
78 Ibid.
79 See further Hageman, Prevett and
Murray DNA Handbook (Butterworths Canada Ltd 2002) at 37-38, Jobling
“The Y Chromosome as a Forensic Tool: Progress and Prospects for the New
Millennium” and Kloosterman “Application of Y-chromosome Specific STR-typing in
Forensic Stains” Papers delivered at the First International Conference on the
Forensic Human Identification in the Millennium held in London on 23-26 October
1999.
80 See further Hageman, Prevett and
Murray DNA Handbook (Butterworths Canada Ltd 2002) at 38-39. See also
National Institute of Justice “Improved Analysis of DNA Short Tandem Repeats
with Time-of-flight Mass Spectrometry” (October 2001) at: http://www.ojp.usdoj.gov/nij/pubs-sum/188292.htm.
81 See paragraph above.
82 House of Lords Select Committee on
Science and Technology Human Genetic Databases: Challenges and Opportunities
(HL Paper 57 20 March 2001) at paragraph 4.24.
83 See paragraph .
84 See FSS website:
http://www.forensic.gov.uk/forensic/foi/foi_docs//36L_DNA_LCN.pdf
See also Van Oorschot, Szepietowska,
Scott, Weston and Jones “Retrieval of Genetic Profiles from Touched Objects”
Paper delivered at the First International Conference on the Forensic Human
Identification in the Millennium held in London on 23-26 October 1999.
Available at:
http://www.forensic.gov.uk/forensic/conference/papers/genetic_profiles.htm.
85 See Chapter 6.
86 Jeffreys, Brookfield and Semeonoff
“Positive Identification of an Immigration Test Case Using Human DNA
Fingerprints” (1986) 317 Nature 818-19.
87 See Colin Wilson Written
In Blood A History of Forensic Detection (Grafton Books 1989) at 233.
88 It is interesting to note that Sir
Alec Jeffreys stated that he had “no doubt whatsoever that [the suspect] would
have been found guilty had it not been for DNA evidence”. See:
http://www.forensic.gov.uk/forensic/news/casefiles/pitchfork.htm.
89 See paragraphs -.
90 See – http://www.forensic.gov.uk/forensic/news/casefiles/pitchfork.htm.
For more details on these cases and other examples in which DNA profiling was
first used see Wilson Written in Blood: A History of Forensic Detection
(Grafton Books 1989) at 231-236.
91 O’Donnell “Legal Situation of
Forensic DNA Analysis in the Republic of Ireland” 88 (1997) Forensic Science
International 63.
92 See the discussion in The
People (DPP) v Howe Irish Times 15 October 2003, which is examined
in detail at paragraph .
93 Central Criminal Court 2 December
1995, Court of Criminal Appeal 19 February 2001. See Maureen Smyth “DNA in the
Dock” [1995] Lab Link Volume 2 Issue 6.
94 See paragraph .
95 See Irish Times 1 November
2002 at 4.
96 McKenna Implications of a
National DNA Database in Ireland. Submission to the Working Party to Review
the Operational Procedure and Working Relationship between An Garda Síochána
and the Forensic Science Laboratory 11 January 2000.
97 House of Lords Select Committee on
Science and Technology Human Genetic Databases: Challenges and Opportunities
(HL Paper 57 20 March 2001) at paragraph 3.3.
98 As regards information shared with
biological relatives an issue that needs to be addressed is to what extent a
relative may be implicated in a crime – see further paragraphs -.
99 See paragraphs and .
100
Although the countervailing argument is that criminals may become more adept at
preventing their biological material being left at the scene of crime.
101 See
McKenna “The Value of a National DNA Database” (1998) Forensic Science News Issue
3.
102 See
paragraphs - for an explanation of the term “National DNA database”. A point of
terminology must also be emphasised here: whilst the DNA database is a UK
database comprised of profiles generated in relation to investigations in
England and Wales, Scotland and Northern Ireland, in later sections of this
Consultation Paper we refer to the law regarding the taking of samples and the
retention of profiles and samples as either that governing England and Wales,
Scotland or Northern Ireland because separate provisions exist: namely, Police
and Criminal Evidence Act 1984 (which contains separate sections applicable
in Northern Ireland) and Criminal Procedure (Scotland) Act 1995. See
further Home Office Circular on the Cross Searching of DNA and Fingerprint
Databases HOC (7 November 1996 47/1996).
103
Originally the Police and Criminal Evidence Act 1984 (“PACE”) set the
threshold at the level of a ‘serious arrestable offence’, but this has now been
down-graded by subsequent amendment to a ‘recordable offence’. A recordable
offence is one which is potentially punishable with imprisonment, and certain
other specified non-imprisonable crimes such as loitering or soliciting for the
purposes of prostitution, possessing a weapon with a blade or a point in a
public place or tampering with a motor vehicle. These threshold criteria will
be discussed further at paragraphs - below.
104 News
in Brief “DNA Landmark” The Times 15 July 2003. FSS Fact Sheet on the
National DNA Database. Available at:
http://www.forensic.gov.uk/forensic/foi/foi_docs/32L_NDNAD.pdf.
105 See
the press release of the FSS on the 18 December 2003. Available at:
106 See
the FSS The National DNA Database Annual Report 2002-2003 at 21.
Available at http://www.forensic.gov.uk/forensic/entry.htm.
107 See
– the FSS website at http://www.forensic.gov.uk/forensic/entry.htm. Also
the FSS The National DNA Database Annual Report 2002-2003 at 3.
108
‘Potential’ sources is used here so as to avoid perpetuating the ‘prosecutor’s
fallacy’, which will be addressed in the specific context of presenting DNA evidence
in court, at paragraphs -.
109 See
Willis “DNA in the Investigation of Crime” (March 2003) Communiqué: An Garda
Siochana Management Journal 3 at 7.
110 See
the FSS The National DNA Database Annual Report 2002-2003 at 3.
Available at http://www.forensic.gov.uk/forensic/entry.htm.
111
House of Lords Select Committee on Science and Technology Human Genetic
Databases: Challenges and Opportunities (HL Paper 57 20 March 2001) at
paragraph 4.23.
112 News
in Brief “DNA Landmark” The Times 15 July 2003. See also FSS Fact Sheet
on the National DNA Database. Available at:
http://www.forensic.gov.uk/forensic/foi/foi_docs/32L_NDNAD.pdf.
113 See
the FSS The National DNA Database Annual Report 2002-2003 at 26.
Available at http://www.forensic.gov.uk/forensic/entry.htm.
114 See
FSS Annual Report and Accounts 2001-2002 (16 July 2002) at 12.
115 See
paragraph .
116 See
– the FSS website at:
http://www.forensic.gov.uk/forensic/news/casefiles/2002_07_marion.htm.
117 “Man
jailed for rape 14 years after attack” The Times 5 August 2003.
118
1,544 unsolved rapes were committed between 1987 and 1999.
119 See
“Yard hunts 40 rapists after DNA checks” Evening Standard 10 February
2004.
120 The
title of this Act has been changed to the Criminal Investigations (Bodily
Samples) Act 1995 by virtue of section 3 of the Criminal Investigations
(Bodily Samples) Amendment Act 2003.
121
Harbison, Hamilton and Walsh “The New Zealand DNA Databank” Paper delivered at
the First International Conference on the Forensic Human Identification in the
Millennium held in London on 23-26 October 1999.
122 See
the website of the ESR at:
http://www.esr.cri.nz/features/esr_and_dna/databank/index.htm.
123 See
paragraphs -.
124
Human Genetics Commission Inside Information: Balancing Interests in the use
of Personal Genetic Data (May 2002) at 30. Available online at:
125 Ibid
at 25.
126
Human Genetics Commission Inside Information: Balancing Interests in the use
of Personal Genetic Data (May 2002) at 26. Available online at:
127 This
is of relevance not only here but also when we come to consider the issue of
what may legitimately be inferred from a biological sample that has been left
at a scene of crime, at paragraphs - below.
128
Although some genetic conditions may also be apparent through visual
examination, such as albinism.
129 A
point worthy of note is that insurers have been asking for loosely genetic
information for years, such as whether one’s grandparents or parents have or
has cancer, what age they died at, and whether any medical conditions run in
the family – see further O’Neill Autonomy and Trust in Bioethics (Cambridge
University Press 2002) at 103.
130 Burk
“DNA Identification Testing: Assessing the Threat to Privacy” [1992] 24 University
Toledo Law Review 87 at 88.
131
Particularly at paragraphs and -.
132 On
which see Proctor Racial Hygiene: Medicine Under the Nazis (Harvard
University Press 1987).
133 See
paragraphs -.
134 See
further O’Neill Autonomy and Trust in Bioethics (Cambridge University
Press 2002).
135 On
which see Burk “DNA Identification Testing: Assessing the Threat to Privacy”
[1992] 24 University Toledo Law Review 87 at 99-100.
136 See
Milunsky and Annas Genetics and the Law (Plenum Press 1976) at 79-80.
137 A
Niccol Gattaca (1997) Columbia Pictures.
138
Australian Law Reform Commission and the Australian Health Ethics Committee Report
– Essentially Yours: The Protection of Human Genetic Information in Australia (ALRC
96, 2003) at paragraphs 4.1-4.3.
139
Office of the Victorian Privacy Commissioner Submission to the Victorian
Parliament Law Reform Committee on its Inquiry into Forensic Sampling and DNA
Databases (17 July 2002) at 34-35. Available at:
140 See
paragraph .
141 The
ECHR Act 2003 came into effect on the 31st December 2003.
142 See
Michael “Privacy” in McCrudden and Chambers (eds) Individual Rights and the
Law in Britain (Oxford University Press 1994) at 265. See further Feldman Civil
Liberties and Human Rights in England and Wales (Oxford University Press
2002) Part III: Privacy.
143
Office of the Victorian Privacy Commissioner Submission to the Victorian
Parliament Law Reform Committee on its Inquiry into Forensic Sampling and DNA
Databases (17 July 2002) at 2. Available at:
http://www.parliament.vic.gov.au/lawreform/.
144 Attorney-General’s
Reference (No 3 of 1999) [2001] 2 AC 91 at 118 per Lord Steyn.
145 [1974] IR 284. It was held in this case that
a statutory provision, which prevented a married woman from using
contraceptives, which she required as a result of her medical condition was
unconstitutional as it breached her right to marital privacy.
146 [1984] IR 36. It was held by the Supreme
Court in this case that there was an individual right to privacy. However, it
was also held that this right could be limited in the interests of the common
good. A majority of the court accepted that the right to privacy could
justifiably be limited by the criminalisation of homosexuality. The European
Court of Human Rights reached a different conclusion on the case in Norris v
Ireland [1991] 13 EHRR 186.
147 [2001]
1 IR 146.
148
[1987] IR 587.
149 Ibid
at 592.
150 [1988]
I.R. 321.
151 [1982]
IR 1.
152
Starmer “Police Powers and the European Convention on Human Rights”. Available
from:
http://www.doughtystreet.co.uk.
153 Funke
v. France (1993) 16 EHRR 16.
154 In
Rotaru v. Romania Application No. 28341/95 Judgment of 4 May 2000, it
was held that the right to respect for private life is engaged when a public
authority seeks, collects, stores, processes, compares or disseminates personal
information or opinions about, a data subject, even if the information
concerned is in the public domain.
155 On
the dissemination of CCTV footage, the recent judgment in the case of Peck v
UK (2003) 36 EHRR 41 is of interest. In this
case CCTV footage of the applicant’s attempted suicide was disclosed to media
organisations in order to demonstrate the effectiveness of CCTV. However, the
applicant’s identity was not masked and the ECtHR held that the disclosure
amounted to a serious violation of the applicant’s respect for privacy.
156 See Leander
v Sweden (1987) 9 EHRR 433, Hewitt and Harman v UK
(1992) 14 EHRR 657.
157 See
Malone v. United Kingdom (1984) 7 EHRR 14.
158 X
v United Kingdom (1981) Application No. 8065/77 14 DR 246.
159 Dudgeon
v United Kingdom (1981) 4 EHRR 149 at paragraphs 50-54.
160 Application
No 1306/61.
161
Application No 1306/61.
163 Ibid
at paragraph 227.
164 (1983) 5 EHRR 71 at paragraph 230.
165 Indeed
in the recent case of Peck v UK (2003) 36 EHRR 719 at paragraph 79, the
ECtHR in reiterating the fundamental importance of protecting personal
information was undoubtedly influenced by the fact that the applicant had not
been convicted or indeed suspected of any offence. It is suggested that the
ECtHR’s decision may have been different if the applicant was filmed committing
an offence.
166 (1983) 5 EHRR 71 at paragraph 231.
167 Application
No. 28341/95 5 May 2000 at paragraph 59.
168 (1995)
21 EHRR 85 at paragraphs 49-50.
170 Ibid
at 406.
171 (2003)
1 Cr App R 16 247.
172 See
paragraphs -.
173 Bundesverfassungsgericht,
2 BvR 1741/99 of 14 December 2000, http://www.bverfg.de = BVerfGE 103.
174 [1987]
IR 587.
175 [1982]
IR 1.
176 (1998) 25 EHRR 371 at paragraph 96.
178 See
paragraphs -.
179 (2003)
1 Cr App R 16 247.
180 (1993) 15 EHRR 173 at paragraph 40.
181 See
Chapters 4 and 5.
183 [1980]
ILRM 82.
184 [1976]
IR 365.
185 [1965]
IR 342.
186 [1982]
IR 1.
187 [1994]
1 IR 369.
188 It
has been accepted by the ECtHR that the phrase “security of the person” must be
understood in the context of physical liberty and does not have an independent
meaning. In other words, “liberty of the person” affords the individual freedom
from arrest and detention and “security of the person” protects a person
against capricious interference with this liberty. This is evident from the
decisions of East Africa Asians v United Kingdom (1973) 3 EHRR 76 and Zilli
and Bonardo v Italy (2002) 35 EHRR 47.
189 (Application
No. 5239/78) 16 DR 184.
190
(Application 21132/93) 77-A DR 75 EComHR.
191 See
paragraph for Article 8(2).
192 (Application
No. 8334/78) 24 DR 103.
193
(Application 21132/93) 77-A DR 75 EComHR.
194 See
Ireland v United Kingdom (1978) 2 EHRR 25 at paragraph 162 where it
was observed that “[i]ll 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
in the nature of things relative: it depends on all the circumstances of the
case such as the duration of the treatment, its physical or mental effects and,
in some cases, the sex, age and state of health of the victim, etc.”
195 See
Ribitsch v Austria (1995) 21 EHRR 573 at paragraph 38.
196 (1997)
26 EHRR 563 at paragraphs 56-57.
197 See “The
Greek Case” [1969] 12 Yearbook of the European Court of Human Rights.
A further example of this high threshold is demonstrated by Delazarus v UK (1993)
Application No 17525/90, in which a prisoner was segregated for over four
months as a result of a disciplinary charge. He could not communicate with
other prisoners and was locked in his cell for 23 hours a day, which was cold
and infested with cockroaches. The ECmHR found that this did not meet the
requisite level of severity in order to amount to inhuman and degrading treatment.
198 The
ECtHR observed in Selmouni v France (2000) 29 EHRR 403 at paragraph 101 that the
“increasingly high standard being required in the area of the protection of
human rights and fundamental liberties correspondingly and inevitably requires
greater firmness in assessing breaches of the fundamental values of democratic
societies”.
199
(Application 21132/93) 77-A DR 75 EComHR.
200 (Application
No. 5239/78) 16 DR 184.
201 See
paragraph .
202 (Application
No. 8334/78) 24 DR 103.
203 Shaffer
v Saffle 101 F3d 1336 (10th Cir 1996), Boling v Romer 148
F3d 1180 (10th Cir 1998).
204 (Application 21132/93) 77-A DR 75,
EComHR
205 (Application
No. 8334/78) 24 DR 103.
206 See
paragraphs -.
207 R
v Director of the Serious Fraud Office, ex parte Smith [1993] AC 1 at 3.
208
(1996) 23 EHRR 313.
209 Ibid
at 345.
210 Brown
v Walker 161 US 591, 637 (1896) per Justice Field.
211Murphy
et al v Waterfront Commission of New York Harbour 378 US 52 (1964) 55.
212 See
The People v McGowan [1979] IR 45.
213 [1996]
1 IR 580.
214 [1997]
3 IR 484.
215 Rock
v Ireland [1997] 3 IR 484. Sections 18 and 19 of the Criminal Justice
Act 1984 were in issue in this case. These sections allow a court to draw
such inferences as appear proper from a refusal to answer questions. It was
held here that these sections were proportionate as there were two limiting
conditions on their application. Firstly, no one could be convicted on the
basis of inferences alone. Secondly, only such inferences as appeared proper
could be drawn. There was no obligation to draw inferences here.
216 [1996]
1 IR 580.
217 Funke
v France (1993) 16 EHRR 297, Saunders v
United Kingdom (1996) 23 EHRR 313.
218 Heaney
and McGuinness v Ireland ECtHR Application No. 34720/97 21 December 2000.
219 [1996]
1 IR 580.
220 “Testimonial
evidence” is described by Gans in “Something to Hide: DNA, Surveillance and
Self-Incrimination” (2001) Current Issues in Criminal Justice 168 at 177
as “a suspect’s incriminating thoughts”.
221 “Real
evidence” consists of “incriminating features of a suspect’s body” as described
by Gans in “Something to Hide: DNA, Surveillance and Self-Incrimination” (2001)
Current Issues in Criminal Justice 168 at 177.
222 [1985]
Crim LR 590.
223 (1910)
218 US 245 at 252-253.
224 (1996)
23 EHRR 313.
225 This
is defined by Gans in “Something to Hide: DNA, Surveillance and
Self-Incrimination” (2001) Current Issues in Criminal Justice 168 at 168
as a technique which “allows the observation of individuals’ fear of a match
between their DNA and material connected with a past (or future) crime, by
assessing their response to a request to provide a DNA profile voluntarily”.
226 See
Gans on ‘Something to Hide: DNA, Surveillance and Self-Incrimination” (2001) Current
Issues in Criminal Justice 168.
227 People
(Attorney General) v O’Brien [1965] IR 142.
228 See
the discussion in paragraph .
229 This
was accepted in Rock v Ireland [1997] 3 IR 484.
230 See
paragraphs -.
231 See
paragraphs , , and .
232 See
paragraphs -.
233 28
August 2003. Available at http://www.justice.ie.
While the ‘Scheme’ when formally published will be in the form of a Criminal
Justice Bill 2004, we have maintained throughout this Paper our references
to this as the 2003 Bill.
234 See
the Report of the Expert Group Appointed to Consider Changes in the Criminal
Law, which convened under the chairmanship of the late Eamon Leahy SC.
Available at: http://www.justice.ie.
235
Walsh Criminal Procedure (Thomson Round Hall 2002) at 340.
236 See
generally Walsh Criminal Procedure (Thomson Round Hall 2002) at 340-345.
Note also that under section (9A)(1) of the Immigration Act 1999 “an
authorised officer or immigration officer may … take or cause to be taken the
fingerprints of an applicant above the age of 14 years.”
237 As
extended by section 5 of the Criminal Justice (Drug Trafficking) Act 1996 (“1996
Act”), which applies the powers conferred by the 1984 Act to those detained
under section 2 of the 1996 Act. See further (1996) ICLSA 96/29-01, at 29-09.
Also as amended by section 6 of the Criminal Justice (Forensic Evidence) Act
1990 – see paragraph below.
238 As
amended by section 6(5) of the Criminal Justice Act 1984 and section 6
of the Criminal Justice (Forensic Evidence) Act 1990 – see paragraph
below.
239 As
substituted by section 12 of the Criminal Justice (Miscellaneous Provisions)
Act 1997.
240 However,
during the passage through the Oireachtas of the Criminal Justice Act 1984 the
Minister for Justice expressed serious doubts as to whether this was a valid
basis for fingerprinting persons – 352 Dáil Debates 266.
241 No
Prison Rules have been made to date under the 1997 Act. We understand that
draft Rules, which are intended to replace the Rules of the Government of
Prisons 1947 are being drafted by the Department of Justice.
242 See
further Boyle and Lawless (1984) ICLSA 84/22-01 at 22-15.
243 Ibid.
244 Police
and Criminal Evidence Act 1984 section 61(3).
246
Section 8(1) of the Criminal Justice Act 1984.
247 See
paragraphs -.
248
Walsh Criminal Procedure (Thomson Round Hall 2002) at 342.
250 See
paragraphs - .
251 See
further paragraph .
252 Circuit
Criminal Court 24 February 2004 (McMahon J).
253 See
paragraph .
254
Nevertheless, section 6 of the 1990 Act does repeal both section 6(1)(e) of the
Criminal Justice Act 1984 (“1984 Act”) and section 7(1)(e) of the Criminal
Law Act 1976 (“1976 Act”). Section 6(1)(e) provides for the taking of swabs
from a person’s skin or samples of hair in order to determine whether the
person detained has been in contact with any firearms or explosive substance.
The same powers are also conferred by section 7(1)(e) of the 1976 Act,
exercisable following an arrest under the Offences Against the State Act
1939 and the Emergency Powers Act 1976.
255 Sections
12-18 of the Road Traffic Act 1994.
256 See
sections 13 and 14 of the 1994 Act.
257 At
present in The People (DPP) v Boyce the appellant is challenging his
conviction on the basis that his decision to give a DNA sample was not a
properly informed consent as he was not cautioned. A decision in this case had
not been rendered at the time of publishing this Paper. See Irish
Independent 19 February 2004 for more details on this.
258 Circuit
Criminal Court 24 February 2004 (McMahon J). See paragraph for more detail on
this case.
259 See
paragraphs -.
260 See
paragraphs -.
261 As
inserted by section 3 of the Criminal Justice (Drug Trafficking) Act 1996.
262 See
paragraph below.
263 396 Dáil
Debates Col 1250.
264
Section 3 of the Criminal Justice Act 1994, which also amends section
2(3)(b) of the 1990 Act by the insertion of “or a drug trafficking offence”
within the meaning of section 3(1) of the Criminal Justice Act 1994.
265 See
paragraphs -.
266
O’Connor (1990) ICLSA 90/34-05.
267 396 Dail
Debates Col 1244 (Emphasis added).
268 For
further discussion of the 1984 Act and on the meaning of “a more severe
penalty” see Walsh Criminal Procedure (Thomson Round Hall 2002) at 226.
269 See
further Walsh Criminal Procedure (Thomson Round Hall 2002) at 166.
270
O’Connor (1990) ICLSA 90/34-04.
271 462 Dáil
Debates Col 1363.
272 A
drug trafficking offence includes, the manufacture, production, preparation,
importation, exportation, supply, offering to supply, distribution or
transportation of a controlled drug.
273 For
example, regulations enacted under section 5(1)(a) of the Misuse of Drugs
Act 1977 concerning the transportation of controlled drugs would not
constitute serious offences on the basis of the penalty that applies to them
under section 27(10)(b) of this Act. However, they would constitute “drug
trafficking offences”.
274 See
paragraphs -.
275 See
section 65 of the PACE Act, which sets out the definition of these samples.
This defines an “intimate sample” as “(a) a sample of blood, semen or any other
tissue fluid, urine or pubic hair; (b) a dental impression: (c) a swab taken
from a person’s body orifice other than the mouth”. A “non-intimate sample” is
described as “(a) a sample of hair other than pubic hair; (b) a sample taken
from a nail or from under a nail; (c) a swab taken from any part of a person’s
body including the mouth but not any other body orifice; (d) saliva; (e) a skin
impression”.
276 See
paragraph .
277 As
cited in the Australian Law Reform Commission and the Australian Health Ethics
Committee Report – Essentially Yours: The Protection of Human Genetic
Information in Australia (ALRC 96, 2003) at paragraph 41.26.
278
Section 80(2) of the Criminal Justice and Police Act 2001 has further
amended section 62 of PACE to permit a registered nurse to take intimate
samples.
279
Feldman Civil Liberties and Human Rights in England and Wales (Oxford
University Press 2002) at 410-412.
280 See
paragraphs -.
281 Home
Office Circular 16/95: National DNA Database (31 March 1995) at paragraph 5.
282 See
paragraphs -.
283 See
paragraphs -.
284
Section 2(4) states that “[a] sample may be taken under this section only if (a)
a member of the Garda Síochána not below the rank of superintendent authorises
it to be taken, and …”
285
Section 2(7) states that “[a]n authorisation under subsection (4)(a) of
this section may be given orally but, if it is given orally, it shall be
confirmed in writing as soon as is practicable.”
286
Originally the analogous provisions, sections 62 and 63 of PACE, also provided
that the authorising officer must not be below the rank of superintendent.
However, this provision has also been ‘down-graded’ by subsequent amendment to
the lower rank of inspector: Criminal Justice and Police Act 2001 section
80.
287 See
O’Connor’s comments on this in (1990) ICLSA 90/34-06.
288 This
explanation is not required in respect of persons in prison under section 2(2)
of the 1990 Act, which is somewhat of an anomaly.
289
O’Connor (1990) ICLSA 90/34-07.
290 See
paragraphs -.
291 Parliament
of New South Wales Legislative Standing Committee on Law and Justice Review
of the Crimes (Forensic Procedures) Act 2000 Report No 18 (February 2002)
at paragraphs 5.101 – 5.110.
292 Human
Rights Commission Observations on the Scheme of the Criminal Justice Bill
2003 14 January 2004. Available at: http://www.ihrc.ie.
293 Human
Rights Commission Observations on the Scheme of the Criminal Justice Bill
2003 14 January 2004 at 34. Available at: http://www.ihrc.ie.
294
Australian Law Reform Commission and the Australian Health Ethics Committee Report
– Essentially Yours: The Protection of Human Genetic Information in Australia (ALRC
96, 2003) at paragraphs 41.31–41.36.
295 See
paragraphs -.
296 See
paragraph .
297
Feldman Civil Liberties and Human Rights in England and Wales (Oxford
University Press 2002) at 410-411.
298 The
case of Gillick v West Norfolk and Wisbech Area Health Authority [1986] AC 112 establishes that a child may
be competent to consent to medical treatment when they are under the age of 16
so long as the child can understand what they are consenting to and the
implications of it.
299 Parliament
of New South Wales Legislative Standing Committee on Law and Justice Review
of the Crimes (Forensic Procedures) Act 2000 Report No 18 (February 2002)
Recommendation 41-3.
300 See
further O’Connor (1990) ICLSA 90/34-07 – 34-08.
301 Parliament
of New South Wales Legislative Standing Committee on Law and Justice Review
of the Crimes (Forensic Procedures) Act 2000 Report No 18 (February 2002)
Recommendation 41-3.
302 See
paragraph .
303
Indeed, the Minister for Justice during the Oireachtas debates 396 Dáil
Debates stated that the Bill was:
“[I]ntended
to give the Garda power to take samples from persons they reasonably suspect of
involvement in serious crime. Forensic evidence, particularly a test like DNA
profiling, can play such an important part in establishing the guilt or indeed
the innocence of a suspect that it is in the public interest that the Garda
should be able to obtain samples for that purpose even if this does mean
some interference with personal rights or freedoms.
…
[O]n the question of compulsion, the Bill places an obligation on suspected
persons to give or allow samples to be taken. It does not provide a free choice
in the matter. Depending on the type of sample which is required, the Bill
either empowers the Garda to take the sample using reasonable force if
need be or obliges a suspect to allow a sample to be taken if he is to avoid
the possibility of an inference being drawn against him at a subsequent trial”.
(Emphasis added).
305 Per
Lord Wilberforce in Raymond v Honey [1983] 1 AC 1 at 14.
306 Human
Rights Commission Observations on the Scheme of the Criminal Justice Bill
2003 14 January 2004. Available at http://www.ihrc.ie.
307 Ibid
at 33.
308 See
the discussion on the right to bodily integrity in paragraphs -.
309 Human
Rights Commission Observations on the Scheme of the Criminal Justice Bill
2003 14 January 2004. Available at: http://www.ihrc.ie.
310 Ibid
35.
311 See
also the views expressed by the Reid Professor of Law at Trinity College
Dublin, Ivana Bacik reported in the Irish Examiner 29 August 2003 in
this regard.
312 See
paragraph .
313 See
paragraph .
314 But
see the proposal to extend the period to 12 months: Scheme of the Criminal
Justice Bill 2003 head 12. Available at: http://www.justice.ie.
315 Report
of the Expert Group Appointed to Consider Changes in the Criminal Law
(1998) at 41. Available at: http://www.justice.ie.
316 This
is discussed in further detail at paragraph .
317 See
paragraphs -.
318
Council of Europe Committee of Ministers Recommendation No R (92) 1 on the use
of deoxyribonucleic acid (DNA) within the framework of the criminal justice
system at paragraph 8. Available at:
http://www.coe.int/cm
319 Doubt
has been cast on the lawfulness of this by the decision of McMahon J in The
People (DPP) v Carroll Circuit Criminal Court 24 February 2004 in respect
of fingerprints.
320 See
paragraph . It should be noted that there is some uncertainty over the
lawfulness of this method of obtaining samples. See paragraph .
321 See
paragraph .
322
Redmayne “The DNA Database: Civil Liberty and Evidentiary Issues” [1998] Crim L
R 437 at 438.
323 See
paragraphs -.
324
Richards and Sutherland “Dynamic Mutations: A New Class of Mutations Causing
Human Disease” (1992) 70 Cell 709.
325
d’Aloja “Ethical and Legal Issues of DNA Typing in Forensic Medicine: A Brief
Survey on the Italian Situation” 88 (1997) Forensic Science International 75
at 77.
326 See
The Lancet August 3 1996 336.
327 See
paragraph .
328 See
paragraph .
329 See
paragraphs -.
330 See
paragraphs -.
331 Section
2(5)(b) of the 1990 Act. For further detail see paragraph .
332 See
paragraph .
333 It
perhaps goes almost without saying that this is only when the authorities are
near certain that the perpetrator is the source of the biological material.
334 We
use the term intelligence here as opposed to evidence because it is the
verification of the ‘hit’ by way of comparison with the profile generated from
a second sample.
335 The
other obvious shortfall in this is that any deterrent effect will only apply in
relation to contemplated or premeditated crimes and will not include those
crimes of a spontaneous nature. The dilemma is that those who commit so called
‘crimes of passion’ are perhaps more likely to leave biological material on
their victims or at the scene inadvertently.
336
Joint Committee on Human Rights Eleventh Report of Session 2002-03 Criminal
Justice Bill: Further Report (9 June 2003 HL Paper 118 HC 724) at paragraph
48. These amendments propose to make sampling part of the ‘booking procedure’
that is carried out when someone is detained on suspicion of involvement in an
offence.
337 340
F2d 313, 314 (1st Cir 1965) cited in Kaye “The Constitutionality of
DNA Sampling on Arrest” (2001) 10 Cornell Journal of Law and Public Policy 455,
486-487.
338 324
F2d 879, 882 (DC Cir 1963) cited in Kaye “The Constitutionality of DNA Sampling
on Arrest” (2001) 10 Cornell Journal of Law and Public Policy 455 at
487.
339
Virginian Fourth Circuit 962 F2d 302 (4th Cir 1992) cited in Kaye
“The Constitutionality of DNA Sampling on Arrest” (2001) 10 Cornell Journal
of Law and Public Policy 455 at 487.
340 Kaye
“The Constitutionality of DNA Sampling on Arrest” (2001) 10 Cornell Journal
of Law and Public Policy 455 at 487-488.
341 See
paragraph .
342 See
paragraph .
343 See
paragraph .
344 See
paragraphs -.
345 Pursuant
to section 81g of the German Code of Criminal Procedure.
346
Section 487.05 of the Criminal Code.
347
Section 487.4 of the Criminal Code.
348 This
is an interesting feature, in that it allows for development in sampling policy
without substantial legislative amendment.
349
Parliament of New South Wales Legislative Standing Committee on Law and Justice
Review of the Crimes (Forensic Procedures) Act 2000 Report No 18
(February 2002).
350 Ibid
at 79, recommendation 13.
351 Ibid
at 78-79, recommendation 14.
352 The
definition of “serious arrestable offence” is set out in section 116 of the Police
and Criminal Evidence Act 1984. This section divides these offences into
two categories. The first category provides for the offences that are so
serious that they will always constitute “serious arrestable offences”. These
offences are set out in Schedule 5, Parts I and II of the Act. An example of
such an offence is murder. Any other arrestable offence is serious only if its
commission has led or is likely to lead to any of the consequences specified in
subsection (6) – namely: (a) serious harm to the security of the State and
public order; (b) serious interference with the administration of justice or
with the investigation of offences; (c) the death of anyone; (d) serious injury
to anyone; (e) substantial financial gain to anyone; and (f) serious financial
loss to anyone in the sense that having regard to all the circumstances, it is
serious for the person suffering loss.
353 See
section 62(2)(a) of the PACE Act 1984.
354 See
paragraph .
355 Home
Office Circular 16/95: National DNA Database (31 March 1995).
356 Ibid
at paragraph 40.
357 Home
Office Circular 16/95: National DNA Database (31 March 1995) at paragraph 22.
358
(2003) 1 Cr App R 16 247 at 255.
359 Human
Genetics Commission Inside Information: Balancing Interests in the Use of
Personal Genetic Data (May 2002) at paragraph 9.18. Available online at: http://www.hgc.gov.uk/insideinformation/index.htm#report.
360 ICCL
Position Paper on Human Rights Compatibility of the Establishment of a DNA
Database October 2003 at 11. Available at:
361 See
paragraphs -.
362 462
Dáil Debates Col. 1383.
363 A
number of matters are examined by the courts when deciding whether an offence
constitutes a minor offence or not for the purposes of Article 38.5 of the
Constitution. These include the severity of the punishment, the moral quality
of the act and the state of law and public opinion in 1937. See Melling v Ó
Mathghamhna [1962] IR 1. For more detail on minor offences generally see
the Law Reform Commission Report on Penalties for Minor Offences March
2003 (LRC 69-2003). For present purposes, we use “minor offence” in the context
of an offence for which the maximum punishment is less than five years
imprisonment, except for those offences with this penalty for which a person
can be remanded in custody under the Offences Against the Person Act 1939 and
the Criminal Justice (Drug Trafficking) Act 1996 – ie those offences for
which it is possible to sample suspects under the 1990 Act.
364 Goode
“Some Observations on Evidence of DNA Frequency” (2002) 23 Adelaide Law
Review 45 at 64.
365 For
example, regulations enacted under section 5(1)(a) of the Misuse of Drugs
Act 1977 concerning the transportation of controlled drugs would not
constitute ‘arrestable offences’ as is evident from the penalties that apply to
these offences under section 27(10)(b) of this Act. However, under section 2 of
the Criminal Justice (Drug Trafficking) Act 1996, DNA samples can be
obtained from suspects of such offences.
366 ICCL
Position Paper on Human Rights Compatibility of the Establishment of a DNA
Database October 2003 at 3. Available at:
367 See
Bingham “It’s Not the Technology it is How it’s Used” (6 January 2001)
available on Liberty’s website at:
368 See
the views of Professor David Mc Connell in The Irish Times 20 August
2003 at 15.
369 See
paragraphs -.
370 See
Hogan & Whyte Kelly: The Irish Constitution (4th
ed Butterworths 2003) at 1270-1277 for a detailed description of the principles
of proportionality as applied in an Irish context.
371
Allison “Police can use terror powers on protestors” The Guardian 1
November 2003.
372 Section
4(a) of the 1990 Act sets out the position in respect of suspects who are
convicted and dealt with under the Probation of Offenders Act 1907. In
this instance, the sample and profile must be destroyed three years after the
making of the order provided that the offender has not been convicted of an
offence to which section 4 of the Criminal Justice Act 1984 applies
during the three year period.
373 See
Hogan & Whyte Kelly: The Irish Constitution (4th
ed Butterworths 2003) at 33-36 for more detail on this rule.
374
Parliament of New South Wales Legislative Standing Committee on Law and Justice
Review of the Crimes (Forensic Procedures) Act 2000 Report No 18
(February 2002) at paragraphs 6.42-6.60.
375 See
section 60(d).
376
Justice “Briefing on the Criminal Justice and Police Bill” (February 2001)
available at:
http://www.justice.org.uk/publications/listofpublications/index.html.
377 See Criminal
Procedure (Scotland) Act 1995 sections 18-20 (as amended by section 47 of
the Crime and Punishment (Scotland) Act 1997 and section 117 of the Crime
and Disorder Act 1998).
378 Human
Genetics Commission Inside Information: Balancing Interests in the Use of
Personal Genetic Data (May 2002) at paragraph 9.15. Available online at
379 See
paragraphs -.
380 See
paragraphs -.
381 See
paragraph .
382
(2003) 1 Cr App R 16 247.
383 R
(S and Marper) v Chief Constable of South Yorkshire and Secretary of State for
the Home Department (2003) 1 Cr App R 16 247 at paragraph 58.
384 Ibid
at paragraph 32.
385 Ibid
at paragraph 68.
386 Article
8(2) provides that “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”.
387 (2003)
1 Cr App R 16 247 at paragraphs 16-17.
388 Buckley
v UK (1996) EHRR 101 at 129.
389 Laws
“The Limitations of Human Rights” (1998) PL 254 at 258.
390 On
which see Clarke and Mulcahy “Repackaging the Margin”, available at: http://www.blackstoneschambers.co.uk.
391 Lord
Hope in R v DPP, ex parte Kebilene [1999] 3 WLR 972 at 994.
392 R
v Chief Constable of Sussex, ex parte ITF [1999] 1 ALL ER 129.
393 The
courts in Ireland apply a presumption of constitutionality when assessing
whether a Statute is constitutional or not. For more discussion on this see
Hogan & Whyte, Kelly: The Irish Constitution (4th
ed Butterworths 2003) at 832-870.
394 See
paragraphs -.
395
Taylor “Policing, Privacy and Proportionality” (2003) EHRLR Special Issue on
Privacy 86 at 95-96.
396
Section 4 of the European Convention on Human Rights Act 2003.
397 See
paragraphs -.
398 See
in particular paragraph .
399 See
paragraph .
400 See
the discussion in paragraphs
-.
401 See
paragraphs -.
402 See
paragraphs , and .
403 See
paragraph .
404 See
paragraphs -.
405 Section
2(2) of the 1990 Act.
406 The
second part of Article 7(1) of the ECHR provides that “[n]or shall a heavier
penalty be imposed than the one that was applicable at the time the criminal
offence was committed”.
407 Hogan
& Whyte Kelly: The Irish Constitution (4th ed
Butterworths 2003) at 1053.
408 High
Court 18 December 2002.
409 Parliament
of New South Wales Legislative Standing Committee on Law and Justice Review
of the Crimes (Forensic Procedures) Act 2000 Report No 18 (February 2002)
at paragraph 4.40.
410 This
view is also taken by Saul “Genetic Policing: Forensic Testing in New South
Wales” at
http://www.geocities.com/ben-saul/DNATestingNSW.htm.
411 Application
No 40146/98 21 October 1998; [1999] Crim LR 153.
412 See
Simor and Emmerson QC Human Rights Practice (Sweet & Maxwell 2003)
at paragraph 7.010.
413 In
Jamil v France (1995) 21 EHRR 65 and Welch v United Kingdom (1995) 20 EHRR 247, the fact that a sentence
of imprisonment could be imposed on the failure to submit to an order persuaded
the ECtHR in holding that the measure was a penalty.
414 See
the discussion on this in paragraph .
415 See
paragraphs -.
416 101
F 3d 1336 (10th Cir 1996).
417 148
F 3d 1180 (10th Cir 1998).
418 US
v Kincade 2003 US App LEXIS 20123 (9th Cir 2003).
419 See
paragraph .
420 See
paragraphs -.
421
Parliament of New South Wales Legislative Standing Committee on Law and Justice
Review of the Crimes (Forensic Procedures) Act 2000 Report No 18
(February 2002) Recommendation 49 at 152.
422 See
paragraph .
423 See
for example section 88 of the Crimes (Forensic Procedures) Act 2000.
425 See
paragraph .
426 (2003)
1 Cr App R 247.
427 See
paragraphs -.
428 See
paragraph .
429 See
paragraph .
430 See
paragraphs -.
431 See
paragraph .
432 See
paragraphs -.
433 See
paragraph .
434 See
the views of Professor David Mc Connell in The Irish Times 20 August
2003 at 15.
435 Submission
of the Office of the Victorian Commissioner to the Australian Law Reform
Commission and the Australian Health Ethics Committee Report – Essentially
Yours: The Protection of Human Genetic Information in Australia (ALRC 96,
2003) at paragraphs 41.31–41.36.
436 Human
Genetics Commission Inside Information: Balancing Interests in the Use of
Personal Genetic Data (May 2002) at 9.24. Available online at:
437 See
paragraph .
438 See
for example Part 8 of the NSW Crimes (Forensic Procedures) Act 2000.
439 See
the submission of Justice Action to the Parliament of New South Wales
Legislative Standing Committee on Law and Justice Review of the Crimes
(Forensic Procedures) Act 2000 Report No 18 (February 2002) at 93.
440 See
paragraphs - for a description of the purposes which we suggest the DNA
database may be used for.
441 See
paragraph .
442 See
paragraphs -.
443 See
Willis “DNA in the Investigation of Crime” (March 2003) Communiqué: An Garda
Síochána Management Journal 3 at 4.
444 See
the ICCL Position Paper on Human Rights Compatibility of the Establishment
of a DNA Database October 2003 at 13. Available at:
445 This
case was criticised by the Parliament
of New South Wales Legislative Standing Committee on Law and Justice in Review
of the Crimes (Forensic Procedures) Act 2000 Report No 18 (February 2002)
at paragraphs 5.86–5.95.
446 Ibid
at paragraph 5.95.
447 See
paragraphs -.
448 See
paragraph .
449 ICCL
Position Paper on Human Rights Compatibility of the Establishment of a DNA
Database October 2003 at 12-13.
450 Parliament
of New South Wales Legislative Standing Committee on Law and Justice Review
of the Crimes (Forensic Procedures) Act 2000 Report No 18 (February 2002)
at 98.
451 See
paragraphs -.
452 See
paragraph .
453 See
the views of Sir Alec Jeffreys in The Telegraph 19 February 2001. See
also the views of Professor David McConnell in The Irish Times 20 August
2003 at 15.
454 See
Kaye and Imwinkelried “Forensic DNA Typing: Selected Legal Issues – A Report to
the Working Group on Legal Issues, National Commission on the Future of DNA
Evidence” 2 February 2000 at 29. Available at:
http://www.law.asu.edu/HomePages/Kaye/pubs/dna/ncfdna-report2-000202.htm.
455 See
Kaye and Imwinkelried “Forensic DNA Typing: Selected Legal Issues – A Report to
the Working Group on Legal Issues, National Commission on the Future of DNA
Evidence” 2 February 2000 at 29. Available at:
http://www.law.asu.edu/HomePages/Kaye/pubs/dna/ncfdna-report2-000202.htm.
456 (2003)
1 Cr App R 16 247 at 273.
457 See
paragraphs - for an account of
the proportionality test.
458 See
paragraph .
459 Such
a practice in respect of fingerprints was held to be unlawful by McMahon J in
the Circuit Criminal Court in The People (DPP) v Carroll 24 February
2004 but the position in respect of DNA samples could be different.
460 For
more detail see Hogan & Whyte Kelly: The Irish Constitution
(4th ed Butterworths 2003) at 276-284.
461 See
paragraphs -.
462
However, as will be examined at paragraph the quality of a scene of crime stain
may vary and accordingly may not enable a complete profile to be produced.
463
Murphy J (High Court 20 December 2001).
464 Ibid
at 6.
465
(1887) 20 LR IR 300.
466
(1887) 20 LR IR 300 at 317.
467
[1894] 1 QB 420.
468 Ibid
at 423.
469
[1989] ILRM 71.
470 Ibid
at 76 (Emphasis added).
472 [2002] 1 ILRM 151at 155 (Emphasis added).
473 The
issue of the security and storage of the samples is discussed in paragraphs -
and -.
474 Council
of Europe Committee of Ministers Recommendation No R (92) 1 on the use of
deoxyribonucleic acid (DNA) within the framework of the criminal justice system
at paragraph 8. Available at:
475 See
paragraphs -.
476 However,
section 4(5) provides that the court may, on application, authorise the
retention of these samples for a longer period if there is a good reason why
these samples should not be destroyed.
477 See
paragraph .
478 See
paragraph .
479
Walsh Criminal Procedure (Thomson Round Hall 2002) at 348.
480 As
we recommend at paragraph
below.
481
Council of Europe Committee of Ministers Recommendation No R (92) 1 on the use
of deoxyribonucleic acid (DNA) within the framework of the criminal justice
system at paragraph 8. Available at:
482 See
Human Genetics Commission Inside Information: Balancing Interests in the use
of Personal Genetic Data (May 2002) chapter 9: Forensic uses of Personal
Genetic Information at 155. Available at:
483 See
further the European Network of Forensic Science Institutes (“ENFSI”) Working
Group on DNA Survey on ENFSI Member Forensic DNA Database Laws (2003).
484 In
Austria, France and Holland the biological samples are also retained along with
the profiles.
485
(2003) 1 Cr App R 247.
486 Ibid
266.
487 See
paragraphs 5.51-5.56.
488
Human Genetics Commission Inside Information: Balancing Interests in the use
of Personal Genetic Data (May 2002) at 154.
489 See
paragraphs -.
490 See
paragraph .
491 See
the discussion on the statistical probabilities of a DNA match in paragraphs -.
492 See
paragraph .
493 See
paragraphs -.
494 See
paragraphs -.
495 See
paragraphs -.
496 For
example, in the UK a profile was generated from a stain found at the scene of a
burglary in Bolton. This was used in a search on the database and it ‘matched’
(or hit) a stored profile. The hit, which had a ‘match probability’ of 1 in 37
million, linked Mr Raymond Easton to the burglary. Mr Easton lived 200 miles
away, suffered from advanced Parkinson’s disease, was unable to drive and had
an alibi. Despite these factors and the lack of corroborating evidence Mr Eason
was charged with the burglary in August 1999. However, the CPS requested a more
advanced profile to be produced using 10 loci and the charges were dropped. See
Parliament of New South Wales Standing Committee on Law and Justice Review
of the Crimes (Forensic Procedures) Act 2000 Report No 18 (February 2002)
at 48-49.
497 See
paragraphs - and .
498 See
paragraphs -.
499 (2003)
1 Cr App R 16 247. See the discussion on the Marper case in paragraphs
-.
500 See
paragraphs -
501 See
paragraphs -.
502 See
further Werrett and Sullivan “The National DNA Database: ‘Crime Reduction, New
Innovation, Where to Next?’” Paper delivered at the First International
Conference on Forensic Human Identification in the Millennium held in London on
23-26 October 1999.
503 FSS
Fact Sheet on commonplace characteristics. Available at:
http://www.forensic.gov.uk/forensic/foi/foi_docs/43L_Commonplace_characteristics.pdf.
504 FSS
Fact Sheet on commonplace characteristics. Available at:
http://www.forensic.gov.uk/forensic/foi/foi_docs/43L_Commonplace_characteristics.pdf.
505 See
Kaye and Imwinkelried “Forensic DNA Typing: Selected Legal Issues – A Report to
the Working Group on Legal Issues, National Commission on the Future of DNA
Evidence” 2 February 2000. Available at:
http://www.law.asu.edu/HomePages/Kaye/pubs/dna/ncfdna-report2-000202.htm.
506 Ibid
at 10.
507 See
for example Waldron v United States 206 F 3d 597 at 604 (6th
Circuit 2000) where it was held that an investigative stop of a bank robber
that was based in part on the witness’ description of his race was not illegal
“racial targeting” as “common sense dictates that, when determining whom to
approach as a suspect of criminal wrongdoing, a police officer may legitimately
consider race as a factor if descriptions of the perpetrator known to the
officer include race”.
508 Ethnicity
has been considered in paragraphs -.
509 See
paragraphs -.
510 See
paragraph .
511 This
is not to say that the authorities should be precluded from informing the
general public if it is discovered from the analysis of the scene of crime
stain that there may be a public health emergency, as required by relevant
public health legislation. Although, one may speculate that the action required
to be taken is more likely to arise under occupational safety and health
legislation through contraction of the disease or virus by someone who worked
on the sample or who has been in contact with the source, rather than as a
direct disclosure that the source of the sample has a contagious disease.
512 See
paragraphs -.
513 We
have already observed that section 2(11) of the Criminal Justice (Forensic
Evidence) Act 1990 provides that the powers to take bodily samples under
the Act are conferred “without prejudice to any other powers exercisable by a
member of the Garda Síochána”. Thus, bodily samples it seems may be taken on
either a voluntary basis or under the common law and in these circumstances are
unregulated. Although it should be noted that the practice of obtaining
fingerprints by such a voluntary method has recently been held to be unlawful
in the Circuit Criminal Court – see paragraphs -. We have recommended at
paragraph that in future, all samples be taken under a proposed legislative
framework.
514 See
paragraph .
515 See
paragraph below.
516 Australian
Law Reform Commission and the Australian Health Ethics Committee Report –
Essentially Yours: The Protection of Human Genetic Information in Australia (ALRC
96, 2003) at paragraphs 41.108-41.111.
517
Human Genetics Commission Inside Information: Balancing Interests in the use
of Personal Genetic Data (May 2002) at 156-157. Available at:
518 See
paragraph .
519
Although it should perhaps be noted that under Article 2.1 of the German
Constitution the right of informational self-determination is guaranteed.
520 See
Bundesverfassungsgericht 2 BvR 1741/99 of 14 December 2000 paragraph 48.
Available at http:// www.bverfg.de.
521 See
paragraphs -.
522 This
prospect is discussed at paragraphs -.
523 Parliament
of New South Wales Legislative Standing Committee on Law and Justice Review
of the Crimes (Forensic Procedures) Act 2000 Report No 18 (February 2002)
at 137.
524 ICCL
Position Paper on Human Rights Compatibility of the Establishment of a DNA
Database October 2003 at 3. Available at:
525 The
uses to which the profiles can be put at present are described at paragraphs -.
526Richards and Sutherland “Dynamic Mutations: A New
Class of Mutations Causing Human Disease” (1992) 70 Cell 709.
527 This
is discussed at paragraph .
528 As
observed by a Submission by Justice Action to the Parliament of New South Wales
Legislative Standing Committee on Law and Justice Review of the Crimes
(Forensic Procedures) Act 2000 Report No 18 (February 2002) at 138.
529 See
paragraphs -, - and -.
530 See
paragraphs -.
531 Two
examples of where DNA was very useful for the identification of deceased people
are in the aftermath of the terrorist attack on the New York World Trade Centre
on the 11th September 2001 and in the aftermath of the 2002 Bali
bombing.
532 See
paragraphs -.
533 Section
23YDAF(1) of the Crimes Act 1914 as amended.
534 Human
Genetics Commission Inside Information: Balancing Interests in the Use of
Personal Genetic Data (May 2002) at paragraph 9.10. Available online at:
http://www.hgc.gov.uk/insideinformation/index.htm#report
147.
535 [1980]
IR 381.
536 Section
64(1A) of the Police and Criminal Evidence Act 1984.
537 (2003)
1 Cr App R 16 247.
538 See
paragraph .
539 This
is discussed at paragraphs -.
540 See
Kaye and Imwinkelried “Forensic DNA Typing: Selected Legal Issues – A Report to
the Working Group on Legal Issues, National Commission on the Future of DNA
Evidence” 2 February 2000 at 23. Available at:
http://www.law.asu.edu/HomePages/Kaye/pubs/dna/ncfdna-report2-000202.htm.
541 See
the Forensic Science Service The National DNA Database Annual Report
2002-2003 at 25 at http://www.forensic.gov.uk/forensic/entry.htm for
a description of this case. Pauline Floyd, Geraldine Hughes and Sandra Newton
were raped and strangled in South Wales in 1973. The DNA database was searched
for anyone with a DNA profile, which might suggest that they were related to
the murderer. Less than 100 names were attained and these names, combined with
the evidence already collected in the case, led to Joseph Kappen being
identified as the main suspect. As he was deceased, a proxy DNA profile was
created with the assistance of samples from family members. This DNA profile
matched the crime scene profile. His body was exhumed and his DNA profile
matched the crime scene profile.
542 A
sample may only be compulsorily obtained under section 2(5) of the 1990 Act
where the Gardaí have reasonable grounds to suspect the involvement of the
person from whom the sample is taken in the offence.
543 See
paragraph .
544 654
NE 2d 1124 (Ind 1995).
545 See
Michelle Hibbert DNA Databanks: Law Enforcement’s Greatest Surveillance Tool?
34 (1999) Wake Forest L Rev 767.
546 See
Kaye and Imwinkelried “Forensic DNA Typing: Selected Legal Issues – A Report to
the Working Group on Legal Issues, National Commission on the Future of DNA
Evidence” 2 February 2000 at 22. Available at:
http://www.law.asu.edu/HomePages/Kaye/pubs/dna/ncfdna-report2-000202.htm.
547 See
section 2(5) of the 1990 Act.
548 Council
Resolution of 9 June 1997 on the Exchange of DNA Analysis Results. Official
Journal C 193, 24/06/1997 p. 0002 – 0003. Available at:
549 As
discussed in the Interpol Handbook on DNA Data Exchange and Practice.
Available at:
550 Council
Resolution of 9 June 1997 on the Exchange of DNA Analysis Results. Official
Journal C 193, 24/06/1997 p. 0002 – 0003.
551 Council
of Europe Committee of Ministers Recommendation No R (92) 1 on the use of
deoxyribonucleic (DNA) within the framework of the criminal justice system at paragraph
8. Available at:
552 Australian
Law Reform Commission and the Australian Health Ethics Committee Report – Essentially
Yours: The Protection of Human Genetic Information in Australia (ALRC 96,
2003) at 1070.
553 ICCL
Position Paper on Human Rights Compatibility of the Establishment of a DNA
Database October 2003 at 11. Available at:
554 It
is currently located in a building in the grounds of the Garda Síochána
Headquarters in Dublin.
555 See
paragraphs -.
556 See
the Minister for Justice, Equality and Law Reform’s comments on the 10 June
2003 on the presentation of a certificate of accreditation to ISO 17025 to the
Forensic Science Laboratory where he observed “[i] am aware that the Forensic
Science Laboratory works in close consort with the Garda Technical Bureau.
Indeed, both offices are housed in the same building. This partnership approach
helps to fully integrate the forensic testing of evidence into the criminal
investigation process”.
557 Federal
Bureau of Investigation National DNA Index System United States 1 March
2003 at www.fbi.gov/hq/lab/codis/national.htm.
558 The
Commission does not intend to consider the Australian Federal Police database
here as it does not shed much additional light on the problems with the
Australian system, which are apparent from the NCIDD system.
559 There
is some doubt over whether the Privacy Act 1988 actually applies to DNA
profiles as such profiles may not currently fall within the definition of
‘personal information’ as defined in the Act - see the Australian Law Reform
Commission Report - Essentially Yours: The Protection of Human
Genetic Information in Australia (ALRC 96, 2003) at paragraph 43.5.
However, the ALRC suggests that the profile probably falls within this
definition as a DNA profile is capable, when combined with information held by
the laboratory, of identifying the individual from whom the profile was
obtained. Where the Act applies, the collection, use, storage and disclosure of
the profiles would be subject to the Information Privacy Principles within this
Act. These principles set out several safeguards, which persons must observe in
collecting, storing, using and disclosing personal information.
560 Australian
Law Reform Commission and the Australian Health Genetics Committee Report -
Essentially Yours: The Protection of Human Genetic Information in Australia
(ALRC 96, 2003) at paragraphs 43.69 – 43.76.
561 Australian
Law Reform Commission and the Australian Health Genetics Committee Report -
Essentially Yours: The Protection of Human Genetic Information in Australia
(ALRC 96, 2003) at paragraphs 41.112-41.149.
562 Ibid.
563 House
of Lords Select Committee on Science and Technology Human Genetic Databases:
Challenges and Opportunities (HL Paper 57 20 March 2001) at paragraph 7.66.
564 Human
Genetics Commission Inside Information: Balancing Interests in the Use of
Personal Genetic Data (May 2002) at paragraph 9.32. Available online at: http://www.hgc.gov.uk/insideinformation/index.htm#report.
565 Human
Genetics Commission Inside Information: Balancing Interests in the Use of
Personal Genetic Data (May 2002) at paragraph 9.32. Available online at: http://www.hgc.gov.uk/insideinformation/index.htm#report.
566 Ibid
at paragraph 9.31.
567 Human
Genetics Commission Inside Information: Balancing Interests in the Use of
Personal Genetic Data (May 2002) at paragraph 9.27. Available online at: http://www.hgc.gov.uk/insideinformation/index.htm#report.
568 See
Creaton “DNA Profiling and the Law: A Critique of the Royal Commission’s Recommendations”
(1994) Criminal Justice in Crisis 209 at 221 for an assessment of the
policy of direct charging of the police force by the Forensic Science Service
in the UK.
569 An
example of an appropriate system is that of the Revenue On-Line Service. The
Revenue On-Line Service is the Irish Revenue’s interactive internet facility,
which enables business customers to conduct their business electronically with
the Revenue. It is encoded in such a manner that it offers maximum security.
570 See
generally Hogan & Morgan Administrative Law in Ireland (Sweet &
Maxwell 1998) at chapter 4.
571 Data
Protection Commissioner Annual Report 2002 at 3. Available at:
572
ISO/IEC DIS 17025: General Requirements for the Competence of Testing and
Calibration Laboratories.
573 See
paragraphs -
574 INAB
is the national accreditation body. It is a division of Forfás, the national
board responsible for providing policy advice to the Government on enterprise,
trade, science, technology and innovation. At present, INAB is responsible for
the accreditation of the Forensic Science Laboratory in accordance with the
international standards. For more detail see paragraph .
575
(1977) 429 US 589.
576 Ibid
at 605.
577 See
Kaye and Imwinkelried “Forensic DNA Typing: Selected Legal Issues – A Report to
the Working Group on Legal Issues, National Commission on the Future of DNA
Evidence” 2 February 2000 at 25. Available at:
http://www.law.asu.edu/HomePages/Kaye/pubs/dna/ncfdna-report2-000202.htm.
578 See
paragraphs -.
579 The
uses which we suggest should be permitted are described at paragraphs -.
580 See
paragraph .
581 This
is discussed in paragraphs -.
582 See
paragraph .
583See paragraphs -.
584 See
section 2(c) of the Data Protection Act 1988.
585 Section
2(d) of the 1988 Act.
586 Council
of Europe Committee of Ministers Recommendation No R (92) 1 on the use of
deoxyribonucleic acid (DNA) within the framework of the criminal justice system
at paragraph 2. Available at:
http://
www.coe.int/cm.
587 See
paragraph .
588 See
Australian Law Reform Commission and the Australian Health Ethics Committee Report:
Essentially Yours: The Protection of Human Genetic Information in Australia
at paragraph 36.83.
589 Ibid
at paragraphs 41.128-41.141.
590 See
paragraph .
591 Murphy
v DPP [1989] ILRM 71, Braddish v DPP [2002] 1 ILRM 151.
592 See
paragraph .
593 See
Chapter 7 of McAuley and McCutcheon Criminal Liability (Round Hall Sweet
& Maxwell 2000).
594 For
example see section 6(1) of the Safety, Health and Welfare at Work Act 1989
which provides that “it shall be the duty of every employer to ensure, so far
as is reasonably practicable, the safety, health and welfare at work of all his
employees”.
595 See
paragraph .
596 See
Chapters 5 and 6 for more detail on the situations in which the Commission is
recommending the destruction of the DNA profiles and samples.
597 Australian
Law Reform Commission and the Australian Health Ethics Committee Report Essentially
Yours: The Protection of Human Genetic Information in Australia (ALRC 96,
2003) at paragraph 41.170.
598 Attorney
General’s Reference (No 3 of 1999) (2000) 2 WLR 56, [2001] 2 AC 91. See paragraph for more
discussion on this case.
599 Zander
The Police and Criminal Evidence Act 1984 (Sweet & Maxwell 2003) at
220.
600 As
examined in paragraphs -.
601 Goode
“Some Observations on Evidence of DNA Frequency” (2002) 23 Adelaide Law
Review 45 at 61.
602 (1989)
545 NYS 2d 985 (New York Supreme Court).
603 (1989)
447 NW 2d 422 (Minnesota Supreme Court).
604 Council
of Europe Committee of Ministers Recommendation No R (92) 1 on the use of
deoxyribonucleic acid (DNA) within the framework of the criminal justice system
at paragraph 2. Available at:
605 Forensic
Science Laboratory Quality Manual. Copy on file with the Law Reform
Commission.
606 As
quoted by Hageman, Prevett and Murray in DNA Handbook (Butterworths
Canada Ltd 2002) at 104.
607 Ibid
50.
608 This
is the accreditation programme of the International Organization for
Standardization (“ISO”). The ISO is a network of national standards institutes
from 148 countries working in partnership with international organisations,
governments, industry, business and customer representatives.
609 It
should be observed that the new ISO 17025 is also followed by laboratories in
the UK. In Europe, ENFSI has developed a DNA Quality Assurance Program that
outlines all of the requirements to be addressed for compliance with ISO Guide
17025.
610 See
Forensic Science Laboratory Quality Manual.
611 For
more detail on the method of assessment as carried out by the Irish National
Accreditation Board see:
www.forfas.ie/nab/pdfs/ilab/P7-Oct-02.pdf.
612 The
European Network of Forensic Science Institutes is an organisation which is
composed of forensic scientists from various European jurisdictions. For more
information see http://www.enfsi.org.
613 See
paragraphs -. The definition given of contamination in the Interpol Handbook
on DNA Data Exchange and Practice at 46 is ‘the accidental pollution
of the crime stain with other biological substances”. This handbook is
available at:
614 Matthew
Goode adverted to the sensitivity of the present profiling technology in “Some
Observations on Evidence of DNA Frequency” (2002) 23 Adelaide Law Review
45 at 53.
615 Interpol
DNA Monitoring Expert Group Interpol Handbook on DNA Data Exchange and
Practice at 9.
616 As
observed by Dr R K Bramley in his Paper Quality Assurance in DNA Profiling at
the 1st International DNA User’s Conference 24th-26th
November 1999 in Lyons.
617 Interpol
DNA Monitoring Expert Group Interpol Handbook on DNA Data Exchange and
Practice at 9.
618 Interpol
DNA Monitoring Expert Group Interpol Handbook on DNA Data Exchange and
Practice at 51.
619 Ibid
at 48.
620 See
paragraph .
621 A
special coloured tape could be used to illustrate that this is evidence from a
crime scene.
622 See
paragraphs -.
623 Court
of Criminal Appeal 19 February 2001.
624 See
the Forensic Science Service The National DNA Database Annual Report
2002-2003 at 19 for a description of this database. Available at:
http://www.forensic.gov.uk/forensic/entry.htm.
625 See
Chapter 9.
626 Article
38.1 of the Irish Constitution provides that “[n]o person shall be tried on any
criminal charge save in due course of law”.
627 The
relevant part of Article 6(1) of the ECHR provides “[i]n the determination of
his civil rights and obligations or of any criminal charge against him,
everyone is entitled to a fair and public hearing within a reasonable time by
an independent and impartial tribunal established by law”.
628 Evidence
of Mr Chris Puplick to the Parliament of New South Wales Legislative Standing
Committee on Law and Justice Review of the Crimes (Forensic Procedures) Act 2000
Report No. 18 (February 2002) at paragraph 3.121.
629 Dr.
Sheila Willis “DNA in the Investigation of Crime” (March 2003) Communiqué:
An Garda Siochána Management Journal 3 at 9.
630 As
observed by the NSW Council for Civil Liberties (2000) ‘CCL Policy on DNA’ Civil
Liberty no 186 at 15, “because many see DNA as definitive, its potential
for harm and prejudice is far greater”. See also Allen v DPP Court of
Criminal Appeal 18 December 2003 where the court adverted to the possibility
that “the matter being so technical, the jury could jump to the conclusion that
the evidence is infallible”.
631 See
paragraphs -.
632 Parliament
of New South Wales Legislative Standing Committee on Law and Justice Review
of the Crimes (Forensic Procedures) Act 2000 Report No. 18 (February 2002)
at 22.
633 Ibid
Submission 26, 25 November 2001 at 22.
634 See
for example Kaye, Faigman, Saks and Saunders Science in the Law (West
Group 2002) at Chapter 11.
635 Central
Criminal Court 2 December 1995. Court of Criminal Appeal 26 February 2001. See
also Maureen Smyth “DNA in the Dock” [1995] Lab Link Volume 2 Issue 6.
636 Irish
Examiner 25 June 2002.
637 (1995)
1 Cr App R 290.
638 [2001]
SASC 64.
639 (1996)
88 A Crim R 554.
640 [1992]
1 NZLR 545; (1991) 7 CRNZ 333.
641 See
State v Woodall 385 SE 2d 253 and Spencer v Commonwealth 384 SE
2d 775.
642 New
South Wales Court of Criminal Appeal 26 March 1993.
643 Ibid
at 9.
644 See
paragraphs -.
645 The
United States National Research Council adverted to this possibility in “The
Evaluation of Forensic DNA Evidence” (National Academy Press 1996) at 80. It
observed in this Paper that “[e]very human activity is associated with some
risk of error. There are potential sources of error at every stage in the
processing of physical evidence, from collection in the field through
laboratory analysis to interpretation of results of analysis”.
646 See
paragraphs -.
647 As
reported in Puit “DNA Evidence: Officials Admit Error, Dismiss Case” Las
Vegas Review-Journal 18 April 2002.
648 See
Koehler “On Conveying the Probative Value of DNA Evidence: Frequencies,
Likelihood Ratios, and Error Rates” University of Colorado Law Review
871.
649 Freidman
“DNA Profiling in the 21st Century” (1999) 43 International
Journal of Offender Therapy and Comparative Criminology 168 at 173.
650 Rt
Hon Sir Thomas Eichelbaum and Professor Sir John Scott Report on DNA
Anomalies 30 November 1999.
651 See
Judge Tompkins “Challenges to DNA in the Courtroom” Paper delivered at
Interpol’s Third International DNA Users’ Conference in Lyon on 19-21 November
2003.
652 Young
“DNA Evidence – Beyond Reasonable Doubt?” Crim LR 264 at 265-266.
653 Ibid
at 266.
654 Supreme
Court of Victoria Court of Appeal 29 May 2002.
655 As
affirmed in Hageman, Prevett and Murray DNA Handbook (Butterworths
Canada Ltd 2002) at 41.
656 For
example see R v Watters English Court of Criminal Appeal Criminal
Division 19 October 2000 and in this jurisdiction Allen v DPP Irish
Court of Criminal Appeal 18 December 2003.
657 Dr
Raymond’s submission to the Parliament of New South Wales Legislative Standing
Committee on Law and Justice Review of the Crimes (Forensic Procedures) Act
2000 Report No 18 (February 2002) at 26.
658 See
the Forensic Science Service The National DNA Database Annual Report
2002-2003 at 15. Available at:
http://www.forensic.gov.uk/forensic/entry.htm.
659 See
paragraphs -.
660 Such
procedures are discussed at paragraphs -.
661 The
Public Defenders Submission to the Parliament of New South Wales Standing
Committee on Law and Justice Review of the Crimes (Forensic Procedures) Act
2000 Report No. 18 (February 2002) at 37.
662 This
is dealt with in paragraphs -.
663 Central
Criminal Court 2 December 1995. Criminal Court of Appeal 24 February 2001. See
Maureen Smyth “DNA in the Dock” [1995] Lab Link Volume 2 Issue 6.
664 Irish
Examiner 25 June 2002.
665 (1989)
545 NYS 2d 985 (New York Supreme Court).
666 United
States v Frye (1923) 293 F 1013. This test states that novel scientific
evidence will be admissible into court if it is sufficiently established to
have gained general acceptance in the field in which it belongs.
667 (1989)
545 NYS 2d 985 (New York Supreme Court).
668 Leahy
“Genetic Profiling and the Reasonable Doubt” (1995) MLJI 66 at 66.
669 (1997) 1 Cr App R 369 at 369-370.
670 (1990)
50 A Crim R 233.
671 R
v Humphrey [1999] SASC 67.
672 [1924]
2 IR 193.
673 It
was suggested in The People (DPP) v McCann [1998] 4 IR 397 that
evidential hearings should usually be held at the beginning of the trial.
674 See
The People (DPP) v Lawlor Court of Criminal Appeal 19 February 2001 on
this.
675 This
is the situation in relation to a charge for perjury by virtue of R v Boulter
(1852) 5 Cox C C 543 and a charge for procuration of girls for prostitution
under section 3 of the Criminal Law Amendment Act 1885.
676 See
for example section 10 of the Criminal Procedure Act 1993, which
requires a warning where confession evidence is relied on.
677 See
for example section 28(1) of the Criminal Evidence Act 1992, which
allows for a discretionary warning in respect of the evidence of children.
678 Irish
Times 15 October 2003, Central Criminal Court (Butler J).
679 See
paragraphs - and for more detail on this particular ground.
680 See
paragraphs -.
681 R
v Watters Court of Appeal 19 October 2000.
682 See
People v Casey (No 2) [1963] IR 33 and People v Fagan (1972) 1
Frewen 375 concerning this.
683 For
examples, see cases such as Attorney General v Linehan [1929] IR 19 and People
(Attorney General) v Carney [1955] IR 324 concerning this.
684 [1947]
2 All ER 372.
685 Court
of Criminal Appeal 28 June 1999.
686 R
v Baskerville [1916] 2 KB 658.
687 For
example, the Law Commission in Corroboration of Evidence in Criminal Trials
Working Paper no 115 has recommended its abolition. It has criticised its
complexity for judges and juries alike. Birch in “Corroboration in Criminal
Trials: A review of the Proposals of the Law Commission’s Working Paper” [1990]
Crim LR 667 also criticises the complexity of the corroboration requirement.
The requirement has been criticised in Ireland; see McGrath “Two Steps Forward,
One Step Back: The Corroboration Warning in Sexual Cases” (1999) 9 ICLJ 22.
688 McGrath
“Two Steps Forward, One Step Back: The Corroboration Warning in Sexual Cases”
(1999) 9 ICLJ 22 at 44.
689 [1990]
ILRM 569, [1990] IR 110. See paragraph
for more discussion on this case.
690 [1965]
IR 142.
691 [1986]
IR 393.
692 Regulations
with Regard to the Treatment of Persons in Garda Custody SI 119/1987.
695 [2002]
2 NZLR 377.
696 Ibid.
697 See
paragraph .
698 Andrew
Hall (1990) New Law Journal 203.
699 This
will be discussed later in paragraphs -.
700 Parliament
of New South Wales Legislative Standing Committee on Law and Justice Review
of the Crimes (Forensic Procedures) Act 2000 Report No 18 (February 2002)
at 64.
701 See
Saul “Genetic Policing: Forensic DNA Testing in New South Wales”. Available at:
http://www.geocities.com/ben_saul/DNATestingNSW.htm.
702 See
R v Doheny and Adams (1997) 1 Cr App R 369.
703 As
illustrated by Evett, Foreham, Jackson and Lambert in “DNA Profiling: A
Discussion of Issues Relating to the Reporting of Very Small Match
Probabilities” (2000) Crim LR 346 at 345-355.
704 Goode
“Some Observations on Evidence of DNA Frequency” (2002) 23 Adelaide Law
Review 45 at 67.
705 National
Academy of Sciences Evaluation of Forensic Evidence Washington DC 1996.
706 See
Gill, Foreman, Buckleton, Triggs and Allen “A comparison of adjustment methods
to test the robustness of an STR DNA database comprised of 24 European
populations” Forensic Science International 131 (2003) 184-186 for a
discussion on the methods of adjustment used in calculating match probabilities
to understate the weight of the DNA evidence against the defendant. It is
interesting to note in this respect that Ireland uses the most conservative
estimates in Europe in calculating match probabilities.
707 Balding
and Donnelly “How Convincing is DNA Evidence?” Nature Vol 368 24 March
1994 at 286.
708 John
Buckleton The Interpretation of Scientific Evidence Paper given at DNA
Prosecuting under the Microscope, International Conference, Adelaide, 9-11
September 2001.
709 Court
of Criminal Appeal 18 December 2003.
710 As
described by the National Academy of Sciences Evaluation of Forensic
Evidence Washington DC 1996.
711 D
Balding and P Donnelly “The Prosecutor’s Fallacy and DNA Evidence” (1994) Crim
LR 711 at 713.
712 Matthew
Goode “Some Observations on Evidence of DNA Frequency” (2002) 23 Adelaide
Law Review 45 at 50.
713 (1968)
68 Cal 2d 319, 66 Cal Rptr 497, 438 P 2d 33.
714 Pringle
v The Queen Privy Council 27th January 2003.
715 Redmanye
“Doubts and Burdens: DNA Evidence, Probability and the Courts” [1995] Crim LR
464 at 467.
717 Ibid
at 369-370. These guidelines are as follows:
1. The scientist should adduce the evidence of the DNA comparisons between the crime stain and the defendant’s sample together with his calculation of the random occurrence ratio.
2. Whenever DNA evidence is to be adduced the Crown should serve on the defence details as to how the calculations are to be carried out which are sufficient to enable the defence to scrutinise the basis of the calculations.
3. The Forensic Science Service should make available to the defence, if requested, the databases upon which the calculations have been made.
4. Any issue of expert evidence should be identified and, if possible, resolved before trial. This area should be explored by the court in a pre-trial review.
5. In giving evidence the expert will explain to the jury the nature of the matching characteristics between the DNA in the crime sample and the DNA in the defendant’s blood sample.
6. The expert will, on the basis of the empirical statistical data, give the jury the random occurrence ratio – the frequency with which the matching characteristics are likely to be found in the population at large.
7. Provided that the expert has the necessary data it may then be necessary for him to indicate how many people with the matching characteristics are to be found in the United Kingdom or a more limited relevant sub-group, for instance, the Caucasian, sexually active males in the Manchester area.
8. It is then for the jury to decide, having regard to all the relevant evidence, whether they are sure that it was the defendant who left the crime stain or whether it was possible it was left by someone else with the same DNA characteristics.
9. The expert should not be asked to give his opinion on the likelihood that it was the defendant who left the crime stain or whether it was possible it was left by someone else with the same matching DNA characteristics.
10. It is inappropriate for an expert to expound a statistical approach to evaluating the likelihood that the defendant left the crime stain, since unnecessary theory and complexity deflects the jury from their proper task.
11. In the summing up careful directions are required in respect of any issues of expert evidence and guidance should be given to avoid confusion caused by areas of expert evidence where no real issue exists.
12. The judge should explain to the jury the relevance of the random occurrence ratio in arriving at their verdict and draw attention to the extraneous evidence which provides the context which gives the ratio its significance, and to that which conflicts with the conclusion that the defendant was responsible for the crime stain.
13. In relation to the random occurrence ratio, a direction along the following lines may be appropriate, tailored to the facts of the particular case. “[m]embers of the jury, if you accept the scientific evidence adduced by the Crown, this indicates that there are probably four or five white males in the United Kingdom from whom the semen could have come. The defendant is one of them. If that is the position, the decision you have to reach, on all the evidence is whether you are sure that it is the defendant who left the stain or whether it was possible that it was one of that other small group of men who share the same DNA characteristics”.
718 Evett
and others “DNA profiling: A Discussion of Issues Relating to the Reporting of
Very Small Match Probabilities” (2000) Crim LR 341 at 347-348.
719 See
Evett and others “DNA profiling: A Discussion of Issues Relating to the
Reporting of Very Small Match Probabilities” (2000) Crim LR 341at 349.
721 See
paragraph .
722 See
Balding and Donnelly “Evaluating DNA Profile Evidence When the Suspect is
Identified Through a Database Search” Journal of Forensic Sciences Vol
41 No 4 July 1996 for a useful discussion on this issue and the recommendations
made in relation to it by the US National Research Council in their report in
July 1996.
723 Irish
Times 15 October 2003, Central Criminal Court (Butler J).
724 See
for example The People (DPP) v Downey Central Criminal Court 12 March
2004 and The People (DPP) v Michael Murphy Central Criminal Court
January 2004.
725 See
State v Colbert (1995) 256 Kan 896 and Judge Tompkins “Challenges to DNA
in the Courtroom” Paper delivered at Interpol’s Third International DNA Users’
Conference in Lyon on 19-21 November 2003 at 15.
726 (1998)
104 A Crim R 390.
728 These
concerns were expressed by the Australian Law Reform Commission and the
Australian Health Ethics Committee in Report-Essentially Yours: The
Protection of Human Genetic Information in Australia (ALRC 96, 2003) at
paragraph 44.46.
729 As
set out in People (Attorney General) v Casey (no 2) [1968] IR 33.
730 South
Australian Court of Criminal Appeal 30 August 2002.