Forensic Science Ireland operates the DNA Database System in accordance with the legislation. It may make arrangements with laboratories to perform functions.
A Database System Oversight Committee is established. It is to be independent in the performance of its functions. Its functions are to oversee the management and operation of the System for the purposes of maintaining integrity and security. The Committee is to satisfy itself that the provisions of the Act are being complied with in relation to the System.
The Committee may make recommendations to the Minister and Director of the FSI relating to the management and operation of the System. It shall at the request of the Minister review any matter relating to the management and operation of the System and submit a report to the Oireachtas. The report may be redacted to preserve privacy and the integrity of the system of criminal investigation.
The Committee is to submit an annual report to the Minister in relation to its functions under the bill. Information may be omitted on similar grounds to the above. The director of FSI must also submit an annual report to the Minister regarding the performance of its functions under the Act
The DNA Database System comprises two divisions: the investigation division and the identification division. The investigation division is to contain the following indices
- the crime scene index;
- the reference index and
- the elimination indexes.
The identification division is to contain
- one index of DNA profiles,
- the missing and unknown persons index.
Each index is to contain information that may be used to identify the sample from which each profile is generated.
The crime scene index is to contain DNA generated from samples of biological material found at or recovered from crime scenes. The reference index is to contain DNA taken from Garda suspects, certain volunteers and offenders and former offenders including deceased suspects. The elimination index is to contain profiles generated from samples taken from Gardaí and other personnel involved in investigations.
The purpose for which the system may be used is restricted to
- investigation of criminal offences;
- finding or identification of missing persons,
- identification of seriously ill or severely injured persons who are unable to indicate their identity or
- the identification of the bodies of unknown deceased persons.
This is illustrative and not a comprehensive statement of what constitutes permitted purpose.
A profile may be compared with another, only in accordance with the specified rules or for the purpose of administration of the System.
A profile entered may be compared with other profiles in the index. The comparison between profiles entered in the index must be for defined limited purposes in connection with the investigation of offence and other matters such as tracing unknown persons. Searches may only be conducted by the staff of the FSI. The FSI may process information for statistical and analytical purposes.
Destruction of Samples
There are provisions for the destruction of samples and removal from the DNA System of DNA profiles. The provisions and arrangements are separately specified in relation to each category of sample namely, those from suspects, offenders, volunteers, elimination, identification purposes.
Intimate and non-intimate samples must be destroyed three months from the date on which the applicable circumstances first apply. The circumstances are
- where the person is not proceeded against within 12 months from the relevant offence
- if proceeded against was acquitted, given a probation order and has not been convicted of the relevant offence during the three years from the making of the order
- where the conviction was quashed or declared to be a miscarriage of justice.
In the case of persons who are not proceeded against, the failure to institute proceedings must not be due to the fact that the person absconded or could not be located.
Extension of Period
The period between the taking of the sample and the expiry of the above period is the retention period. There are provisions for the extension of the retention period under certain circumstances. The Commissioner is to determine whether certain circumstances apply, in which event he may authorise retention for a further 12-month period which may be renewed.
The relevant circumstances are that
- the investigation has not been concluded
- a decision as to whether to institute proceedings has not been taken
- the samples and results conducted on it are likely to be required for prosecution of offence and
- the reason that proceedings haven’t been taken as of yet
- the gravity and nature of the offence
- whether the victim is a child or a vulnerable person.
When the Commissioner authorises an extension, he is required to cause the person or a parent or guardian in the case of a child to be notified in writing. The person has three months to appeal to the court. The court appeal will be heard in private.
An intimate or non-intimate sample shall be destroyed within six months of the taking of the sample or when the DNA profile has been generated, whichever it is later.
There are broadly similar provisions in relation to samples taken from persons in the course of investigations. There are several similar provisions where offences are not proceeded with. There are similar provisions for retention on the authorisation of the Commissioner.
The length of permitted extension varies depending on the ground. It is up to six years in the case of an adult or three years in the case of a child or protected persons from the date on which it was generated. The Commissioner may make an application to the District Court for further extension. There is provision for notification of the persons concerned.
The general principle is that convicted persons’ profile is retained indefinitely. There is an exception in the case of child offenders, other than those convicted of certain very serious offences. There may be retention of four to six years depending on whether the sentence was custodial or noncustodial provided the child is not convicted of another offence within the default period.
In the case of former offenders, the person concerned may apply to have it removed from the DNA database in some limited circumstances. An application may be made to the Commissioner on the basis that the original conviction, or sentence has been quashed.
There is provision for destruction or removal in respect of samples given by volunteers. A request is made in writing to the Commissioner. It is to be destroyed within three months if not previously destroyed or within three months of completion of the investigation and any proceedings in relation to which it was taken. Where a volunteer consented to the entry of his profile, the request for destruction is to be taken as a request for removal.
There are provisions for destruction and removal of profiles taken from members of An Garda Síochána, Garda Síochána Ombudsman and Garda Síochána services providers.
Missing Persons Cases
In the case of samples taken for missing person investigations, the profiles are to be removed following notice in writing to the Commissioner. They are generally to be destroyed within three months. A profile taken if not previously destroyed or relating to a missing person is to be destroyed and the profile is to be removed within three months of the missing person having being located or identified.
The Commissioner may apply to the District Court to retain a profile in the reference index beyond the periods above where there is good reason to do so. The application is made by a member of superintendent rank or higher. The application is made on notice but is to be heard in private. The person affected must have an opportunity to be heard.
The Minister is to conduct the review of the operation of this part of the legislation within six years. The periods may be changed by a ministerial order having regard to the review.