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

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

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 2 except 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

• (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 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—

• (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) 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

• (c) the sample proves to be insufficient or is inadequately labelled,

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

• (i) a member of the 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 53 and 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;

• (c) the kinship 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;

• (c) that the person is not obliged to have the sample taken from him or her;

• (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—

• (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;

• (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

30. Where a sample taken from a person under section 27 or 29 proves to be insufficient or was inadequately labelled or, for any other good reason, a member of the Garda Síochána considers that it is necessary for a second or further such sample to be taken from the person, a second or further sample may be taken from him or her in accordance with the section concerned.

PART 4 TAKING OF SAMPLES FROM OTHER PERSONS OR BODIES FOR REFERENCE INDEX OF DNA DATABASE SYSTEM

31. Taking of samples from offenders

31. (1) A sample may be taken under this section from a person (in this section called an “offender”)—

• (a) who has been convicted of a relevant offence before the commencement of this section and, at that commencement, a sentence of imprisonment has been imposed by a court on the offender in respect of the offence and—

• (i) the offender is serving the sentence in prison,

• (ii) the offender is temporarily released under section 2 of the [F6Criminal Justice Act 1960,]

• F7[(iia) the offender is released on parole within the meaning of the Parole Act 2019, or]

• (iii) the sentence is otherwise still in force or current,

• (b) who at any time before or after the commencement of this section has been or is convicted of a relevant offence and, after that commencement, a sentence of imprisonment is imposed by a court on the offender in respect of the offence,

• (c) who—

• (i) at any time before or after the commencement of this section has been or is convicted outside the State of an offence, and

• (ii) at any time after that commencement, is serving a sentence of imprisonment, or the balance thereof, in a prison in the State in respect of that offence pursuant to—

• (I) a warrant issued by the High Court under the Transfer of Sentenced Persons Act 1995 authorising the bringing of the person into the State and his or her imprisonment in the State, F8[…]

• F9[(IA) a committal order within the meaning of the Transfer of Sentenced Persons Act 1995,]

• (II) an order of the High Court under the Transfer of Execution of Sentences Act 2005 committing the person to a prison,

• F9[(III) a committal order within the meaning of the Transfer of Execution of Sentences Act 2005, or

• (IV) a committal order within the meaning of Part 3 of the Criminal Justice (Mutual Recognition of Custodial Sentences) Act 2023,]

provided that, when issuing the warrant or making the order, as the case may be, the offence that the High Court F9[or an appropriate court (within the meaning of the Criminal Justice (Mutual Recognition of Custodial Sentences) Act 2023), as the case may be,] determined to be the corresponding offence in the State to that offence is a relevant offence, or

• (d) who may fall under paragraph (a), (b) or (c) and who, on or at any time after the commencement of this section is, or becomes, subject to the requirements of Part 2 of the Sex Offenders Act 2001 (in this Act called a “sex offender”).

• (2) A sample taken from an offender under this section shall be used to generate a DNA profile in respect of the offender to be entered in the reference index of the DNA Database System.

• (3) A sample under this section shall be taken from an offender as soon as practicable after the commencement of this section or he or she becomes an offender, whichever occurs first and, in any event, the sample shall be taken from him or her before the expiry of the sentence concerned or, if he or she is a sex offender, before the end of the notification period.

• (4) Subject to this Act, a prison officer may take, or cause to be taken, a sample under this section from an offender who is in prison.

• (5) A sample under this section shall be taken from an offender referred to in subsection (4) in the prison in which he or she is imprisoned, but only if the governor of the prison authorises it to be taken.

• (6) Subject to this Act, a member of the Garda Síochána may take, or cause to be taken, a sample under this section from an offender who is not in prison.

• (7) A sample under this section may be taken from an offender referred to in subsection (6) only if—

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

• (b) the offender attends at a Garda Síochána station in accordance with this section for the purpose of having the sample taken from him or her.

• (8) A prison officer or a member of the Garda Síochána, as may be appropriate, shall inform an offender of the following before taking, or causing to be taken, a sample under this section from him or her:

• (a) that an authorisation to take the sample from him or her has been given under subsection (5) or (7)(a), as the case may be;

• (b) in a case in which a sample already taken under this section from the offender, or a sample already taken from him or her under section 32 when he or she was a child offender, has proved to be insufficient—

• (i) that that sample has proved to be insufficient, and

• (ii) that either—

• (I) another authorisation under subsection (5) or (7)(a), as the case may be, is not, by virtue of section 3(6), required, or

• (II) an authorisation to take a second sample under this section from him or her has, in accordance with subsection (3) or (5), as may be appropriate, of section 38, been given under subsection (5) or, if appropriate, that an authorisation under section 38(7)(a) has been given for the taking of a second such sample from him or her;

• (c) if appropriate, that where the offender fails or refuses to allow the sample to be taken from him or her, reasonable force may be used in accordance with section 36 to take the sample;

• (d) that the sample will be used to generate a DNA profile in respect of the offender to be entered in the reference index of the DNA Database System and the effect of such an entry;

• (e) that the sample, or the DNA profile generated from the sample in respect of the person, may be transmitted or provided to a person or body in connection with the investigation of criminal offences or criminal proceedings (whether within or outside the State) as provided for in or permitted by this Act; and

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

• (9) Where a sample under this section has not been taken from an offender in prison, a member of the Garda Síochána not below the rank of inspector in the Garda Síochána district in which the offender ordinarily resides may require the offender by notice in writing to attend at a specified Garda Síochána station within the period specified in subsection (11)(a) for the purpose of having such a sample taken from him or her.

• (10) If the member of the Garda Síochána sending a notice under subsection (9) knows or believes that the offender to whom the notice is being sent is a protected person, the member shall also send the notice to a parent or guardian of the person.

• (11) A requirement in a notice under subsection (9) to attend at a specified Garda Síochána station—

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

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

• (12) An offender who fails or refuses, without reasonable cause, to comply with a notice under subsection (9) shall be guilty of an offence and shall be liable on summary conviction to a class A fine or imprisonment for a term not exceeding 12 months or both.

• (13) In this section references to a sentence of imprisonment imposed by a court on an offender include references to—

• (a) a sentence of imprisonment imposed by a court on the offender the execution of the whole or a part of which is suspended,

• (b) a sentence of imprisonment imposed by a court on the offender following the contravention by him or her of a condition in an order made by the court under section 100 of the Criminal Justice Act 2006, and

• (c) a sentence of detention imposed by a court on the offender when he or she was a child where he or she is transferred to a prison to serve the remainder of the sentence in accordance with section 155 of the Act of 2001.

• (14) In this section—

"the end of the notification period", in relation to a sex offender, means the end of the period for which he or she is subject to the requirements of Part 2 of the Sex Offenders Act 2001;

"the expiry of the sentence", in relation to an offender other than a sex offender, means—

• (a) in the case of an offender falling under paragraph (a) or (b) of subsection (1), the expiry of the sentence of imprisonment imposed by a court on him or her in respect of the relevant offence concerned,

• (b) in the case of an offender falling under subsection (1)(c), the expiry of the sentence of imprisonment determined by the High Court F9[or an appropriate court (within the meaning of the Criminal Justice (Mutual Recognition of Custodial Sentences) Act 2023), as the case may be] in respect of the offence concerned of which he or she was convicted outside the State—

• (i) on his or her transfer to the State and imprisonment in a prison in the State under the Transfer of Sentenced Persons Act 1995, F8[…]

• (ii) on his or her committal to a prison in the State under the [F10Transfer of Execution of Sentences Act 2005, or]

• F9[(iii) on his or her transfer to the State and detention in a place of detention in the State under Part 3 of the Criminal Justice (Mutual Recognition of Custodial Sentences) Act 2023,]

as the case may be;

“temporary release”, in relation to an offender, means the release of the offender from prison for a temporary period in accordance with a direction given by the Minister under section 2 of the Criminal Justice Act 1960.

32. Taking of samples from child offenders

32. (1) A sample may be taken under this section from a child (in this section called a “child offender”)—

• (a) who has been convicted of a relevant offence before the commencement of this section and, at that commencement, a sentence of detention has been imposed by a court on the child offender in respect of the offence and—

• (i) the child offender is serving the sentence in a children detention school or a place of detention,

• (ii) the child offender is on a permitted absence from a children detention school or is temporarily released under section 2 of the Criminal Justice Act 1960 from a place of detention, or

• (iii) the sentence is otherwise still in force or current,

• (b) who at any time before or after the commencement of this section has been or is convicted of a relevant offence and, after that commencement, a sentence of detention is imposed by a court on the child offender in respect of the offence,

• (c) who—

• (i) at any time before or after the commencement of this section has been or is convicted outside the State of an offence, and

• (ii) at any time after that commencement, is serving a sentence of detention, or the balance thereof, in the State in respect of that offence pursuant to—

• (I) a warrant issued by the High Court under the Transfer of Sentenced Persons Act 1995 authorising the bringing of the child into the State and his or her detention in a children detention school or a place of detention, F12[…]

• F13[(IA) a committal order within the meaning of the Transfer of Sentenced Persons Act 1995,]

• (II) an order of the High Court under the Transfer of Execution of Sentences Act 2005 committing the child to Saint Patrick’s Institution,

• F13[(III) a committal order within the meaning of the Transfer of Execution of Sentences Act 2005, or

• (IV) a committal order within the meaning of Part 3 of the Criminal Justice (Mutual Recognition of Custodial Sentences) Act 2023,]

provided that, when issuing the warrant or making the order, as the case may be, the offence that the High Court F13[or an appropriate court (within the meaning of the Criminal Justice (Mutual Recognition of Custodial Sentences) Act 2023), as the case may be,] determined to be the corresponding offence in the State to that offence is a relevant offence, or

• (d) who may fall under paragraph (a), (b) or (c) and who, on or at any time after the commencement of this section is, or becomes, subject to the requirements of Part 2 of the Sex Offenders Act 2001 (in this Act called a “sex offender”).

• (2) A sample taken from a child offender under this section shall be used to generate a DNA profile in respect of the child offender to be entered in the reference index of the DNA Database System.

• (3) Subject to section 156(2), a sample under this section shall be taken from a child offender as soon as practicable after the commencement of this section or he or she becomes a child offender, whichever occurs first and, in any event, the sample shall be taken from him or her before the expiry of the sentence concerned or, if he or she is a sex offender, before the end of the notification period.

• (4) Subject to this Act, an authorised member of the staff of a children detention school in which a child offender is detained or a prison officer of a place of detention in which the child offender is detained may take, or cause to be taken, a sample under this section from the child offender.

• (5) A sample under this section shall be taken from a child offender referred to in subsection (4) in the children detention school or, as the case may be, the place of detention in which he or she is detained, but only if the Director of the children detention school or the governor of the place of detention, as the case may be, authorises it to be taken.

• (6) Subject to this Act, a member of the Garda Síochána may take, or cause to be taken, a sample under this section from a child offender who is not in a children detention school or a place of detention.

• (7) A sample under this section may be taken from a child offender referred to in subsection (6) only if—

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

• (b) the child offender attends at a Garda Síochána station in accordance with this section for the purpose of having the sample taken from him or her.

• (8) An authorised member of the staff of a children detention school, a prison officer of a place of detention or a member of the Garda Síochána, as may be appropriate, shall inform a child offender of the following before taking, or causing to be taken, a sample under this section from him or her:

• (a) that an authorisation to take the sample from him or her has been given under subsection (5) or (7)(a), as the case may be;

• (b) in a case in which a sample already taken under this section from the child offender has proved to be insufficient—

• (i) that that sample has proved to be insufficient, and

• (ii) that either—

• (I) another authorisation under subsection (5) or (7)(a), as the case may be, is not, by virtue of section 3(6), required, or

• (II) an authorisation to take a second sample under this section from him or her has, in accordance with section 38(4), been given under subsection (5) or, if appropriate, that an authorisation under section 38(8)(a) has been given for the taking of a second such sample from him or her;

• (c) if appropriate, that where the child offender fails or refuses to allow the sample to be taken from him or her, reasonable force may be used in accordance with section 36 to take the sample;

• (d) that the sample will be used to generate a DNA profile in respect of the child offender to be entered in the reference index of the DNA Database System and the effect of such an entry;

• (e) that the sample, or the DNA profile generated from the sample in respect of the person, may be transmitted or provided to a person or body in connection with the investigation of criminal offences or criminal proceedings (whether within or outside the State) as provided for in or permitted by this Act; and

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

• (9) Where a sample under this section has not been taken from a child offender in a children detention school or a place of detention, a member of the Garda Síochána not below the rank of inspector in the Garda Síochána district in which the child offender ordinarily resides may require the child offender by notice in writing to attend at a specified Garda Síochána station within the period specified in subsection (11)(a) for the purpose of having such a sample taken from him or her.

• (10) A notice under subsection (9) shall also be sent to a parent or guardian of the child offender concerned.

• (11) A requirement in a notice under subsection (9) to attend at a specified Garda Síochána station—

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

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

• (12) A child offender who fails or refuses, without reasonable cause, to comply with a notice under subsection (9) shall be guilty of an offence and shall be liable on summary conviction to a class C fine or detention for a period not exceeding 6 months or both.

• (13) For the avoidance of doubt it is hereby declared that references in this section to a relevant offence shall, in the case of a child offender aged 10 or 11 years, be construed as references to an offence referred to in section 52(2) of the Act of 2001.

• (14) In this section references to a sentence of detention imposed by a court on a child offender include references to a sentence of detention imposed by a court on the child offender the execution of the whole or a part of which is suspended.

• (15) In this section—

"the end of the notification period", in relation to a sex offender, means the end of the period for which he or she is subject to the requirements of Part 2 of the Sex Offenders Act 2001;

"the expiry of the sentence", in relation to a child offender other than a sex offender, means—

• (a) in the case of a child offender falling under paragraph (a) or (b) of subsection (1), the expiry of the sentence of detention imposed by a court on him or her in respect of the relevant offence concerned,

• (b) in the case of a child offender falling under subsection (1)(c), the expiry of the sentence of detention determined by the High Court F13[or an appropriate court (within the meaning of the Criminal Justice (Mutual Recognition of Custodial Sentences) Act 2023), as the case may be] in respect of the offence concerned of which he or she was convicted outside the State—

• (i) on his or her transfer to the State and detention in a children detention school or a place of detention in the State under the Transfer of Sentenced Persons Act 1995, F12[…]

• (ii) on his or her committal to Saint Patrick's Institution under the F14[ Transfer of Execution of Sentences Act 2005, or]

• F13[(iii) on his or her transfer to the State and detention in a place of detention in the State under Part 3 of the Criminal Justice (Mutual Recognition of Custodial Sentences) Act 2023,]

as the case may be;

"permitted absence", in relation to the absence of a child offender from a children detention school, means—

• (a) the absence of the child offender from the school pursuant to an order under section 202 or 203 of the Act of 2001,

• (b) the absence of the child offender from the school on a mobility trip within the meaning of section 204 of the Act of 2001,

• (c) the absence of the child offender on temporary leave from the school granted in accordance with sections 205 and 206 of the Act of 2001, or

• (d) the placing out of the child offender under supervision in the community under section 207 of the Act of 2001;

"temporary release", in relation to a child offender, means the release of the child offender from a place of detention for a temporary period in accordance with a direction given by the Minister under section 2 of the Criminal Justice Act 1960.

33. Former offenders

33. (1) Subject to this section, a sample may be taken under section 34 from a person (including a child) (in this Act called a “former offender”)—

• (a) who at any time before the commencement of sections 31 and 32 would, if those sections had been in operation at that time, have been an offender or a child offender but who, on the commencement of those sections, was not an offender or a child offender, as the case may be, by reason of the fact that—

• (i) the sentence for the offence concerned of which the person had been convicted had expired, or

• (ii) in the case of a sex offender, the notification period had ended,

• (b) who at any time after the commencement of sections 31 and 32 was an offender or a child offender and—

• (i) a sample under those sections—