New Forensic Evidence and DNA Database Bill published

On Tuesday, the Minister for Justice, Equality and Law Reform, Dermot Ahern, published the Criminal Justice (Forensic Evidence and DNA Database System) Bill 2010. This Bill repeals the Criminal Justice (Forensic Evidence) Act 1990 in its entirety. It provides for the taking of three categories of samples: (1) non-intimate and (2) intimate samples from persons arrested and detained in garda custody in order to prove or disprove their involvement in the commission of a particular offence, and (3) samples for the purpose of creating a DNA profile to be kept on the DNA database. Samples in this third category may not generally be taken from children under 14 years of age. The Bill also provides for the taking of samples from volunteers and others.

The Bill goes on to provide for the establishment of a DNA database – one part of which will retain DNA profiles for the purposes of criminal investigations, and a second, separate part of which will retain DNA material in order to assist in tracing and identifying missing or unknown persons. These two parts of the database are not to be cross-referenced. The database will be administered by the Forensic Science Laboratory, which is to be renamed in Irish – Eolaíocht Fhóiréinseach Éireann – and hold the initials EFÉ.

As reported in the Irish Times, the Minister in introducing the Bill said that all persons serving sentences for serious offences when the new law comes into force will be required to give a sample for the database. This will include people in prison and anyone on temporary release or on suspended sentences, as well as anyone on the sex offenders’ register.

Following the recent jurisprudence of the European Court of Human Rights (S and Marper v UK) the Bill provides that only persons convicted of serious offences will have their DNA material held indefinitely. Persons who are acquitted or against whom no proceedings are instituted will have their DNA material removed on application to the Commissioner of An Garda Síochána (with further appeal to the District Court). Where no application is made, the default periods for destruction of the material are 10 years in the case of a profile and three in the case of a sample.

Mark Kelly, director of the Irish Council for Civil Liberties (ICCL), has said that the ICCL will review the Bill in order to establish whether it strikes the right balance between catching criminals and protecting private life.

Law Reform Commission: Conference on Reform of the Law on Personal Debt

The Law Reform Commission will hold its annual conference on Wednesday 18 November 2009 in the beautiful Main Conference Hall in Dublin Castle. The conference fee is €40 and the theme is the reform of the law on personal debt, on which the Commission published a Consultation Paper recently.

Among others, the conference will be addressed by Justice Catherine McGuinness, the President of the Commission, and Minister for Justice, Equality and Law Reform Dermot Ahern. The full programme and conference brochure is available here, where you will also find a registration form.

Manning on Resourcing Human Rights Bodies and the Belfast Agreement

The Irish Times reports that the president of the Irish Human Rights Commission, which lost nearly a third of its budget last year, will “not be able to exist” if the Government imposes further cuts this year. Mr Manning was addressing the British-Irish Parliamentary Assembly in Swansea.

In addition to highlighting the issue of funding for the IHRC, Mr Manning argued in his presentation that Commission should be made accountable to the Oireachtas and not to a governmental department. (Section 23 of the Human Rights Commission Act 2000 renders the Commission accountable to the Minister for Justice, Equality and Law Reform).

Reasons advanced by Mr Manning for the proposed change included the fact that,

Such a link would not only be in keeping with international best practice, but would also acknowledge that human rights impact on all areas of law, policy and practice in Ireland and not merely issues within the justice sector.

Furthermore, it would honour the recommendation of the UN Human Rights Committee, which in its most recent Concluding Observations to the Government called for the IHRC’s independence and capacity to be further enhanced by, as the Committee stated, “endowing it with adequate and sufficient resources and linking it to the Oireachtas”.

He also called for the establishment of a joint committee on human rights by the Oireachtas, modelled on the existing one in Westminster, “to scrutinise all government Bills and government action on judgments of the domestic courts, and the European Court of Human Rights would strengthen Ireland’s strong commitment to human rights”.

Victims of Crime Initiatives

The Minister for Justice, Dermot Ahern TD, yesterday launched two new websites aimed at making relevant information readily accessible to victims of crime. The websites are those of the Commission for the Support of Victims of Crime and the Victims of Crime Office.

The Commission for the Support of Victims of Crime was established in 2005 and is an independent body, operating under the aegis of the Department of Justice, Equality and Law Reform (DJELR).  It has a wide range of functions, including the development of strategies to support victims of crime, providing financial assistance to voluntary bodies that support victims of crime, promoting awareness of the services available to victims , and carrying out research to support its general mission. Along with this, the Commission seeks to co-operate in particular with Cosc (the National Office for the Prevention of Domestic, Sexual and Gender-based Violence) and the Anti-Human Trafficking Unit (within the DJELR). The current Chairperson of the Commission is Ray McAndrew, former Assistant Commissioner of the Gardaí, and the other members include Nora Owen, former Minster for Justice and Seán Lowry, former Head of the Probation and Welfare Service.

The Victims of Crime Office, which works closely with the Commission, was established as an executive office of the DJELR in September 2008. Its main aim is to improve the continuity and quality of services to victims of crime by both state agencies and NGOs. The Director of the Victims of Crime Office is an ex-officio member of the Commission for the Support of Victims of Crime and the Office provides the secretariat to the Commission.

The DJELR also has further plans for change in the area of victims’ rights. Some of these plans are included in the Criminal Procedure Bill 2009, e.g.  clarification of the status of next-of-kin victim impact statements in homicide cases . The Bill also proposes changes to the rule on double jeopardy in certain situations, e.g. where there is evidence that previous acquittals occurred in circumstances of interference with the criminal justice process. The Minister for Justice clarified yesterday that any such changes to the double jeopardy rule would not operate retrospectively.

While much of the Criminal Procedure Bill 2009 is being touted by the Minister for Justice as victim-oriented, the Irish Council for Civil Liberties has previously suggested that many of the measures contained therein “chip away at fair trial rights”. In relation to the proposed changes to the  double jeopardy rule Mark Kelly, Director of the ICCL, noted that these “will do little or nothing to improve the position of victims or their families”. In May of this year, the ICCL proposed an alternative approach to the protection of victims’ rights entitled “A Better Deal: The Human Rights of Victims in the Criminal Justice System“. This detailed policy document emphasises the need for Ireland to comply with the European Framework Decision on the standing of victims in criminal proceedings, which was agreed in 2001. This Framework Decision requires Member States to align their legislation on criminal proceedings to guarantee a number of things to victims including amongst other things: the right to be heard in proceedings and the right to furnish evidence; access to information relevant to their interests from the outset of proceedings; and access to any necessary interpreting or communicating facilities.

The launch of the new websites of the Commission for the Support of Victims of Crime and the Victims of Crime Office yesterday is more than welcome, however, it is clear that there is a lot more work to be done in guaranteeing rights to victims. There is also likely to be plenty more controversy and conversation in the future at both a domestic and an EU level about how best to protect victims’ interests within the criminal process while still ensuring the fairness of trials and respect for suspect rights.

Proposed Changes to the Criminal Legal Aid Scheme

In the last week, Irish newspapers (Irish Times (here, here, here and here) and Irish Independent, here) have reported on potential cuts to the scheme of criminal legal aid. The rationale for these cuts is to curb the escalating costs of criminal legal aid. The proposed plan, under a new Criminal Legal Aid Bill, aims to allow Gardaí have access to a defendant’s Personal Public Service Number to ensure that he or she does not have the means to employ his or her own solicitor. The Free Legal Advice Centres (FLAC) have stated that any changes to the criminal legal aid scheme should preserve the right to “real and effective justice”. FLAC have warned the Minister for Justice, Equality and Law Reform, Mr. Dermot Ahern T.D. that changes should not lead to an ineffective and bureaucratic administration of the scheme of criminal legal aid.  The main opposition party in Dáil Eireann (the Irish lower house of parliament), Fine Gael, have welcomed the move. Writing in the Irish Times, the legal affairs editor, Carol Coulter, has warned that the savings achieved will “not produce a pot of gold”. Ms. Coulter notes that the vast majority of recipients’ of criminal legal aid are social welfare claimants, and the introduction of new means tests within this sphere may in fact lead to delays in the administration of justice.

Questions do arise as to the extent to which it may interfere with a right to a fair trial. Article 6(3)(c) of the European Convention on Human Rights provides that a person who does not have sufficient means to pay for legal assistance, should be provided with such assistance “when the interests of justice so require”. The European Court of Human Rights (ECtHR) has decided that in criminal cases a defendant must not be placed at a substantial disadvantage vis-a-vis his/her opponent (Dombo Beheer v Netherlands, para. 33).

The new proposals may also result in the delay of criminal trials, given that judicial reviews of a District Court judge’s decision to not grant legal aid may be brought by the defendant. The ECtHR will assess whether the delay is reasonable having regard to the complexity of the case, the conduct of the applicant and the relevant State authorities and the importance of what was at stake for the applicant in the litigation (see, Barry v Ireland, para. 36). It is therefore not beyond the realms of possibility that due to protracted litigation relating to the right of a defendant to be granted criminal aid, breaches of Article 6(3)(c) could not be ruled out. In relation to delay, (although not dealing in any respects with the right to criminal legal aid), the Irish Supreme Court in McFarlane v Director of Public Prosecutions [2008] IESC 7 (05 March 2008) held that there was no violation of Article 6 ECHR, where a delay of six years and four months in attempts to start the prosecution.  The defendant had taken judicial review proceedings in an attempt to prevent the prosecution. Mr. Justice Kearns noted that there was no blameworthy prosecutorial or systemic delay in the case.

It remains to be seen whether this proposal will become law, and whether this will result in delays in the prosecution of alleged offences.