Defence Forces (Evidence) Act 2022

Defence Forces (Evidence) Act 2022 Skip to content Disclaimer Feedback Helpdesk Gaeilge Léim go dtí an t-ábhar Séanadh Aiseolas Deasc chabhrach English Gaeilge English Produced by the Office of the Attorney General Táirgthe ag Oifig an Ard-Aighne Home Legislation Acts of the Oireachtas Statutory Instruments Pre-1922 Legislation Constitution External Resources Bills (Houses of the Oireachtas) Iris Oifigiúil / Official Gazette Revised Acts (LRC) Classified List of Legislation (LRC) Translations (acts.ie) Translations (Houses of the Oireachtas) Government Publications for Sale EU Law (EUR-Lex) FAQ Disclaimer Feedback Helpdesk Search Baile Reachtaíocht Achtanna an Oireachtais Ionstraimí Reachtúla Reachtaíocht Réamh-1922 Bunreacht Acmhainní Seachtracha Billí (Tithe an Oireachtais) Iris Oifigiúil Achtanna Athbhreithnithe (CAD) (An Coimisiún um Athchóiriú an Dlí) Liosta Rangaithe Reachtaíochta Aistriúcháin (achtanna.ie) Aistriúcháin (Tithe an Oireachtais) Foilseacháin Rialtais ar Díol Dlí AE (EUR-Lex) CCanna (Ceisteanna Coitianta) Séanadh Aiseolas Deasc chabhrach Cuardach TitleTeideal Year(s) or rangeBliain nó blianta nó raon TypeCineál All Legislation Acts Statutory Instruments Advanced SearchCuardach Casta HomeBaile ActsAchtanna 2022 Defence Forces (Evidence) Act 2022 Defence Forces (Evidence) Act 2022 Permanent Page URL View by SectionAmharc de réir Ailt View Full ActAmharc ar an Acht Iomlán Bill History Stair Bille Commencement, Amendments, SIs made under the Act Tosach Feidhme, Leasuithe, IRí arna ndéanamh faoin Acht Open PDFOscail PDF Print Full ActPriontáil an tAcht Iomlán Number 16 of 2022 DEFENCE FORCES (EVIDENCE) ACT 2022 CONTENTS PART 1 Preliminary and General Section 1. Short title and commencement 2. Interpretation 3. Application of Act to persons subject to military law 4. Supplementary provisions relating to samples and DNA profiles 5. Orders and regulations 6. Expenses 7. Objective of processing personal data PART 2 Taking of samples from persons in custody of Military Police 8. Power to take samples from person who is subject to military law 9. Taking of samples from persons in custody of Military Police for purposes of DNA (Military Police) Database System 10. Taking of intimate samples from persons in custody of Military Police 11. Taking of non-intimate samples from persons in custody of Military Police 12. Persons authorised to take intimate samples 13. Inferences from refusal to consent, or withdrawal of consent, to taking of intimate sample 14. When sample taken for purposes of DNA (Military Police) Database System may also be used for evidential purposes 15. Use of reasonable force to take sample under section 9 or non-intimate sample 16. Re-taking of certain samples under Part 2 in certain circumstances 17. Samples not to be taken from persons in custody of Military Police other than in accordance with this Part PART 3 Taking of samples for elimination purposes 18. Definition (Part 3) 19. Taking of samples from Military Police personnel for elimination (Military Police) index 20. Direction from provost marshal for sample to be taken for elimination purposes 21. Re-taking of samples under Part 3 PART 4 Taking of samples from volunteers 22. Taking of samples from volunteers to generate DNA profiles 23. Re-taking of samples under Part 4 24. Entry of DNA profiles of volunteers in reference (Military Police) index of DNA (Military Police) Database System PART 5 DNA (Military Police) Database System Chapter 1 Structure and purposes of DNA (Military Police) Database System 25. DNA (Military Police) Database System 26. Purposes of DNA (Military Police) Database System 27. Crime scene (Military Police) index 28. Reference (Military Police) index 29. Elimination (Military Police) index Chapter 2 Functions of Director of FSI in relation to DNA (Military Police) Database System 30. Functions of Director of FSI in relation to DNA (Military Police) Database System 31. Annual report of Director of FSI in relation to DNA (Military Police) Database System Chapter 3 Permitted searching 32. Permitted searching PART 6 Other powers of members of Military Police in relation to person placed in service custody Chapter 1 Obtaining and destruction of evidence 33. Definition (Part 6) 34. Other powers of members of Military Police in relation to person placed in service custody 35. Property in possession of Military Police 36. Destruction of item of forensic evidence or photograph taken under section 34 37. Extension of retention period under section 36 for items of forensic evidence taken under section 34 in certain circumstances 38. Destruction of items of forensic evidence taken under section 34 in exceptional circumstances 39. Retrial, quashing of convictions and determination of proceedings 40. Circumstances in which person to be informed of destruction of items of forensic evidence or photograph taken under section 34 41. Records Chapter 2 Fingerprints or palm prints obtained under section 34 42. Analysis of fingerprints or palm prints taken under section 34 43. Provision of prints for purposes of Chapter 3 of Part 12 of Act of 2014 Chapter 3 Destruction of items taken under section 34 not previously destroyed 44. Destruction of items of forensic evidence taken under section 34 not previously destroyed 45. Application to retain forensic evidence beyond period specified in section 44 PART 7 Destruction of samples and destruction, or removal from DNA (Military Police) Database System, of DNA profiles Chapter 1 Interpretation 46. Interpretation (Part 7) Chapter 2 Application of this Part to persons from whom samples were taken under Part 2 47. Destruction of intimate samples and non-intimate samples in certain circumstances 48. Extension of retention period under section 47 for intimate samples and non-intimate samples in certain circumstances 49. Destruction of intimate samples and non-intimate samples in exceptional circumstances 50. Destruction of certain samples taken for purposes of DNA (Military Police) Database System 51. Removal of certain DNA profiles from reference (Military Police) index of DNA (Military Police) Database System in certain circumstances 52. Extension of retention period under section 51 for certain DNA profiles in reference (Military Police) index of DNA (Military Police) Database System in certain circumstances 53. Removal in exceptional circumstances of certain DNA profiles in reference (Military Police) index of DNA (Military Police) Database System from that system 54. DNA profiles not to be removed from DNA (Military Police) Database System in certain circumstances 55. Date on which sample under section 9, 10 or 11 may be deemed to have been taken in certain circumstances Chapter 3 Application of this Part to persons from whom samples were taken under Part 3 56. Destruction of samples taken from persons under section 19 and removal of their DNA profiles from DNA (Military Police) Database System 57. Destruction of samples taken from person under section 20 and removal of their profiles from DNA (Military Police) Database System Chapter 4 Application of this Part to persons from whom samples were taken under Part 4 58. Destruction of samples taken from persons under section 22 and destruction, or removal from DNA (Military Police) Database System, of their DNA profiles Chapter 5 Miscellaneous matters relating to destruction of samples and destruction, or removal from DNA (Military Police) Database System, of DNA profiles 59. Destruction of samples and destruction or removal of DNA profiles not previously destroyed or removed from DNA (Military Police) Database System 60. Application to summary court-martial to retain certain samples and certain DNA profiles beyond retention period 61. Request to FSI or other person to destroy sample or destroy, or remove from DNA (Military Police) Database System, DNA profile 62. Circumstances in which person to be informed of destruction of sample or destruction, or removal from DNA (Military Police) Database System, of DNA profile PART 8 Offences and penalties 63. Offences and penalties 64. Admissibility of evidence in case of non-compliance by member of Military Police with this Act or regulations thereunder 65. Disclosure of information PART 9 Review of operation of Parts 6 and 7 by Minister 66. Review of operation of Parts 6 and 7 by Minister 67. Ministerial orders to change periods for destruction PART 10 Miscellaneous 68. Sample may be taken from person even if sample taken previously 69. Delegation of functions of provost marshal under this Act 70. Delegation of functions of Director of FSI 71. Statistics 72. Further provision regarding the taking of samples under this Act 73. Regulations regarding taking of samples 74. Protocols 75. Evidence of certain authorisations under this Act 76. Authorisations under this Act 77. Non-application of Act 78. Procedures that may be used for transmission of certain samples for forensic testing 79. Provisions relating to evidence in court-martial proceedings regarding certain samples 80. Service of notices 81. Code of practice PART 11 Amendment of Act of 2014 82. Amendment of section 2 of Act of 2014 (interpretation) 83. Amendment of section 68 of Act of 2014 (permitted searching) 84. Amendment of section 72 of Act of 2014 (functions of committee) 85. Amendment of section 73 of Act of 2014 (cooperation with committee) 86. Amendment of section 109 of Act of 2014 (interpretation (Part 12)) 87. Amendment of section 113 of Act of 2014 (automated searching of certain DNA data in DNA Database System) 88. Amendment of section 114 of Act of 2014 (automated comparison of unidentified DNA profiles supplied by designated state with certain DNA profiles in DNA Database System) 89. Amendment of section 115 of Act of 2014 (automated searching for certain DNA profiles in DNA analysis files of designated state) 90. Amendment of section 116 of Act of 2014 (automated comparison of DNA profiles in crime scene index with DNA profiles in DNA analysis files of designated state) 91. Amendment of section 118 of Act of 2014 (dactyloscopic data to which this Chapter applies) 92. Amendment of section 124 of Act of 2014 (purposes for which data may be processed) PART 12 Miscellaneous amendments 93. Amendment of section 187A of Act of 1954 (summary court-martial) 94. Amendment of Courts-Martial Appeals Act 1983 Acts Referred to Coroners Act 1962 (No. 9) Courts-Martial Appeals Act 1983 (No. 19) Criminal Justice (Forensic Evidence and DNA Database System) Act 2014 (No. 11) Criminal Justice (Forensic Evidence) Act 1990 (No. 34) Criminal Procedure Act 1993 (No. 40) Data Protection Acts 1988 to 2018 Defence Act 1954 (No. 18) Dentists Act 1985 (No. 9) Explosive Substances Act 1883 (46 & 47 Vic., c. 3) Explosives Act 1875 (38 & 39 Vic., c.17) Firearms Acts 1925 to 2009 Medical Practitioners Act 2007 (No. 25) Misuse of Drugs Act 1977 (No. 12) Nurses and Midwives Act 2011 (No. 41) Official Secrets Act 1963 (No. 1) Number 16 of 2022 DEFENCE FORCES (EVIDENCE) ACT 2022 An Act to amend the law to authorise the taking of bodily samples from military persons suspected of certain offences under military law for forensic testing; to provide for the taking of certain bodily samples from military persons or other persons who volunteer to have such samples taken from them for the purpose of the investigation of offences or incidents that may have involved the commission of offences under military law; to provide for the establishment and operation by Forensic Science Ireland of the Department of Justice and Equality of a DNA (Military Police) Database System; to provide for the purposes of that System; to provide for the taking of certain bodily samples from persons suspected of certain offences under military law for the purpose of generating DNA profiles in respect of those persons to be entered in the DNA (Military Police) Database System; to provide for the taking of certain bodily samples from certain persons for elimination purposes and, where appropriate, the entry of their DNA profiles in the DNA (Military Police) Database System; to provide for the taking of bodily samples from military persons, or samples from things, for the purpose of generating DNA profiles to be entered in the DNA (Military Police) Database System; to provide for the collection and analysis of other evidence; to provide, in certain circumstances, for the destruction of evidence and samples taken under this Act and the destruction, or removal from the DNA (Military Police) Database System, of any DNA profiles generated from those samples; to amend the Defence Act 1954 , the Courts-Martial Appeals Act 1983 and the Criminal Justice (Forensic Evidence and DNA Database System) Act 2014 ; and to provide for related matters. [6th July, 2022] Be it enacted by the Oireachtas as follows: PART 1 Preliminary and General Short title and commencement 1. (1) This Act may be cited as the Defence Forces (Evidence) Act 2022. (2) This Act shall come into operation on such day or days as the Minister may by order or orders appoint either generally or with reference to any particular purpose or provision and different days may be so appointed for different purposes or different provisions. Interpretation 2. (1) In this Act— “Act of 1954” means the Defence Act 1954; “Act of 2014” means the Criminal Justice (Forensic Evidence and DNA Database System) Act 2014 ; “body”, in relation to a deceased human person (including a foetus or stillborn child), means the body or a part of the body of the person and includes the decomposed or cremated remains of the person; “conviction”, other than in section 65 (3), means a conviction by court-martial; “court”, other than in section 35 (2), includes a court-martial; “court-martial”, when used without qualification, means a general court-martial, a limited court-martial or a summary court-martial; “crime scene” shall be construed in accordance with section 27 (2); “crime scene (Military Police) index”, in relation to the DNA (Military Police) Database System, shall be construed in accordance with section 27 ; “crime scene sample”, other than in section 78 , means a sample of biological material found at, or recovered from, a crime scene from which a DNA profile in respect of a person may be generated; “Defence Forces” has the same meaning as it has in the Act of 1954; “Director of FSI” means the officer who is, for the time being, in charge of FSI; “Director of Military Prosecutions” means the person appointed, for the time being, under section 184C of the Act of 1954; “DNA” means deoxyribonucleic acid; “DNA Database System” has the same meaning as it has in the Act of 2014; “DNA (Military Police) Database System” has the meaning assigned to it by section 25 ; “DNA profile”, in relation to a person, means information comprising a set of identification characteristics of the non-coding part of DNA derived from an examination and analysis of a sample of biological material that is clearly identifiable as relating to the person and that is capable of comparison with similar information derived from an examination and analysis of another sample of biological material for the purpose of determining whether or not that other sample could relate to that person; “elimination (Military Police) index”, in relation to the DNA (Military Police) Database System, shall be construed in accordance with section 29 ; “enactment” means a statute or an instrument made under a power conferred by statute; “forensic testing”, in relation to a sample (other than in sections 78 and 79 ), means the examination and analysis of the sample and the carrying out of biochemical or other scientific tests and techniques used in connection with the detection and investigation of crime on the sample and, if appropriate, includes the generation of a DNA profile from the sample in respect of a person; “FSI” means Forensic Science Ireland of the Department of Justice and Equality; “inadequately labelled”, in relation to a sample, means incorrectly labelled or labelled in such a manner that it is not possible to identify with certainty the person from whom the sample was taken; “insufficient”, in relation to a sample, means, subject to section 4 (5), insufficient in quantity or quality for the purpose of enabling information to be produced by the means of analysis used or to be used in relation to the sample for the forensic testing of it; “intimate sample” means any of the following taken, or to be taken, from a person under section 10 : (a) a sample of— (i) blood, (ii) pubic hair, or (iii) urine; (b) a swab from a genital region or a body orifice other than the mouth; (c) a dental impression; “item of forensic evidence” means a sample, swab, specimen, impression or print obtained from a person under section 34 ; “match”, in relation to two DNA profiles, means that there is such a degree of correspondence between them that they are indistinguishable and it is probable that they relate to the same person, and the degree of that probability can be indicated statistically; “member of the Military Police” means a member of the Defence Forces appointed or transferred to the Military Police Corps; “member of the staff of FSI” means an officer of the Minister for Justice and Equality who is assigned to perform duties in FSI; “military installation” means a place or building (or portion thereof) occupied by, used by, or under the control (whether temporarily or otherwise) of the Defence Forces; “Minister” means the Minister for Defence; “non-coding part of DNA”, in relation to a person, means the chromosome regions of the person’s DNA that are not known to provide for any functional properties of the person; “non-intimate sample” means any of the following taken, or to be taken, from a person under section 11 : (a) a sample of— (i) saliva, (ii) hair other than pubic hair, (iii) a nail, or (iv) any material found under a nail; (b) a swab from any part of the body including the mouth but not from any other body orifice or a genital region; (c) a skin impression; “offence against military law” has the same meaning as it has in the Act of 1954; “prescribed”, other than in section 5 (4), means prescribed by regulations made by the Minister under section 5 ; “provost marshal” means the person standing appointed, for the time being, under section 170 of the Act of 1954; “reference (Military Police) index”, in relation to the DNA (Military Police) Database System, shall be construed in accordance with section 28 ; “registered dentist” means a person whose name is entered for the time being in the Register of Dentists established under section 26 of the Dentists Act 1985 ; “registered medical practitioner” means a person who is a registered medical practitioner within the meaning of section 2 of the Medical Practitioners Act 2007 ; “registered nurse” means a person whose name is entered for the time being in the nurses division of the register of nurses and midwives established under section 46 of the Nurses and Midwives Act 2011 ; “relevant offence” means an offence, other than a scheduled offence within the meaning of section 176A of the Act of 1954, committed or alleged to have been committed by a person arrested pursuant to section 171 of that Act for which a person may be punished by imprisonment for a term of 5 years or more; “sample”, other than in Part 6 , means a sample taken, or to be taken, from a person under Part 2 , 3 or 4 and, if the context so requires, a crime scene sample; “service custody” has the same meaning as it has in the Act of 1954; “skin impression”, in relation to a person, means any record (other than a fingerprint) which is a record (in any form and produced by any method) of the skin pattern and other physical characteristics or features of the whole or any part of his or her foot or of any other part of his or her body; “specified military installation” means a military installation specified by a member of the Military Police. (2) References in section 9 and in Part 3 or 4 to a sample, in relation to a person, means a sample of hair other than pubic hair of the person or a swab from the mouth of the person. (3) In this Act, references to the mouth of a person shall be construed as including references to the inside of the mouth of the person. (4) In this Act, references to a person subject to military law shall be construed in accordance with section 2 of the Act of 1954. Application of Act to persons subject to military law 3. (1) The application of this Act to a person subject to military law shall not be affected by such person being, for the time being, outside the State or on board a ship or aircraft. (2) Where proceedings are initiated against a person— (a) who is subject to military law, or (b) who has, since commission of the offence to which the proceedings relate, ceased to be subject to military law, in a case in which the proceedings have been initiated within 6 months beginning on the date on which the person ceased to be subject to military law, the following may be used in the proceedings: (i) a sample obtained under section 10 or 11 ; (ii) the results of the forensic testing of a sample obtained under section 10 or 11 ; (iii) a DNA profile generated under section 10 or 11 ; (iv) an item of forensic evidence, photograph or other item obtained under section 34 ; (v) the results of the forensic testing of an item of forensic evidence or other item obtained under section 34 ; (vi) the results of any analysis, testing or comparison carried out under section 42 . Supplementary provisions relating to samples and DNA profiles 4. (1) In this Act, references to the giving of information regarding the effect of the entry of a DNA profile in respect of a person in any index of the DNA (Military Police) Database System shall include references to the giving of information regarding the following: (a) that the DNA profile may be compared with other DNA profiles in the DNA (Military Police) Database System under section 32 ; (b) that the DNA profile may be compared with other DNA profiles in the DNA Database System under section 32 ; (c) the effect of the DNA profile matching another DNA profile in the DNA (Military Police) Database System or matching another DNA profile in the DNA Database System; (d) in the case of a DNA profile entered, or to be entered, in the reference index of the DNA (Military Police) Database System, other than a DNA profile entered, or to be entered, in that index of that System under section 24 , that the DNA profile may be subject to an automated search or an automated comparison with DNA profiles under Chapter 2 of Part 12 of the Act of 2014 and the effect of the DNA profile matching another DNA profile following such an automated search or automated comparison. (2) In this Act, references to a person giving his or her consent in writing to the taking of a sample under this Act shall include references to— (a) the person signing a document, or (b) in case the person is unable to write, the person making his or her mark on a document, to indicate his or her consent. (3) Where a sample of hair other than pubic hair is taken from a person under this Act— (a) the sample may be taken by plucking hairs with their roots and, in so far as it is reasonably practicable, the hairs shall be plucked singly, and (b) no more hairs shall be plucked than the person taking the sample reasonably considers necessary to constitute a sufficient sample for the purpose of forensic testing. (4) For the purposes of sections 10 and 11 , a sample taken from a person includes a sample taken from the person that consists of matter from the body of another person. (5) References in this Act to a sample proving to be insufficient (within the meaning of section 2 (1)) shall include references to where, as a consequence of— (a) the loss, destruction or contamination of the whole or any part of the sample, (b) any damage to the whole or a part of the sample, or (c) the use of the whole or a part of the sample for analysis which produced no results or which produced results some or all of which have to be regarded, in the circumstances, as unreliable, the sample has become unavailable or insufficient for the purpose of enabling information, or information of a particular description, to be obtained by means of analysis of the sample. (6) Where an authorisation to take a sample from a person under this Act is given, nothing in this Act shall require such an authorisation to be given again to re-take such a sample from the person if the first or previous such sample taken from the person proves to be insufficient or, where appropriate, is inadequately labelled and the insufficiency or, as may be appropriate, the inadequate labelling of that sample is apparent within a period of one hour of the taking of that sample. (7) Subject to subsections (9) and (11), a person who is required under Part 7 to destroy, or cause to be destroyed, a sample taken under this Act shall ensure that the sample, and every record relating to the sample insofar as it identifies the person from whom the sample has been taken, are destroyed. (8) Subject to subsection (11), a person who is required under Part 7 to destroy, or cause to be destroyed, a DNA profile generated from a sample taken under this Act shall ensure that the DNA profile, and every record relating to the DNA profile insofar as it identifies the person to whom the DNA profile relates, are destroyed. (9) Nothing in subsection (7) shall require— (a) the removal from the DNA (Military Police) Database System of a DNA profile that may be retained in that System in accordance with this Act, or (b) the destruction of a record that is required to identify the person to whom a DNA profile referred to in paragraph (a) relates. (10) Subject to subsection (11), where the Director of FSI is required under Part 7 to remove, or cause to be removed, a DNA profile from the DNA (Military Police) Database System, he or she shall ensure that that System is altered in a manner such that it is no longer possible to identify the person to whom the DNA profile related. (11) Subsections (7), (8) and (10) shall operate in a manner that permits the provost marshal, the Director of FSI or other person referred to in section 61 — (a) to retain such records as may be required by him or her to show that that section has been complied with, and (b) to retain such records as may be required by him or her to show that section 62 has been complied with. (12) In subsections (7), (8), (9) and (11), “record”, in relation to a sample or a DNA profile, includes a copy of a record. Orders and regulations 5. (1) The Minister may make such orders as are provided for in this Act. (2) The Minister may make regulations prescribing any matter or thing which is referred to in this Act as prescribed or to be prescribed or for the purpose of enabling any provision of this Act to have full effect. (3) An order or regulation under this Act may contain such incidental, supplementary and consequential provisions as appear to the Minister to be necessary or expedient for the purposes of the order or regulation, as the case may be. (4) The Minister may prescribe by order— (a) a form of certificate referred to in section 75 or 79 , or (b) a form of authorisation given under section 9 (2), 10 (2)(a), 11 (2), 14 (1)(i), 15 (2), 16 (3)(i) or 34 (2). (5) Every order (other than an order under section 1 (2)) or regulation under this Act shall be laid before each House of the Oireachtas as soon as may be after it is made and, if a resolution annulling the order or regulation is passed by either such House within the next 21 days on which that House has sat after the order or regulation is laid before it, the order or regulation shall be annulled accordingly but without prejudice to the validity of anything previously done thereunder. Expenses 6. The expenses incurred by the Minister in the administration of this Act shall, to such extent as may be sanctioned by the Minister for Public Expenditure and Reform, be paid out of moneys provided by the Oireachtas. Objective of processing personal data 7. (1) The objective of the processing of personal data under this Act is to enhance and supplement the powers of members of the Military Police relating to the investigation of offences against military law. (2) In this section, “personal data” has the same meaning as it has in Directive (EU) 2016/680 of the European Parliament and of the Council of 27 April 20161 . PART 2 Taking of samples from persons in custody of Military Police Power to take samples from person who is subject to military law 8.A sample under section 9 , an intimate sample, a non-intimate sample or more than one sample may be taken from a person who is subject to military law. Taking of samples from persons in custody of Military Police for purposes of DNA (Military Police) Database System 9. (1) Subject to this Act, a member of the Military Police may take, or cause to be taken, from a person who is placed in service custody in connection with a relevant offence, a sample for the purpose of generating a DNA profile in respect of the person to be entered in the reference (Military Police) index of the DNA (Military Police) Database System. (2) A sample may only be taken from a person under subsection (1) if a member of the Military Police not below the rank of captain authorises it to be taken. (3) Before a member of the Military Police takes, or causes to be taken, a sample under this section from a person, the member shall inform the person of the following: (a) that an authorisation to take the sample from him or her has been given under subsection (2); (b) in a case in which a sample already taken under this section from the person has proved to be insufficient— (i) that that sample has proved to be insufficient, and (ii) that either— (I) another authorisation under subsection (2) is not, by virtue of section 4 (6), required, or (II) an authorisation to take a second sample from him or her has, in accordance with section 16 (1), been given under subsection (2); (c) that if the person fails or refuses to allow the sample to be taken from him or her, reasonable force may be used in accordance with section 15 ; (d) that the sample will be used to generate a DNA profile in respect of the person to be entered in the reference (Military Police) index of the DNA (Military Police) 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 offences against military law and court-martial proceedings (whether within or outside the State) as provided for in, or permitted by, this Act; (f) that the sample may be destroyed, and the DNA profile in respect of the person entered in the reference (Military Police) index of the DNA (Military Police) Database System may be removed from that System, in accordance with Part 7 . Taking of intimate samples from persons in custody of Military Police 10. (1) Subject to this Act, a member of the Military Police may take, or cause to be taken, from a person who is placed in service custody in connection with a relevant offence, an intimate sample under this sectionfor the purposes of forensic testing and, if appropriate, the generation of a DNA profile in respect of the person to be entered in the reference (Military Police) index of the DNA (Military Police) Database System. (2) An intimate sample may be taken under this section only if— (a) a member of the Military Police not below the rank of captain authorises it to be taken for the purposes specified in subsection (1), and (b) consent has been given in writing to the taking of the sample by the person from whom the sample is to be taken. (3) An authorisation to take an intimate sample under this section shall not be given unless the member of the Military Police giving it has reasonable grounds— (a) for suspecting the involvement of the person from whom the sample is to be taken in the commission of the relevant offence in respect of which he or she is placed in service custody, and (b) for believing that the sample will tend to confirm or disprove the involvement of that person in the commission of that offence. (4) Before a member of the Military Police seeks the consent of a person, from whom an intimate sample is required, to the taking of such a sample or the member takes, or causes to be taken, such a sample from the person, the member shall inform the person of the following: (a) the nature of the relevant offence in the commission of which it is suspected that the person has been involved; (b) that an authorisation to take the sample from him or her has been given under subsection (2)(a) and the grounds on which it has been given; (c) in a case in which an intimate sample already taken from the person has proved to be insufficient— (i) that that sample has proved to be insufficient, and (ii) that either— (I) another authorisation under subsection (2)(a) is not, by virtue of section 4 (6), required, or (II) an authorisation to take a second intimate sample from him or her has, in accordance with section 16 (1), been given under subsection (2)(a) and the grounds on which it has been given; (d) that the results of the forensic testing of the sample may be given in evidence in any proceedings; (e) if appropriate, that the sample will be used to generate a DNA profile in respect of the person to be entered in the reference (Military Police) index of the DNA (Military Police) Database System and the effect of such an entry; (f) 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 offences against military law and court-martial proceedings (whether within or outside the State) as provided for in, or permitted by, this Act; (g) that the sample may be destroyed, and, if appropriate, the DNA profile in respect of the person entered in the reference (Military Police) index of the DNA (Military Police) Database System may be removed from that System, in accordance with Part 7 . (5) If a person expressly withdraws the consent given under subsection (2)(b) (or if the withdrawal of that consent can reasonably be inferred from the conduct of the person) before or during the taking of an intimate sample under this section— (a) that withdrawal of consent shall be treated as a refusal to give the consent to the taking of the sample under this section, and (b) the provisions of this Part shall apply accordingly. (6) A withdrawal under subsection (5) of the consent given under subsection (2)(b) shall be recorded in writing by a member of the Military Police as soon as practicable after such withdrawal. (7) The consent given under subsection (2)(b) to the taking of an intimate sample under this section may not be withdrawn after the sample has been taken. Taking of non-intimate samples from persons in custody of Military Police 11. (1) Subject to this Act, a member of the Military Police may take, or cause to be taken, from a person who is placed in service custody in connection with a relevant offence, a non-intimate sample under this section for the purposes of forensic testing and, if appropriate, the generation of a DNA profile in respect of the person to be entered in the reference (Military Police) index of the DNA (Military Police) Database System. (2) A non-intimate sample may be taken under this section only if a member of the Military Police not below the rank of captain authorises it to be taken for the purposes specified in subsection (1). (3) An authorisation to take a non-intimate sample under this section shall not be given unless the member of the Military Police giving it has reasonable grounds— (a) for suspecting the involvement of the person from whom the sample is to be taken in the commission of the relevant offence in respect of which he or she is placed in service custody, and (b) for believing that the sample will tend to confirm or disprove the involvement of that person in the commission of that offence. (4) Before a member of the Military Police takes, or causes to be taken, a non-intimate sample from a person, the member shall inform the person of the following: (a) the nature of the relevant offence in the commission of which it is suspected that the person has been involved; (b) that an authorisation to take the sample from him or her has been given under subsection (2) and the grounds on which it has been given; (c) in a case in which a non-intimate sample already taken from the person has proved to be insufficient or was inadequately labelled— (i) that that sample has proved to be insufficient or was inadequately labelled, as may be appropriate, and (ii) that either— (I) another authorisation under subsection (2) is not, by virtue of section 4 (6), required, or (II) an authorisation to take a second non-intimate sample from him or her has, in accordance with section 16 (1), been given under subsection (2) and the grounds on which it has been given; (d) if appropriate, that if the person fails or refuses to allow the sample to be taken from him or her, reasonable force may be used in accordance with section 15 ; (e) that the results of the forensic testing of the sample may be given in evidence in any proceedings; (f) if appropriate, that the sample will be used to generate a DNA profile in respect of the person to be entered in the reference (Military Police) index of the DNA (Military Police) Database System and the effect of such an entry; (g) 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 offences against military law and court-martial proceedings (whether within or outside the State) as provided for in, or permitted by, this Act; (h) that the sample may be destroyed, and, if appropriate, the DNA profile in respect of the person entered in the reference (Military Police) index of the DNA (Military Police) Database System may be removed from that System, in accordance with Part 7 . Persons authorised to take intimate samples 12. (1) A sample of blood or pubic hair or a swab from a genital region or a body orifice other than the mouth may be taken under this Part only by a registered medical practitioner or a registered nurse. (2) A dental impression may be taken under this Part only by a registered dentist or a registered medical practitioner. (3) An intimate sample other than a sample of blood or a dental impression shall, in so far as practicable, be taken by a person who is of the same sex as the person from whom the sample is being taken under this Part. Inferences from refusal to consent, or withdrawal of consent, to taking of intimate sample 13. (1) Subject to subsection (5), this section applies where, in any proceedings against a person for a relevant offence, evidence is given that the accused— (a) refused without reasonable cause to give the consent required under section 10 (2)(b), or (b) without reasonable cause withdrew the consent given thereunder. (2) Where this section applies— (a) the court-martial (or, subject to the military judge’s directions, the court-martial board), in determining whether the accused is guilty of the relevant offence charged (or of any offence against military law of which he or she could lawfully be convicted on that charge), may draw such inferences from the refusal or withdrawal concerned, as the case may be, as appear proper, and (b) the refusal or withdrawal concerned may, on the basis of such inferences, be treated as, or as being capable of amounting to, corroboration of any evidence in relation to which the refusal or withdrawal is material. (3) A person shall not be convicted of the relevant offence charged concerned (or of any offence against military law of which he or she could lawfully be convicted on that charge) solely or mainly on an inference drawn from the refusal or withdrawal concerned. (4) Subsection (2) shall not have effect in relation to an accused unless— (a) he or she has been told in ordinary language by a member of the Military Police when seeking his or her consent that— (i) the sample was required for the purpose of forensic testing, (ii) his or her consent was necessary, and (iii) if his or her consent was not given, what the effect of a refusal or withdrawal by him or her of such consent might be, and (b) he or she was informed before such refusal or withdrawal of consent occurred that he or she had the right to consult a solicitor and, other than where he or she waived that right, he or she was afforded an opportunity to so consult before such refusal or withdrawal occurred. (5) This section shall not apply to a refusal by a person to give consent, or the withdrawal of such consent, unless the seeking of such consent by a member of the Military Police is recorded by electronic or similar means or the person consents in writing to it not being so recorded. (6) In this section, “military judge” means a person appointed, for the time being, under section 184J of the Act of 1954. When sample taken for purposes of DNA (Military Police) Database System may also be used for evidential purposes 14. (1) Where a person is placed in service custody for a period in connection with a relevant offence and— (a) a sample is taken from the person under section 9 during the period, and (b) a non-intimate sample is required from the person during the period, then, subject to subsection (4), the sample that has already been taken from the person under section 9 may be regarded as a non-intimate sample taken from the person during the period under this Part only if— (i) a member of the Military Police not below the rank of captain authorises the first-mentioned sample to be so regarded for the purposes of forensic testing and the generation of a DNA profile in respect of the person to be entered in the reference (Military Police) index of the DNA (Military Police) Database System, and (ii) a member of the Military Police has informed the person of the following: (I) the nature of the offence against military law in the commission of which it is suspected that the person has been involved; (II) that an authorisation to regard that sample as a non-intimate sample has been given under paragraph (i) and the grounds on which it has been given; (III) that the results of the forensic testing of that sample may be given in evidence in any proceedings (including proceedings other than court-martial proceedings). (2) An authorisation under subsection (1)(i) to regard a sample taken from a person under section 9 as a non-intimate sample shall not be given unless the member of the Military Police giving it has reasonable grounds— (a) for suspecting the involvement of the person from whom the first-mentioned sample was taken in the commission of the relevant offence in respect of which he or she is placed in service custody, and (b) for believing that that sample will tend to confirm or disprove the involvement of that person in the commission of the relevant offence concerned. (3) A sample taken from a person under section 9 that is regarded as a non-intimate sample in accordance with this section shall, for the purposes of this Act, be regarded as a non-intimate sample taken from the person under section 11 . (4) Where, during a period for which a person is placed in service custody in connection with a relevant offence, a sample is taken from the person under section 9 , nothing in subsection (1) shall prevent the taking of an intimate sample or a non-intimate sample under this Part from the person during the period for which the person is placed in service custody. (5) Where, during a period for which a person is placed in service custody an intimate sample or a non-intimate sample is taken from the person, nothing in this Part shall prevent the taking of a sample under section 9 from the person during the period for which the person is placed in service custody. Use of reasonable force to take sample under section 9 or non-intimate sample 15. (1) Without prejudice to the generality of sections 9 and 11 and subject to subsection (2), where a person fails or refuses to allow a sample to be taken from him or her pursuant to either of those sections, a member of the Military Police, and the member or members of the Military Police assisting that member, 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. (2) The power referred to in subsection (1) shall not be exercised unless a member of the Military Police not below the rank of commandant authorises it. (3) Where it is intended to exercise the power conferred by subsection (1), one of the members of the Military Police concerned shall inform the person concerned— (a) of that intention, and (b) that an authorisation to do so has been given under subsection (2). (4) A sample to be taken pursuant to this section shall be taken in the presence of a member of the Military Police not below the rank of captain and that member shall determine the number of members of the Military Police that is reasonably necessary for the purposes of subsection (1). (5) The taking of a sample pursuant to this section shall be recorded by electronic or similar means. Re-taking of certain samples under Part 2 in certain circumstances 16. (1) Where— (a) a person is placed in service custody for a period in connection with a relevant offence, and (b) a sample under section 9 taken from the person during the period for which the person is placed in service custody proves to be insufficient or inadequately labelled or an intimate sample or a non-intimate sample taken from the person during the period for which the person is placed in service custody proves to be insufficient or is inadequately labelled, a second sample under section 9 , a second intimate sample or a second non-intimate sample, as the case may be, may be taken from the person in accordance with this Part while he or she is so placed in service custody only if, subject to subsection (2) and section 4 (6), an authorisation to take the second sample is given under section 9 (2), 10 (2)(a) or 11 (2), as the case may be. (2) An authorisation under section 9 (2), 10 (2)(a) or 11 (2), as the case may be, to take a second sample from a person referred to in subsection (1) may be given on one occasion only during a period for which a person is placed in service custody in connection with a relevant offence. (3) Where— (a) a non-intimate sample is taken from a person who is placed in service custody, (b) the person is released without any charge having been made against him or her, and (c) the sample proves to be insufficient or is inadequately labelled, a second non-intimate sample may be taken from the person in accordance with this Part only if— (i) a member of the Military Police not below the rank of commandant authorises it to be taken, and (ii) the person attends at a specified military installation in accordance with this section for the purpose of having the second non-intimate sample taken from him or her. (4) An authorisation under subsection (3) to take a second non-intimate sample from a person in accordance with that subsection shall not be given unless the member of the Military Police giving it has reasonable grounds— (a) for suspecting the involvement of the person from whom the first non-intimate sample concerned was taken in the relevant offence in respect of which he or she was placed in service custody when that sample was taken, and (b) for believing that a second non-intimate sample will tend to confirm or disprove the involvement of that person in that relevant offence. (5) An authorisation under subsection (3) to take a second non-intimate sample from a person in accordance with that subsection— (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 non-intimate sample concerned was taken from the person. (6) If an authorisation under subsection (3) to take a second non-intimate sample from a person has been given, a member of the Military Police, not below the rank of commandant, may, within the period specified in subsection (7), require the person by notice in writing to attend at a specified military installation for the purpose of having a second non-intimate sample taken from him or her. (7) The period referred to in subsection (6) is one month from the date on which a member of the Military Police not below the rank of commandant is informed of the fact that that sample has proved to be insufficient or was inadequately labelled, as the case may be. (8) A notice under subsection (6) shall state that the first non-intimate sample concerned taken from the person concerned has proved to be insufficient or was inadequately labelled, as may be appropriate, and a requirement in the notice to attend at a specified military installation shall direct the person concerned to so attend on specified days and at a specified time of day or between specified times of day. (9) Nothing in this section shall require the second non-intimate sample to be taken from a person under this section to be of the same type of biological material as the first sample taken from the person which proved to be insufficient or was inadequately labelled, provided that the second sample concerned is one that is permitted to be taken under section 11 . (10) If a second non-intimate sample is taken from a person under subsection (1), the references in this section other than in that subsection— (a) to a first non-intimate sample shall be construed as references to a second non-intimate sample, and (b) to a second non-intimate sample shall be construed as references to a third non-intimate sample, taken, or to be taken, from the person. (11) A sample taken, or to be taken, from a person under this section shall, for the purposes of this Act, be regarded as if it is to be taken, or had been taken, from the person under section 9 , 10 or 11 , as may be appropriate. Samples not to be taken from persons in custody of Military Police other than in accordance with this Part 17. Subject to section 77 , a member of the Military Police shall not, following the commencement of this Part, take, or cause to be taken, a sample for forensic testing from a person who is placed in service custody in connection with a relevant offence other than in accordance with this Part. PART 3 Taking of samples for elimination purposes Definition (Part 3) 18.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 against military law or incident that may have involved the commission of an offence against military law, or (c) the examination or analysis of that sample. Taking of samples from Military Police personnel for elimination (Military Police) index 19. (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 (Military Police) index of the DNA (Military Police) Database System for the purpose, in relation to the investigation of offences against military law, of ascertaining whether that person has contaminated a crime scene sample. (2) A sample shall be taken under this section from a member of the Military Police who is appointed as such a member or transferred to the Military Police Corps after the commencement of this section. (3) A sample may be taken under this section from a member of the Military Police, who is such a member upon the commencement of this section, only if he or she consents in writing to having such a sample taken from him or her. (4) A member of the Military Police 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 21 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 21 , 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 (Military Police) index of the DNA (Military Police) Database System and the effect of such an entry; (d) that the sample may be destroyed, and the DNA profile in respect of the person entered in the elimination (Military Police) index of the DNA (Military Police) Database System may be removed from that System, in accordance with Part 7. (5) Subject to this Act, a member of the Military Police may take, or cause to be taken, a sample under this section from a person to whom this section applies. Direction from provost marshal for sample to be taken for elimination purposes 20. (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 (Military Police) index of the DNA (Military Police) Database System for the purpose, in relation to the investigation of offences against military law, of ascertaining whether that person has contaminated a crime scene sample. (2) If the provost marshal has good reason to believe that, in relation to the investigation of an offence against military law, a person specified in subsection (3) has, or may have, contaminated a particular crime scene sample, the provost marshal 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 against military law, of ascertaining whether that person has contaminated that crime scene sample. (3) A direction may be given under subsection (2) in respect of any of the following persons, other than a person to whom section 19 (2) applies: (a) a member of the Defence Forces; (b) an employee of the Minister; (c) any person who at the time the direction is given is subject to military law in accordance with— (i) paragraph (d) or (e) of section 118, or (ii) paragraph (c) or (d) of section 119, of the Act of 1954. (4) A direction under subsection (2) shall be given in writing and the provost marshal shall give, or cause to be given, a copy of it to the person to whom it relates. (5) A member of the Military Police 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 had proved to be insufficient or was inadequately labelled or for any other reason mentioned in section 21 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 and further sample under this section is, in accordance with section 21 , 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 7 . (6) Subject to this Act, a member of the Military Police 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 (2). Re-taking of samples under Part 3 21. Where a sample taken from a person under section 19 or 20 proves to be insufficient or was inadequately labelled or, for any other good reason, the provost marshal 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. PART 4 Taking of samples from volunteers Taking of samples from volunteers to generate DNA profiles 22. (1) A member of the Military Police may request a person (in this Part referred to as a “volunteer”) other than a person to whom section 9 , 10 or 11 applies to have a sample taken from him or her under this section for the purpose of generating a DNA profile in respect of the volunteer in relation to— (a) the investigation of a particular relevant offence, or (b) the investigation of a particular incident that may have involved the commission of a relevant offence. (2) A person who is a victim, or is reasonably considered to be a victim, of the relevant offence or incident that may have involved the commission of a relevant offence being investigated may be a volunteer. (3) A member of the Military Police shall inform a volunteer of the following before seeking his or her consent to the taking of a sample under this section or the member takes, or causes to be taken, such a sample from him or her: (a) that the volunteer is not obliged to have the sample taken from him or her; (b) in a case in which a sample already taken under this section from the volunteer has proved to be insufficient or was inadequately labelled or for any other reason, mentioned in section 23 , 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 sample or further sample is, in accordance with section 23 , to be taken from him or her; (c) that the sample will be used to generate a DNA profile in respect of the volunteer for the purposes of the investigation of the relevant offence, or incident that may have involved the commission of a relevant offence, in relation to which it is being taken; (d) that the sample and the DNA profile generated from the sample in respect of the volunteer may be destroyed in accordance with Part 7 . (4) A volunteer 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 particular relevant offence, or incident that may have involved the commission of a relevant offence, that is being investigated to which the consent relates. (5) Subject to this Act, a member of the Military Police may take, or cause to be taken, from a volunteer a sample under this …