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

Type Act

Publication 2014-06-22

Last updated 2025-04-02

State In force

Source Irish Statute Book

articles 172

Reform history JSON API

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;

“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 (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

“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 2of 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;

F1["member of garda staff", other than insection 42(2), shall be construed in accordance with thePolicing, 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

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

F2[…]

“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

“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 81to 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 98has 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;

(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;

(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;

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. (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,

(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,

(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;

(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—

(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;

(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.

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

18. Persons authorised to take intimate samples

18. (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.

19. (1) Subject to subsection (5), where in any proceedings against a person for an offence (other than an offence under section 160(1)) evidence is given that the accused refused without reasonable cause to give an appropriate consent required under section 12(2)(b) or he or she without reasonable cause withdrew the appropriate consent given thereunder, then—

(a) the court, in determining—

(i) whether a charge against the accused should be dismissed under Part IA of the Criminal Procedure Act 1967, or

(ii) whether there is a case to answer,

and

(b) the court (or, subject to the judge’s directions, the jury), in determining whether the accused is guilty of the offence charged (or of any other offence of which he or she could lawfully be convicted on that charge),

may draw such inferences from the refusal or withdrawal, as the case may be, as appear proper; and the refusal or withdrawal 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, but a person shall not be convicted of such an offence solely or mainly on an inference drawn from such refusal or withdrawal.

(2) Subsection (1) 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 Garda Síochána 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.

(3) This section shall not apply to a refusal by a person to give the appropriate consent, or the withdrawal of such consent, unless the seeking of such consent by a member of the Garda Síochána is recorded by electronic or similar means or the person consents in writing to it not being so recorded.

(4) References in subsection (1) to evidence shall, in relation to the hearing of an application under Part IA of the Criminal Procedure Act 1967 for the dismissal of a charge, be taken to include a statement of the evidence to be given by a witness at the trial.

(5) This section shall not apply—

(a) to a protected person,

(b) to a person who has not attained the age of 14 years, or

(c) in a case where the appropriate consent has been refused, or been withdrawn, by a parent or guardian of a child unless a judge of the District Court makes an order under section 17(6) and the child refuses to comply with the order.

20. When sample taken for purposes of DNA Database System may also be used for evidential purposes

20. (1) Where a person is detained for a period under any of the provisions referred to in section 9(1) and—

(a) a sample is taken from the person under section 11 during the period, and

(b) a non-intimate sample is required from the person during the period,

then, subject to subsection (5), the sample that has already been taken from the person under section 11 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 Garda Síochána not below the rank of inspector 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 index of the DNA Database System, and

(ii) a member of the Garda Síochána has informed the person of the following:

(I)the nature of the offence 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; and

(III)that the results of the forensic testing of that sample may be given in evidence in any proceedings.

(2) An authorisation under subsection (1)(i) to regard a sample taken from a person under section 11 as a non-intimate sample 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 first-mentioned sample was taken in the commission of the offence in respect of which he or she is detained, and

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

(3) The results of the forensic testing of a sample taken under section 11 that is regarded as a non-intimate sample in accordance with this section may be given in evidence in any proceedings.

(4) A sample taken from a person under section 11 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 13.

(5) Where, during a period of detention of a person under any of the provisions referred to in section 9(1), a sample is taken from the person under section 11, 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 of detention.

(6) Where, during a period of detention of a person under any of the provisions referred to in section 9(1), 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 11 from the person during the period of detention.

(7) In this section references to the detention of a person for a period under any of the provisions referred to in section 9(1) shall, if appropriate, include references to the detention of the person for consecutive periods under the provisions concerned.

21. Taking of samples from protected persons under Part 2

21. (1) An intimate sample shall not be taken from a protected person under Part 2 except where—

(a) a parent or guardian of the person or, if appropriate, an adult relative or other adult reasonably named by the person who, pursuant to section 58 of the Act of 2001, section 23(2) or otherwise, attends at the Garda Síochána station in which the person is detained, or

(b) in the absence, or the exclusion under subsection (4) or the removal under subsection (5), of a person referred to in paragraph (a), another adult (not being a member of the Garda Síochána) nominated by the member in charge of the Garda Síochána station,

is present while the sample is being taken, unless the protected person indicates that he or she does not wish to have the person present.

(2) The member in charge of the Garda Síochána station concerned shall, in so far as practicable, nominate a person under subsection (1)(b) who—

(a) is of the same sex as the person from whom the sample is to be, or is being, taken, and

(b) by reason of his or her training or experience with persons who have physical or mental disabilities or both, is suitable for that purpose.

(3) Subject to subsections (4) and (5), a non-intimate sample shall, if it is reasonably practicable to do so, be taken from a protected person in the presence of a parent or guardian of the person or, if appropriate, an adult relative or other adult reasonably named by the person who, pursuant to section 58 of the Act of 2001, section 23(2) or otherwise, attends at the Garda Síochána station in which the person is detained, unless the protected person indicates that he or she does not wish to have the person present.

(4) The member in charge of the Garda Síochána station may authorise the exclusion of a parent or guardian of a protected person, or other adult referred to in subsection (1)(a) or (3), as the case may be, who attends at the Garda Síochána station in which the protected person is detained, from the place where the sample concerned is to be, or is being, taken if—

(a) the parent or guardian of the protected person, or the other adult who attends at the station, is the victim of the offence in relation to which the protected person is detained,

(b) the parent or guardian of the protected person, or the other adult who attends at the station, has been arrested in respect of that offence,

(c) the member in charge has reasonable grounds for suspecting the parent or guardian of the protected person, or the other adult who attends at the station, of complicity in that offence, or

(d) the member in charge has reasonable grounds for believing that the parent or guardian of the protected person, or the other adult who attends at the station, is likely to obstruct the course of justice.

(5) The member in charge of the Garda Síochána station may authorise the removal of a parent or guardian of a protected person, or other adult referred to in subsection (1)(a) or (3), as the case may be, who attends at the Garda Síochána station in which the protected person is detained, from the place where the sample concerned is to be, or is being, taken if he or she attempts without reasonable cause to obstruct the taking of the sample.

(6) Before a member of the Garda Síochána takes, or causes to be taken, an intimate sample or a non-intimate sample from a protected person, the member shall, if it is reasonably practicable to do so, inform a parent or guardian of the person or other adult referred to in subsection (1)(a) or (3), as may be appropriate, who—

(a) attends, pursuant to section 58 of the Act of 2001, section 23(2) or otherwise, at the Garda Síochána station in which the person is detained, and

(b) is not excluded under subsection (4) from the place where the sample is to be, or is being, taken,

of the matters referred to in section 12(5) or 13(5), as the case may be, in relation to the person.

(7) Subsection (6) shall not apply in relation to the taking of an intimate sample from a protected person if a parent or guardian of the person has, pursuant to section 15(4), been informed of the matters referred to in section 12(5) in relation to the person.

22. Taking of samples from children under Part 2

22. (1) An intimate sample shall not be taken from a child under Part 2except where—

(a) a parent or guardian of the child or, if appropriate, any other adult who, pursuant to section 58 of the Act of 2001, attends at the Garda Síochána station in which the child is detained, or

is present while the sample is being taken, unless the child indicates that he or she does not wish to have the person present.

(2) The member in charge of the Garda Síochána station concerned shall, in so far as practicable, nominate a person under subsection (1)(b) who—

(a) is of the same sex as the child from whom the sample is to be, or is being, taken, and

(b) by reason of his or her training or experience with children, is suitable for that purpose.

(3) Subject to subsections (4) and (5) —

(a) if appropriate, a sample under section 11, or

(b) a non-intimate sample,

shall, if it is reasonably practicable to do so, be taken from a child in the presence of a parent or guardian of the child or, if appropriate, any other adult who, pursuant to section 58 of the Act of 2001, attends at the Garda Síochána station in which the child is detained, unless the child indicates that he or she does not wish to have the person present.

(4) The member in charge of the Garda Síochána station may authorise the exclusion of a parent or guardian of a child, or other adult referred to in subsection (1)(a) or (3), as the case may be, who attends at the Garda Síochána station in which the child is detained, from the place where the sample concerned is to be, or is being, taken if—

(a) the parent or guardian of the child, or the other adult who attends at the station, is the victim of the offence in relation to which the child is detained,

(b) the parent or guardian of the child, or the other adult who attends at the station, has been arrested in respect of that offence,

(c) the member in charge has reasonable grounds for suspecting the parent or guardian of the child, or the other adult who attends at the station, of complicity in that offence, or

(d) the member in charge has reasonable grounds for believing that the parent or guardian of the child, or the other adult who attends at the station, is likely to obstruct the course of justice.

(5) The member in charge of the Garda Síochána station may authorise the removal of a parent or guardian of a child, or other adult referred to in subsection (1)(a) or (3), as the case may be, who attends at the Garda Síochána station in which the child is detained, from the place where the sample concerned is to be, or is being, taken if he or she attempts without reasonable cause to obstruct the taking of the sample.

(6) Before a member of the Garda Síochána takes, or causes to be taken, a sample under section 11, an intimate sample or a non-intimate sample from a child, the member shall, if it is reasonably practicable to do so, inform a parent or guardian of the child or other adult who—

(a) attends, pursuant to section 58 of the Act of 2001 or otherwise, at the Garda Síochána station in which the child is detained, and

(b) is not excluded under subsection (4) from the place where the sample concerned is to be, or is being, taken,

of the matters referred to in section 11(3), 12(5)or 13(5), as the case may be, in relation to the child.

(7) Subsection (6) shall not apply in relation to the taking of an intimate sample from a child if a parent or guardian of the child has, pursuant to section 15(5), been informed of the matters referred to in section 12(5) in relation to the child.

23. Persons other than parent or guardian to support protected person

23. (1) If, in relation to the taking of an intimate sample or a non-intimate sample under this Part from a protected person, the member in charge of the Garda Síochána station in which the person is detained—

(a) is unable, having made reasonable efforts to do so, to contact a parent or guardian of the person, or

(b) the parent or guardian of the person indicates that he or she cannot or will not attend at the station within a reasonable time,

the member in charge shall inform the protected person, or cause him or her to be informed, without delay of that fact.

(2) Where—

(a) the circumstances referred to in subsection (1) exist in relation to a protected person, or

(b) 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,

the member in charge of the Garda Síochána station in which the protected person is detained shall inform the person, or cause him or her to be informed, without delay that he or she is entitled to have an adult relative or other adult reasonably named by him or her requested to attend at the station without delay for the purposes of this Part and the member in charge of the station shall, on request, cause the named person to be notified accordingly as soon as practicable.

24. Use of reasonable force to take sample under section 11 or non-intimate sample

24. (1) Without prejudice to the generality of sections 11 and 13 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 Garda Síochána, and the member or members of the Garda Síochána 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)Subsection (1) shall not apply to—

(a) the taking of a sample under section 11 from a child, or

(b) the taking of a non-intimate sample from a child who has not attained the age of 12 years.

(3) The power referred to in subsection (1)shall not be exercised unless a member of the Garda Síochána not below the rank of superintendent authorises it.

(4) Where it is intended to exercise the power conferred by subsection (1), one of the members of the Garda Síochána concerned shall inform the person concerned—

(a) of that intention, and

(b) that an authorisation to do so has been given under subsection (3).

(5) A sample to be taken pursuant to this section shall be taken in the presence of a member of the Garda Síochána not below the rank of inspector and that member shall determine the number of members of the Garda Síochána that is reasonably necessary for the purposes of subsection (1).

(6) A non-intimate sample to be taken from a protected person pursuant to this section shall not be taken except where—

(b) in the absence, or the exclusion under subsection (4) of section 21 or the removal under subsection (5) of that section, of a person referred to in paragraph (a), another adult (not being a member of the Garda Síochána) nominated by the member in charge of the Garda Síochána station,

is present while the sample is being taken, unless the protected person indicates that he or she does not wish to have the person present.

(7) The member in charge of the Garda Síochána station concerned shall in so far as practicable, nominate a person under subsection (6)(b) who, by reason of his or her training or experience with persons who have physical or mental disabilities or both, is suitable for that purpose.

(8) A non-intimate sample to be taken from a child pursuant to this section shall not be taken except where—

(a) a parent or guardian of the child or, if appropriate, another adult who, pursuant to section 58 of the Act of 2001, attends at the Garda Síochána station in which the child is detained, or

(b) in the absence, or the exclusion under subsection (4) of section 22 or the removal under subsection (5) of that section, of a person referred to in paragraph (a), another adult (not being a member of the Garda Síochána) nominated by the member in charge of the Garda Síochána station,

is present while the sample is being taken, unless the child indicates that he or she does not wish to have the person present.

(9) The member in charge of the Garda Síochána station concerned shall, in so far as practicable, nominate a person under subsection (8)(b) who, by reason of his or her training or experience with children, is suitable for that purpose.

(10) The taking of a sample pursuant to this section shall be recorded by electronic or similar means.

25. Re-taking of certain samples under Part 2 in certain circumstances

25. (1) Where—

(a) a person is detained for a period under any of the provisions referred to in section 9(1), and

(b) a sample under section 11 taken from the person during the period of detention proves to be insufficient or an intimate sample or a non-intimate sample taken from the person during the period of detention proves to be insufficient or is inadequately labelled,

a second sample under section 11 or a second intimate sample or 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 detained only if, subject to subsection (2) and section 3(6), an authorisation to take the second sample is given under section 11(2), 12(2)(a) or 13(2), as the case may be.

(2) An authorisation under section 11(2), 12(2)(a) or 13(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 of detention of the person under any of the provisions referred to in section 9(1).

(3) Where—

(a) a non-intimate sample is taken from a person who is detained under any of the provisions referred to in section 9(1),

(b) the person is released without any charge having been made against him or her, and

a second non-intimate sample may be taken from the person in accordance with this Part only if—

(i) a member of the Garda Síochána not below the rank of superintendent authorises it to be taken, and

(ii) the person attends at a Garda Síochána station in accordance with this section for the purpose of having the second non-intimate sample taken from him or her.

(4) An authorisation under paragraph (i) of 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 Garda Síochána 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 offence in respect of which he or she was detained 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 offence.

(5) An authorisation under paragraph (i) of 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)(i) to take a second non- intimate sample from a person has been given, a member of the Garda Síochána may, within the period specified in subsection (7), require the person by notice in writing to attend at a specified Garda Síochána station within the period specified in subsection (9)(a) for the purpose of having a second non-intimate sample taken from him or her.

(7) The period referred to in subsection (6) for requiring the person concerned to attend at a specified Garda Síochána station is one month from the date on which a member of the Garda Síochána of the rank of superintendent in the Garda Síochána district in which the first non-intimate sample concerned was taken 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, in the case of a protected person or child, also be sent to a parent or guardian of the person or child, as the case may be.

(9) 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 Garda Síochána station—

(a) shall give the person concerned a period of not less than 10 working days within which he or she shall so attend, and

(b) may direct the person concerned to so attend on specified days and at a specified time of day or between specified times of day.

(10) If the person concerned fails or refuses without reasonable cause to comply with a notice under subsection (6), a member of the Garda Síochána not below the rank of superintendent may apply to a judge of the District Court for a warrant for the arrest of the person and his or her detention in a Garda Síochána station for the purpose of having a second non-intimate sample taken from him or her.

(11) A judge of the District Court may, on an application under subsection (10), issue a warrant for the arrest of the person concerned and his or her detention in a Garda Síochána station for such period not exceeding 4 hours from the time the person concerned is arrested for the purpose of having a second non-intimate sample taken from him or her if the judge is satisfied that—

(a) the first non-intimate sample concerned was taken from the person concerned in accordance with this Part,

(b) the first non-intimate sample concerned taken from the person concerned has proved to be insufficient or was inadequately labelled, as the case may be,

(c) the person concerned has failed or refused without reasonable cause to comply with a notice under subsection (6), and

(d) in all the circumstances of the case, it is in the interests of justice to issue a warrant for the arrest and detention in a Garda Síochána station of the person concerned for the purpose of having a second such sample taken from him or her.

(12) If a warrant for the arrest and detention of a person is issued under subsection (11) for the purpose of having a second non-intimate sample taken from the person, the sample shall be taken from him or her in accordance with this Part.

(13) When a second non-intimate sample has been taken from a person who is detained pursuant to a warrant issued under subsection (11), the person shall be released from custody forthwith unless his or her detention is authorised apart from this section.

(14) 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 13.

(15) 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.

(16) 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 11, 12 or 13, as may be appropriate.

(17) In this section references to the detention of a person for a period under any of the provisions referred to in section 9(1) shall, if appropriate, include references to the detention of the person for consecutive periods under the provision concerned.

26. Samples not to be taken from persons in custody of Garda Síochána other than in accordance with this Part

26. Subject to section 165, a member of the Garda Síochána shall not, following the commencement of this Part, take, or cause to be taken, a sample for forensic testing from a person who is detained under any of the provisions referred to in section 9(1) other than in accordance with this Part.

PART 3 Taking of Samples from Volunteers to Generate DNA Profiles

27. Taking of samples from volunteers to generate DNA profiles

27. (1) A member of the Garda Síochána or an authorised person may request a person other than a person to whom section 11, 12, 13, 29, 31 or 32 applies (in this section and section 28 called a “volunteer”) 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 offence, or

(b) the investigation of a particular incident that may have involved the commission of an offence.

(2) A person who is a victim, or is reasonably considered to be a victim, of the offence or incident that may have involved the commission of an offence being investigated may be a volunteer.

(3) Subject to sections 53and 55, a member of the Garda Síochána or an authorised person 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 or authorised person 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 30 a second or further sample is required to be taken from him or her—

(i) that the first-mentioned sample has proved to be insufficient, was inadequately labelled or that other reason for requiring a second or further sample under this section to be taken, as may be appropriate, and

(ii) that a second or further sample is, in accordance with section 30, 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 offence, or incident that may have involved the commission of an offence, in relation to which it is being taken; and

(d) that the sample and the DNA profile generated from the sample in respect of the volunteer may be destroyed in accordance with Part 10.

(4) Subject to sections 54 and 56 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 offence, or incident that may have involved the commission of an offence, that is being investigated to which the consent relates.

(5) Subject to this Act, a member of the Garda Síochána or an authorised person may take, or cause to be taken, from a volunteer a sample under this section.

(6) A sample may be taken under this section from a volunteer in a Garda Síochána station or other place nominated by a member of the Garda Síochána not below the rank of sergeant or, subject to the agreement of the member of the Garda Síochána or authorised person taking the sample, at a place designated by the volunteer.

(7) Subject to section 58, if a volunteer expressly withdraws consent given under subsection (4) (or if the withdrawal of that consent can reasonably be inferred from the conduct of the person) before or during the taking of a sample under this section, that withdrawal of consent shall be treated as a refusal to give consent to the taking of the sample under this section.

(8) A withdrawal under subsection (7)of consent given under subsection (4)shall be confirmed in writing as soon as practicable after such withdrawal.

(9) A refusal of a person to give consent under subsection (4) shall not of itself constitute reasonable cause for a member of the Garda Síochána to suspect the person of having committed the offence concerned for the purpose of arresting and detaining him or her under any of the provisions referred to in section 9(1) in connection with the investigation of that offence.

28. Entry of DNA profiles of volunteers in reference index of DNA Database System

28. (1) A member of the Garda Síochána not below the rank of sergeant may, at the time a sample is taken under section 27 or at any time thereafter, inform a volunteer from whom the sample is being, or was, taken, other than—

(a) a protected person,

(b) a child, or

(c) a victim, or a person reasonably considered to be a victim, of the offence, or incident that may have involved the commission of an offence, being investigated,

that he or she may consent to the entry of his or her DNA profile generated from the sample in the reference index of the DNA Database System.

(2) A member of the Garda Síochána or an authorised person shall inform a volunteer to whom subsection (1) applies of the following before the DNA profile in respect of the volunteer may be entered in the reference index of the DNA Database System:

(a) that the volunteer concerned is not obliged to consent to his or her DNA profile being entered in the reference index of the DNA Database System;

(b) the effect of the entry of the DNA profile in that index of that System; and

(c) that the sample taken under section 27 from the volunteer concerned may be destroyed if not previously destroyed, and his or her DNA profile entered in the reference index of the DNA Database System may be removed from that System, in accordance with Part 10.

(3) A volunteer referred to in subsection (1)shall consent in writing before his or her DNA profile may be entered in the reference index of the DNA Database System and, if he or she so consents, his or her DNA profile may be entered in that index of that System.

29. Taking of samples for mass screening

29. (1) A sample may be taken under this section from a person who is one of a class of persons to whom an authorisation for a mass screening given under subsection (2) applies for the purpose of generating a DNA profile in respect of the person in relation to the investigation of a particular relevant offence.

(2) A member of the Garda Síochána not below the rank of chief superintendent may authorise the mass screening of a class of persons in accordance with this section for the purposes of the investigation of a relevant offence if the member has reasonable grounds for believing that the mass screening of that class of persons—

(a) is likely to further the investigation of the offence, and

(b) is a reasonable and proportionate measure to be taken in the investigation of the offence.

(3) A class of persons for the purposes of a mass screening may be determined by reference to one or more of the following:

(a) the sex of the persons;

(b) the age of the persons;

(d) a geographic area in which the persons reside or work;

(e) a period of time during which the persons did anything or were at any place;

(f) such other matter as the member of the Garda Síochána giving the authorisation for the mass screening concerned considers appropriate.

(4) Subject to sections 53 and 55, a member of the Garda Síochána or an authorised person shall inform a person of the following before seeking his or her consent to the taking of a sample under this section or the member or authorised person takes, or causes to be taken, a sample under this section from him or her:

(a) that an authorisation for a mass screening has been given under subsection (2) and that the person is one of the class of persons to whom it applies;

(b) the purpose of the mass screening that has been authorised;

(d) 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 30 a second or further sample is required to be taken from him or her—

(ii) that a second or further sample is, in accordance with section 30, to be taken from him or her;

(e) that the sample will be used to generate a DNA profile in respect of the person for the purposes of the investigation of the particular relevant offence in relation to which the sample is being taken; and

(f) that the sample and the DNA profile generated from the sample in respect of the person may be destroyed in accordance with Part 10.

(5) Subject to sections 54 and 56, a person 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 refer to the authorisation for a mass screening concerned.

(6) Subject to this Act, a member of the Garda Síochána or an authorised person may take, or cause to be taken, a sample under this section from a person who is one of a class of persons to whom an authorisation for a mass screening given under subsection (2) applies.

(7) A sample may be taken under this section from a person who is one of a class of persons to whom an authorisation for a mass screening given under subsection (2) applies in a Garda Síochána station or other place nominated by a member of the Garda Síochána not below the rank of sergeant or, subject to the agreement of the member of the Garda Síochána or the authorised person taking the sample, at a place designated by the person from whom the sample is to be taken.

(8) Subject to section 58, if a person expressly withdraws consent given under subsection (5) (or if the withdrawal of that consent can reasonably be inferred from the conduct of the person) before or during the taking of a sample under this section, that withdrawal of consent shall be treated as a refusal to give consent to the taking of the sample under this section.

(9) A withdrawal under subsection (8) of consent given under subsection (5) shall be confirmed in writing as soon as practicable after such withdrawal.

(10) A refusal of a person to give consent under subsection (5) shall not of itself constitute reasonable cause for a member of the Garda Síochána to suspect the person of having committed the relevant offence concerned for the purpose of arresting and detaining him or her under any of the provisions referred to in section 9(1) in connection with the investigation of that offence.

30. Re-taking of samples under Part 3

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

PART 1 Preliminary and General

1. Short title and commencement

2. Interpretation

3. Supplementary provisions relating to samples and DNA profiles

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

5. Orders and regulations

6. Repeal and revocations

7. Transitional provisions

8. Expenses

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

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

10. Protected persons for purposes of Part 2

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

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

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

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

15. Appropriate consent to taking of intimate samples

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

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

18. Persons authorised to take intimate samples

19. Inferences from refusal to consent, or withdrawal of consent, to taking of intimate sample

20. When sample taken for purposes of DNA Database System may also be used for evidential purposes

21. Taking of samples from protected persons under Part 2

22. Taking of samples from children under Part 2

23. Persons other than parent or guardian to support protected person

24. Use of reasonable force to take sample under section 11 or non-intimate sample

25. Re-taking of certain samples under Part 2 in certain circumstances

26. Samples not to be taken from persons in custody of Garda Síochána other than in accordance with this Part

PART 3 Taking of Samples from Volunteers to Generate DNA Profiles

27. Taking of samples from volunteers to generate DNA profiles

28. Entry of DNA profiles of volunteers in reference index of DNA Database System

29. Taking of samples for mass screening

30. Re-taking of samples under Part 3