DNA refers to an acid present within the nucleus of living cells that carries unique genetic information. The development of understanding of DNA has revolutionized forensic evidence.
It is possible to profile microscopic biological samples from a crime scene and victims with that of individuals and create a match to a very high degree of confidence.
Small samples of blood, urine, semen as well as saliva, dandruff and other bodily material may link a person to a crime scene.
Latterly, there has been a recognition that the procedures in taking and profiling DNA may in some cases be flawed, which poses some risk to in the identification process.
The taking of DNA samples raises issues of privacy and bodily integrity in a way that is similar to but more pronounced than that applicable to fingerprints.
The Criminal Justice Forensic Evidence Act 1990 allowed for the taking of blood and urine samples which is generally more intrusive than the taking of a swab for DNA purposes.
As with fingerprints forensic samples are distinguished from confession evidence in terms of voluntariness and consent. The evidence is either probative in itself and is nothing got through with the voluntariness of the person from whom the sample is taken, unlike the position in respect of confessions.
The retention of DNA raises issues of profound significance in relation to privacy.
The Criminal Justice (Forensic Evidence and DNA Data System) Act provides for the establishment of a DNA database.
Bodily samples may be taken under statutory authority only. A range of legislation now permits the taking a forensic sample from persons suspected of serious offences and a limited number of minor non-serious offences.
In broad terms, the power to take samples arises in the case of arrest and detention for more serious offences. Samples may be taken each time a person is arrested. Samples may be taken from prisoners. Samples may be taken in a variety of ways.
The Criminal Justice (Forensic Evidence and DNA Database System) Act 2014 replaced existing statutory and common law principles regarding the taking of samples for forensic testing in criminal investigations. It repealed the previous 1990 legislation.
The legislation provides for the establishment of a database of DNA for use by the Garda Síochána in criminal investigations and to assist in finding missing and unknown persons. It provides for the taking of samples. It provides for management and oversight of the system.
The Act regulates the taking of samples from persons who are neither suspects nor offenders in order to generate DNA profiles in connection with investigations. A DNA profile is information relating to a person derived from the non-coding part of the DNA, which refers to the chromosome regions of a person’s DNA that are not known to provide any functional properties of that person.
An intimate sample is a sample of blood, pubic hair or urine; a swab from a genital region or body orifice other than the mouth or a dental impression.A non-intimate sample is a sample of saliva, hair other than pubic hair or a nail or any material found under a nail; a swab from any part of the body orifice or a genital region or a skin impression including a footprint.
A match means that there is a degree of correspondence between two samples, two profiles that are indistinguishable and it is probable that they relate to the same person, with a degree of probability that can be demonstrated statistically.
A protected person means a child or person with a mental or physical disability who lacks the capacity to understand, the nature and effect of taking a sample from her or him.
The types of sample that can be taken for the purpose of the DNA database system from a volunteer is restricted to hair other than pubic hair or a mouth swab. In the case of human remains, sample means a sample of biological material from the person from which a DNA profile may be generated. The process by which a sample of hair other than pubic hair may be taken is set out.
Samples under Part 2 and 4 may be transmitted outside the State pursuant to a request under the Criminal Justice (Mutual Assistance) Act 2008 or from the International Criminal Court. DNA profiles generated from samples taken under the Act may be provided to Europol.
Samples from Suspects
Part 2 deals with the taking of samples from persons in Garda custody as suspects. Samples may be taken by persons detained under various legislation, deal with detention and questioning of person for the purpose of investigation of offences.
A sample may be taken from a person who has been arrested and detained in prison for the investigation of an offence other than that in respect of which he has been imprisoned. The effect is that the power to take samples is linked to arrestable offences i.e. those providing for imprisonment for five years or more on conviction as a maximum sentence.
There are three types of samples that may be taken. A sample under section 11 is a sample for the purpose of generation of a DNA profile in relation to a person or entry into the DNA Data System. There is provision for intimate and non-intimate samples for the purpose of proving or disproving involvement in a crime.
The member in charge of the Garda station where a person is being detained must determine whether the person is a protected person. Protected persons are entitled to additional safeguards. If an intimate sample is to be taken, the opinion that the person is a protected person must be certified by a medical practitioner.
A member of the Garda Síochána may take a sample from a detained person for the purpose of generating a DNA profile for entry into the DNA Database System. This is for the purpose of evidence. The decision must be authorised by a member of an Garda Siochana, not below the rank of Sergeant.
Although the person’s consent to the taking of the sample is not required, he must be informed of certain matters before the sample is taken. He must be warned that reasonable force may be used in the event that he or she fails to allow the sample. The Minister may exclude certain offences from this provision where the evidence of this nature is not relevant.
There are provisions in respect of the application or non-application of the section to young persons under 14 and protected persons.
An intimate sample from a detained person may only be taken if a member of an Garda Síochána not below the rank of Inspector has authorised it and given the appropriate written consent and the appropriate written consent has been given by the detained person.
The sample may also be used for the DNA database. Before giving authorisation, the member must be satisfied there are reasonable grounds for suspecting that the involvement of the person detained in the relevant offence and for believing the sample will tend to prove or disprove involvement.
Before the detained person is requested to consent, he must be informed of certain matters, including the consequence of not consenting. If consent is given but withdrawn, there is a refusal and the below-mentioned provisions apply:
The withdrawal must be recorded in writing. The withdrawal must take place before a sample is taken.
In the case of a non-intimate sample taken from a detained person for the purpose of investigation, the offence for which he is detained and for evidential purposes, the sample may be taken if a member of An Garda Síochána not below the rank of Inspector authorises it.
The consent of the person concerned is not required. The member must be satisfied that there are reasonable grounds for suspecting the involvement of the person in the offence concerned or for believing the sample would tend to prove or disprove the involvement of the person in the offence.
Although consent is not required, the person must be informed of various matters including that reasonable force may be used in the event the person does not co-operate.
Under Age I
Information must be given to children and protected persons in a manner that is appropriate to their level of understanding. The consent required to an intimate sample referred to above refers to the consent of an adult. In the case of a protected person or minor or a child under 14, the consent of the child and either parent or guardian or order of a District Court suffices.
In the case of someone below 14, the consent of a parent or guardian or order of the District Court is required. In the case of a child over 14, the consent of the child and the guardian or District Court order is required.
There are provisions for where consent of a parent and guardian is not required due to it being inappropriate including in particular where the parent or guardian is complicit in an offence or may obstruct the course of justice.
There is provision for an application to the District Court by a person not below the rank of Inspector, for an order to take an intimate sample from a protected person or child. This may arise where the parent or guardian cannot be contacted or will not give attend at a Garda station within the reasonable time or where the parent or guardian’s consent is excluded as above or where parents or guardians cannot be ascertained within a reasonable time.
The court is to have regard to certain matters, including the best interest of the persons concerned, the nature of the offence, the reasons for parents, guardians’ refusal of consent. A parent or guardian must be given a reasonable opportunity to be heard.
Registered medical practitioners or nurses are authorised to take intimate samples, in the case of dental impressions, registered dentists may take them. Intimate samples are insofar as practicable to be taken by a person of the same sex as the person from whom the sample is taken.
Under Age II
There are detailed provisions regarding taking intimate samples from protected persons and children. A person other than a member of An Garda Síochána must be present unless the protected person indicates that they do not wish to have the person present.
The person may be the parent or guardian or other adult nominated by the member in charge. The person must be of the same sex, insofar as practicable. They must be suitable, by reason of training or experience with persons who have physical or mental disabilities.
Non-intimate samples, where reasonably practicable will be taken in the presence of a parent or guardian who attends the Garda station unless the person indicates she does not wish the person to be present. The parent, guardian etc. would be excluded or various grounds, where, for example, they are complicit in an offence or have been a victim of an offence or are likely to obstruct the course of justice. They may be removed if they attempt to obstruct.
The member in charge of Garda station is obliged to inform the protected person that he is entitled to have an adult relative or other adult reasonably named by him. The person is to be notified as soon as practicable.
Use of Force
The use of force is not permitted to take a non-intimate sample from children under 12. The question of force does not arise in relation to intimate samples.
Reasonable force must be authorised by a member of An Garda Síochána, not below the rank of Superintendent. The detained person must be informed in advance of the intention to use reasonable force and that the necessary authorisation has been given.
The use of reasonable force must be observed by a member, not below the rank of Inspector who is to determine the number of members necessary. The taking of sample by reasonable force must be recorded by electronic means.
There are special provisions applicable to protected persons and children. A person other than a member of An Garda Síochána must be present when force is being used to take a sample from a protected person or a child unless they indicate they do not wish to have the person present. The person may be a parent, guardian, or adult relative or another person reasonably named.
Consequences of Refusal
Section 19 deals with the consequence of a refusal of consent to a sample. Refusal without reasonable cause may give rise to an adverse inference in subsequent criminal proceedings. This may be taken as corroborating evidence but may not be the main or sole basis of conviction.
The adverse inferences will only apply if certain steps are taken. The person must be told in ordinary language that a failure to consent or withdrawal of consent could give rise to an inference that he is being given the opportunity to consult a solicitor before refusing and the request was recorded by electronic means or the person consented in writing to it not being so recorded.
The provisions do not apply to protected persons, i.e. children under 18 unless the requisite parental consent is given or a District Court order is made.
Samples taken for the DNA Database System may be treated as non-intimate samples for evidential purposes in certain circumstances. This may apply where during the same period of detention, a sample has been taken and a decision is subsequently made that a non-intimate sample is required for the purpose of investigation at hand. Before a DNA database sample may be treated as an evidential sample, similar procedures applicable to the evidential sample must apply.
There are provisions as to when a sample, which is insufficient, may be retaken. There are different procedures, depending on whether the insufficiency becomes apparent when the person is in detention or after release. Where the person is still in detention and the insufficiency becomes apparent within one hour, after an hour the sample may be retaken only if a fresh authorisation is given.
Where in the case of evidential samples, where the insufficiency becomes apparent after the person has been released without charge, the sample may only be retaken and member not below the rank of Superintendent authorises it and the person attends with Garda Síochána for the purpose of it being taken.
The necessary authorisation may be given only if a member has reasonable grounds for suspecting the involvement of the person in the offence concerned and the sample will tend to prove or disprove his involvement. The authorisation may be given once only and is not for not more than six months since the taking of the first sample has elapsed.
Where the necessary authorisation is given, the person must attend the Garda station for the purpose of having the sample taken. If he fails or refuses to do so without reasonable cause, a member not below the rank of Superintendent may apply for a warrant for his arrest and detention for the purpose of taking the sample. Detention is for a maximum of four hours.
A member of An Garda Síochána shall not take a body sample from a detained person other than in accordance with the above requirements. This abolishes common law powers to do so.