(i) at any time before or after the commencement of this section has been or is convicted outside the State of an offence, and (ii) at any time after that commencement, is serving a sentence of detention, or the balance thereof, in the State in respect of that offence pursuant to— (I)a warrant issued by the High Court under the Transfer of Sentenced Persons Act 1995 authorising the bringing of the child into the State and his or her detention in a children detention school or a place of detention, or (II)an order of the High Court under the Transfer of Execution of Sentences Act 2005 committing the child to Saint Patrick’s Institution, provided that, when issuing the warrant or making the order, as the case may be, the offence that the High Court determined to be the corresponding offence in the State to that offence is a relevant offence, or (d) who may fall under paragraph (a), (b) or (c) and who, on or at any time after the commencement of this section is, or becomes, subject to the requirements of Part 2 of the Sex Offenders Act 2001 (in this Act called a “sex offender”).
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(2)A sample taken from a child offender under this section shall be used to generate a DNA profile in respect of the child offender to be entered in the reference index of the DNA Database System.
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(3)Subject to section 156
\n
(2), a sample under this section shall be taken from a child offender as soon as practicable after the commencement of this section or he or she becomes a child offender, whichever occurs first and, in any event, the sample shall be taken from him or her before the expiry of the sentence concerned or, if he or she is a sex offender, before the end of the notification period.
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(4)Subject to this Act, an authorised member of the staff of a children detention school in which a child offender is detained or a prison officer of a place of detention in which the child offender is detained may take, or cause to be taken, a sample under this section from the child offender.
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(5)A sample under this section shall be taken from a child offender referred to in subsection (4) in the children detention school or, as the case may be, the place of detention in which he or she is detained, but only if the Director of the children detention school or the governor of the place of detention, as the case may be, authorises it to be taken.
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(6)Subject to this Act, a member of the Garda Síochána may take, or cause to be taken, a sample under this section from a child offender who is not in a children detention school or a place of detention.
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(7)A sample under this section may be taken from a child offender referred to in subsection (6) only if— (a) a member of the Garda Síochána not below the rank of sergeant authorises it to be taken, and (b) the child offender attends at a Garda Síochána station in accordance with this section for the purpose of having the sample taken from him or her.
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(8)An authorised member of the staff of a children detention school, a prison officer of a place of detention or a member of the Garda Síochána, as may be appropriate, shall inform a child offender of the following before taking, or causing to be taken, a sample under this section from him or her: (a) that an authorisation to take the sample from him or her has been given under subsection (5) or (7)(a), as the case may be; (b) in a case in which a sample already taken under this section from the child offender has proved to be insufficient— (i) that that sample has proved to be insufficient, and (ii) that either— (I) another authorisation under subsection (5) or (7)(a), as the case may be, is not, by virtue of section 3
\n
(6), required, or (II) an authorisation to take a second sample under this section from him or her has, in accordance with section 38
\n
(4), been given under subsection (5) or, if appropriate, that an authorisation under section 38
\n
(8)(a) has been given for the taking of a second such sample from him or her; (c) if appropriate, that where the child offender fails or refuses to allow the sample to be taken from him or her, reasonable force may be used in accordance with section 36 to take the sample; (d) that the sample will be used to generate a DNA profile in respect of the child offender to be entered in the reference index of the DNA Database System and the effect of such an entry; (e) that the sample, or the DNA profile generated from the sample in respect of the person, may be transmitted or provided to a person or body in connection with the investigation of criminal offences or criminal proceedings (whether within or outside the State) as provided for in or permitted by this Act; and (f) that the sample may be destroyed, and the DNA profile in respect of the child offender entered in the reference index of the DNA Database System may be removed from that System, in accordance with Part 10.
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(9)Where a sample under this section has not been taken from a child offender in a children detention school or a place of detention, a member of the Garda Síochána not below the rank of inspector in the Garda Síochána district in which the child offender ordinarily resides may require the child offender by notice in writing to attend at a specified Garda Síochána station within the period specified in subsection (11)(a) for the purpose of having such a sample taken from him or her.
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(10)A notice under subsection (9)shall also be sent to a parent or guardian of the child offender concerned.
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(11)A requirement in a notice under subsection (9)to attend at a specified Garda Síochána station— (a) shall give the child offender concerned a period of not less than 10 working days within which he or she shall so attend, and (b) may direct the child offender concerned to so attend on specified days and at a specified time of day or between specified times of day.
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(12)A child offender who fails or refuses, without reasonable cause, to comply with a notice under subsection (9) shall be guilty of an offence and shall be liable on summary conviction to a class C fine or detention for a period not exceeding 6 months or both.
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(13)For the avoidance of doubt it is hereby declared that references in this section to a relevant offence shall, in the case of a child offender aged 10 or 11 years, be construed as references to an offence referred to in section 52(2) of the Act of 2001.
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(14)In this section references to a sentence of detention imposed by a court on a child offender include references to a sentence of detention imposed by a court on the child offender the execution of the whole or a part of which is suspended.
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(15)In this section— “the end of the notification period”, in relation to a sex offender, means the end of the period for which he or she is subject to the requirements of Part 2 of the Sex Offenders Act 2001 ; “the expiry of the sentence”, in relation to a child offender other than a sex offender, means— (a) in the case of a child offender falling under paragraph (a) or (b) of subsection (1), the expiry of the sentence of detention imposed by a court on him or her in respect of the relevant offence concerned, (b) in the case of a child offender falling under subsection (1)(c), the expiry of the sentence of detention determined by the High Court in respect of the offence concerned of which he or she was convicted outside the State— (i) on his or her transfer to the State and detention in a children detention school or a place of detention in the State under the Transfer of Sentenced Persons Act 1995 , or (ii) on his or her committal to Saint Patrick’s Institution under the Transfer of Execution of Sentences Act 2005 , as the case may be; “permitted absence”, in relation to the absence of a child offender from a children detention school, means— (a) the absence of the child offender from the school pursuant to an order under section 202 or 203 of the Act of 2001, (b) the absence of the child offender from the school on a mobility trip within the meaning of section 204 of the Act of 2001, (c) the absence of the child offender on temporary leave from the school granted in accordance with sections 205 and 206 of the Act of 2001, or (d) the placing out of the child offender under supervision in the community under section 207 of the Act of 2001; “temporary release”, in relation to a child offender, means the release of the child offender from a place of detention for a temporary period in accordance with a direction given by the Minister under section 2 of the Criminal Justice Act 1960 .
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Former offenders 33. (1) Subject to this section, a sample may be taken under section 34 from a person (including a child) (in this Act called a “former offender”)— (a) who at any time before the commencement of sections 31 and 32 would, if those sections had been in operation at that time, have been an offender or a child offender but who, on the commencement of those sections, was not an offender or a child offender, as the case may be, by reason of the fact that— (i) the sentence for the offence concerned of which the person had been convicted had expired, or (ii) in the case of a sex offender, the notification period had ended, (b) who at any time after the commencement of sections 31 and 32 was an offender or a child offender and— (i) a sample under those sections— (I) was not taken from him or her, or (II) was taken from him or her but the sample has proved to be insufficient, and (ii) who is no longer an offender or a child offender, as the case may be, by reason of the fact that— (I) the sentence for the offence concerned of which the person had been convicted has expired, or (II) in the case of a sex offender, the notification period has ended, or (c) who— (i) whether before or after the commencement of sections 31 and 32 has been or is convicted, in a place other than the State, of an offence that corresponds to a relevant offence or a sexual offence and has been or is sentenced in that place in respect of that offence, and (ii) is no longer subject to that sentence.
\n
(2)A person shall not be a former offender unless— (a) insofar as it can reasonably be ascertained, his or her DNA profile is not entered in the reference index of the DNA Database System, and (b) having regard to the following matters, a member of the Garda Síochána not below the rank of superintendent or a judge of the District Court, as the case may be, is satisfied that it is appropriate for a sample under section 34 to be taken from the person: (i) the number of relevant offences or sexual offences of which the person has been convicted; (ii) the seriousness of the relevant offence or offences or sexual offence or offences of which the person has been convicted; (iii) the nature of the relevant offence or offences or sexual offence or offences of which the person has been convicted and whether evidence relating to DNA is likely to assist with the investigation or prosecution of such an offence or such offences; (iv) the duration of the sentence or sentences of imprisonment or detention imposed on the person in respect of the relevant offence or offences or sexual offence or offences of which he or she has been convicted; (v) the period that has elapsed since the expiry of the sentence for the relevant offence concerned or, if more than one such offence, the expiry of the sentence for the relevant offence that was the last to expire or, if the person was convicted of a sexual offence, the period that has elapsed since the end of the notification period or, if more than one such period, the end of the last one; (vi) in relation to any offence of which the person was convicted when he or she was a child if the conviction is one to which this section applies, the age of the person at the time of such conviction; (vii) any other matter that the member of the Garda Síochána or the judge, as the case may be, considers appropriate.
\n
(3)A person shall not be a former offender if a period of not less than 10 years, or such shorter period as may be prescribed by the Minister, has elapsed since— (a) the expiry of the sentence for a relevant offence of which the person has been convicted or, if more than one such offence, the expiry of the sentence for the relevant offence that was the last to expire, or (b) if the person was convicted of a sexual offence, the end of the notification period or, if more than one such period, the end of the last one, whichever is the later.
\n
(4)A person shall not be a former offender unless he or she— (a) is ordinarily resident in the State, or (b) has his or her principal residence in the State.
\n
(5)This section shall, in relation to a relevant offence or a sexual offence of which a person was convicted when he or she was a child, apply to the conviction for the offence concerned— (a) in the case of a conviction in the State, only if the offence concerned is one that is required to be tried by the Central Criminal Court, or (b) in the case of a conviction in a place other than the State, only if the offence concerned is one that corresponds to an offence that is required to be tried by the Central Criminal Court.
\n
(6)In this section references to— (a) a relevant offence shall include references to an offence under the law of a place other than the State that corresponds to a relevant offence, and (b) a sexual offence shall include references to an offence under the law of a place other than the State that corresponds to a sexual offence.
\n
(7)For the purposes of this section— (a) an offence under the law of a place other than the State corresponds to a relevant offence where the act or omission constituting the offence under the law of that place would, if done or made in the State, constitute a relevant offence, and (b) an offence under the law of a place other than the State corresponds to a sexual offence where the act constituting the offence under the law of that place would, if done in the State, constitute a sexual offence.
\n
(8)In this section references, in relation to a person who was convicted of a sexual offence, to the end of the notification period shall include references to the end of the equivalent period under the law of a place other than the State in which the person was convicted during which information of a similar nature to that required to be notified by a person who is subject to the requirements of Part 2 of the Sex Offenders Act 2001 is to be notified to the police in that place.
\n
(9)In this section references to a sentence of imprisonment or detention imposed on a person include references to— (a) a sentence of imprisonment or detention imposed on the person the execution of the whole or a part of which is suspended, and (b) in the case of a person other than a child, a sentence of imprisonment imposed on the person following the contravention by him or her of a condition in an order made by a court under section 100 of the Criminal Justice Act 2006 .
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(10)In this section— “the end of the notification period”, in relation to a person who was convicted of a sexual offence, means the end of the period for which he or she was subject to the requirements of Part 2 of the Sex Offenders Act 2001 ; “the expiry of the sentence”, in relation to a person, means— (a) the expiry of the sentence of imprisonment or detention imposed on him or her by a court in respect of a relevant offence of which he or she was convicted, or (b) the expiry of the sentence of imprisonment or detention determined by the High Court in respect of an offence of which he or she was convicted outside the State— (i) on his or her transfer to the State and imprisonment or detention, as may be appropriate, in a prison, a children detention school or a place of detention, as the case may be, in the State under the Transfer of Sentenced Persons Act 1995 , or (ii) on his or her committal to a prison or Saint Patrick’s Institution under the Transfer of Sentenced Persons Act 1995 , as the case may be; “police”, in relation to a place referred to in subsection (8), means any police force in that place, or a member thereof, whether that force is organised at a national, regional or local level.
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Taking of samples from former offenders 34. (1) A sample taken under this section from a former offender shall be used to generate a DNA profile in respect of the former offender to be entered in the reference index of the DNA Database System.
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(2)If a member of the Garda Síochána not below the rank of superintendent is satisfied that— (a) a person is a former offender, and (b) it is in the interests of the protection of society, and it is desirable for the purpose of assisting the Garda Síochána in the investigation of offences, to have a sample under this section taken from the person, the member may authorise the making of a request of the person under subsection (3).
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(3)A member of the Garda Síochána may, if so authorised under subsection (2), request a person in respect of whom the authorisation under that subsection has been given to have a sample under this section taken from him or her.
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(4)A member of the Garda Síochána who makes a request under subsection (3) shall indicate to the person concerned that if he or she does not comply with the request that an application may be made to a judge of the District Court under subsection (6) for an order to authorise the sending of a notice under that subsection to him or her.
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(5)If a person of whom a request is made under subsection (3) does not comply with the request, an application may be made for an order under subsection (6).
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(6)A judge of the District Court may, on an application in that behalf by a member of the Garda Síochána not below the rank of superintendent, make an order authorising the Garda Síochána to send a notice to a person requiring him or her to attend at a named Garda Síochána station on a day, and at a time of day or between times of day, specified in the notice for the purpose of having a sample under this section taken from him or her if the judge is satisfied that— (a) the person is a former offender, and (b) it is in the interests of justice in all the circumstances of the case to make the order.
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(7)If an order is made under subsection (6), a notice pursuant to the order may be sent by a member of the Garda Síochána to the former offender concerned.
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(8)A notice under subsection (7) shall, in the case of a child, also be sent to a parent or guardian of the child and, if the member of the Garda Síochána sending the notice knows or believes that the former offender to whom the notice is being sent is a protected person, the member shall also send the notice to a parent or guardian of the person.
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(9)Subject to this Act, a member of the Garda Síochána may take, or cause to be taken, from a former offender a sample under this section.
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(10)A member of the Garda Síochána shall inform a former offender of the following before taking, or causing to be taken, a sample under this section from him or her: (a) that an authorisation to request a sample under this section from the former offender has been given under subsection (2) or, as may be appropriate, a judge of the District Court has made an order under subsection (6) authorising the sending of a notice under that subsection to him or her requiring him or her to attend at a named Garda Síochána station for the purpose of having a sample under this section taken from him or her; (b) in a case in which a sample already taken under this section from the former offender has proved to be insufficient— (i) that that sample has proved to be insufficient, and (ii) that a request for the taking of a second sample from him or her has been made under subsection (1) of section 39 or a judge of the District Court has made an order under subsection (4) of that section for the taking of a second sample from him or her, as may be appropriate; (c) that the sample will be used to generate a DNA profile in respect of the former offender to be entered in the reference index of the DNA Database System and the effect of such an entry; (d) that the sample, or the DNA profile generated from the sample in respect of the person, may be transmitted or provided to a person or body in connection with the investigation of criminal offences or criminal proceedings (whether within or outside the State) as provided for in or permitted by this Act; and (e) that the sample may be destroyed, and the DNA profile in respect of the former offender entered in the reference index of the DNA Database System may be removed from that System, in accordance with Part 10.
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(11)Subject to subsection (12), a person who fails or refuses, without reasonable cause, to comply with a notice under subsection (7), shall be guilty of an offence and shall be liable on summary conviction— (a) if the person is not a child, to a class A fine or imprisonment for a term not exceeding 12 months or both, and (b) if the person is a child, to a class C fine or detention for a term not exceeding 6 months or both.
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(12)It shall be a defence in proceedings for an offence under subsection (11) for the person charged with the offence to show that he or she is not a former offender.
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Taking of samples from deceased persons suspected of commission of relevant offence 35. (1) A sample may be taken under this section from the body of a deceased person for the purpose of generating a DNA profile in respect of the person to be entered in the reference index of the DNA Database System.
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(2)A member of the Garda Síochána not below the rank of superintendent may apply to a judge of the District Court for an order under this section where he or she has reasonable grounds— (a) for suspecting that a person, who has since died, committed a relevant offence, and (b) for believing that the taking of a sample from the body of the person, the generation of a DNA profile from the sample in respect of the person and the entry of the DNA profile in the reference index of the DNA Database System would further the investigation of the relevant offence concerned.
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(3)A member of the Garda Síochána who intends to make an application under subsection (2) shall inform— (a) subject to subsection (4) and insofar as it is practicable to do so, a member of the family of the deceased person concerned, and (b) where the death of the deceased person concerned is reportable to a coroner under the Coroners Act 1962 , the coroner to whom it is reportable, of that intention.
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(4)The member of the Garda Síochána referred to in subsection (3) shall not be required to comply with that subsection insofar as it relates to a member of the family of the deceased person concerned if he or she is of opinion that it is not appropriate to do so because of a risk of prejudice to the investigation of the relevant offence concerned.
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(5)If, on an application under subsection (2), a judge of the District Court is satisfied that— (a) there are reasonable grounds for suspecting that the deceased person concerned committed the relevant offence concerned, (b) there are reasonable grounds for believing that the taking of a sample from the body of the deceased person concerned, the generation of a DNA profile from the sample in respect of that person and the entry of the DNA profile in the reference index of the DNA Database System would further the investigation of the relevant offence concerned, and (c) it would, in all the circumstances of the case, be in the interests of justice to make an order under this section, the judge may make an order authorising the Garda Síochána to cause to be taken from the body of the deceased person concerned a sample under this section.
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(6)The owner or occupier of the place in which the body of the deceased person concerned is located shall permit entry to the place for the purpose of having a sample under this section taken from the body of that person pursuant to an order under subsection (5).
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(7)In addition to an order under subsection (5), a judge of the District Court may, on an application in that behalf by a member of the Garda Síochána not below the rank of superintendent, make such other orders— (a) authorising the entry and search of a place where it is believed the body of the deceased person concerned is located, and (b) if appropriate, the seizure of the body of that person, as are necessary for the taking of the sample concerned.
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(8)An order under subsection (7) shall be expressed, and shall operate, to authorise a named member of the Garda Síochána, accompanied by such other members of the Garda Síochána or other persons or both as the member thinks necessary— (a) to enter, at any time or times within one week of the date of the making of the order, on production if so requested of the order, and if necessary by the use of reasonable force, the place named in the order, and (b) to search that place to locate the body of the deceased person concerned and, if appropriate, to seize the body of that person.
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(9)A sample may be taken under this section from the body of the deceased person concerned and a DNA profile generated in respect of that person and entered in the reference index of the DNA Database System.
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(10)If the death of the deceased person concerned is reportable to a coroner under the Coroners Act 1962 , the coroner shall facilitate the Garda Síochána regarding the taking of a sample under this section from the body of the deceased person concerned.
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(11)Subject to this Act, a registered medical practitioner or other person prescribed for that purpose may take, or cause to be taken, a sample under this section.
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(12)When the DNA profile in respect of the deceased person concerned is entered in the DNA Database System, it may be compared with other DNA profiles in that System in accordance with section 68
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(3).
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(13)When the comparison of the DNA profile in respect of the deceased person concerned under subsection (12) has been completed, then, subject to subsection (14), the sample taken under this section from the body of that person shall be destroyed, and the DNA profile shall be removed from the DNA Database System, as soon as practicable.
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(14)If the member of the Garda Síochána in charge of the investigation of the relevant offence of which the deceased person concerned is suspected is satisfied that the sample and the DNA profile in respect of that deceased person should not be destroyed, the sample and the DNA profile may be retained for the purposes of that investigation for such period as he or she considers appropriate.
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(15)Nothing in this section shall authorise the exhumation of the body of a deceased person.
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(16)In this section “place” includes a dwelling.
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Use of reasonable force to take sample from offender or child offender 36. (1) Without prejudice to the generality of section 31 , where an offender who is in prison fails or refuses to allow a sample to be taken from him or her pursuant to that section, a prison officer and the prison officer or officers assisting that officer, may use such force as is reasonably considered necessary to take the sample or to prevent the loss, destruction or contamination of the sample or both.
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(2)Without prejudice to the generality of section 32 , where a child offender who is detained in a children detention school or a place of detention fails or refuses to allow a sample to be taken from him or her pursuant to that section— (a) an authorised member of the staff of a children detention school and the authorised member or members of the staff of the school assisting that member of the staff, or (b) a prison officer of a place of detention and the prison officer or officers assisting that officer, as the case may be, may use such force as is reasonably considered necessary to take the sample or to prevent the loss, destruction or contamination of the sample or both.
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(3)The power referred to in subsection (1) or (2) shall not be exercised, as may be appropriate, by— (a) a prison officer, unless the governor of the prison authorises it, (b) an authorised member of the staff of a children detention school, unless the Director of the school authorises it, or (c) a prison officer of a place of detention, unless the governor of the place of detention authorises it.
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(4)Where it is intended to exercise the power conferred by subsection (1) or (2), one of the prison officers or the authorised members of the staff of the children detention school or the prison officers of the place of detention, as the case may be, concerned shall inform the offender or child offender concerned— (a) of that intention, and (b) that an authorisation to do so has been given under subsection (3).
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(5)A sample to be taken pursuant to this section shall be taken— (a) in the presence of the governor of the prison, if taken by a prison officer, (b) in the presence of the Director of a children detention school, if taken by an authorised member of the staff of the school, or (c) in the presence of the governor of a place of detention, if taken by a prison officer of the place of detention.
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(6)In relation to the exercise of the powers conferred by subsections (1) and (2)— (a) the governor of the prison, in the case of prison officers, (b) the Director of the children detention school, in the case of authorised members of the staff of the school, and (c) the governor of the place of detention, in the case of prison officers of the place of detention, who is present under subsection (5) for the taking of a sample pursuant to this section, shall determine the number of prison officers, authorised members of the staff of the school or prison officers of the place of detention, as the case may be, that is reasonably necessary for the purposes of subsection (1) or (2), as the case may be.
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(7)The taking of a sample pursuant to this section shall be recorded by electronic or similar means.
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Giving of information under Part 4 to protected persons or children 37. (1) The information to be given under section 31
\n
(8), 32
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(8), 34
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(10)or 36
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(4)shall, in the case of a protected person, be given insofar as it is practicable to do so in a manner and in language that are appropriate to the level of understanding of the person.
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(2)The information to be given under section 32
\n
(8), 34
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(10)or 36
\n
(4)shall, in the case of a child, be given insofar as it is practicable to do so in a manner and in language that are appropriate to the age and level of understanding of the child.
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Re-taking of samples under section 31 or 32 in certain circumstances 38. (1) Where a sample taken from an offender under section 31 proves to be insufficient, a second such sample may be taken from him or her in accordance with this section before the expiry of the sentence concerned or, if the offender is a sex offender, before the end of the notification period.
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(2)Where a sample taken from a child offender under section 32 proves to be insufficient, a second such sample may be taken from him or her in accordance with this section before the expiry of the sentence concerned or, if the child offender is a sex offender, before the end of the notification period.
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(3)If an offender is in prison, a prison officer may take, or cause to be taken, a second sample under section 31 from the offender in accordance with that section only if, subject to section 3
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(6)and subsection (6), an authorisation to take the second sample is given under section 31
\n
(5).
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(4)If a child offender is in a children detention school or a place of detention, an authorised member of the staff of the children detention school or a prison officer of the place of detention may take, or cause to be taken, a second sample under section 32 from the child offender in accordance with that section only if, subject to section 3
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(6)and subsection (6), an authorisation to take the second sample is given under section 32
\n
(5).
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(5)If at the time a sample taken from a child offender under section 32 proves to be insufficient, he or she is in prison, a prison officer may take, or cause to be taken, a second sample from him or her in accordance with section 31 only if, subject to section 3
\n
(6)and subsection (6), an authorisation to take the second sample is given under section 31
\n
(5).
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(6)An authorisation under section 31
\n
(5)or 32(5) to take a second sample from an offender referred to in subsection (3), or a child offender referred to in subsection (4) or (5), as the case may be, may be given on one occasion only.
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(7)If an offender is not in prison, a second sample under section 31 may be taken from him or her in accordance with that section only if— (a) a member of the Garda Síochána not below the rank of inspector authorises it to be taken, and (b) the offender attends at a Garda Síochána station in accordance with this section for the purpose of having the second sample taken from him or her.
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(8)Subject to subsection (5), if a child offender is not detained in a children detention school or a place of detention, a second sample under section 32 may be taken from him or her in accordance with that section only if— (a) a member of the Garda Síochána not below the rank of inspector authorises it to be taken, and (b) the child offender attends at a Garda Síochána station in accordance with this section for the purpose of having the second sample taken from him or her.
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(9)An authorisation under subsection (7)(a) or (8)(a) to take a second sample from an offender or a child offender in accordance with subsection (7) or (8), as the case may be— (a) may be given on one occasion only, and (b) may not be given if a period of more than 6 months has elapsed since the first sample concerned was taken from the offender or child offender concerned.
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(10)If an authorisation under subsection (7)(a) or (8)(a) to take a second sample from an offender or a child offender has been given, a member of the Garda Síochána may require the offender or child offender, as the case may be, by notice in writing to attend at a specified Garda Síochána station within the period specified in subsection (12)(a) for the purpose of having a second sample taken from him or her.
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(11)A notice under subsection (10) shall, in the case of a child, also be sent to a parent or guardian of the child and, if the member of the Garda Síochána knows or believes that the person to whom the notice is being sent is a protected person, the member shall also send the notice to a parent or guardian of the person.
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(12)A notice under subsection (10) shall state that the first sample concerned taken from the offender or child offender concerned has proved to be insufficient, and a requirement in the notice to attend at a specified Garda Síochána station— (a) shall give the offender or child offender concerned a period of not less than 10 working days within which he or she shall so attend, and (b) may direct the offender or child offender concerned to so attend on specified days and at a specified time of day or between specified times of day.
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(13)An offender or a child offender who fails or refuses, without reasonable cause, to comply with a notice under subsection (10), shall be guilty of an offence and shall be liable on summary conviction— (a) in the case of an offender, to a class A fine or imprisonment for a term not exceeding 12 months or both, and (b) in the case of a child offender, to a class C fine or detention for a period not exceeding 6 months or both.
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(14)Nothing in this section shall require the second sample to be taken from an offender or child offender in accordance with this section to be of the same type of biological material as the first sample taken from the offender or child offender which proved to be insufficient, provided that the second sample is one that is permitted to be taken under this Part.
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(15)A sample taken from an offender or a child offender in accordance with this section shall, for the purposes of this Act, be regarded as if it had been taken from the offender or child offender under section 31 or 32 , as may be appropriate.
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(16)In this section references to a child offender in relation to the taking of a second sample from him or her shall include references to a person who is no longer a child at the time the first sample taken from him or her proves to be insufficient.
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(17)In this section— “the end of the notification period”, in relation to an offender or a child offender who is a sex offender, means the end of the period for which he or she is subject to the requirements of Part 2 of the Sex Offenders Act 2001 ; “the expiry of the sentence”— (a) in relation to an offender other than a sex offender, has the meaning it has in section 31 , and (b) in relation to a child offender other than a sex offender, has the meaning it has in section 32 .
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Re-taking of samples from former offenders 39. (1) Where a sample taken from a former offender under section 34 proves to be insufficient, a member of the Garda Síochána may, within a period of not more than 6 months from the taking of the sample, request him or her to have a second sample under that section taken from him or her.
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(2)A member of the Garda Síochána who makes a request under subsection (1) shall indicate to the former offender concerned that if he or she does not comply with the request that an application may be made to a judge of the District Court under subsection (4) for an order to authorise the sending of a notice under that subsection to him or her.
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(3)If a former offender of whom a request is made under subsection (1) does not comply with the request, an application may be made under subsection (4).
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(4)Subject to subsections (5) and (6), a judge of the District Court may, on an application in that behalf by a member of the Garda Síochána not below the rank of superintendent, make an order authorising the Garda Síochána to send a notice to a former offender requiring him or her to attend at a named Garda Síochána station on a day, and at a time of day or between times of day, specified in the notice for the purpose of having a second sample under section 34 taken from him or her.
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(5)A judge of the District Court shall not make an order under subsection (4) unless he or she is satisfied that— (a) either— (i) if an order was not made under section 34
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(6), the person concerned is a former offender, or (ii) an order was made by a judge of the District Court under subsection (6) of section 34 authorising the sending of a notice under that subsection to the former offender concerned requiring him or her to attend at a named Garda Síochána station for the purpose of having a sample under that section taken from him or her, (b) the first sample concerned was taken from the former offender concerned in accordance with section 34 , (c) that sample has proved to be insufficient, and (d) it is in the interests of justice in all the circumstances of the case to make the order under subsection (4).
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(6)An order under subsection (4)— (a) in the case of any former offender, may be made on one occasion only, and (b) in the case of a former offender who falls under section 33
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(1)(b), may not be made if a second sample has been taken from him or her in accordance with section 38 .
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(7)If an order is made under subsection (4), a notice under that subsection may be sent by a member of the Garda Síochána to the former offender concerned.
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(8)A notice under subsection (4) shall, in the case of a child, also be sent to a parent or guardian of the child and, if the member of the Garda Síochána sending the notice knows or believes that the former offender to whom the notice is being sent is a protected person, the member shall also send the notice to a parent or guardian of the person.
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(9)Nothing in this section shall require the second sample to be taken from a former offender in accordance with this section to be of the same type of biological material as the first sample taken from him or her which proved to be insufficient, provided that the second sample is one that is permitted to be taken under this Part.
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(10)A sample taken from a former offender in accordance with this section shall, for the purposes of this Act, be regarded as if it had been taken from the former offender under section 34 .
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(11)Subject to subsection (12), a person who fails or refuses, without reasonable cause, to comply with a notice under subsection (4) shall be guilty of an offence and shall be liable on summary conviction— (a) if the person is not a child, to a class A fine or imprisonment for a term not exceeding 12 months or both, and (b) if the person is a child, to a class C fine or detention for a period not exceeding 6 months or both.
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(12)It shall be a defence in proceedings for an offence under subsection (11) for the person charged with the offence to show that he or she is not a former offender.
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PART 5
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Taking of Samples for Elimination Purposes Definitions (Part 5) 40. In this Part— “contamination”, in relation to a crime scene sample, means the inadvertent incorporation in the crime scene sample of the DNA of a person to whom this Part applies during— (a) his or her attendance at the crime scene concerned in the execution of his or her duties, (b) the conduct of the investigation of an offence or incident that may have involved the commission of an offence, or (c) the examination or analysis of that sample; “member of the Garda Síochána” has the meaning it has in section 3 of the Act of 2005.
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Taking of samples from Garda Síochána personnel for elimination (Garda Síochána) index 41. (1) A sample taken under this section from a person shall be used to generate a DNA profile in respect of the person to be entered in the elimination (Garda Síochána) index of the DNA Database System for the purpose, in relation to the investigation of offences, of ascertaining whether that person has contaminated a crime scene sample.
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(2)A sample shall be taken under this section from the following: (a) a member of the Garda Síochána, other than a member of the Garda Síochána to whom section 42
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(2)(a) applies, who is appointed as such a member after the commencement of this section; (b) a person who is, after the commencement of this section, admitted in accordance with the Act of 2005 to training for membership (including as a reserve member within the meaning of section 3 of that Act) of the Garda Síochána, other than such a person to whom section 42
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(2)(b) applies.
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(3)A sample may be taken under this section from— (a) a member of the Garda Síochána, other than a member of the Garda Síochána to whom section 42
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(3)(a) applies, who is such a member upon the commencement of this section, or (b) a person who is, on the commencement of this section, admitted in accordance with the Act of 2005 to training for membership (including as a reserve member within the meaning of section 3 of that Act) of the Garda Síochána, other than such a person to whom section 42
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(3)(b) applies, only if he or she consents in writing to having such a sample taken from him or her.
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(4)A member of the Garda Síochána or an authorised person shall inform a person to whom this section applies of the following before taking, or causing to be taken, a sample under this section from him or her: (a) that the sample is to be taken from him or her under this section; (b) in a case in which a sample already taken under this section from the person has proved to be insufficient or was inadequately labelled or for any other reason mentioned in section 47
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(1)a second or further sample under this section is required to be taken from him or her— (i) that the first-mentioned sample has proved to be insufficient, was inadequately labelled or that other reason for requiring a second or further sample under this section to be taken, as may be appropriate, and (ii) that a second or further sample under this section is, in accordance with section 47
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(1), to be taken from him or her; (c) that the sample will be used to generate a DNA profile in respect of the person to be entered in the elimination (Garda Síochána) index of the DNA Database System and the effect of such an entry; (d) that if the person is, at any time after the taking of the sample, assigned to duties relating to the investigation or technical examination of crime scenes or anything found at or recovered from crime scenes, the DNA profile in respect of the person will be transferred from the elimination (Garda Síochána) index to the elimination (crime scene investigators) index of the DNA Database System; (e) that, in the case of a person referred to in subsection (2)(b) or (3)(b), if he or she is at any time after the taking of the sample appointed as a member of the Garda Síochána, the DNA profile generated from the sample in respect of the person and entered in the elimination (Garda Síochána) index of the DNA Database System may be retained in that index of that System in accordance with subsection (8); and (f) that the sample may be destroyed, and the DNA profile in respect of the person entered in the elimination (Garda Síochána) index or elimination (crime scene investigators) index, as the case may be, of the DNA Database System may be removed from that System, in accordance with Part 10.
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(5)Subject to this Act, a member of the Garda Síochána or an authorised person may take, or cause to be taken, a sample under this section from a person to whom this section applies.
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(6)A sample that was taken before the commencement of this section from a person referred to in subsection (3)for the purpose, in relation to the investigation of offences, of ascertaining whether that person has contaminated a crime scene sample, and any DNA profile that was generated from the sample in respect of the person, shall be regarded as a sample taken from him or her under this section and a DNA profile generated from the sample to be entered in the elimination (Garda Síochána) index of the DNA Database System in respect of him or her only if— (a) that person consents in writing to the sample and DNA profile concerned being so regarded, and (b) before the consent referred to in paragraph (a)is obtained, subsection (4) shall, with any necessary modifications, be applied in relation to that person.
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(7)If a person from whom a sample is taken, or is regarded under subsection (6) as having been taken, under this section is, at any time after the sample is taken or so regarded as having been taken, assigned to duties relating to the investigation or technical examination of crime scenes or anything found at or recovered from crime scenes, the DNA profile that was generated from the sample in respect of the person shall be transferred from the elimination (Garda Síochána) index to the elimination (crime scene investigators) index of the DNA Database System.
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(8)If a person referred to in subsection (2)(b) or (3)(b) is at any time after a sample is taken, or in the case of a person referred to in subsection (3)(b) is regarded under subsection (6) as having been taken, from him or her under this section appointed as a member of the Garda Síochána, the DNA profile generated from the sample in respect of the person and entered in the elimination (Garda Síochána) index of the DNA Database System may be retained in that index of that System as if it were generated from a sample taken from the person under subsection (2)(a).
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Taking of samples from Garda Síochána personnel for elimination (crime scene investigators) index 42. (1) A sample taken under this section from a person shall be used to generate a DNA profile in respect of the person to be entered in the elimination (crime scene investigators) index of the DNA Database System for the purpose, in relation to the investigation of offences, of ascertaining whether that person has contaminated a crime scene sample.
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(2)A sample shall be taken under this section from any of the following who is assigned to duties relating to the investigation or technical examination of crime scenes or anything found at or recovered from crime scenes: (a) a member of the Garda Síochána who is appointed as such a member after the commencement of this section; (b) a person who is, after the commencement of this section, admitted in accordance with the Act of 2005 to training for membership (including as a reserve member within the meaning of section 3 of that Act) of the Garda Síochána; (c) a member of the civilian staff of the Garda Síochána who is appointed as such a member of staff after the commencement of this section.
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(3)A sample may be taken under this section from any of the following who is assigned to duties relating to the investigation or technical examination of crime scenes or anything found at or recovered from crime scenes only if he or she consents in writing to having such a sample taken from him or her: (a) a member of the Garda Síochána who is such a member upon the commencement of this section; (b) a person who is, on the commencement of this section, admitted in accordance with the Act of 2005 to training for membership (including as a reserve member within the meaning of section 3 of that Act) of the Garda Síochána; (c) a member of the civilian staff of the Garda Síochána who is such a member of staff upon the commencement of this section.
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(4)A member of the Garda Síochána or an authorised person shall inform a person to whom this section applies of the following before taking, or causing to be taken, a sample under this section from him or her: (a) that the sample is to be taken from him or her under this section; (b) in a case in which a sample already taken under this section from the person has proved to be insufficient or was inadequately labelled or for any other reason mentioned in section 47
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(1)a second or further sample under this section is required to be taken from him or her— (i) that the first-mentioned sample has proved to be insufficient, was inadequately labelled or that other reason for requiring a second or further sample under this section to be taken, as may be appropriate, and (ii) that a second or further sample under this section is, in accordance with section 47
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(1), to be taken from him or her; (c) that the sample will be used to generate a DNA profile in respect of the person to be entered in the elimination (crime scene investigators) index of the DNA Database System and the effect of such an entry; (d) that if, in the case of a person referred to in paragraph (a) or (b) of subsection (2) or paragraph (a) or (b) of subsection (3), the person is no longer assigned to duties relating to the investigation or technical examination of crime scenes or anything found at or recovered from crime scenes, the DNA profile in respect of the person will be transferred from the elimination (crime scene investigators) index to the elimination (Garda Síochána) index of the DNA Database System; (e) that, in the case of a person referred to in subsection (2)(b) or (3)(b), if he or she is at any time after the taking of the sample appointed as a member of the Garda Síochána, the DNA profile generated from the sample in respect of the person and entered in the elimination (crime scene investigators) index of the DNA Database System may be retained in that index of that System in accordance with subsection (8); and (f) that the sample may be destroyed, and the DNA profile in respect of the person entered in the elimination (crime scene investigators) index or the elimination (Garda Síochána) index, as the case may be, of the DNA Database System may be removed from that System, in accordance with Part 10.
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(5)Subject to this Act, a member of the Garda Síochána or an authorised person may take, or cause to be taken, a sample under this section from a person to whom this section applies.
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(6)A sample that was taken before the commencement of this section from a person referred to in subsection (3) for the purpose, in relation to the investigation of offences, of ascertaining whether that person has contaminated a crime scene sample, and any DNA profile that was generated from the sample in respect of the person, shall be regarded as a sample taken from him or her under this section and a DNA profile generated from the sample to be entered in the elimination (crime scene investigators) index of the DNA Database System in respect of him or her only if— (a) that person consents in writing to the sample and DNA profile concerned being so regarded, and (b) before the consent referred to in paragraph (a)is obtained, subsection (4) shall, with any necessary modifications, be applied in relation to that person.
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(7)If a person referred to in paragraph (a) or (b) of subsection (2), or paragraph (a) or (b) of subsection (3), from whom a sample was taken, or is regarded under subsection (6) as having been taken, under this section is no longer assigned to duties relating to the investigation or technical examination of crime scenes or anything found at or recovered from crime scenes, the DNA profile that was generated from the sample in respect of the person shall be transferred from the elimination (crime scene investigators) index to the elimination (Garda Síochána) index of the DNA Database System.
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(8)If a person referred to in subsection (2)(b) or (3)(b) is at any time after a sample is taken, or in the case of a person referred to in subsection (3)(b) is regarded under subsection (6) as having been taken, from him or her under this section appointed as a member of the Garda Síochána, the DNA profile generated from the sample in respect of the person and entered in the elimination (crime scene investigators) index of the DNA Database System may be retained in that index of that System as if it were generated from a sample taken from the person under subsection (2)(a).
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Taking of samples from members of staff of FSI for elimination (crime scene investigators) index 43. (1) A sample taken under this section from a member of the staff of FSI shall be used to generate a DNA profile in respect of the member of staff to be entered in the elimination (crime scene investigators) index of the DNA Database System for the purpose, in relation to the investigation of offences, of ascertaining whether that member of staff has contaminated a crime scene sample.
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(2)A sample shall be taken under this section from a member of the staff of FSI who is appointed as such a member of staff after the commencement of this section.
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(3)A sample may be taken under this section from a member of the staff of FSI who is such a member of staff upon the commencement of this section only if he or she consents in writing to having such a sample taken from him or her.
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(4)A person who is authorised in writing by the Director of FSI to take samples under this section shall inform a member of the staff of FSI of the following before taking, or causing to be taken, such a sample from him or her: (a) that the sample is to be taken from him or her under this section; (b) in a case in which a sample already taken under this section from the member of staff has proved to be insufficient or was inadequately labelled or for any other reason mentioned in section 47
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(2)a second or further sample under this section is required to be taken from him or her— (i) that the first-mentioned sample has proved to be insufficient, was inadequately labelled or that other reason for requiring a second or further sample under this section to be taken, as may be appropriate, and (ii) that a second or further sample under this section is, in accordance with section 47
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(2), to be taken from him or her; (c) that the sample will be used to generate a DNA profile in respect of the person to be entered in the elimination (crime scene investigators) index of the DNA Database System and the effect of such an entry; and (d) that the sample may be destroyed, and the DNA profile in respect of the person entered in the elimination (crime scene investigators) index of the DNA Database System may be removed from that System, in accordance with Part 10.
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(5)Subject to this Act, a person who is authorised in writing by the Director of FSI to take samples under this section may take, or cause to be taken, such a sample from a member of the staff of FSI.
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(6)A sample that was taken from a member of the staff of FSI before the commencement of this section for the purpose, in relation to the investigation of offences, of ascertaining whether that member of staff has contaminated a crime scene sample, and any DNA profile that was generated from the sample in respect of the member of staff, shall be regarded as a sample taken from him or her under this section and a DNA profile generated from the sample to be entered in the elimination (crime scene investigators) index of the DNA Database System in respect of him or her only if— (a) that member of staff consents in writing to the sample and DNA profile concerned being so regarded, and (b) before the consent referred to in paragraph (a) is obtained, subsection (4) shall, with any necessary modifications, be applied in relation to that member of staff.
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Taking of samples from other persons for elimination purposes 44. (1) A sample taken under regulations made under this section from a person prescribed under subsection (2) (in this section called a “prescribed person”) shall be used to generate a DNA profile in respect of the prescribed person for the purpose, in relation to the investigation of offences, of ascertaining whether that person has contaminated a crime scene sample.
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(2)Any of the following persons may be prescribed for the purposes of this section: (a) such officers of the Minister who are assigned to perform duties in the State Pathologist’s Office of the Department of Justice and Equality as the Minister considers appropriate to prescribe; (b) such members of the staff of the Ombudsman Commission as the Minister considers appropriate to prescribe; (c) such other persons, or class of persons, as the Minister considers appropriate to prescribe who, by reason of the functions or tasks performed or carried out by them, may inadvertently contaminate crime scene samples.
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(3)The Minister may, in relation to prescribed persons, prescribe all or any of the following: (a) the circumstances in which samples shall be, or may be, taken from such persons; (b) the arrangements to be made for the taking of samples from such persons; (c) the information to be given to such persons before samples are taken from them; (d) the circumstances in which the consent of such persons is required before samples are taken from them; (e) the circumstances in which samples may be re-taken from such persons; (f) the circumstances in which DNA profiles in respect of such persons generated from the samples taken from them may be— (i) entered in the elimination (crime scene investigators) index of the DNA Database System, (ii) entered in the elimination (prescribed persons) index of that System, (iii) transferred to the elimination (crime scene investigators) index from the elimination (prescribed persons) index of that System or from the former index to the latter index of that System, or (iv) used, without entering them in the DNA Database System, to ascertain whether such persons have contaminated particular crime scene samples; (g) subject to section 90 , the circumstances in which samples taken from such persons may be destroyed and the DNA profiles in respect of such persons generated from those samples may be removed from the DNA Database System or destroyed, as may be appropriate.
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(4)Regulations made by the Minister under this section may prescribe different circumstances and different arrangements for the taking or re-taking of samples or the destruction of samples or the destruction, or removal from the DNA Database System, of DNA profiles in accordance with this section in respect of different prescribed persons or different classes of such persons.
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Direction from Commissioner for sample to be taken for elimination purposes 45. (1) If the Commissioner has good reason to believe that, in relation to the investigation of an offence, a person specified in subsection (2) has, or may have, contaminated a particular crime scene sample, the Commissioner may direct that the person shall have a sample taken from him or her under this section for the purpose, in relation to the investigation of that offence, of ascertaining whether that person has contaminated that crime scene sample.
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(2)A direction may be given under subsection (1) in respect of any of the following persons, other than a person to whom section 41
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(2)or 42(2) applies: (a) a member of the Garda Síochána; (b) a person who is in accordance with the Act of 2005 admitted to training for membership (including as a reserve member within the meaning of section 3 of that Act) of the Garda Síochána; (c) a member of the civilian staff of the Garda Síochána.
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(3)A direction under subsection (1) shall be given in writing and the Commissioner shall give, or cause to be given, a copy of it to the person to whom it relates.
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(4)A member of the Garda Síochána or an authorised person shall inform a person of the following before taking, or causing to be taken, a sample under this section from him or her: (a) that the sample is to be taken from him or her pursuant to a direction given under this section; (b) in a case in which a sample already taken under this section from the person has proved to be insufficient or was inadequately labelled or for any other reason mentioned in section 47
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(1)a second or further sample under this section is required to be taken from him or her— (i) that the first-mentioned sample has proved to be insufficient, was inadequately labelled or that other reason for requiring a second or further sample under this section to be taken, as may be appropriate, and (ii) that a second or further sample under this section is, in accordance with section 47
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(1), to be taken from him or her; (c) that the sample will be used to generate a DNA profile in respect of the person for the purpose of ascertaining whether he or she has contaminated the crime scene sample concerned; (d) that the sample, and the DNA profile in respect of the person generated from it, may be destroyed in accordance with Part 10.
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(5)Subject to this Act, a member of the Garda Síochána or an authorised person may take, or cause to be taken, a sample under this section from a person in respect of whom a direction is given under subsection (1).
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Direction from Director of FSI for sample to be taken for elimination purposes 46. (1) If the Director of FSI has good reason to believe that, in relation to the investigation of an offence, a person specified in subsection (2) has, or may have, contaminated a particular crime scene sample, the Director may direct that the person shall have a sample taken from him or her under this section for the purpose, in relation to the investigation of that offence, of ascertaining whether that person has contaminated that crime scene sample.
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(2)A direction may be given under subsection (1) in respect of a member of the staff of FSI other than a member of staff to whom section 43
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(2)applies.
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(3)A direction under subsection (1)shall be given in writing and the Director of FSI shall give, or cause to be given, a copy of it to the member of the staff of FSI to whom it relates.
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(4)A person who is authorised in writing by the Director of FSI to take samples under this section shall inform a member of the staff of FSI of the following before taking, or causing to be taken, such a sample from him or her: (a) that the sample is to be taken from him or her pursuant to a direction given under this section; (b) in a case in which a sample already taken under this section from the member of staff has proved to be insufficient or was inadequately labelled or for any other reason mentioned in section 47
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(2)a second or further sample under this section is required to be taken from him or her— (i) that the first-mentioned sample has proved to be insufficient, was inadequately labelled or that other reason for requiring a second or further sample under this section to be taken, as may be appropriate, and (ii) that a second or further sample under this section is, in accordance with section 47
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(2), to be taken from him or her; (c) that the sample will be used to generate a DNA profile in respect of the member of staff for the purpose of ascertaining whether he or she has contaminated the crime scene sample concerned; (d) that the sample, and the DNA profile in respect of the member of staff generated from it, may be destroyed in accordance with Part 10.
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(5)Subject to this Act, a person who is authorised in writing by the Director of FSI to take samples under this section may take, or cause to be taken, such a sample from a person in respect of whom a direction is given under subsection (1).
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Re-taking of samples under Part 5 47. (1) Where a sample taken from a person under section 41 , 42 or 45 proves to be insufficient or was inadequately labelled or, for any other good reason, the Commissioner considers that it is necessary for a second or further such sample to be taken from the person, a second or further sample may be taken from him or her in accordance with whichever of those sections is appropriate.
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(2)Where a sample taken from a person under section 43 or 46 proves to be insufficient or was inadequately labelled or, for any other good reason, the Director of FSI considers that it is necessary for a second or further such sample to be taken from the person, a second or further sample may be taken from him or her in accordance with whichever of those sections is appropriate.
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PART 6
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Taking of Samples from Persons or Bodies for Purposes of Identification Division of DNA Database System Taking of samples in relation to missing persons 48. (1) A sample may be taken under this section— (a) in accordance with subsection (5) in relation to a missing person who is missing in circumstances referred to in subsection (2), or (b) from a person who is a relative by blood of a missing person, for the purpose of generating a DNA profile in respect of the person concerned to be entered in the missing and unknown persons index of the DNA Database System to assist with finding or identifying the missing person.
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(2)A sample may be taken under this section for the purposes of the investigation by the Garda Síochána of the disappearance of a missing person if— (a) a member of the Garda Síochána not below the rank of inspector is satisfied that the circumstances of the disappearance so require, or (b) following a natural or other disaster, one or more persons are missing.
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(3)A sample may be taken under this section only if a member of the Garda Síochána not below the rank of inspector authorises it to be taken.
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(4)An authorisation under subsection (3) shall not be given unless the member of the Garda Síochána giving it believes that the taking of the sample concerned, the generation of a DNA profile from the sample in respect of the person concerned and the entry of the DNA profile in the missing and unknown persons index of the DNA Database System may assist with finding or identifying the missing person concerned.
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(5)In the case of a missing person, a sample of biological material from which a DNA profile may be generated may be taken under this section from the clothing or other belongings of the person or from things reasonably believed to belong to, or to have been used by, the person or with which the person was reasonably believed to have been in contact.
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(6)Subject to sections 53 and 55 , a member of the Garda Síochána or an authorised person shall inform a person referred to in subsection (1)(b) of the following before taking, or causing to be taken, a sample under this section from him or her: (a) that an authorisation to take the sample has been given under subsection (3); (b) that the person is not obliged to have a sample under this section taken from him or her; (c) in a case in which a sample already taken under this section from the person has proved to be insufficient, was inadequately labelled or for any other reason mentioned in section 50 a second or further sample is required to be taken from him or her— (i) that the first-mentioned sample has proved to be insufficient, was inadequately labelled or that other reason for requiring a second or further sample under this section to be taken, as may be appropriate, and (ii) that a second or further sample is, in accordance with section 50 , to be taken from him or her; (d) that the sample will be used to generate a DNA profile in respect of the person to be entered in the missing and unknown persons index of the DNA Database System and the effect of such an entry; and (e) that the sample may be destroyed, and the DNA profile in respect of the person entered in the missing and unknown persons index of the DNA Database System may be removed from the System, in accordance with Part 10.
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(7)Subject to sections 54 and 56 , a person referred to in subsection (1)(b) shall, before a sample is taken from him or her under this section, consent in writing to the taking of the sample and the consent shall specify the name of the missing person in connection with whose disappearance the sample is being taken.
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(8)Subject to this Act, a member of the Garda Síochána or an authorised person may take, or cause to be taken, in relation to a missing person or from a person referred to in subsection (1)(b) a sample under this section.
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(9)Subject to section 58 , if a person referred to in subsection (1)(b) expressly withdraws consent given under subsection (7) (or if the withdrawal of that consent can reasonably be inferred from the conduct of the person) before or during the taking of a sample under this section, that withdrawal of consent shall be treated as a refusal to give consent to the taking of the sample under this section.
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(10)A withdrawal under subsection (9) of consent given under subsection (7) shall be confirmed in writing as soon as practicable after such withdrawal.
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(11)A sample relating to a missing person taken before the commencement of this section that is in the possession or control of the Garda Síochána or the Director of FSI arising from the investigation of the disappearance of the missing person (whether or not taken by a member of the Garda Síochána or an authorised person) may be regarded as a sample taken in relation to the missing person under this section and subsections (1) to (5) shall apply, with any necessary modifications, to the sample.
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(12)A sample taken before the commencement of this section from a person who is a relative by blood of a missing person that is in the possession or control of the Garda Síochána or the Director of FSI arising from the investigation of the disappearance of the missing person (whether or not taken by a member of the Garda Síochána or an authorised person) may, subject to the following, be regarded as a sample taken from the person under this section: (a) where the person from whom the sample was taken is deceased, subsections (1) to (4) shall, with any necessary modifications, apply to the sample; (b) in any other case, this section, other than subsection (8), shall, with any necessary modifications, apply to the sample.
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Taking of samples from unknown persons 49. (1) A sample may be taken under this section from a person who is seriously ill or severely injured and who, by reason of the illness or injury, is unable to identify himself or herself (in this section called an “unknown person”) for the purpose of generating a DNA profile in respect of the unknown person to be entered in the missing and unknown persons index of the DNA Database System to assist with identifying that person.
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(2)A person referred to in subsection (4) may, following consultation, in the case of a person referred to in paragraph (a) or (b) of that subsection, with a member of the Garda Síochána not below the rank of inspector, make an application to the High Court for an order authorising the Commissioner to cause a sample to be taken under this section from an unknown person.
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(3)An application to the High Court under subsection (2) shall not be made in relation to an unknown person unless— (a) a registered medical practitioner is satisfied following an examination of the unknown person, and so certifies in writing, that that person is suffering from a serious illness, or has sustained a severe injury, by reason of which he or she is unable to identify himself or herself and that that inability is likely to endure for a prolonged period, and (b) the unknown person, other than a child or a protected person, has been consulted regarding the making of the application, in so far as such consultation is possible having regard to the nature and extent of the illness or injury of that person, and he or she has not indicated that he or she does not wish the application to be made.
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(4)Any of the following persons may, in relation to an unknown person, make an application to the High Court under subsection (2) in relation to the unknown person: (a) the Health Service Executive; (b) the owner or manager of a hospital or nursing home in which the unknown person is receiving care; (c) the Commissioner.
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(5)The High Court shall, on an application under subsection (2), make an order authorising the Commissioner to cause a sample to be taken under this section from the unknown person concerned if the Court considers that it is in the best interests of that person to be identified and the Court is satisfied— (a) by the evidence of a registered medical practitioner that the unknown person is suffering from a serious illness, or has sustained a severe injury, by reason of which he or she is unable to identify himself or herself and that that inability is likely to endure for a prolonged period, (b) that the taking of a sample from the unknown person under this section, the generation of a DNA profile from the sample in respect of him or her and the entry of the DNA profile in the missing and unknown persons index of the DNA Database System may assist with the identification of the unknown person, and (c) that, if appropriate, the unknown person has been consulted regarding the making of the application in accordance with subsection (3)(b) and that he or she has not indicated that he or she did not wish the application to be made.
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(6)Subject to this Act, a registered medical practitioner, a registered nurse or other person prescribed for that purpose may take, or cause to be taken, from the unknown person concerned a sample under this section.
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(7)An order of the High Court under subsection (5) shall, for the purposes of section 51
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(1), be regarded as authorising the re-taking of a sample under this section from the unknown person concerned.
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Taking of samples from bodies of unknown deceased persons 50. (1) A sample may be taken under this section from the body of a deceased person who has not been identified (in this section called an “unknown deceased person”) for the purpose of generating a DNA profile in respect of the person to be entered in the missing and unknown persons index of the DNA Database System to assist with identifying that person.
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(2)The coroner to whom the death of the unknown deceased person concerned is reported under the Coroners Act 1962 may authorise the taking of a sample under this section from the body of that person.
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(3)An authorisation under subsection (2) shall not be given unless the coroner giving it has reason to believe that the taking of a sample under this section, the generation of a DNA profile from the sample in respect of the unknown deceased person concerned and the entry of a DNA profile in the missing and unknown persons index of the DNA Database System may assist with identifying that person.
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(4)The coroner concerned shall inform a member of the Garda Síochána of the rank of superintendent in the Garda Síochána district in which the death of the unknown deceased person occurred or the body of that person was discovered that he or she has given an authorisation under subsection (2).
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(5)Subject to this Act, a registered medical practitioner or other person prescribed for that purpose may take, or cause to be taken, a sample under this section from the body of the unknown deceased person concerned.
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(6)A sample taken from the body of an unknown deceased person that is in the possession of the coroner concerned may be regarded as a sample taken from the body of that person under this section and this section shall, with any necessary modifications, apply to the sample.
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(7)A sample taken before the commencement of this section from the body of an unknown deceased person that is in the possession of the Garda Síochána, the Director of FSI or the State Pathologist, or the person acting as such, in the State Pathologist’s Office of the Department of Justice and Equality may be regarded as a sample taken from the body of that unknown deceased person under this section and this section shall, with any necessary modifications, apply to the sample.
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(8)Nothing in this section shall prevent the use of a sample taken, or regarded as having been taken, under subsection (5), and the DNA profile generated from it, for the purposes of the investigation of the death of the unknown deceased person concerned and any proceedings arising therefrom.
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Re-taking of samples under Part 6 51. (1) Where a sample taken from a person under section 48 or 49 proves to be insufficient or was inadequately labelled or, for any other good reason, a member of the Garda Síochána considers that it is necessary for a second or further such sample to be taken from the person, a second or further sample may be taken from him or her in accordance with the section concerned.
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(2)Where a sample taken under section 48 in relation to a missing person proves to be insufficient or was inadequately labelled or, for any other good reason, a member of the Garda Síochána considers that it is necessary for a second or further such sample to be taken, a second or further sample may be taken in relation to the missing person in accordance with that section.
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(3)Where a sample taken under section 50 from the body of an unknown deceased person proves to be insufficient or was inadequately labelled or, for any other good reason, the coroner to whom the death of that person is reported under the Coroners Act 1962 considers that it is necessary for a second or further such sample to be taken, a second or further sample may be taken from that body in accordance with that section.
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Part 6 not to affect provisions or powers relating to investigation of offences or investigations relating to deaths of deceased persons
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52.Nothing in this Part shall affect— (a) the operation of any provision of any other enactment, or (b) the exercise of any power by a member of the Garda Síochána or any other person or body under any other enactment or the common law, relating to the investigation of offences or investigations relating to the deaths of deceased persons.
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PART 7
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Taking of Certain Samples under Parts 3 and 6 from Protected Persons or Children Giving of information under Parts 3 and 6 to protected persons or children 53. (1) The information to be given under section 27
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(3), 29
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(4)or 48
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(6)shall, in the case of a protected person, be given insofar as it is practicable to do so in a manner and in language that are appropriate to the level of understanding of the person.
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(2)The information to be given under section 27
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(3), 29
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(4)or 48
\n
(6)shall, in the case of a child, be given insofar as it is practicable to do so in a manner and in language that are appropriate to the age and level of understanding of the child.
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Consent to taking of certain samples under Parts 3 and 6 from protected persons or children 54. (1) The references in subsection (4) of section 27 , subsection (5) of section 29 and subsection (7) of section 48 to the consent in writing of a person from whom a sample may be taken under any of those sections shall, in the case of a child who has attained the age of 16 years, be construed as references to the consent in writing of the child.
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(2)Subject to subsections (3) to (8), the references in subsection (4) of section 27 , subsection (5) of section 29 and subsection (7) of section 48 to the consent in writing of a person from whom a sample may be taken under any of those sections shall, in the case of a protected person or a child who has not attained the age of 16 years, be construed as references to— (a) in the case of a protected person, the consent in writing of a parent or guardian of the person, and (b) in the case of such a child (other than a protected person)— (i) who has attained the age of 14 years, the consent in writing of the child and of a parent or guardian of the child, (ii) who has not attained the age of 14 years, the consent in writing of a parent or guardian of the child.
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(3)If the consent in writing of a parent or guardian of a protected person, or of a child referred to in subsection (2)(b), to the taking of the sample concerned from the protected person or child, as the case may be, cannot be obtained, a grandparent, or a brother or sister who is an adult, of the protected person or child or a child who is an adult of the protected person may, subject to subsection (5), give that consent.
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(4)If— (a) the consent in writing of a parent or guardian, a grandparent, a brother or sister who is an adult of a protected person or a child referred to in subsection (2)(b), or the consent in writing of a child who is an adult of the protected person, to the taking of the sample concerned from the protected person or child, as the case may be, cannot be obtained, and (b) in the case of a child referred to in subsection (2)(b)(i), the child has consented in writing to the taking of the sample concerned from him or her, an application may be made to a judge of the District Court under section 56 for an order to authorise the taking of that sample from the protected person or child, as the case may be, without the consent referred to in paragraph (a).
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(5)Where, in relation to the investigation of an offence, a sample is to be taken under section 27 , 29 or 48 from a protected person or a child, the consent in writing of a parent or guardian, or other relative referred to in subsection (3), as the case may be, of the protected person or child to the taking of the sample concerned from the person or child shall not be sought from a parent or guardian, or such a relative, of the person or child, as the case may be, if— (a) the parent, guardian or relative has been arrested in respect of the offence, (b) a member of the Garda Síochána not below the rank of inspector has reasonable grounds for suspecting him or her of complicity in the offence, or (c) a member of the Garda Síochána not below the rank of inspector has reasonable grounds for believing that he or she is likely to obstruct the course of justice.
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(6)Subject to subsection (7), subsection (5) shall not prevent a parent or guardian, or other relative referred to in subsection (3), of a protected person or a child who does not fall under paragraph (a), (b) or (c) of subsection (5) from giving the consent required for the taking of the sample concerned from the person or child, as the case may be.
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(7)If the circumstances referred to in subsection (5) exist in relation to a parent or guardian of a protected person or a child referred to in subsection (2)(b), then, subject to subsection (6) applying to another parent or guardian of the protected person or child, an application may be made to a judge of the District Court under section 56 for an order to authorise the taking of the sample concerned from the protected person or child, as the case may be, without the consent of a parent or guardian of the person or child provided that, in the case of a child referred to in subsection (2)(b)(i), the child has consented in writing to the taking of the sample concerned from him or her.
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(8)In this section references to circumstances in which the consent of a parent or guardian, or other relative, of a protected person or child to the taking of a sample under section 27 , 29 or 48 , as the case may be, from the protected person or child, as the case may be, cannot be obtained shall be construed as references to either of the following: (a) a member of the Garda Síochána is unable, having made reasonable efforts to do so, to contact a parent or guardian, or other relative, of the protected person or child for the purposes of ascertaining whether or not he or she consents to the taking of the sample concerned from the protected person or child; or (b) the protected person or child does not have, or a member of the Garda Síochána cannot, having made reasonable efforts to do so, ascertain whether he or she has, a living parent or guardian, or other relative, from whom consent to the taking of the sample concerned from the protected person or child, as the case may be, may be sought.
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Information to be given to parents or guardians of protected persons or children or to others regarding certain samples under Parts 3 and 6 55. (1) If a member of the Garda Síochána or an authorised person is of opinion that a person from whom a sample under section 27 , 29 or 48 is to be taken is a protected person, then, subject to subsection (5) of section 54 , before the member or authorised person seeks the consent of a parent or guardian, or other relative referred to in subsection (3) of that section, of the protected person to the taking of such a sample, the member or authorised person, as the case may be, shall (in addition to informing the protected person) inform the parent or guardian, or the other relative concerned, of the protected person of the matters referred to in section 27
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(3), 29
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(4)or 48
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(6), as the case may be, in relation to that person.
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(2)Subject to subsection (5) of section 54 , before a member of the Garda Síochána or an authorised person seeks the consent of a parent or guardian, or other relative referred to in subsection (3) of that section, of a child who has not attained the age of 16 years from whom a sample under section 27 , 29 or 48 is to be taken to the taking of such a sample, the member or authorised person, as the case may be, shall (in addition to informing the child) inform the parent or guardian, or the other relative concerned, of the child of the matters referred to in section 27
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(3), 29
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(4)or 48
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(6), as the case may be, in relation to the child.
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Application for court order authorising taking of certain samples under Parts 3 and 6 from protected person or child 56. (1) In the circumstances referred to in subsection (4) or (7) of section 54 , a member of the Garda Síochána not below the rank of inspector may apply to a judge of the District Court for an order authorising the taking of a sample under section 27 , 29 or 48 , as the case may be, from the protected person or child concerned.
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(2)A judge of the District Court shall, for the purposes of determining an application under subsection (1), have regard to the following before making an order under this section: (a) if the sample concerned is required for the purposes of the investigation of a particular offence, the nature and seriousness of that offence; (b) the best interests of the protected person or child concerned; (c) in so far as they can be ascertained, the wishes of the protected person or child (in the case of a child referred to in section 54
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(2)(b)(ii)) concerned regarding whether the sample concerned should be taken from him or her; (d) whether the taking of the sample concerned is justified in all the circumstances of the case.
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(3)A judge of the District Court may, if he or she considers it appropriate to do so, make an order authorising the taking of the sample concerned from the protected person or child concerned in accordance with Part 3 or 6, as the case may be.
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Taking of certain samples under Parts 3 and 6 from protected persons or children 57. (1) Subject to subsection (2), a sample under section 27 , 29 or 48 shall, if it is reasonably practicable to do so, be taken from a protected person or a child who has not attained the age of 16 years in the presence of— (a) the person who, in accordance with section 54 , gave consent for the taking of the sample concerned from the protected person or child, as the case may be, or (b) a relative of the protected person or child, if an order is made under section 56 to authorise the taking of the sample, unless the protected person or child indicates that he or she does not wish to have that person present.
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(2)Notwithstanding that consent to take a sample under section 27 , 29 or 48 from a protected person or a child has been given in accordance with section 54 , or an order has been made under section 56 by a judge of the District Court authorising the taking of such a sample, the sample shall not be taken from the protected person or child, as the case may be, if he or she objects to or resists the taking of the sample.
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Withdrawal of consent to taking of certain samples under Parts 3 and 6 from protected persons or children 58. (1) The references in subsection (7) of section 27 , subsection (8) of section 29 and subsection (9) of section 48 to the withdrawal of consent by a person from whom a sample may be taken under any of those sections shall, in the case of a child who has attained the age of 16 years, be construed as references to the withdrawal of consent by the child.
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(2)The references in subsection (7) of section 27 , subsection (8) of section 29 and subsection (9) of section 48 to the withdrawal of consent by a person from whom a sample may be taken under any of those sections shall, in the case of a protected person or a child who has not attained the age of 16 years, be construed as references to— (a) in the case of a protected person, the withdrawal of consent by a parent or guardian, or other relative referred to in section 54
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(3), of the person who gave the consent that is being withdrawn, and (b) in the case of such a child— (i) who has attained the age of 14 years, the withdrawal of consent by the child or by a parent or guardian, or other relative referred to in section 54
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(3), of the child who gave the consent that is being withdrawn, (ii) who has not attained the age of 14 years, the withdrawal of consent by a parent or guardian, or other relative referred to in section 54
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(3), of the child who gave the consent that is being withdrawn.
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PART 8
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DNA Database System
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Chapter 1
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Structure and purposes of DNA Database System DNA Database System 59. (1) The Director of FSI shall, as soon as may be after the commencement of this section, establish in accordance with this Part a database to be known as the DNA Database System (in this Act called the “DNA Database System”).
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(2)The DNA Database System shall comprise the following 2 divisions: (a) the investigation division; and (b) the identification division.
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(3)The investigation division of the DNA Database System (in this Part called “the investigation division”) shall contain the following indexes of DNA profiles and information that may be used to identify the person from whose biological material each DNA profile was generated: (a) the crime scene index; (b) the reference index; (c) the elimination (Garda Síochána) index; (d) the elimination (crime scene investigators) index; and (e) the elimination (prescribed persons) index.
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(4)The identification division of the DNA Database System (in this Part called “the identification division”) shall contain the missing and unknown persons index of DNA profiles and information that may be used— (a) to identify or describe the person from whose biological material each DNA profile was generated, and (b) in the case of the DNA profile of a blood relative of a missing person that is entered in that index, to associate that DNA profile with the missing person.
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Purposes of DNA Database System 60. (1) The DNA Database System shall be used only for the following purposes: (a) the investigation and prosecution of criminal offences; (b) the finding or identification of missing persons, the identification of seriously ill, or severely injured, persons who are unable by reason of the illness or injury to indicate their identity or the identification of the bodies of unknown deceased persons.
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(2)Without prejudice to the generality of subsection (1), the DNA Database System may be used for all or any of the following: (a) the conduct of permitted searching under section 68 ; (b) the automated searching for, or automated comparison of, certain DNA profiles in the System with other DNA profiles in accordance with Chapter 2 of Part 12; (c) where appropriate, the transmission or provision to a person or body under section 4 of DNA profiles in the reference index of that System, other than DNA profiles entered in that index of that System under section 28 ; (d) the entry in or transmission from the System of DNA profiles under Chapter 7 of Part 12; (e) the facilitation of the performance by the Committee of its functions under Part 9 in relation to the management and operation of the System; (f) the compilation of statistics on the operation of the System under section 69 ; (g) the facilitation of a review of an alleged miscarriage of justice under section 2 of the Criminal Procedure Act 1993 ; (h) any other related purpose.
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Chapter 2
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Investigation Division of DNA Database System Crime scene index 61. (1) The crime scene index in the investigation division of the DNA Database System (in this Part called “the crime scene index”) shall comprise the DNA profiles of persons— (a) generated from samples of biological material found at, or recovered from, a crime scene whether before or after the commencement of this section, and (b) received and entered in that index under Chapter 7 of Part 12.
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(2)For the purposes of this Act, a crime scene, in relation to an offence or suspected offence, means all or any of the following (whether within or outside the State): (a) a place— (i) where the offence or suspected offence was, or is reasonably suspected of having been, committed, or (ii) where there is, or may be, evidence of, or relating to, the commission of the offence or suspected offence that was, or is reasonably suspected of having been, committed elsewhere, and includes a place that is designated as a crime scene by a direction given under section 5 of the Criminal Justice Act 2006 that is in force; (b) the body of the victim, whether living or deceased, of the offence or suspected offence; (c) anything worn or carried by or in contact with the victim, or a person reasonably considered to be a victim, at the time the offence or suspected offence was, or is reasonably suspected of having been, committed; (d) the body of any other person who was, or is reasonably suspected of having been, connected with the commission of the offence or suspected offence; (e) anything (including a mode of transport) that was, or is reasonably suspected of having been, connected with the commission of the offence or suspected offence.
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Reference index 62. The reference index in the investigation division of the DNA Database System shall comprise the DNA profiles of persons— (a) generated from samples taken from persons under sections 11 , 12 , 13 , 31 , 32 , 34 and 35 and entered in that index under those sections, (b) generated from samples taken from persons under section 27 and entered in that index under section 28 , (c) generated from samples taken from persons referred to in section 7
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(3), and (d) received and entered in that index under Chapter 7of Part 12.
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Elimination (Garda Síochána) index 63. The elimination (Garda Síochána) index in the investigation division of the DNA Database System shall comprise the DNA profiles of persons— (a) generated from samples taken from persons under section 41 and entered in that index under that section, and (b) transferred to that index under section 42
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(7).
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Elimination (crime scene investigators) index 64. The elimination (crime scene investigators) index in the investigation division of the DNA Database System shall comprise the DNA profiles of persons— (a) generated from samples taken from persons under sections 42 and 43 and, where appropriate, section 44 and entered in that index under those sections, and (b) transferred to that index under section 41
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(7).
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Elimination (prescribed persons) index 65. The elimination (prescribed persons) index in the investigation division of the DNA Database System shall comprise the DNA profiles of persons generated from samples taken from certain persons under section 44 and entered in that index under that section.
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Chapter 3
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Identification Division of DNA Database System Missing and unknown persons index 66. The missing and unknown persons index in the identification division of the DNA Database System shall comprise the DNA profiles of persons— (a) generated from samples taken from, or in relation to, persons or the bodies of deceased persons, as may be appropriate, under sections 48 , 49 and 50 , and (b) received and entered in that index under Chapter 7of Part 12.
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Chapter 4
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Functions of Director of Forensic Science Ireland in relation to DNA Database System Functions of Director of FSI in relation to DNA Database System 67. (1) The Director of FSI shall establish and operate the DNA Database System in accordance with this Act.
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(2)Without prejudice to the generality of subsection (1), the Director of FSI shall perform, or cause to be performed, the following functions in relation to the DNA Database System: (a) the generation of DNA profiles from the samples taken under this Act; (b) if appropriate, the entry of the DNA profiles generated in the appropriate division and index of the System; (c) the searching of the System in accordance with section 68 to ascertain whether there is a match between two DNA profiles in the System; (d) the reporting to the Garda Síochána, the Ombudsman Commission or a coroner, as may be appropriate, the results of searches of the System; (e) the automated searching for, or automated comparison of certain DNA profiles in the System with other DNA profiles in accordance with Chapter 2 of Part 12; (f) where appropriate, the making available of certain DNA profiles in the System for transmission or provision to a person or body under section 4 ; (g) the entry in or transmission from the System of DNA profiles under Chapter 7 of Part 12; (h) the destruction of samples taken under this Act in accordance with Part 10; (i) the removal of DNA profiles from the System in accordance with Part 10 or for the purpose of the administration of the System; (j) the maintenance of the security of the DNA profiles and information in the System in accordance with this Act.
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(3)Subject to subsection (4), the Director of FSI may make such arrangements, including contractual arrangements, as he or she considers appropriate with such other laboratories (whether within or outside the State) for the performance of the function under subsection (2)(a) or the performance of that function in any particular case or class of cases.
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(4)Arrangements under subsection (3) shall be subject to compliance with the requirements of this Act and such terms and conditions as may be agreed.
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Permitted searching 68. (1) A DNA profile entered in the DNA Database System may not be compared with another DNA profile entered in that System except in accordance with this section, unless it is done solely for the purpose of the administration of that System.
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(2)A DNA profile entered in the crime scene index of the DNA Database System may be compared with— (a) the other DNA profiles entered in that index, (b) the DNA profiles entered in the reference index of that System, (c) the DNA profiles entered in the elimination (Garda Síochána) index of that System in accordance with subsection (4), (d) the DNA profiles entered in the elimination (crime scene investigators) index of that System in accordance with subsection (5), or (e) the DNA profiles entered in the elimination (prescribed persons) index of that System in accordance with subsection (7).
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(3)A DNA profile entered in the reference index of the DNA Database System may be compared with— (a) the other DNA profiles entered in that index, (b) the DNA profiles entered in the crime scene index of that System, or (c) the DNA profiles entered in the missing and unknown persons index of that System in accordance with subsection (8).
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(4)A DNA profile in respect of a person that is entered in the elimination (Garda Síochána) index of the DNA Database System may be compared with— (a) the other DNA profiles in that index, or (b) a DNA profile that is generated from a crime scene sample found at, or recovered from, a particular crime scene and entered in the crime scene index of that System where— (i) such comparison is necessary in relation to the investigation of an offence to ascertain whether the person has contaminated that crime scene sample, and (ii) that comparison is in accordance with a direction given by the Director of FSI under subsection (6)(a).
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(5)A DNA profile in respect of a person that is entered in the elimination (crime scene investigators) index of the DNA Database System may be compared with— (a) the other DNA profiles in that index, or (b) a DNA profile that is generated from a crime scene sample found at, or recovered from, a particular crime scene and entered in the crime scene index of that System where— (i) such comparison is necessary in relation to the investigation of an offence to ascertain whether the person has contaminated that crime scene sample, and (ii) that comparison is in accordance with a direction given by the Director of FSI under subsection (6)(b).
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(6)(a) The Director of FSI, following consultation with the Commissioner, may, for the purposes of subsection (4)(b), give a general direction in writing regarding the circumstances in which it is necessary for DNA profiles entered in the elimination (Garda Síochána) index of the DNA Database System to be compared with DNA profiles entered in the crime scene index of that System. (b) The Director of FSI, following consultation with the Commissioner, may, for the purposes of subsection (5)(b), give a general direction in writing regarding the circumstances in which it is necessary for DNA profiles entered in the elimination (crime scene investigators) index of the DNA Database System to be compared with DNA profiles entered in the crime scene index of that System.
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(7)A DNA profile in respect of a prescribed person that is entered in the elimination (prescribed persons) index of the DNA Database System may be compared with— (a) the other DNA profiles in that index, or (b) a DNA profile that is generated from a crime scene sample found at, or recovered from, a particular crime scene and entered in the crime scene index of that System in such circumstances as may be prescribed.
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(8)A DNA profile entered in the missing and unknown persons index of the DNA Database System may be compared with— (a) the other DNA profiles in that index, (b) the DNA profiles entered in the crime scene index of that System, or (c) the DNA profiles entered in the reference index of that System, but only for the purpose of finding or identifying the missing person, the unknown person or the unknown deceased person concerned.
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(9)The DNA Database System may not be searched other than by a member of the staff of FSI, or a DNA profile in that System may not be compared with a DNA profile that is not entered in that System, except in accordance with Chapter 2 of Part 12.
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Statistics 69. Nothing in this Act shall prevent a member of the staff of FSI from processing and using the information in the DNA Database System for statistical purposes and analysis provided the identity of the persons whose DNA profiles are entered in the System is not disclosed otherwise than in accordance with this Act.
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Annual report of Director of FSI in relation to DNA Database System 70. (1) The Director of FSI shall as soon as may be, but not later than 4 months, after the end of each year make a report in writing to the Minister regarding the performance by him or her of the functions assigned to him or her by this Act during that year, and the Minister shall as soon as may be after the receipt by him or her of the report cause a copy of the report to be laid before each House of the Oireachtas and to be published in such manner as the Minister considers appropriate.
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(2)A report made under subsection (1) shall include information in such form and regarding such matters as the Minister may direct.
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(3)Notwithstanding subsection (1), if, but for this subsection, the first report under that subsection would relate to a period of less than 6 months, the report shall relate to that period and to the year immediately following that period and shall be made as soon as may be, but not later than 4 months, after the end of that year.
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PART 9
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DNA Database System Oversight Committee DNA Database System Oversight Committee 71. (1) Upon the commencement of this section, a committee which shall be known as An Coiste Formhaoirsithe um an gCóras Bunachair Sonraí DNA or, in the English language, as the DNA Database System Oversight Committee (in this Act referred to as “the Committee”) shall stand established to perform the functions assigned to it by this Act.
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(2)Subject to this Part, the Committee shall be independent in the performance of its functions.
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(3)Schedule 1 shall have effect in relation to the Committee.
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Functions of Committee 72. (1) The Committee shall oversee the management and operation of the DNA Database System for the purposes of maintaining the integrity and security of the System and shall, for those purposes, satisfy itself that the provisions of this Act in relation to the System are being complied with.
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(2)Without prejudice to the generality of subsection (1), the Committee shall oversee— (a) the arrangements employed by the Director of FSI in relation to the receipt, handling, transmission and storage of samples taken under this Act for the purpose of generating DNA profiles for entry in the DNA Database System, (b) the procedures employed by the Director of FSI in relation to the generation of DNA profiles from the samples taken under this Act, and the quality control and quality assurance of those procedures, to ensure that they comply with international best practice, (c) the measures employed by the Director of FSI to ensure that the DNA Database System is not improperly accessed by any person, that the DNA profiles and information entered in the System are used only for the purposes permitted by this Act and that they are not improperly disclosed to any person, (d) the means by which the results of searches of the DNA Database System are reported by the Director of FSI to the Garda Síochána, the Ombudsman Commission or a coroner, as may be appropriate, (e) the practices and procedures employed by the Director of FSI to ensure that samples taken under this Act for the purpose of generating DNA profiles for entry in the DNA Database System are destroyed, and the DNA profiles generated from those samples are removed from that System, in accordance with Part 10, (f) the practices and procedures employed by the Director of FSI in the operation of Chapters 2 and 7 of Part 12, and (g) the practices and procedures employed by the Director of FSI in the operation of section 4 .
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(3)The Committee shall, in the performance of its functions under subsections (1) and (2), make such recommendations as it considers appropriate in relation to the management and operation of the DNA Database System to the Minister and the Director of FSI, as may be appropriate.
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(4)The Committee may, and if so requested by the Minister shall, review any matter relating to the management and operation of the DNA Database System and shall submit a report in writing of any such review to the Minister.
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(5)Subject to subsections (6) and (7), the Minister shall, as soon as practicable after receiving a report under subsection (4), cause a copy of it to be laid before each House of the Oireachtas and to be published in such manner as the Minister considers appropriate.
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(6)The Minister may, when laying a copy of a report received by him or her under subsection (4) before each House of the Oireachtas or publishing the report, omit any matter from the copy of the report that is so laid or published if he or she is of opinion that the disclosure of the matter— (a) would be prejudicial to the security of the DNA Database System, the security of the State or the investigation of criminal offences, or (b) may infringe the constitutional rights of any person.
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(7)If a matter is omitted in accordance with subsection (6) from a report received by the Minister under subsection (4), a statement to that effect shall be attached to the copy of the report when it is laid before each House of the Oireachtas or is published.
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Cooperation with Committee 73. (1) The Director and the other members of the staff of FSI shall cooperate with the Committee in relation to the performance by the Committee of its functions under this Act.
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(2)The Director and the other members of the staff of FSI shall, for the purposes of subsection (1) furnish the Committee with such information as it may request and which, in the opinion of the Committee, is required for the performance of its functions.
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(3)The Committee may, whenever it considers it appropriate to do so, request the Garda Síochána and the Ombudsman Commission to furnish information to it that is required for the performance of its functions under this Act.
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(4)The Garda Síochána and the Ombudsman Commission shall comply with a request under subsection (3).
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(5)Nothing in any other enactment shall prohibit the disclosure of relevant factual information either to or by the Committee.
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Annual report of Committee 74. (1) The Committee shall as soon as may be, but not later than 6 months, after the end of each year make a report in writing to the Minister regarding the performance by the Committee of the functions assigned to it by this Act during that year.
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(2)A report under subsection (1) shall include information in such form and regarding such matters as the Minister may direct.
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(3)Subject to subsection (4), the Minister shall, as soon as practicable after receiving a report under this section, cause a copy of it to be laid before each House of the Oireachtas and to be published in such manner as the Minister considers appropriate.
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(4)Subsections (6) and (7) of section 72 shall, with any necessary modifications, apply to a report received by the Minister under this section as they apply to a report received by him or her under subsection (4) of that section.
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(5)Notwithstanding subsection (1), if, but for this subsection, the first report under this section would relate to a period of less than 6 months, the report shall relate to that period and to the year immediately following that period and shall be made as soon as may be, but not later than 6 months, after the end of that year.
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PART 10
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Destruction of Samples and Destruction, or Removal from DNA Database System, of DNA Profiles
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Chapter 1
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Application of this Part to persons from whom samples were taken under Parts 2 and 4 Interpretation (Chapter 1) 75. (1) In this Chapter— “civil partner” has the meaning it has in section 3 of the Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010 ; “cohabitant”, in relation to a person, means another person who is neither married to the person nor a civil partner of the person who is living with the person as a husband or wife, or as a civil partner, of the person; “vulnerable person” means a person, other than a child, whose capacity to guard himself or herself against violence, exploitation or abuse, whether physical, sexual or emotional, by another person is significantly impaired through— (a) a physical disability, illness or injury, (b) a disorder of the mind, whether as a result of mental illness or dementia, or (c) an intellectual disability.
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(2)For the purposes of this Chapter a person shall be regarded as associated with another person if— (a) he or she is a spouse or a former spouse of the person, (b) he or she is a civil partner or a former civil partner of the person, (c) he or she is a cohabitant or a former cohabitant of the person, (d) he or she is a relative of the person, or (e) he or she has or has had an intimate personal relationship with the person for a significant period of time.
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Destruction of intimate samples and non-intimate samples in certain circumstances 76. (1) Subject to section 77 , an intimate sample or a non-intimate sample taken from a person shall, if not previously destroyed, be destroyed in any of the following circumstances not later than the expiration of the period of 3 months from the date on which such circumstances first apply to the person: (a) where proceedings for a relevant offence— (i) are not instituted against the person within the period of 12 months from the date of the taking of the sample concerned, and the failure to institute such proceedings within that period is not due to the fact that he or she has absconded or cannot be found, or (ii) have been instituted and— (I) the person is acquitted of the relevant offence, (II) the charge against the person in respect of the relevant offence is dismissed under section 4E of the Criminal Procedure Act 1967 , or (III) the proceedings for the relevant offence are discontinued; (b) the person is the subject of an order under section 1
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(1)of the Probation of Offenders Act 1907 in respect of the relevant offence concerned in connection with which the sample concerned was taken and he or she has not been convicted of a relevant offence during the period of 3 years from the making of the order under that Act; (c) subject to subsection (2), the person is the subject of an order under section 1
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(2)of the Probation of Offenders Act 1907 in respect of the relevant offence concerned in connection with which the sample concerned was taken and he or she has not been convicted of a relevant offence during the period of 3 years from the making of the order under that Act; (d) the person’s conviction for the relevant offence concerned in connection with which the sample concerned was taken is quashed; (e) the person’s conviction for the relevant offence concerned in connection with which the sample concerned was taken is declared to be a miscarriage of justice under section 2 of the Criminal Procedure Act 1993 .
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(2)Subsection (1)(c) shall not apply to an order under section 1
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(2)of the Probation of Offenders Act 1907 discharged on the appeal of a person against conviction for the relevant offence concerned if on appeal his or her conviction is affirmed.
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(3)For the purposes of this section the “retention period”, in relation to an intimate sample or a non-intimate sample, means the period from the taking of the sample concerned from a person to the latest date for the destruction of that sample under subsection (1).
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Extension of retention period under section 76 for intimate samples and non-intimate samples in certain circumstances 77. (1) An intimate sample or a non-intimate sample taken from a person shall not be destroyed under section 76 in any case in which the Commissioner determines that any of the following circumstances apply: (a) a decision has not been taken whether or not to institute proceedings against the person for the offence concerned in connection with which the sample concerned was taken; (b) the investigation of that relevant offence has not been concluded; (c) the sample concerned, and the results of any forensic testing of it, are likely to be required for the prosecution of an offence connected with the event, incident or circumstances the subject of the relevant offence concerned— (i) for use as evidence in such proceedings, (ii) for disclosure to, or use by, a defendant in such proceedings, or (iii) to support the admissibility of any evidence on which the prosecution may seek to rely in such proceedings; (d) having regard to the matters specified in subsection (2), the Commissioner believes it is necessary to retain the sample concerned in connection with the investigation of the relevant offence concerned taking account of all the circumstances of the case and the reasons why— (i) proceedings for that offence have not been instituted against the person, or (ii) if such proceedings have been instituted against the person, they were determined without he or she being convicted of the relevant offence concerned or he or she being the subject of an order under section 1
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(1)of the Probation of Offenders Act 1907 .
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(2)The matters referred to in subsection (1)(d) to which the Commissioner shall have regard are the following: (a) whether the person concerned has any previous conviction for an offence similar in nature or gravity to the relevant offence concerned in connection with which the sample concerned was taken from him or her; (b) the nature and seriousness of that relevant offence; (c) whether any alleged victim, or any intended victim, of that relevant offence was— (i) a child, (ii) a vulnerable person, or (iii) associated with the person, at the time of the commission, or alleged commission, of that relevant offence; and (d) any other matter that the Commissioner considers appropriate for the purposes of the determination.
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(3)If, in relation to an intimate sample or a non-intimate sample taken from a person, the Commissioner determines that one of the paragraphs of subsection (1) applies, then, he or she may, during the retention period referred to in section 76 , give an authorisation to extend that period by a period of 12 months.
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(4)The Commissioner may, while an authorisation under subsection (3) or this subsection, as may be appropriate, is still in force, give an authorisation under this subsection to extend the retention period on a second or further occasion for a period of 12 months commencing on the expiration of the period of 12 months to which the authorisation previously given relates if he or she determines that one of the paragraphs of subsection (1) applies.
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(5)Whenever the Commissioner gives an authorisation under subsection (3) or (4), he or she shall, in relation to an intimate sample or a non-intimate sample taken from a person that is the subject of the authorisation, cause— (a) the person from whom the sample concerned was taken, and (b) if that person is a protected person or a child, a parent or guardian of the person or child, as the case may be, to be informed by notice in writing that the authorisation has been given under subsection (3) or (4), as may be appropriate, the date on which that authorisation was given and of the right of appeal under subsection (6).
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(6)The person to whom the authorisation concerned relates (in this section called “the appellant”) or, if that person is a child or a protected person, a parent or guardian on his or her behalf may, within the period of 3 months from the date of the notice under subsection (5) concerned, appeal to the District Court against that authorisation.
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(7)An appeal under subsection (6) shall—