Establishment of a DNA Database - Law Reform Commission

is that the taking of DNA samples should be available to the Gardaí when aperson is arrested, regardless of the nature of the offence. This leads to therelated proposal that, whenever a DNA sample is obtained from any arrestedperson, the DNA profile generated should be retained indefinitely where theperson is convicted of the offence for which they were arrested, regardless ofwhether they receive a custodial sentence or not. In such a situation, wherethe person is not convicted of the offence and that offence is not anarrestable offence, the profile should be destroyed. The Commissionconsiders that the introduction of mandatory DNA testing of all arresteeswould be a radical step. The Commission notes that the current power totake photographs and fingerprints is not as extensive as this proposal. Inaddition, it is worth noting that individuals arrested for minor offences maynot even be detained under the present law. If such a proposal wasimplemented, it is likely that forensic sampling would become a routineprocedure on arrest to aid in both identification and crime investigation. TheCommission considers that such an interference with an individual’s right toprivacy and bodily integrity would be disproportionate in the light of theprovisions of the European Convention of Human Rights. The Commissionagrees with the views widely expressed that forensic profiling shouldprimarily be confined to serious offences.2.44 In addition, the Commission is anxious to emphasise that underthe current statutory provisions, DNA sampling is permissible in relation to awide range of offences. The present situation allows for the DNA samplingof suspects in the bulk of cases which involve an ‘offence against theperson’, with assault being the notable exception. The penalty for assaultunder section 2 of the Non-Fatal Offences Against the Person Act 1997 is afine or imprisonment for a term not exceeding 6 months or both.Consequently, an individual may not be detained under the 1939, 1984 or1996 Act for this offence. However, an individual suspected of an assaultcausing harm 38 may be prosecuted on indictment as well as summarily. Aconviction on indictment carries a maximum penalty of a fine or five yearsimprisonment, or both. Assault causing serious harm 39 carries a penalty of afine or imprisonment of a term up to life. As a result, an individual arrestedfor either of these types of assault may be detained under section 4 of theCriminal Justice Act 1984 and a DNA sample may be obtained in the usualway. DNA sampling is available for the majority of sexual offencesincluding rape, sexual assault, aggravated sexual assault, rape under section4, unlawful carnal knowledge of a girl under 15 years and unlawful carnalknowledge of a girl between 15 and 17 years of age. In addition, DNAsampling is available for the majority of property offences, including theft,3839Section 3 of the Non-Fatal Offences Against the Person Act 1997.Section 4 of the 1997 Act.29