Criminal Justice (Forensic Evidence and DNA Database System) Act 2014

An Act to amend the law to authorise the taking of bodily samples from persons suspected of certain criminal offences for forensic testing; to provide for the taking of certain bodily samples from 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; to provide for the establishment and operation by Forensic Science Ireland of the Department of Justice and Equality of a DNA Database System; to provide for the taking of certain bodily samples from persons suspected or convicted of certain criminal offences for the purpose of generating DNA profiles in respect of those persons to be entered in the investigation division of the DNA 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 Database System; to provide for the taking of bodily samples from persons, or samples from things, for the purpose of generating DNA profiles in respect of those persons or missing persons to be entered in the identification division of the DNA Database System; to provide for the purposes of that System; to provide, in certain circumstances, for the destruction of samples taken under this Act and the destruction, or removal from the DNA Database System, of any DNA profiles generated from those samples; to repeal the Criminal Justice (Forensic Evidence) Act 1990; to give effect to Council Decision 2008/615/JHA of 23 June 2008¹ and Council Decision 2008/616/JHA of 23 June 2008², the Agreement between the European Union and Iceland and Norway on the application of those two Council Decisions³ and an agreement between the State and another state insofar as those Council Decisions or agreements concern cooperation in relation to automated searching for or automated comparison of DNA data or automated searching for dactyloscopic data, as the case may be, and the exchange of such data and the reference data relating to them, by or between authorities which are responsible for the prevention, detection and investigation of criminal offences in the State and those other states or that other state, as the case may be; for that purpose to make provision for data protection and, in that regard, to amend the Data Protection Act 1988; to amend the Criminal Justice (Mutual Assistance) Act 2008; to amend the International Criminal Court Act 2006; to give effect to Council Framework Decision 2009/905/JHA of 30 November 2009 on Accreditation of forensic service providers carrying out laboratory activities; to amend the criminal law relating to the taking of fingerprints and palm prints from certain persons; to amend the Criminal Justice Act 1984 and other enactments to provide for the destruction of fingerprints, palm prints and photographs taken from or of certain persons in certain circumstances; and to provide for related matters.

[22nd June, 2014]

Be it enacted by the Oireachtas as follows:

PART 1 Preliminary and General

1. Short title and commencement

1. (1) This Act may be cited as the Criminal Justice (Forensic Evidence and DNA Database System) Act 2014.

• (2) This Act (other than section 172) 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.

2. Interpretation

2. (1) In this Act—

“Act of 1939” means Offences Against the State Act 1939;

“Act of 1984” means Criminal Justice Act 1984;

“Act of 1990” means Criminal Justice (Forensic Evidence) Act 1990;

“Act of 1996” means Criminal Justice (Drug Trafficking) Act 1996;

“Act of 2001” means Children Act 2001;

“Act of 2005” means Garda Síochána Act 2005;

“Act of 2006” means International Criminal Court Act 2006;

“Act of 2007” means Criminal Justice Act 2007;

“Act of 2008” means Criminal Justice (Mutual Assistance) Act 2008;

“analysis”, in relation to a sample, includes comparison and matching;

“appropriate consent” has the meaning assigned to it by section 15;

“authorised member of the staff”, in relation to a children detention school, shall be construed in accordance with section 151;

“authorised person” shall be construed in accordance with section 150;

“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;

“child” means a person who has not attained the age of 18 years and, for the purposes of sections 32 and 38, includes a person who has attained the age of 18 years who is detained in a children detention school in accordance with section 155 of the Act of 2001;

“child offender” shall be construed in accordance with section 32(1);

“children detention school” has the meaning it has in section 3(1) of the Act of 2001;

“code of practice” means a code of practice that is approved by the Minister under section 157;

“Commissioner” means the Commissioner of the Garda Síochána;

“Committee” means the DNA Database System Oversight Committee established by section 71;

“crime scene” shall be construed in accordance with section 61(2);

“crime scene index”, in relation to the DNA Database System, shall be construed in accordance with section 61;

“crime scene sample”, other than in sections 168 and 169, 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;

“Director”, in relation to FSI, means the officer who is for the time being in charge of FSI;

“Director”, in relation to a children detention school, has the meaning it has in section 157 of the Act of 2001;

“DNA” means deoxyribonucleic acid;

“DNA Database System” shall be construed in accordance with section 59;

F1[“DNA profile”, in relation to a person, means—

• (a) subject to paragraphs (b) and (c), 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,

• (b) where the sample is taken from, or in relation to, the person or the body of the person under section 48, 49 or 50, information comprising a set of identification characteristics of the 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, or

• (c) in the case of a DNA profile received pursuant to section 143(1) or 144(1)(b), information comprising a set of identification characteristics of the 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 (crime scene investigators) index”, in relation to the DNA Database System, shall be construed in accordance with section 64;

“elimination (Garda Síochána) index”, in relation to the DNA Database System, shall be construed in accordance with section 63;

“elimination (prescribed persons) index”, in relation to the DNA Database System, shall be construed in accordance with section 65;

“enactment” means a statute or an instrument made under a power conferred by statute;

“forensic testing”, in relation to a sample (other than a crime scene sample), 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 or the identification of persons or bodies, as may be appropriate, on the sample and, if appropriate, includes the generation of a DNA profile from the sample in respect of a person;

“former offender” shall be construed in accordance with section 33;

“FSI” means Forensic Science Ireland (formerly known as Forensic Science Laboratory) of the Department of Justice and Equality;

“governor”, in relation to a prison or a place of detention, means—

• (a) the governor of the prison or the place of detention, as the case may be, or

• (b) a person who is for the time being performing the functions of governor of the prison or the place of detention, as the case may be;

“guardian”, in relation to a child (including a protected person who is a child), means—

• (a) a person who is guardian of the child pursuant to the Guardianship of Infants Act 1964 or who is appointed to be guardian of the child by deed or will or order of a court, or

• (b) a person who has custody or care of the child by order of a court, but does not include the Health Service Executive;

“identification division”, in relation to the DNA Database System, shall be construed in accordance with section 59(4);

“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 3(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 12:

• (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; or

• (c) a dental impression;

“investigation division”, in relation to the DNA Database System, shall be construed in accordance with section 59(3);

“match”, in relation to two DNA profiles but other than in Chapter 2 of Part 12, 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 in charge” of a Garda Síochána station has the meaning assigned to it by Regulation 4 of the Criminal Justice Act 1984 (Treatment of Persons in Custody in Garda Síochána Stations) Regulations 1987 (S.I. No. 119 of 1987) subject to the modification that the reference in paragraph (1) of that Regulation to the member who is in charge of a Garda Síochána station at a time when the member in charge of the station is required to do anything or cause anything to be done pursuant to those Regulations shall be construed as a reference to the member who is in charge of the Garda Síochána station at a time when the member in charge is required to do anything or cause anything to be done under this Act;

F2["member of garda staff", other than in section 42(2), shall be construed in accordance with the Policing, Security and Community Safety Act 2024;]

“member of the staff of FSI” means an officer of the Minister who is assigned to perform duties in FSI;

“Minister” means Minister for Justice and Equality;

“missing person” means a person who, whether before or after the commencement of this section, is observed to be missing from his or her normal patterns of life, in relation to whom those persons who are likely to have heard from the person are unaware of the whereabouts of the person and that the circumstances of the person being missing raises concerns for his or her safety and well-being;

“missing and unknown persons index”, in relation to the DNA Database System, shall be construed in accordance with section 66;

“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 13:

• (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; or

• (c) a skin impression;

“offender” shall be construed in accordance with section 31(1);

F3[…]

“parent”, in relation to a protected person or child, means—

• (a) in a case in which one parent has the sole custody, charge or care of the person or child, that parent,

• (b) in a case in which the person or child has been adopted under the Adoption Act 2010 (or, if adopted outside the State, his or her adoption is recognised under the law of the State), the adopter or either of the adopters or the surviving adopter, and

• (c) in any other case, either parent;

“place of detention”, in relation to a child offender (being a male aged 16 or 17 years), means—

• (a) Saint Patrick’s Institution, or

• (b) a place of detention provided under section 2 of the Prisons Act 1970, and “prison officer”, in relation to a place of detention, shall be construed accordingly;

“prescribed” means prescribed by regulations made by the Minister under section 5;

“prison” means a place of custody administered by the Minister (other than a Garda Síochána station) and includes—

• (a) Saint Patrick’s Institution other than in respect of the detention of males aged 16 and 17 years therein,

• (b) a place of detention provided under section 2 of the Prisons Act 1970 other than in respect of the detention of males aged 16 and 17 years therein, and

• (c) a place specified under section 3 of the Prisons Act 1972, and “prison officer”, in relation to a prison, and “imprisonment” shall be construed accordingly;

“protected person” means, subject to subsection (2), a person (including a child) who, by reason of a mental or physical disability—

• (a) lacks the capacity to understand the general nature and effect of the taking of a sample from him or her, or

• (b) lacks the capacity to indicate (by speech, sign language or any other means of communication) whether or not he or she consents to a sample being taken from him or her;

“reference index”, in relation to the DNA Database System, shall be construed in accordance with section 62;

“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 in respect of which a person may be detained under any of the provisions referred to in section 9(1) (whether or not the person concerned was so detained);

“request under Chapter 3 of Part 5 of the Act of 2008” means a request for assistance which is made by a requesting authority within the meaning of section 2(1) of the Act of 2008 under and in accordance with a relevant international instrument within the meaning of the said section 2(1);

“request under section 50 of the Act of 2006” means a request from the International Criminal Court under Article 93.1(a) of the Rome Statute of the International Criminal Court, done at Rome on 17 July 1998, for assistance under section 50 of the Act of 2006 in obtaining identification evidence within the meaning of that section;

“sample” means a sample taken, or to be taken, from a person under Part 2, 3, 4, 5 or 6 and, if the context so requires, a crime scene sample;

“sexual offence” has the meaning it has in section 3 of the Sex Offenders Act 2001 (and includes such an offence that is a relevant offence);

“sex offender” —

• (a) in the case of an offender, shall be construed in accordance with section 31(1)(d), and

• (b) in the case of a child offender, shall be construed in accordance with section 32(1)(d);

“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;

“unknown deceased person” shall be construed in accordance with section 50;

“unknown person” shall be construed in accordance with section 49.

• (2) The reference in the definition of “protected person” in subsection (1) to a mental or physical disability in relation to a person (including a child) shall be construed as not including a reference to the person being under the intoxicating influence of any alcoholic drink, drug, solvent or any other substance or combination of substances.

• (3) Subject to section 48(5), references in section 11 and in Part 3, 4, 5, 6 or 7 to a sample—

• (a) 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, and

• (b) in relation to the body of a deceased person, means a sample of biological material from the body of the deceased person from which a DNA profile in respect of the person may be generated.

• (4) 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.

• (5) In the application of this Act in relation to a protected person who is married—

• (a) the references in sections 15, 16, 21, 23, 24, 25, 31, 34 , 38, 39 , 54, 55, 58, 77 and 81 to a parent or guardian of the person shall be construed as references to his or her spouse, and

• (b) the references in sections 21, 23, 24, 54, 55, 57 and 58 to a relative of the protected person shall be construed as including references to his or her parent or guardian.

• (6) In the application of this Act in relation to a child who is married—

• (a) the references in sections 15, 17, 19, 22, 24, 25, 32, 34, 38, 39, 54, 55, 58, 77 and 81 to a parent or guardian of the child shall be construed as references to his or her spouse, and

• (b) the references in sections 22, 24, 54, 55, 57 and 58 to a relative of the child shall be construed as including references to his or her parent or guardian.

• (7) If a person is regarded as a protected person for the purposes of this Act, the person shall not thereby be regarded as lacking capacity for purposes other than those to which this Act relates.

3. Supplementary provisions relating to samples and DNA profiles

3. (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 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 that System under section 68;

• (b) the effect of the DNA profile matching another DNA profile in that System;

• (c) in the case of a DNA profile entered, or to be entered, in the reference index of that System, other than a DNA profile entered, or to be entered, in that index of that System under section 28, that the DNA profile may be subject to an automated search or an automated comparison with DNA profiles under Chapter 2 of Part 12 and the effect of the DNA profile matching another DNA profile following such an automated search or automated comparison;

• (d) in the case of a DNA profile entered in the missing and unknown persons index of that System, that the DNA profile may be transmitted under section 142 to a law enforcement agency within the meaning of Chapter 7 of Part 12.

• (2) In this Act references to a person giving his or her consent in writing to the taking of a sample under this Act (whether from the person himself or herself or another person) 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 12 and 13, 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 1 hour of the taking of that sample.

• (7) Subject to subsections (9) and (11), a person who is required under Part 10to 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 10 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 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), the Director of FSI who is required under Part 10 to remove, or cause to be removed, a DNA profile from the DNA Database System shall ensure that that System is altered so that it is no longer possible to identify the person to whom the DNA profile relates.

• (11) Subsections (7), (8) and (10) shall operate in a manner that permits—

• (a) the Commissioner, the Director of FSI or other person referred to in section 97 to retain such records as may be required by him or her to show that that section has been complied with, and

• (b) the Commissioner or the Director of FSI to retain such records as may be required by him or her to show that section 98 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.

4. Transmission or provision of samples taken under Part 2 or 4, and DNA profiles generated from such samples, under other enactments

4. (1) A sample taken from a person under Part 2 or 4, and the DNA profile (if any) generated from the sample in respect of the person, may be transmitted outside the State pursuant to a request under Chapter 3 of Part 5 of the Act of 2008.

• (2) A sample taken from a person under Part 2 or 4, and the DNA profile (if any) generated from the sample in respect of the person, may be transmitted to the International Criminal Court pursuant to a request under section 50 of the Act of 2006.

• (3) A DNA profile of a person generated from a sample taken from the person under Part 2 or 4 may be provided to Europol under section 8 or 9 of the Europol Act 2012.

• (4) In this section “Europol” has the meaning it has in section 1 of the Europol Act 2012.

5. 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) 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.

6. Repeal and revocations

6. (1) The Criminal Justice (Forensic Evidence) Act 1990 is repealed.

• (2) The Criminal Justice (Forensic Evidence) Act 1990 Regulations 1992 (S.I. No. 130 of 1992) and the Criminal Justice (Forensic Evidence) Act 1990 (Amendment) Regulations 2008 (S.I. No. 154 of 2008) are revoked.

7. Transitional provisions

7. (1) Subject to this section, nothing in this Act shall affect the operation after the commencement of this section of—

• (a) the Act of 1990 in relation to bodily samples that were taken from persons under that Act, or

• (b) any other arrangement under which bodily samples were taken from persons by, or on behalf of, the Garda Síochána,

before such commencement.

• (2) Subject to subsections (3) and (4) and notwithstanding the repeal by section 6 of the Act of 1990, that Act shall continue to apply to bodily samples that were taken under it before its repeal as if it had not been so repealed.

• (3) A DNA profile of a person generated from a bodily sample taken from the person before the commencement of this section under the Act of 1990 may, subject to subsection (4), be entered in the reference index of the DNA Database System, irrespective of whether the DNA profile of the person is generated from that sample before or after such commencement.

• (4) The DNA profile of a person generated from a bodily sample taken from the person under the Act of 1990 shall, if that sample is required to be destroyed under section 4 of that Act—

• (a) not be entered in the reference index of the DNA Database System, or

• (b) if so entered, be removed from that System not later than the expiration of a period of 3 months from the date of that requirement.

• (5) If—

• (a) a bodily sample (other than one taken under the Act of 1990) that was taken from a person under any arrangement under which bodily samples were, before the commencement of this section, taken by, or on behalf of, the Garda Síochána from persons who were detained under any of the provisions referred to in section 9(1), or

• (b) the DNA profile of the person (if any) generated from the sample,

is required for any purpose other than the purpose for which that sample was taken from the person, the Commissioner shall, before using that sample or DNA profile for that other purpose—

• (i) inform the person by notice in writing of that other purpose, and

• (ii) obtain the consent in writing of the person to the use of that sample or DNA profile, as the case may be, for that purpose.

8. Expenses

8. 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.

PART 2 Taking of Samples from Persons in Custody Of Garda Síochána

9. Power to take samples from persons in custody of Garda Síochána

9. (1) Where a person is detained under any of the following provisions, a sample under section 11, an intimate sample or a non-intimate sample or more than one sample may be taken from the person:

• (a) section 30 of the Act of 1939;

• (b) section 4 of the Act of 1984;

• (c) section 2 of the Act of 1996;

• (d) section 42 of the Criminal Justice Act 1999;

• (e) section 50 of the Act of 2007;

• (f) section 16 or 17 of the Criminal Procedure Act 2010.

• (2) For the avoidance of doubt it is hereby declared that a reference to any statutory provision specified in a paragraph of subsection (1) under which a person may be detained shall include a reference to any other statutory provision pursuant to which a person may be arrested again and detained and which applies the first-mentioned statutory provision or another of the statutory provisions specified in subsection (1) with or without modification in relation to such detention.

10. Protected persons for purposes of Part 2

10. (1) Subject to subsection (2), the member in charge of the Garda Síochána station in which a person is detained under any of the provisions referred to in section 9(1) shall, as soon as practicable after the detention of the person begins, determine whether or not he or she is a protected person for the purposes of this Part.

• (2) Where—

• (a) an authorisation to take an intimate sample under section 12 from a person is given, and

• (b) the member in charge of the Garda Síochána station in which the person is detained is of opinion that the person may be a protected person,

he or she shall arrange to have the condition of the person assessed by a registered medical practitioner for the purpose of certifying whether or not the person is a protected person.

• (3) A certificate provided by a registered medical practitioner under subsection (2) shall specify the reasons for the registered medical practitioner concluding that the person concerned is or is not a protected person.

11. Taking of samples from persons in custody of Garda Síochána for purposes of DNA Database System

11. (1) Subject to this Act, a member of the Garda Síochána may take, or cause to be taken, from a person who is detained under any of the provisions referred to in section 9(1) for the investigation of a relevant offence a sample 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.

• (2) A sample may be taken from a person under subsection (1) only if a member of the Garda Síochána not below the rank of sergeant (including the member in charge of the Garda Síochána station in which the person is detained if he or she is not below that rank) authorises it to be taken.

• (3) Before a member of the Garda Síochána 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 3(6), required, or

• (II) an authorisation to take a second sample from him or her has, in accordance with section 25(1), been given under subsection (2);

• (c) that if the person (other than a child) fails or refuses to allow the sample to be taken from him or her, reasonable force may be used in accordance with section 24 to take the sample;

• (d) that the sample will be used to generate a DNA profile in respect of the person 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 person entered in the reference index of the DNA Database System may be removed from that System, in accordance with Part 10.

• (4) This section shall not apply to—

• (a) a protected person, or

• (b) subject to subsection (7), a person who has not attained the age of 14 years.

• (5) The Minister shall, by order made under this section, specify a relevant offence or a category of relevant offences that are, for the purposes of subsection (1), excluded from the application of this section as evidence relating to DNA would not, in the opinion of the Minister, assist with the investigation or prosecution of the offence or those offences due to the nature of the offence or offences concerned.

• (6) The Minister shall, not later than 6 years after the commencement of this section, review the operation of this section insofar as it applies to children who have attained the age of 14 years.

• (7) If, arising from the review referred to in subsection (6), the Minister considers that it is proper to do so having regard, on the one hand, to the operation of the DNA Database System in relation to children and its effectiveness in the investigation of offences committed, or suspected of having been committed, by children and, on the other hand, to the desire to protect the rights of children, he or she may by order made under this section provide that this section shall not apply to children who have not attained an age, of 14 years or older, that is specified in the order.

12. Taking of intimate samples from persons in custody of Garda Síochána

12. (1) Subject to this Act, a member of the Garda Síochána may take, or cause to be taken, an intimate sample under this section from a person who is detained under any of the provisions referred to in section 9(1) 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 index of the DNA Database System.

• (2) An intimate sample may be taken under this section only if—

• (a) a member of the Garda Síochána not below the rank of inspector authorises it to be taken for the purposes specified in subsection (1), and

• (b) the appropriate consent has been given in writing to the taking of the sample.

• (3) An authorisation to take an intimate sample under this section shall not be given unless the member of the Garda Síochána 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 offence in respect of which he or she is detained, and

• (b) for believing that the sample will tend to confirm or disprove the involvement of that person in the commission of the offence concerned.

• (4) The results of the forensic testing of an intimate sample may be given in evidence in any proceedings.

• (5) Before a member of the Garda Síochána 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 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) that 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 3(6), required, or

• (II) an authorisation to take a second intimate sample from him or her has, in accordance with section 25(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, the matters referred to in subsections (2) and (3) of section 19 if that section is to have effect in relation to the person;

• (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 index of the DNA 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 criminal offences or criminal proceedings (whether within or outside the State) as provided for in or permitted by this Act;

• (h) that the sample may be compared under section 145 with evidence taken from a crime scene (including crime scene samples) received from a law enforcement agency within the meaning of Chapter 7 of Part 12; and

• (i) that the sample may be destroyed, and (if appropriate) the DNA profile in respect of the person entered in the reference index of the DNA Database System may be removed from that System, in accordance with Part 10.

• (6) If a person expressly withdraws the appropriate 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 appropriate consent to the taking of the sample under this section, and

• (b) the provisions of this Part shall apply accordingly.

• (7) A withdrawal under subsection (6) of the appropriate consent given under subsection (2)(b) shall be recorded in writing by a member of the Garda Síochána as soon as practicable after such withdrawal.

• (8) The appropriate 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.

13. Taking of non-intimate samples from persons in custody of Garda Síochána

13. (1) Subject to this Act, a member of the Garda Síochána may take, or cause to be taken, a non-intimate sample under this section from a person who is detained under any of the provisions referred to in section 9(1) 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 index of the DNA Database System.

• (2) A non-intimate 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 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 Garda Síochána 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 offence in respect of which he or she is detained, and

• (b) for believing that the sample will tend to confirm or disprove the involvement of that person in the commission of the offence concerned.

• (4) The results of the forensic testing of a non-intimate sample may be given in evidence in any proceedings.

• (5) Before a member of the Garda Síochána 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 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 3(6), required, or

• (II) an authorisation to take a second non-intimate sample from him or her has, in accordance with section 25(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 24 to take the sample;

• (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 index of the DNA 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 bodyin 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;

• (h) that the sample may be compared under section 145 with evidence taken from a crime scene (including crime scene samples) received from a law enforcement agency within the meaning of Chapter 7 of Part 12 ; and

• (i) that the sample may be destroyed, and (if appropriate) the DNA profile in respect of the person entered in the reference index of the DNA Database System may be removed from that System, in accordance with Part 10.

14. Giving of information under Part 2 to protected persons or children

14. (1) The information to be given under section 12(5), 13(5), 16(2) or 24(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.

• (2) The information to be given under section 11(3) (if appropriate), 12(5), 13(5), 17(2) or 24(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.

15. Appropriate consent to taking of intimate samples

15. (1) Subject to subsection (2), in this Part “appropriate consent” means—

• (a) subject to paragraph (b), in the case of a person who has attained the age of 18 years, the consent of the person,

• (b) in the case of a protected person—

• (i) the consent of a parent or guardian of the person, or

• (ii) an order of the District Court under section 16 authorising the taking of an intimate sample from the person,

• (c) in the case of a child (other than a protected person)—

• (i) who has attained the age of 14 years, the consent of the child and either—

(I)the consent of a parent or guardian of the child, or

(II)an order of the District Court under section 17 authorising the taking of an intimate sample from the child,

• (ii) who has not attained the age of 14 years, either—

• (I) the consent of a parent or guardian of the child, or

• (II) an order of the District Court under section 17 authorising the taking of an intimate sample from the child.

• (2) Where, in relation to the investigation of an offence, an intimate sample is to be taken from a protected person or a child, the consent of a parent or guardian of the protected person or child shall not be sought from a parent or guardian of the protected person or child, as the case may be, if—

• (a) he or she is the victim of the offence,

• (b) he or she has been arrested in respect of the offence,

• (c) the member in charge has reasonable grounds for suspecting him or her of complicity in the offence, or

• (d) the member in charge has reasonable grounds for believing that he or she is likely to obstruct the course of justice.

• (3) Subsection (2) shall not prevent a parent or guardian of a protected person or a child who does not fall under paragraph (a), (b), (c) or (d) of that subsection from giving the consent required.

• (4) Before a member of the Garda Síochána seeks the consent of a parent or guardian of a protected person to the taking of an intimate sample from the person, the member shall inform the parent or guardian of the person of the matters referred to in section 12(5) in relation to the person.

• (5) Before a member of the Garda Síochána seeks the consent of a parent or guardian of a child to the taking of an intimate sample from the child, the member shall inform the parent or guardian of the child of the matters referred to in section 12(5) in relation to the child.

16. Application for court order authorising taking of intimate sample from protected person

16. (1) If—

• (a) a member of the Garda Síochána is unable, having made reasonable efforts to do so, to contact a parent or guardian of a protected person for the purposes of ascertaining whether or not he or she consents to the taking of an intimate sample from the person under this Part,

• (b) a parent or guardian of a protected person indicates to a member of the Garda Síochána that he or she cannot or will not attend at the Garda Síochána station in which the person is detained within a reasonable time for the purposes of giving consent to the taking of an intimate sample from the person under this Part,

• (c) subject to subsection (3) of section 15, the circumstances referred to in subsection (2) of that section exist in relation to a parent or guardian of a protected person,

• (d) a parent or guardian of a protected person refuses to consent to the taking of an intimate sample from the person under this Part, or

• (e) a protected person does not have, or the member in charge of the Garda Síochána station in which the person is detained cannot, having made reasonable efforts to do so, ascertain within a reasonable period whether he or she has, a living parent or guardian from whom consent to the taking of an intimate sample from the person may be sought under this Part,

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 an intimate sample from the protected person.

• (2) A member of the Garda Síochána who intends to make an application under subsection (1) shall inform the protected person concerned and, if it is reasonably practicable to do so, a parent or guardian of that person, other than a parent or guardian to whom section 15(2) applies, of that intention.

• (3) A judge of the District Court may order—

• (a) that an application under subsection (1) shall be heard otherwise than in public, or

• (b) that a parent or guardian of the protected person concerned to whom section 15(2) applies shall be excluded from the Court during the hearing of the application,

or both if—

• (i) on an application in that behalf by a member of the Garda Síochána not below the rank of inspector, the judge is satisfied that it is desirable to do so in order to avoid a risk of prejudice to the investigation of the relevant offence in respect of which the protected person concerned is detained, or

• (ii) the judge considers that it is otherwise desirable in the interests of justice to do so.

• (4) 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) the grounds on which the authorisation under section 12(2)(a) was given for the taking of an intimate sample from the protected person concerned;

• (b) if appropriate, the reasons (if any) that a parent or guardian of the protected person concerned (other than a parent or guardian to whom section 15(2) applies) gave for refusing to consent to the taking of an intimate sample from that person;

• (c) the nature of the offence in respect of which the protected person concerned is detained; and

• (d) whether it would be in the interests of justice in all the circumstances of the case, having due regard to the best interests of the protected person concerned, the interests of the victim of the offence in respect of which the protected person concerned is detained and the protection of society, to make an order authorising the taking of an intimate sample from the protected person concerned.

• (5) If, on an application undersubsection (1), a parent or guardian of the protected person concerned applies to be heard by the judge of the District Court, an order shall not be made under this section unless a reasonable opportunity has been given to the parent or guardian, as the case may be, of that person to be heard.

• (6) A judge of the District Court may, if he or she considers it appropriate to do so, make an order authorising the taking of an intimate sample from the protected person concerned in accordance with this Part.

• (7) If, on an application under subsection (1) in relation to a protected person who is detained under section 4 of the Act of 1984, a judge of the District Court makes an order under subsection (6), the judge may, on an application in that behalf by a member of the Garda Síochána not below the rank of inspector, issue a warrant authorising the detention of the protected person concerned for such further period as the judge may determine but not exceeding 4 hours for the purpose of having an intimate sample taken from that person.

• (8) Subsection (7) shall not affect the operation of section 4(3) of the Act of 1984.

• (9) When an intimate sample has been taken from a protected person who is detained pursuant to a warrant issued under subsection (7), the person shall be released from custody forthwith unless his or her detention is authorised apart from this section.

17. Application for court order authorising taking of intimate sample from child

17. (1) If—

• (a) a member of the Garda Síochána is unable, having made reasonable efforts to do so, to contact a parent or guardian of a child for the purposes of ascertaining whether or not he or she consents to the taking of an intimate sample from the child under this Part,

• (b) a parent or guardian of a child indicates to a member of the Garda Síochána that he or she cannot or will not attend at the Garda Síochána station in which the child is detained within a reasonable time for the purposes of giving consent to the taking of an intimate sample from the child under this Part,

• (c) subject to subsection (3) of section 15, the circumstances referred to in subsection (2) of that section exist in relation to a parent or guardian of a child,

• (d) a parent or guardian of a child refuses to consent to the taking of an intimate sample from the child under this Part, or

• (e) a child does not have, or the member in charge of the Garda Síochána station in which the child is detained cannot, having made reasonable efforts to do so, ascertain within a reasonable period whether he or she has, a living parent or guardian from whom consent to the taking of an intimate sample from the child may be sought under this Part,

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 an intimate sample from the child.

• (2) A member of the Garda Síochána who intends to make an application under subsection (1) shall inform the child concerned and, if it is reasonably practicable to do so, a parent or guardian of that child, other than a parent or guardian to whom section 15(2) applies, of that intention.

• (3) A judge of the District Court may order—

• (a) that an application under subsection (1)shall be heard otherwise than in public, or

• (b) that a parent or guardian of the child concerned to whom section 15(2) applies shall be excluded from the Court during the hearing of the application,

or both if—

• (i) on an application in that behalf by a member of the Garda Síochána not below the rank of inspector, the judge is satisfied that it is desirable to do so in order to avoid a risk of prejudice to the investigation of the relevant offence in respect of which the child concerned is detained, or

• (ii) the judge considers that it is otherwise desirable in the interests of justice to do so.

• (4) 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) the grounds on which the authorisation under section 12(2)(a) was given for the taking of an intimate sample from the child concerned;

• (b) if appropriate, the reasons (if any) that a parent or guardian of the child concerned (other than a parent or guardian to whom section 15(2) applies) gave for refusing to consent to the taking of an intimate sample from that child;

• (c) the age of the child concerned;

• (d) the nature of the offence in respect of which the child concerned is detained; and

• (e) whether it would be in the interests of justice in all the circumstances of the case, having due regard to the best interests of the child concerned, the interests of the victim of the offence in respect of which the child concerned is detained and the protection of society, to make an order authorising the taking of an intimate sample from the child concerned.

• (5) If, on an application under subsection (1), a parent or guardian of the child concerned applies to be heard by the judge of the District Court, an order shall not be made under this section unless a reasonable opportunity has been given to the parent or guardian, as the case may be, of that child to be heard.

• (6) A judge of the District Court may, if he or she considers it appropriate to do so, make an order authorising the taking of an intimate sample from the child concerned in accordance with this Part.

• (7) If, on an application under subsection (1) in relation to a child who is detained under section 4 of the Act of 1984, a judge of the District Court makes an order under subsection (6), the judge may, on an application in that behalf by a member of the Garda Síochána not below the rank of inspector, issue a warrant authorising the detention of the child concerned for such further period as the judge may determine but not exceeding 4 hours for the purpose of having an intimate sample taken from that child.

• (8) Subsection (7) shall not affect the operation of section 4(3) of the Act of 1984.