Legal and political sluggishness are to blame for investigations missing vital clues, writes NOEL WHELAN
THIS WEEK’S Irish Times series on crime in Ireland spotlighted some of the challenges faced in trying to tackle certain types of crime, in particular burglaries, with reduced policing resources.
There is, however, a massive gap in this country’s criminal investigation system that also needs to be spotlighted – the failure to establish a national DNA database.
It is a classic incidence of political and administrative sclerosis, another example of what Eddie Molloy has described as “implementation deficit disorder”. Even the good ideas take ages to get implemented.
In this case, a very good idea has been thwarted or stalled, either by political or administrative inaction, through a warped approach to expenditure management. It is ultimately going to prove very costly both in financial and social terms.
Setting up such a national DNA database is a no-brainer. If anything, it makes even more sense in these times of fiscal constraint. The use of DNA solves crimes, secures convictions, eliminates the innocent from suspicion and enables effective application of Garda resources.
The fact that a person’s identity can be authenticated by an examination of that individual’s genetic material has revolutionised crime detection. Unfortunately, our police force is still waiting to get the real chance to exploit the full potential of this new investigative tool.
A compulsory system of DNA sampling of criminal suspects and a national database of those samples has been in existence in the United Kingdom for more than a decade and a half. Almost all other European Union countries have legislated for powers to compel suspects and/or convicted persons to provide DNA samples.
European legislation required each country to put mechanisms in place before August 2011 for the exchange of DNA profile data. Many states have delayed in providing for these exchanges but Ireland has not even legislated for the essential element of such a European system, a DNA database. In January Ireland will preside over EU home affairs councils where member states can expect to be chided for not meeting these deadlines.
In October 2005 – almost seven years ago – the Law Reform Commission published a comprehensive 130-page final report recommending the establishment of such a DNA database. It took another 6½ years before detailed legislation was published in the form of the Criminal Justice (Forensic Evidence and DNA Database System) Bill 2010. If enacted, this Bill would have enabled samples to be taken and retained from those suspected of serious crime (defined as crimes with a potential penalty of at least five years).
A profile generated from that sample would then have been placed on a DNA database. Profiles generated from samples collected at the crime scenes would also be entered on the database. Cross-referencing the two banks of data could then identify matches. The samples taken would be destroyed after three years, while profiles could be retained for suspects in a particular incident for up to 10 years, and indefinitely for those convicted of a serious crime.
The database was to be established and operated by the Forensic Science Laboratory. Its system was to be overseen by a committee chaired by a High Court or Circuit Court judge and to include representation from the Data Protection Commissioner. There was to be an annual review of the operation of the legislation.
When he published this fully drafted legislation on January 19th, 2010, the then minister for justice Dermot Ahern said, “I hope to see the legislation progress through the Oireachtas in the coming months.”
It made very little progress. The second stage debate was held in March 2010 at which point it was sent to the Oireachtas justice committee. The Bill then sat in legislative limbo until, like all such Bills, it fell away when the last Dáil was dissolved in January 2011. It has since simply disappeared. A year and a half since it took office, the Government is now saying it will publish a reworked version of the 2010 legislation before the end of the year, which it hopes to enact within a further 12 months.
Some of the delay from 2005 to January 2010 can be attributed to the European Court of Human Rights judgment in the case of S and Marper v UK in December 2008, which held that the indefinite retention of DNA samples taken from persons who were not charged or were acquitted was an infringement of the privacy provisions of the European Convention of Human Rights. The 2010 Bill in its drafting reflected these concerns.
The reason for the delay since the Bill was published in 2010 are not clear. The suspicion is that underfunding of the Forensic Science Laboratory or proposals for merging it with other agencies may be the explanation.
The most obvious application of DNA analysis is in the investigation of assault and sexual offences, but the technique has proven equally as valuable in less serious but more frequent crimes such as burglary. A surprising amount of burglars cut themselves on glass when breaking windows. DNA samples have been taken from masks discarded, or even from chewing gum spat out or cigarette butts.
Given the delays and the dramatic impact such a database could have on investigating crimes like burglary, one would think this would now be a priority. Because of this delay, crimes otherwise solvable go unsolved.
In Scotland in the first quarter of 2012, 54 per cent of crime-scene samples put through the database matched a profile there.
In these days of dramatised crime scene investigations on television, it will come as a surprise to most people that in Ireland we do not have such a database. Putting a DNA database in place could transform crime investigation and dramatically reduce the costs of policing and prosecution.
It’s money that would be well-spent. The legislation needs to be enacted urgently.