LegalizeCriminal Justice (Forensic Evidence and DNA Database System) Act 2014
93. Applications to District Court to retain certain samples and certain DNA profiles beyond retention period
93. (1) If a judge of the District Court is satisfied, on an application in that behalf by the Commissioner made within the retention period under section 80 and any extension of that period under an authorisation given under section 81, that there is good reason why a DNA profile in respect of a person generated from a sample taken from him or her under section 11, 12, 13, 31 or 32 should not be removed from the DNA Database System in accordance with section 80 within that retention period as so extended, the judge may make an order authorising the retention of the DNA profile in that System for such period as he or she considers appropriate.
(2) If a judge of the District Court is satisfied, on an application in that behalf by the Commissioner made within the retention period under section 84, that there is good reason why a DNA profile in respect of a person who was a child offender generated from a sample taken from him or her under section 11, 12, 13 or 32 should not be removed from the DNA Database System in accordance with section 84, the judge may make an order authorising the retention of the DNA profile in that System for such period as he or she considers appropriate.
(3) If a judge of the District Court is satisfied, on an application in that behalf by a member of the Garda Síochána not below the rank of superintendent, that there is good reason relating to the investigation of a particular offence in connection with which a sample was taken under section 27 or 29 why that sample and the DNA profile generated from it in respect of the person from whom it was taken should not be destroyed in accordance with section 87(3), the judge may make an order authorising the retention of the sample or the DNA profile or both for such period as he or she considers appropriate.
(4) If—
(a) the Commissioner intends to make an application under subsection (1) or (2), or
(b) a member of the Garda Síochána not below the rank of superintendent intends to make an application under subsection (3),
the Commissioner or the member, as may be appropriate, shall inform, or cause to be informed, by notice in writing the person from whom the sample concerned was taken and, if that person is a protected person or a child, if appropriate, the person who gave consent to the taking of the sample concerned from the protected person or child, as the case may be, of that intention.
(5) If, on an application under subsection (1), (2) or (3), the person from whom the sample concerned was taken, or any other person referred to in subsection (4), 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 that person to be heard.
(6) An application under this section shall be heard otherwise than in public.
(7) In determining an application under this section, a judge of the District Court may make such order as to costs as the judge considers appropriate.
94. Dismissal of charges, quashing of convictions and determination of proceedings
94. (1) For the purposes of this Part, a charge against a person in respect of a relevant offence shall be regarded as dismissed when—
(a) the time for bringing an appeal against the dismissal has expired,
(b) any such appeal has been withdrawn or abandoned, or
(c) on any such appeal, the dismissal is upheld.
(2) In this Part—
(a) references to a conviction of a person for a relevant offence or a sexual offence shall be construed as including references to a conviction of the person for such an offence after a re-trial for that offence, and
(b) references to a conviction of a person for a relevant offence or a sexual offence being quashed shall, subject to subsection (3), be construed as references to where a court hearing an appeal against the conviction makes an order quashing the conviction and, if the court is the Court of Criminal Appeal, either—
(i) it does not order the person to be re-tried for the offence concerned, or
(ii) it does not substitute for the verdict a verdict of guilty of another offence that is a relevant offence or a sexual offence.
(3) A conviction of a person for a relevant offence or a sexual offence shall not be regarded as quashed for the purposes of this Part if an appeal is contemplated, or taken, under section 23 of the Criminal Procedure Act 2010 or, on hearing the appeal, the Supreme Court quashes the acquittal of the person or reverses the decision of the Court of Criminal Appeal, as the case may be, and orders the person to be re-tried for the relevant offence or the sexual offence, as the case may be.
(4) In this Part references to the proceedings in respect of an offence being determined shall be construed as references to where those proceedings are finally determined (including any appeal, whether by way of case stated or otherwise, rehearing or re-trial).
95. Review of operation of this Part insofar as it relates to DNA Database System
95. The Minister shall, not later than 6 years after the commencement of this section, review the operation of this Part insofar as it relates to the operation of the DNA Database System and, thereafter, the Minister may conduct similar reviews at such times as the Minister considers appropriate.
96. Ministerial orders to change periods for destruction of samples or removal of DNA profiles from DNA Database System
96. The Minister may by order under this section, if he or she considers it proper to do so following a review under section 95 of the operation of this Part insofar as it relates to the operation of the DNA Database System, provide for all or any of the following:
(a) that the period of 3 years specified in subsection (7)(a) or (9)(a) of section 81 shall be decreased to such period as is specified in the order;
(b) that the period of 6 years specified in subsection (7)(b) or (9)(b) of section 81 shall be decreased to such period as is specified in the order;
(c) that the period of 10 years specified in section 88(2) shall be decreased to such period as is specified in the order;
(d) that the period of 10 years specified in section 89(2) shall be decreased to such period as is specified in the order;
(e) that the period of 10 years specified in section 90(2) shall be decreased to such period as is specified in the order.
97. Request to FSI or other person to destroy sample or destroy, or remove from DNA Database System, DNA profile
97.Where a sample taken under this Act, other than section 43 or 46, from a person, is required by this Act to be destroyed, or the DNA profile in respect of the person generated from the sample is required by this Act to be destroyed or removed from the DNA Database System, the Commissioner shall request, or cause to be requested—
(a) the Director of FSI or other person who holds the sample, to destroy the sample, or
(b) the Director of FSI, to destroy the DNA profile in respect of the person or remove it from that System, as may be appropriate,
or both within the period permitted by this Act for the destruction of the sample concerned or the destruction of the DNA profile concerned or its removal from that System, as the case may be.
98. Circumstances in which person to be informed of destruction of sample or destruction, or removal from DNA Database System, of DNA profile
98. (1) If, in relation to an intimate sample or a non-intimate sample taken from a person, the retention period under section 76 is extended on one or more occasions under section 77, the Commissioner shall, upon the expiration of that period (as so extended), cause—
(a) the person from whom the sample concerned was taken, or
(b) if that person is a protected person or a child, a parent or guardian of the person or child, as the case may be,
to be informed by notice in writing as soon as may be after the sample concerned has been destroyed under this Part of its destruction.
(2) If, in relation to the DNA profile of a person that is entered in the reference index of the DNA Database System—
(a) the retention period under section 80 is extended on one or more occasions under section 81, or
(b) a judge of the District Court makes an order under section 93(1) authorising the retention of the DNA profile in that System for such period as he or she considers appropriate,
the Commissioner shall, upon the expiration of the period (as so extended) concerned, cause—
(i) the person to whom the DNA profile relates, or
(ii) if that person is a protected person or a child, a parent or guardian of the person or child, as the case may be,
to be informed by notice in writing as soon as may be after the removal of the DNA profile from that System of its removal.
(3) The Commissioner shall, in relation to a sample taken under section 27, 29, 44, 48, 49 or 50, cause—
(a) the person from whom the sample was taken if he or she applied for or requested—
(i) the destruction of the sample, or
(ii) the destruction, or removal from the DNA Database System, of his or her DNA profile, or both,
and
(b) if appropriate, any other person who applied for or requested—
(i) the destruction of the sample, or
(ii) the destruction, or such removal, of the DNA profile,
or both on behalf of the person referred to in paragraph (a) or the deceased person from whose body the sample was taken, as may be appropriate,
to be informed by notice in writing as soon as may be after the sample has been destroyed under this Part of its destruction, or the destruction of the DNA profile in respect of the person of its destruction or its removal from the DNA Database System under this Part of its removal from that System, or both.
(4) The Commissioner shall inform, or cause to be informed, by notice in writing a person from whom a sample was taken under section 41, 42 or 45 as soon as may be after the sample has been destroyed under this Part of its destruction, or the removal of the DNA profile in respect of the person from the DNA Database System under this Part of its removal from that System, or both.
(5) The Director of FSI shall inform, or cause to be informed, by notice in writing a person from whom a sample was taken under section 43 or 46 as soon as may be after the sample has been destroyed under this Part of its destruction, or the removal of the DNA profile in respect of the person from the DNA Database System under this Part of its removal from that System, or both.
99. F32[Application of Part to Police Ombudsman
PART 11 Provisions Relating to Fingerprints, Palm Prints and Photographs
100. Power of Garda Síochána to take fingerprints and palm prints of persons arrested for purpose of charge
100. (1) Where a person is arrested for the purpose of being charged with a relevant offence, a member of the Garda Síochána may take, or cause to be taken, the fingerprints and palm prints of the person in a Garda Síochána station before he or she is charged with the relevant offence concerned.
(2) The power conferred by subsection (1) shall not be exercised unless a member of the Garda Síochána not below the rank of sergeant authorises it.
(3) The provisions of subsection (1A) of section 6 and section 6A of the Act of 1984 shall apply to fingerprints and palm prints taken pursuant to this section as they apply to fingerprints and palm prints taken pursuant to the said section 6.
(4) A person who obstructs or attempts to obstruct a member of the Garda Síochána acting under the power conferred by subsection (1) 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.
(5) The power conferred by this section is without prejudice to any other power exercisable by a member of the Garda Síochána to take, or cause to be taken, the fingerprints and palm prints of a person.
(6) Sections 8 to 8I of the Act of 1984 shall, with the following and any other necessary modifications, apply to fingerprints and palm prints taken from a person pursuant to this section as they apply to fingerprints and palm prints taken from a person pursuant to section 6 or 6A of that Act:
(a) references to an offence to which section 4 of the Act of 1984 applies shall be construed as references to a relevant offence;
(b) references to section 6 or 6A of the Act of 1984 shall be construed as references to this section; and
(c) references to the detention of the person under section 4 of the Act of 1984 shall be construed as references to the person being arrested for the purposes of being charged with a relevant offence under this section.
101. Amendment of section 3(1) of Act of 1984
101. Section 3(1) of the Act of 1984 is amended by the insertion of the following definitions:
“ ‘Commissioner’ means the Commissioner of the Garda Síochána;
‘photograph’ includes a negative or any other image howsoever produced of a photograph;”.
102. Amendment of section 6A of Act of 1984
102. Section 6A of the Act of 1984 is amended—
(a) by the substitution of the following subsection for subsection (1):
“(1) Without prejudice to the generality of section 6, a member of the Garda Síochána and the member or members of the Garda Síochána assisting that member may, where—
(a) a person is detained under section 4, and
(b) he or she fails or refuses to allow his or her photograph or fingerprints and palm prints to be taken pursuant to section 6,
use such force as is reasonably considered necessary—
(i) to take the photograph or fingerprints and palm prints, or
(ii) to prevent them from being lost, damaged or otherwise being made imperfect,
or both.”,
(b) in subsection (3), by the substitution of “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” for “Where a member of the Garda Síochána intends to exercise a power conferred by subsection (1), he or she shall inform the person”,
(c) in subsection (4), by the substitution 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) ” for “a member of the Garda Síochána not below the rank of inspector”, and
(d) in subsection (5), by the substitution of “recorded by electronic or similar means” for “video-recorded”.
103. Destruction of fingerprints, palm prints and photographs
103. The Act of 1984 is amended by the substitution of the following sections for section 8:
“ Destruction of fingerprints, palm prints and photographs
(1) A fingerprint, palm print or photograph of a person taken in pursuance of the powers conferred by section 6 or 6A shall, if not previously destroyed, be destroyed in accordance with this section and sections 8A to 8I.
(2) Subject to section 8A, a fingerprint, palm print or photograph of a person referred to in subsection (1) shall, if not previously destroyed, be destroyed in any of the following circumstances not later than the expiration of the period of 3 months from the date on which such circumstances first apply to the person:
(a) where proceedings for an offence to which section 4 applies—
(i) are not instituted against the person within the period of 12 months from the date of the taking of the fingerprint, palm print or photograph concerned, and the failure to institute such proceedings within that period is not due to the fact that he or she has absconded or cannot be found, or
(ii) have been instituted and—
(I) the person is acquitted of the offence,
(II) the charge against the person in respect of the offence is dismissed under section 4E of the Criminal Procedure Act 1967, or
(III) the proceedings for the offence are discontinued;
(b) the person is the subject of an order under section 1(1) of the Probation of Offenders Act 1907 in respect of the offence concerned in connection with which the fingerprint, palm print or photograph concerned was taken and he or she has not been convicted of an offence to which section 4 applies during the period of 3 years from the making of the order under that Act;
(c) subject to subsection (3), the person is the subject of an order under section 1(2) of the Probation of Offenders Act 1907 in respect of the offence concerned in connection with which the fingerprint, palm print or photograph concerned was taken and he or she has not been convicted of an offence to which section 4 applies during the period of 3 years from the making of the order under that Act;
(d) the person’s conviction for the offence concerned in connection with which the fingerprint, palm print or photograph concerned was taken is quashed;
(e) the person’s conviction for the offence concerned in connection with which the fingerprint, palm print or photograph concerned was taken is declared to be a miscarriage of justice under section 2 of the Criminal Procedure Act 1993.
(3) Subsection (2)(c) shall not apply to an order under section 1(2) of the Probation of Offenders Act 1907 discharged on the appeal of a person against conviction for the offence concerned if on appeal his or her conviction is affirmed.
(4) For the purposes of this section the ‘retention period’, in relation to a fingerprint, palm print or photograph, means the period from the taking of the fingerprint, palm print or photograph, as the case may be, from a person to the latest date for the destruction of that fingerprint, palm print or photograph under subsection (2).
Extension of retention period under section 8 for fingerprints, palm prints and photographs in certain circumstances
8A. (1) A fingerprint, palm print or photograph taken from or of a person shall not be destroyed under section 8 in any case in which the Commissioner determines that any of the following circumstances apply:
(a) a decision has not been taken whether or not to institute proceedings against the person for the offence concerned in connection with which the fingerprint, palm print or photograph concerned was taken;
(b) the investigation of that offence has not been concluded;
(c) the fingerprint, palm print or photograph concerned, and the results of any examination or analysis of it, are likely to be required for the prosecution of an offence connected with the event, incident or circumstances the subject of the offence concerned—
(i) for use as evidence in such proceedings,
(ii) for disclosure to, or use by, a defendant in such proceedings, or
(iii) to support the admissibility of any evidence on which the prosecution may seek to rely in such proceedings;
(d) having regard to the matters specified in subsection (2), the Commissioner believes it is necessary to retain the fingerprint, palm print or photograph concerned in connection with the investigation of the offence concerned taking account of all the circumstances of the case and the reasons why—
(i) proceedings for that offence have not been instituted against the person, or
(ii) if such proceedings have been instituted against the person, they were determined without he or she being convicted of the offence concerned or he or she being the subject of an order under section 1(1) of the Probation of Offenders Act 1907;
(e) there are reasonable grounds for believing that the fingerprint, palm print or photograph of the person may be required in connection with the investigation of an offence to which section 4 applies, other than the offence in connection with which the fingerprint, palm print or photograph was taken, which the person is suspected of having committed.
(2) The matters referred to in subsection (1)(d) to which the Commissioner shall have regard are the following:
(a) whether the person concerned has any previous conviction for an offence similar in nature or gravity to the offence concerned in connection with which the fingerprint, palm print or photograph concerned was taken from or of him or her;
(b) the nature and seriousness of that offence;
(c) whether any alleged victim, or any intended victim, of that offence was—
(i) a child,
(ii) a vulnerable person, or
(iii) associated with the person,
at the time of the commission, or alleged commission, of that offence; and
(d) any other matter that the Commissioner considers appropriate for the purposes of the determination.
(3) If, in relation to a fingerprint, palm print or photograph taken from or of a person, the Commissioner determines that one of the paragraphs of subsection (1) applies, then, he or she may, during the retention period referred to in section 8, give an authorisation to extend that period by a period of 12 months.
(4) The Commissioner may, while an authorisation under subsection (3) or this subsection, as may be appropriate, is still in force, give an authorisation under this subsection to extend the retention period on a second or further occasion for a period of 12 months commencing on the expiration of the period of 12 months to which the authorisation previously given relates if he or she determines that one of the paragraphs of subsection (1) applies.
(5) Whenever the Commissioner gives an authorisation under subsection (3) or (4), he or she shall, in relation to a fingerprint, palm print or photograph taken from or of a person that is the subject of the authorisation, cause the person to be informed by notice in writing that the authorisation has been given under subsection (3) or (4), as may be appropriate, the date on which that authorisation was given and of the right of appeal under subsection (6).
(6) The person to whom the authorisation concerned relates (in this section called ‘the appellant’) may, within the period of 3 months from the date of the notice under subsection (5) concerned, appeal to the District Court against that authorisation.
(7) An appeal under subsection (6) shall—
(a) be on notice to the Commissioner, and
(b) be heard otherwise than in public.
(8) If, on an appeal under subsection (6), the District Court—
(a) confirms the authorisation concerned, or
(b) allows the appeal,
the Commissioner shall give effect to the decision of the Court.
(9) The jurisdiction conferred on the District Court by this section shall be exercised by a judge of the District Court who is assigned to the district court district in which the appellant ordinarily resides or, if the appellant does not ordinarily reside in the State, by a judge of the District Court who is assigned to the district court district in which the fingerprint, palm print or photograph concerned was taken.
(10) The District Court may make such order as to costs as it considers appropriate on an appeal under subsection (6).
(11) In this section—
‘child’ means a person who has not attained the age of 18 years;
‘civil partner’ has the meaning it has in section 3 of the Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010;
‘cohabitant’, in relation to a person, means another person who is neither married to the person nor a civil partner of the person who is living with the person as a husband or wife, or as a civil partner, of the person;
‘vulnerable person’ means a person, other than a child, whose capacity to guard himself or herself against violence, exploitation or abuse, whether physical, sexual or emotional, by another person is significantly impaired through—
(a) a physical disability, illness or injury,
(b) a disorder of the mind, whether as a result of mental illness or dementia, or
(c) an intellectual disability.
(12) For the purposes of this section a person shall be regarded as associated with another person if—
(a) he or she is a spouse or a former spouse of the person,
(b) he or she is a civil partner or a former civil partner of the person,
(c) he or she is a cohabitant or a former cohabitant of the person,
(d) he or she is a relative of the person, or
(e) he or she has or has had an intimate personal relationship with the person for a significant period of time.
(13) Nothing in this section shall—
(a) prevent or restrict the exercise of powers conferred by section 6 or 6A, or
(b) pending the conclusion of proceedings under this section, prevent or restrict the use of the fingerprint, palm print or photograph concerned for the purposes of—
(i) this Act,
(ii) a criminal investigation, or
(iii) other proceedings.
Destruction of fingerprints, palm prints and photographs in exceptional circumstances
8B. (1) Notwithstanding sections 8 and 8A, if the Commissioner is satisfied that exceptional circumstances exist that justify the destruction of a fingerprint, palm print or photograph of a person, the fingerprint, palm print or photograph concerned shall be destroyed as soon as practicable after the application of those circumstances in relation to that fingerprint, palm print or photograph becomes known.
(2) The exceptional circumstances referred to in subsection (1) are the following:
(a) it is established, at any time after the detention of the person concerned under section 4 for the purposes of the investigation of an offence to which that section applies during which the fingerprint, palm print or photograph concerned was taken, that no such offence was committed;
(b) it is established that the detention of the person concerned under section 4 for the purposes of the investigation of an offence to which that section applies during which the fingerprint, palm print or photograph concerned was taken was on the basis of the mistaken identity of the person concerned as the perpetrator of that offence; or
(c) it is determined by a court that the detention of the person concerned under section 4 for the purposes of the investigation of an offence to which that section applies during which the fingerprint, palm print or photograph concerned was taken was unlawful.
Dismissal of charges, quashing of convictions and determination of proceedings
8C. (1) For the purposes of section 8, a charge against a person in respect of an offence to which section 4 applies shall be regarded as dismissed when—
(a) the time for bringing an appeal against the dismissal has expired,
(b) any such appeal has been withdrawn or abandoned, or
(c) on any such appeal, the dismissal is upheld.
(2) In sections 8 and 8A, references to a conviction of a person for an offence to which section 4 applies shall be construed as including references to a conviction of the person for such an offence after a re-trial for that offence.
(3) In section 8, a reference to a conviction of a person for an offence to which section 4 applies being quashed shall, subject to subsection (4), be construed as a reference to where a court hearing an appeal against the conviction makes an order quashing the conviction and, if the court is the Court of Criminal Appeal, either—
(a) it does not order the person to be re-tried for the offence concerned, or
(b) it does not substitute for the verdict a verdict of guilty of another offence that is an offence to which section 4 applies.
(4) A conviction of a person for an offence to which section 4 applies shall not be regarded as quashed for the purposes of section 8 if an appeal is contemplated, or taken, under section 23 of the Criminal Procedure Act 2010 or, on hearing the appeal, the Supreme Court quashes the acquittal of the person or reverses the decision of the Court of Criminal Appeal, as the case may be, and orders the person to be re-tried for the offence.
(5) In section 8A, references to the proceedings in respect of an offence being determined shall be construed as references to where those proceedings are finally determined (including any appeal, whether by way of case stated or otherwise, rehearing or retrial).
Circumstances in which person to be informed of destruction of fingerprint, palm print or photograph
8D. If, in relation to a fingerprint, palm print or photograph taken from or of a person under section 6 or 6A, the retention period under section 8 is extended on one or more occasions under section 8A, the Commissioner shall, upon the expiration of that period (as so extended), cause the person from or of whom the fingerprint, palm print or photograph was taken to be informed by notice in writing as soon as may be after the fingerprint, palm print or photograph has been destroyed of its destruction.
Application of certain sections to Garda Síochána Ombudsman Commission
8E. The references in sections 8A, 8B, 8D and 8H to the Commissioner shall, for the purposes of the application of those sections to the Garda Síochána Ombudsman Commission, be construed as references to the Garda Síochána Ombudsman Commission.
Delegation of functions of Commissioner under certain sections
8F. (1) The Commissioner may, in writing, delegate any of his or her functions under sections 8A, 8B, 8D and 8H to—
(a) members of the Garda Síochána specified by rank or name, or
(b) members of the civilian staff of the Garda Síochána by grade, position, name or otherwise.
(2) A delegation under this section may—
(a) relate to the performance of a function either generally or in a particular case or class of case or in respect of a particular matter,
(b) be made subject to conditions or restrictions, and
(c) be revoked or varied by the Commissioner at any time.
(3) The delegation of a function under this section does not preclude the Commissioner from performing the function.
(4) Where the functions of the Commissioner under a provision of sections 8A, 8B, 8D and 8H are delegated to a person, any references in that provision to the Commissioner shall be construed as references to that person.
(5) An act or thing done by a person pursuant to a delegation under this section has the same force and effect as if done by the Commissioner.
Service of notices
8G. A notice that is required to be sent or given to a person under section 8A or 8D may be sent or given to the person in one of the following ways:
(a) by delivering it to the person or his or her solicitor;
(b) by addressing it to the person and leaving it at the address at which he or she ordinarily resides or, in a case in which an address for service has been furnished, at that address or by addressing it to his or her solicitor and leaving it at the solicitor’s office;
(c) by sending it to the person by post in a prepaid registered letter to the address at which he or she ordinarily resides or, in a case in which an address for service has been furnished, to that address or to his or her solicitor at the solicitor’s office.
Records
8H. (1) Subject to subsection (2), a person who is required under sections 8 to 8B to destroy, or cause to be destroyed, a fingerprint, palm print or photograph shall ensure that the fingerprint, palm print or photograph, every copy thereof and every record relating to the fingerprint, palm print or photograph insofar as it identifies the person from or of whom the fingerprint, palm print or photograph has been taken, are destroyed.
(2) Subsection (1) shall operate in a manner that permits the Commissioner to retain such records as may be required by him or her to show that section 8D has been complied with.
(3) In this section ‘record’, in relation to a fingerprint, palm print or photograph, includes a copy of a record.
Application of sections 8 to 8H
8I. Sections 8 to 8H shall apply to a fingerprint, palm print or photograph of a person taken in pursuance of the powers conferred by section 6 or 6A whether taken before or after the commencement of this section.”.
104. Amendment of section 9 of Act of 1984
104.Section 9 of the Act of 1984 is amended by—
(a) the substitution of “Sections 5, 6A, 18, 19 and 19A, subsections (8), (8A) and (8B) of section 4 and subsections (1A), (2) and (3) of section 6” for “Sections 4(8), 4(8A), 4(8B), 5, 6(2), 6(3), 6A, 18, 19 and 19A”,
(b) the designation of that section (as amended by paragraph (a)) as subsection (1), and
(c) the addition of the following subsection:
“(2) Sections 8 to 8I shall, with the following and any other necessary modifications, apply to fingerprints, palm prints and photographs, as may be appropriate, taken from or of a person pursuant to section 30 of the Act of 1939 or section 7 of the Criminal Law Act 1976 as they apply to fingerprints, palm prints and photographs taken from or of a person pursuant to section 6 or 6A:
(a) references to an offence to which section 4 applies shall be construed as references to an offence to which section 4 applies or an offence in connection with which a person may be arrested and detained under section 30 of the Act of 1939;
(b) references to section 6 or 6A shall be construed as references to section 30 of the Act of 1939 and section 7 of the Criminal Law Act 1976; and
(c) references to the detention of the person under section 4 shall be construed as references to the detention of the person under section 30 of the Act of 1939.”.
105. Amendment of section 28 of Act of 1984
105.Section 28 of the Act of 1984 is amended by the substitution of the following subsection for subsection (3):
“(3) Sections 8 to 8I shall, with the following and any other necessary modifications, apply to fingerprints, palm prints or photographs taken from or of a person pursuant to this section as they apply to fingerprints, palm prints or photographs taken from or of a person pursuant to section 6 or 6A:
(a) references to an offence to which section 4 applies shall be construed as references to an indictable offence;
(b) references to section 6 or 6A shall be construed as references to this section; and
(c) references to the detention of the person under section 4 shall be construed as references to the person being at a place, or attending at a Garda Síochána station, for the purpose of having his or her fingerprints, palm prints or photograph taken by a member of the Garda Síochána.”.
106. Amendment of section 5 of Act of 1996
106. Section 5 of the Act of 1996 is amended by—
(a) the substitution of “Sections 5, 6A, 18, 19 and 19A, subsections (4), (7), (8), (8A), (8B) and (11) of section 4 and subsections (1) to (4) of section 6 of the Act of 1984” for “Sections 4(4), 4(7), 4(8), 4(8A), 4(8B), 4(11), 5, 6(1) to (4), 6A, 8, 18, 19 and 19A of the Act of 1984”,
(b) the designation of that section (as amended by paragraph (a)) as subsection (1), and
(c) the addition of the following subsection:
“(2) Sections 8 to 8I of the Act of 1984 shall, with the following and any other necessary modifications, apply to fingerprints, palm prints and photographs taken from or of a person detained under section 2 as they apply to fingerprints, palm prints and photographs taken from or of a person detained under section 4 of the Act of 1984:
(a) references to an offence to which section 4 of the Act of 1984 applies shall be construed as references to an offence to which section 4 of the Act of 1984 applies or a drug trafficking offence; and
(b) references to the detention of the person under section 4 of the Act of 1984 shall be construed as references to the detention of the person under section 2.”.
107. Amendment of section 12 of Criminal Justice Act 2006
107. Section 12 of the Criminal Justice Act 2006 is amended by the substitution of the following subsection for subsection (4):
“(4) Sections 8 to 8I of the Act of 1984 shall, with the following and any other necessary modifications, apply to photographs taken of a person pursuant to this section as they apply to photographs taken of a person pursuant to section 6 or 6A of the Act of 1984:
(a) references to an offence to which section 4 of the Act of 1984 applies shall be construed as references to an offence in respect of which a person may be arrested by a member of the Garda Síochána under any power conferred on him or her by law;
(b) references to section 6 or 6A of the Act of 1984 shall be construed as references to this section; and
(c) references to the detention of the person under section 4 of the Act of 1984 shall be construed as references to the arrest of the person by a member of the Garda Síochána under any power conferred on him or her by law.”.
108. Amendment of section 52 of Act of 2007
108. Section 52 of the Act of 2007 is amended by—
(a) the substitution of “Sections 5, 6A, 18, 19 and 19A, subsections (4), (7), (8), (8A), (8B) and (11) of section 4 and subsections (1) to (4) of section 6 of the Act of 1984” for “Sections 4(4), 4(7), 4(8), 4(8A), 4(8B), 4(11), 5, 6(1) to (4), 6A, 8, 18, 19 and 19A of the Act of 1984”,
(b) the designation of that section (as amended by paragraph (a)) as subsection (1), and
(c) the addition of the following subsection:
“(2) Sections 8 to 8I of the Act of 1984 shall, with the following and any other necessary modifications, apply to fingerprints, palm prints and photographs taken from or of a person detained under section 50 as they apply to fingerprints, palm prints and photographs taken from or of a person detained under section 4 of the Act of 1984:
(a) references to an offence to which section 4 of the Act of 1984 applies shall be construed as references to an offence to which section 4 of the Act of 1984 applies or an offence to which section 50 applies; and
(b) references to the detention of the person under section 4 of the Act of 1984 shall be construed as references to the detention of the person under section 50.”.
PART 12 International Cooperation
Chapter 1
109. Interpretation (Part 12)
109. (1) In this Part—
“Agreement with Iceland and Norway” means the Agreement between the European Union and Iceland and Norway on the application of certain provisions of Council Decision 2008/615/JHA on the stepping up of cross-border cooperation, particularly in combating terrorism and cross-border crime and Council Decision 2008/616/JHA^4 on the implementation of Decision 2008/615/JHA on the stepping up of cross-border cooperation, particularly in combating terrorism and cross-border crime, and the Annex thereto, done at Stockholm on 26 November 2009 and at Brussels on 30 November 2009;
“authorised officer for dactyloscopic data” means the national contact point in relation to dactyloscopic data and any person who is appointed to be an authorised officer for dactyloscopic data under section 126(2);
“authorised officer for DNA data” means the national contact point in relation to DNA data and any person who is appointed to be an authorised officer for DNA data under section 126(1);
“automated fingerprint identification system” means—
(a) in the case of the State, the database system maintained by the Garda Síochána for the recording, storage and comparison of dactyloscopic data, and
(b) in the case of a designated state, the national automated fingerprint identification system by whatever name called established and kept by that designated state for the prevention, detection and investigation of criminal offences;
“Council Decision” means Council Decision 2008/615/JHA of 23 June 2008^5 on the stepping up of cross-border cooperation, particularly in combating terrorism and cross-border crime;
“Council Framework Decision” means Council Framework Decision 2009/905/JHA of 30 November 2009 on Accreditation of forensic service providers carrying out laboratory activities;
“dactyloscopic data”, other than in Chapter 8, means fingerprint images, images of fingerprint latents, palm prints, palm print latents and templates of such images (coded minutiae), when they are stored and dealt with in an automated database;
“DNA analysis files”, in relation to a designated state, means the national DNA analysis files by whatever name called established and kept by that designated state for the investigation of criminal offences;
“designated state” means a Member State, Iceland, Norway or any other state designated under section 110;
“European Union or international instrument” means any of the following European Union or international instruments or agreements, or provisions thereof, between the State and other states or another state insofar as they concern cooperation in relation to—
(a) automated searching for or automated comparison of DNA data or automated searching for dactyloscopic data, as the case may be, and
(b) the exchange of such data and the reference data relating to them,
by or between authorities which are responsible for the prevention, detection and investigation of criminal offences in the State and those other states or that other state, as the case may be:
(i) the Council Decision and the Implementing Council Decision;
(ii) the Agreement with Iceland and Norway;
F33[(iia) the Trade and Cooperation Agreement;]
(iii) a bilateral agreement between the State and a designated state, or a multilateral agreement between the State and other designated states, for that purpose; and
(iv) any reservation or declaration made in accordance with such an instrument or agreement;
“Head”, in relation to the Technical Bureau of the Garda Síochána, means the member of the Garda Síochána of the rank of chief superintendent, or of another rank, who is for the time being in charge of the Technical Bureau of the Garda Síochána;
“Implementing Council Decision” means Council Decision 2008/616/JHA of 23 June 2008^6 on the implementation of Decision 2008/615/JHA on the stepping up of cross-border cooperation, particularly in combating terrorism and cross-border crime;
“Member State” means a Member State of the European Union (other than the State);
“national contact point”, in relation to a relevant European Union or international instrument, means—
(a) in the case of the State—
(i) the person referred to in section 112 in relation to DNA data, or
(ii) the person referred to in section 117 in relation to dactyloscopic data,
and
(b) in the case of a designated state, the authority or person designated by that designated state as its national contact point—
(i) in relation to DNA data, or
(ii) in relation to dactyloscopic data,
as the context requires;
“note” means the marking on a DNA profile in the DNA Database System indicating that there has already been a match for that DNA profile in a search and comparison under section 113, 114, 115 or 116;
“reference data”, subject to subsection (2), means—
(a) in relation to a DNA profile of a person, the DNA profile of the person and a reference number but not any data from which the person can be directly identified, and
(b) in relation to dactyloscopic data, dactyloscopic data and a reference number but not any data from which the subject of the data can be directly identified;
“relevant European Union or international instrument” means the European Union or international instrument in accordance with which automated searching for or automated comparison of DNA data or automated searching for dactyloscopic data, as the case may be, and the exchange of such data and the reference data relating to them, is being or is to be conducted;
“state”, in relation to a state other than the State, includes a territory, whether in the state or outside it—
(a) for whose external relations the state or its government is wholly or partly responsible, and
(b) to which the relevant European Union or international instrument applies or whose law provides for cooperation in relation to automated searching for or automated comparison of DNA data or automated searching for dactyloscopic data, as the case may be, and the exchange of such data and the reference data relating to them, and “designated state” and “Member State” shall be construed accordingly;
“Technical Bureau of the Garda Síochána” means the national unit of the Garda Síochána known as the Technical Bureau of the Garda Síochána;
F33["Trade and Cooperation Agreement" means the Trade and Cooperation Agreement between the European Union and the European Atomic Energy Community, of the one part, and the United Kingdom of Great Britain and Northern Ireland, of the other part, done at Brussels and London on 30 December 2020;]
“unidentified DNA profile” means a DNA profile obtained from traces collected during the investigation of criminal offences and belonging to a person not yet identified.
(2) Reference data in relation to DNA profiles, or dactyloscopic data, which are unidentified and not attributed to any person shall indicate that they are unidentified and not attributed to any person.
(3) A word or expression that is used in this Part and also in a relevant European Union or international instrument or the Council Framework Decision has, unless the context otherwise requires, the same meaning in this Part as it has in the relevant European Union or international instrument or the Council Framework Decision, as the case may be.
(4) Judicial notice shall be taken of a European Union or international instrument.
(5) The text of the Council Decision in the English language is for convenience of reference set out in Schedule 2.
(6) The text of the Agreement with Iceland and Norway in the English language is for convenience of reference set out in Schedule 3.
(7) The text of the Council Framework Decision in the English language is for convenience of reference set out in Schedule 4.
110. Designated state
110.The Minister for Foreign Affairs and Trade, after consultation with the Minister, may by order designate a state (other than a Member State, Iceland or Norway) for the purposes of cooperation regarding automated searching for or automated comparison of DNA data or dactyloscopic data, as the case may be, and the exchange of such data and the reference data relating to them, by or between the State and that state under this Part, or specified provisions of it, in accordance with the relevant European Union or international instrument concerned.
111. Application of Implementing Council Decision
111. (1) If—
(a) the Annex to the Implementing Council Decision, insofar as effect is given to it by this Part, is amended by an act (other than a Directive) adopted by an institution of the European Union, and
(b) such amendment of that Annex relates to the common technical specifications to be observed by Member States and the State in connection with requests and responses in respect of searches and comparisons of DNA profiles and dactyloscopic data pursuant to the Council Decision,
the Minister may by order under this section declare that the references in this Part to the Implementing Council Decision are to be construed as references to the Implementing Council Decision with the Annex thereto as so amended.
(2) If any amendment referred to in subsection (1) of the Annex to the Implementing Council Decision is applied in bilateral relations between Iceland or Norway or both and each Member State of the European Union (including the State), then, the Minister may by order under this section declare that the reference in the definition of the Agreement with Iceland and Norway in section 109(1) to the Council Decision 2008/616/JHA^7 on the implementation of Council Decision 2008/615/JHA^8 on the stepping up of cross-border cooperation, particularly in combating terrorism and cross-border crime, and the Annex thereto, is to be construed as a reference to the Implementing Council Decision with the Annex thereto as so amended insofar as any such amendment applies to Iceland or Norway or both, as may be appropriate.
Chapter 2
112. National contact point in relation to DNA data
112.The Director of FSI is the national contact point in relation to DNA data for the purposes of this Chapter and shall perform in the State the functions of the national contact point provided for in a relevant European Union or international instrument insofar as they concern cooperation in relation to automated searching for or automated comparison of DNA data and the exchange of such data and the reference data relating to them.
113. Automated searching of certain DNA data in DNA Database System
113. (1) For the purposes of the investigation of criminal offences in a designated state, the national contact point shall allow the national contact point of that designated state access to the reference data in the DNA Database System in respect of DNA profiles entered in that System in—
(a) the crime scene index, and
(b) the reference index, other than DNA profiles entered in that index under section 28,
for the purpose of conducting an automated search of those reference data by comparing a DNA profile (whether identified or unidentified) in an individual case supplied by the national contact point of that designated state with the DNA profiles referred to in paragraphs (a) and (b) to ascertain whether there is a match between them.
(2) The national contact point shall ensure that, following a search by the comparison of DNA profiles by the national contact point of a designated state pursuant to subsection (1), an automated response is sent from the DNA Database System to that national contact point comprising—
(a) where a match of DNA profiles is found—
(i) a notification of the match, and
(ii) the reference data relating to the matching DNA profile in the DNA Database System,
or
(b) where a match of DNA profiles is not found, a notification to that effect.
(3) If, in relation to a DNA profile supplied by the national contact point of a designated state pursuant to subsection (1), a match of DNA profiles is found, a note to that effect may be entered in the DNA Database System in relation to the matching DNA profile found in that System.
(4) In this section and section 115 “individual case” means the investigation or prosecution of an offence or offences arising from a single event, incident or circumstances but includes a case where a search for more than one DNA profile is required.
114. Automated comparison of unidentified DNA profiles supplied by designated state with certain DNA profiles in DNA Database System
114. (1) The national contact point may accede to a request from the national contact point of a designated state, for the purposes of the investigation of criminal offences in that designated state, to compare unidentified DNA profiles to be supplied by that national contact point with certain DNA profiles in the DNA Database System in accordance with this section.
(2) If a request under subsection (1) is acceded to, the national contact point shall allow the national contact point of the designated state concerned access to the reference data in the DNA Database System in respect of the DNA profiles entered in that System in—
(a) the crime scene index, and
(b) the reference index, other than DNA profiles entered in that index under section 28,
for the purposes of conducting an automated comparison of unidentified DNA profiles supplied in an automated way by the national contact point of that designated state with the DNA profiles referred to in paragraphs (a) and (b) to ascertain whether there is a match between any of them.
(3) The national contact point shall ensure that, following a comparison of DNA profiles by the national contact point of a designated state pursuant to subsection (2), an automated response is sent from the DNA Database System to that national contact point comprising—
(a) where a match of DNA profiles is found—
(i) a notification of the match, and
(ii) the reference data relating to the matching DNA profile in the DNA Database System,
or
(b) where a match of DNA profiles is not found, a notification to that effect.
(4) If, following a comparison of DNA profiles pursuant to subsection (2), a match of DNA profiles is found, a note to that effect may be entered in the DNA Database System in relation to the matching DNA profile found in that System.
115. Automated searching for certain DNA profiles in DNA analysis files of designated state
115. (1) For the purposes of the investigation of criminal offences in the State, an authorised officer for DNA data may, in connection with an individual case, supply through the DNA Database System a DNA profile entered in—
(a) the crime scene index, or
(b) the reference index, other than DNA profiles entered in that index under section 28,
to the national contact point of a designated state for the purpose of conducting an automated search of the reference data in the DNA analysis files of that designated state by comparing the DNA profile concerned with the DNA profiles in those files to ascertain whether there is a match between them.
(2) The automated response from the national contact point of the designated state concerned to a search by the comparison of DNA profiles pursuant to subsection (1), namely—
(a) where a match of DNA profiles is found—
(i) a notification of the match, and
(ii) the reference data relating to the matching DNA profile in the DNA analysis files of that designated state,
or
(b) where a match of DNA profiles is not found, a notification to that effect,
shall be received by the national contact point.
(3) If, in relation to a DNA profile supplied by the national contact point pursuant to subsection (1), a match of DNA profiles is found in the DNA analysis files of the designated state concerned, a note to that effect may be entered in the DNA Database System in relation to the DNA profile so supplied.
116. Automated comparison of DNA profiles in crime scene index with DNA profiles in DNA analysis files of designated state
116. (1) For the purposes of the investigation of criminal offences in the State, the national contact point may make a request to the national contact point of a designated state for access to the reference data in the DNA analysis files of that designated state for the purpose of comparing unidentified DNA profiles to be supplied by the national contact point with DNA profiles in those DNA analysis files in accordance with this section.
(2) If a request under subsection (1) is acceded to, an authorised officer for DNA data may supply in an automated way all or any of the DNA profiles entered in the crime scene index of the DNA Database System to the national contact point of the designated state concerned for the purposes of conducting an automated comparison of those DNA profiles with the DNA profiles in the DNA analysis files of that designated state to ascertain whether there is a match between any of them.
(3) The automated response from the national contact point of the designated state concerned to a comparison of DNA profiles pursuant to subsection (2), namely—
(a) where a match of DNA profiles is found—
(i) a notification of the match, and
(ii) the reference data relating to the matching DNA profile in the DNA analysis files of that designated state,
or
(b) where a match of DNA profiles is not found, a notification to that effect,
shall be received by the national contact point.
(4) If, following a comparison of DNA profiles under subsection (2), a match of DNA profiles is found in the DNA analysis files of the designated state concerned, a note to that effect may be entered in the DNA Database System in relation to the DNA profile in the crime scene index of that System in respect of which the match was found.
Chapter 3
117. National contact point in relation to dactyloscopic data
117.The Head of the Technical Bureau of the Garda Síochána is the national contact point in relation to dactyloscopic data for the purposes of this Chapter and shall perform in the State the functions of the national contact point provided for in a relevant European Union or international instrument insofar as they concern cooperation in relation to automated searching for or automated comparison of dactyloscopic data and the exchange of such data and the reference data relating to them.
118. Dactyloscopic data to which this Chapter applies
118.In this Chapter “dactyloscopic data to which this Chapter applies” means—
(a) fingerprints and palm prints of a person taken, or caused to be taken, by a member of the Garda Síochána, or by a prison officer of a prison or a place of detention, under any enactment or rule of law for the purposes of the prevention, detection and investigation of criminal offences, including where the person is to be charged with an offence or has been found guilty of an offence,
(b) fingerprints and palm prints of an Irish citizen who is convicted of an offence in a place other than the State received by the Garda Síochána from a police force or other authority which is responsible for the prevention, detection or investigation of criminal offences in that place,
(c) fingerprints and palm prints of a person received by the Garda Síochána from the International Criminal Police Organisation (Interpol) in connection with the performance of its functions, or
(d) fingerprints and palm prints that are unidentified and not attributed to any person found at, or recovered from, a crime scene.
119. Automated searching of certain dactyloscopic data in automated fingerprint identification system
119. (1) For the purposes of the prevention, detection and investigation of criminal offences in a designated state, the national contact point shall allow the national contact point of that designated state access to the reference data in the automated fingerprint identification system in respect of dactyloscopic data to which this Chapter applies for the purpose of conducting an automated search of those reference data by comparing dactyloscopic data (whether identified or unidentified) in an individual case supplied by the national contact point of that designated state with those dactyloscopic data in that system to ascertain whether there is a match between them.
(2) The national contact point shall ensure that, following a search by the comparison of dactyloscopic data by the national contact point of a designated state pursuant to subsection (1), a response is sent to that national contact point, in an automated way or by such other means as is permitted by the relevant European Union or international instrument, comprising—
(a) where a match of dactyloscopic data is found—
(i) a notification of the match, and
(ii) the reference data relating to the matching dactyloscopic data in the automated fingerprint identification system,
for the purposes of confirming the match, or
(b) where a match of dactyloscopic data is not found, a notification to that effect.
(3) In this section and in section 120 “individual case” means the investigation or prosecution of an offence or offences arising from a single event, incident or circumstances but includes a case where a search for more than one piece of dactyloscopic data is required.
120. Automated searching for certain dactyloscopic data in automated fingerprint identification system of designated state
120. (1) For the purposes of the prevention, detection and investigation of criminal offences in the State, an authorised officer for dactyloscopic data may, in connection with an individual case, supply dactyloscopic data to which this Chapter applies to the national contact point of a designated state for the purpose of conducting an automated search of the reference data in the automated fingerprint identification system of that designated state by comparing the dactyloscopic data concerned with the dactyloscopic data in that system to ascertain whether there is a match between them.
(2) The response from the national contact point of the designated state concerned to a search by the comparison of dactyloscopic data pursuant to subsection (1), sent in an automated way or by such other means as is permitted by the relevant European Union or international instrument, namely—
(a) where a match of dactyloscopic data is found—
(i) a notification of the match, and
(ii) the reference data relating to the matching dactyloscopic data in the automated fingerprint identification system of that designated state,
for the purposes of confirming the match, or
(b) where a match of dactyloscopic data is not found, a notification to that effect,
shall be received by the national contact point.
121. Delegation of certain functions of Head of Technical Bureau of Garda Síochána
121. (1) The Head of the Technical Bureau of the Garda Síochána may, in writing, delegate any of his or her functions as the national contact point in relation to dactyloscopic data under this Chapter to—
(a) members of the Garda Síochána who are assigned to duties in the Technical Bureau of the Garda Síochána specified by rank or name, or
(b) members of F41[garda staff] who are assigned to duties in the Technical Bureau of the Garda Síochána specified by grade, position, name or otherwise.
(2) A delegation under this section may—
(a) relate to the performance of a function either generally or in a particular case or class of case or in respect of a particular matter,
(b) be made subject to conditions or restrictions, and
(c) be revoked or varied by the Head of the Technical Bureau of the Garda Síochána at any time.
(3) The delegation of a function under this section does not preclude the Head of the Technical Bureau of the Garda Síochána from performing the function.
(4) Where any of the functions of the Head of the Technical Bureau of the Garda Síochána under a provision of this Chapter are delegated to a person any references in that provision to the Head of the Technical Bureau of the Garda Síochána shall be construed as references to that person.
(5) An act or thing done by a person pursuant to a delegation under this section has the same force and effect as if done by the Head of the Technical Bureau of the Garda Síochána.
Chapter 4
122. Definitions (Chapter 4)
122.In this Chapter—
“Act of 1988” means the Data Protection Act 1988;
“Article 7 request” means a request made or received under Chapter 3 of Part 5 of the Act of 2008 pursuant to Article 7 of the Council Decision or that Article insofar as it is applied by Article 1 of the Agreement with Iceland and Norway;
“blocking”, in relation to data, has the meaning it has in section 1(1) of the Act of 1988;
“data”, “data controller”, “data subject” and “personal data” have the meanings they have in section 1(1) of the Act of 1988;
“data protection authority”, in relation to a designated state, means the authority in that designated state that is designated by that designated state to be the independent data protection authority of that designated state for the purposes of a European Union or international instrument;
“processing”, in relation to data, has the meaning it has in section 1(1) of the Act of 1988 and shall include the sending or receipt, as the case may be, of a notification under section 113(2), 114(3), 115(2), 116(3), 119(2) or 120(2).
123. Application of Act of 1988
123. (1) The Act of 1988 shall, with the modifications specified in subsection (2) and any other necessary modifications, apply to the processing of personal data supplied or received pursuant to—
(a) Chapter 2,
(b) Chapter 3, or
(c) an Article 7 request,
and, for the purposes of the foregoing application of the Act of 1988, references in it to that Act or the provisions of that Act shall, unless the context otherwise requires, be construed as including references to—
(i) Chapter 2 or the provisions of that Chapter,
(ii) Chapter 3or the provisions of that Chapter, and
(iii) Chapter 3 of Part 5 of the Act of 2008 insofar as that Chapter applies to an Article 7 request or the provisions of that Chapter insofar as they apply to such a request.
(2) The modifications of the Act of 1988 referred to in subsection (1) are the following, namely—
(a) in section 1(1), the insertion of the following definitions:
“ ‘Act of 2008’ means the Criminal Justice (Mutual Assistance) Act 2008;
‘ Act of 2014 ’ means the Criminal Justice (Forensic Evidence and DNA Database System) Act 2014;
‘Agreement with Iceland and Norway’, ‘Council Decision’, ‘dactyloscopic data’, ‘designated state’, ‘European Union or international instrument’, ‘Member State’ and ‘relevant European Union or international instrument’ have the meanings they have in section 109 of the Act of 2014;
‘Article 7 request’ means a request made or received under Chapter 3 of Part 5 of the Act of 2008 pursuant to Article 7 of the Council Decision or that Article insofar as it is applied by Article 1 of the Agreement with Iceland and Norway;
‘Central Authority’ has the meaning it has in section 2(1) of the Act of 2008;
‘data protection authority’, in relation to a designated state, means the authority in that designated state that is designated by that designated state to be the independent data protection authority of that designated state for the purposes of a European Union or international instrument;
‘DNA’ means deoxyribonucleic acid;
‘national contact point’, in relation to a relevant European Union or international instrument, has the meaning it has in section 109 of the Act of 2014;
‘processing’ has the meaning it has in this Act and shall include the sending or receipt, as the case may be, of a notification under section 113(2), 114(3), 115(2), 116(3), 119(2) or 120(2) of the Act of 2014.”,
(b) in section 2, the insertion of the following subsections after subsection (1):
“(1A) A data controller (including a national contact point) shall in order to comply with subsection (1) (b) as respects personal data kept by him or her also comply with section 125 of the Act of 2014 in respect of those data.
(1B) For the purposes of subparagraphs (i) and (ii) of subsection (1) (c), the processing of personal data supplied or received pursuant to—
(a) Chapter 2 of Part 12 of the Act of 2014, or
(b) Chapter 3 of that Part of that Act,
is deemed to be a purpose compatible with the purpose for which those data were obtained.”,
(c) in section 2C, the substitution of the following subsection for subsection (1):
“(1) In determining appropriate security measures for the purposes of section 2(1)(d) (but without prejudice to the generality of that provision), a data controller—
(a) shall, in relation to the processing of personal data supplied or received pursuant to—
(i) Chapter 2 of Part 12 of the Act of 2014, or
(ii) Chapter 3 of that Part of that Act,
comply with the technical specifications of the automated search and comparison procedure required by the relevant European Union or international instrument, and
(b) shall ensure that the measures provide a level of security appropriate to—
(i) the harm that might result from unauthorised or unlawful processing, accidental or unlawful destruction or accidental loss of, or damage to, or accidental alteration of, the data concerned, and
(ii) the nature of the data concerned.”,
(d) in section 4, the addition of the following subsection:
“(14) Notwithstanding section 5, this section applies to the processing of personal data supplied or received pursuant to—
(a) Chapter 2 of Part 12 of the Act of 2014,
(b) Chapter 3 of that Part of that Act, or
(c) an Article 7 request.”,
(e) in section 7—
(i) the proviso shall not apply to a data controller in respect of personal data received or obtained by him or her from a body in a designated state pursuant to a European Union or international instrument,
(ii) the designation of the section (as modified by subparagraph (i)) as subsection (1) of that section, and
(iii) the addition of the following subsections:
“(2) A data controller shall not use the inaccuracy of personal data received by him or her from a body in a designated state pursuant to a European Union or international instrument as a ground to avoid or reduce his or her liability to the data subject concerned under subsection (1).
(3) Where—
(a) the Minister or the Commissioner of the Garda Síochána pays damages to a data subject under this section for damage caused to the data subject by reason of inaccurate data received by the national contact point in relation to DNA data or the national contact point in relation to dactyloscopic data, as may be appropriate, from a body in a designated state pursuant to Chapter 2 or 3 of Part 12of the Act of 2014, or
(b) the Minister, the Commissioner of the Garda Síochána or the Director of Public Prosecutions pays damages to a data subject under this section for damage caused to the data subject by reason of inaccurate data received by the Central Authority, the Garda Síochána or the Director of Public Prosecutions, as may be appropriate, from a body in a Member State or Iceland or Norway pursuant to an Article 7 request,
the Minister, the Commissioner of the Garda Síochána or the Director of Public Prosecutions, as the case may be, may seek a refund of the amount that he or she paid in damages to the data subject concerned from the body in the designated state concerned.
(4) Where—
(a) a body in a designated state applies to the national contact point in relation to DNA data or the national contact point in relation to dactyloscopic data for a refund of damages paid by it, or on its behalf, on foot of a decision or finding of a court or other tribunal or the data protection authority in that designated state for damage caused to a data subject by reason of inaccurate data sent by the national contact point concerned to that body pursuant to Chapter 2or 3 of Part 12 of the Act of 2014, or
(b) a body in a Member State or Iceland or Norway applies to the Minister or the Director of Public Prosecutions for a refund of damages paid by it, or on its behalf, on foot of a decision or finding of a court or other tribunal or the data protection authority in that Member State or Iceland or Norway, as the case may be, for damage caused to a data subject by reason of inaccurate data sent by the Minister or the Director of Public Prosecutions, as the case may be, to that body pursuant to an Article 7 request,
the Minister or the Commissioner of the Garda Síochána, as may be appropriate, in the circumstances referred to in paragraph (a), or the Minister or the Director of Public Prosecutions, as may be appropriate, in the circumstances referred to in paragraph (b), shall refund to the body in the designated state concerned the amount paid in damages by it, or on its behalf, to the data subject concerned.”,
(f) section 8(b) —
(i) insofar as it relates to the purpose of detecting or investigating offences, shall not apply to the processing of data pursuant to Chapter 2,
(ii) insofar as it relates to the purpose of preventing, detecting or investigating offences, shall not apply to the processing of personal data pursuant to Chapter 3, or
(iii) insofar as it relates to the purpose of detecting or investigating offences or apprehending or prosecuting offenders, shall not apply to the processing of personal data pursuant to an Article 7 request,
which are or have been supplied by or to a data controller in the State pursuant to a European Union or international instrument, and
(g) in section 9, the insertion of the following subsection after subsection (1D):
“(1E) (a) The Commissioner shall be the competent data protection authority in the State for the purposes of a European Union or international instrument.
(b) The lawfulness of the processing of personal data supplied or received pursuant to—
(i) Chapter 2 of Part 12 of the Act of 2014,
(ii) Chapter 3of that Part of that Act, and
(iii) an Article 7 request,
shall be monitored by the Commissioner.
(c) The performance by the Commissioner of his or her function under paragraph (b) shall include the carrying out of random checks on the processing of personal data referred to in that paragraph.
(d) The Commissioner may request the data protection authority of a designated state to perform its functions under the law of that designated state with regard to checking the lawfulness of the processing of personal data supplied by the State to that designated state pursuant to the relevant European Union or international instrument.
(e) The Commissioner may receive information from the data protection authority of a designated state arising from the performance by it of the functions referred to in paragraph (d) with regard to the processing of the personal data concerned.
(f) The Commissioner shall, at the request of the data protection authority of a designated state, perform his or her functions under paragraphs (a) to (c) of this subsection and he or she shall furnish information to that authority with regard to the processing of the personal data the subject of the request.”.
124. Purposes for which data may be processed
124. (1) Subject to subsection (3), data supplied by the national contact point of a designated state under section 113, 114 or 119 may be processed only where it is necessary to do so for any of the following purposes:
(a) comparing DNA profiles or dactyloscopic data, as the case may be, under those sections to ascertain whether there is a match between them;
(b) providing responses, in an automated way or by such other means as is permitted by the relevant European Union or international instrument, to that national contact point in relation to searches or comparisons under those sections;
(c) if appropriate, entering a note of a match of DNA profiles in the DNA Database System under section 113(3) or 114(4);
(d) recording the supply and receipt of the data under section 127.
(2) Data supplied by the national contact point of a designated state shall, if not previously destroyed, be destroyed immediately after the provision of a response referred to in subsection (1)(b) in relation to the data, unless further processing of the data is necessary—
(a) in connection with a request for assistance under Chapter 3 of Part 5 of the Act of 2008 if a match of DNA profiles or dactyloscopic data, as the case may be, was found, or
(b) for the purposes of recording the supply and receipt of the data under section 127.
(3) Data received by a national contact point pursuant to section 115(2), 116(3) or 120(2) may be processed only for the following purposes and otherwise shall be destroyed immediately after they are received:
(a) if a match of DNA profiles or dactyloscopic data, as the case may be, is found, preparing and making a request for assistance under section 77 of the Act of 2008;
(b) if appropriate, entering a note of a match of DNA profiles in the DNA Database System under section 115(3) or 116(4);
(c) recording the supply and receipt of the data under section 127.
125. Correction of inaccurate data, destruction of incorrectly supplied data and storage of data
125. (1) Whenever, whether on notification from a data subject or otherwise, it comes to the attention of a national contact point that data supplied under Chapter 2 or 3 are either incorrect or should not have been supplied, the national contact point shall, as soon as practicable, inform the national contact point of the designated state concerned that received the data of that fact and request that national contact point to correct or destroy, as may be appropriate, the data concerned.
(2) Whenever, whether on notification from a data subject or otherwise, it comes to the attention of a data controller that data supplied pursuant to an Article 7 request are either incorrect or should not have been supplied, the data controller shall, as soon as practicable, inform the authority in the Member State concerned or Iceland or Norway, as the case may be, that received the data of that fact and request that authority to correct or destroy, as may be appropriate, the data concerned.
(3) If—
(a) a national contact point receives data under Chapter 2 or 3 without requesting them, or
(b) a data controller receives data pursuant to an Article 7 request without requesting them,
the national contact point or the data controller, as the case may be, shall immediately check whether the data are necessary for the purpose for which they were supplied by the national contact point of the designated state concerned or the authority in the Member State concerned or Iceland or Norway, as may be appropriate.
(4) Whenever, whether on notification from a data subject or otherwise, it comes to the attention of a national contact point that data received under Chapter 2 or 3 are either incorrect or should not have been supplied, the national contact point shall, after consultation with the national contact point of the designated state that supplied the data, correct or destroy, as may be appropriate, the data concerned.
(5) Whenever, whether on notification from a data subject or otherwise, it comes to the attention of a data controller that data received pursuant to an Article 7 request are either incorrect or should not have been supplied, the data controller shall, after consultation with the authority in the Member State concerned or Iceland or Norway, as the case may be, that supplied the data, correct or destroy, as may be appropriate, the data concerned.
(6) Subject to subsection (8), a national contact point shall destroy data received pursuant to Chapter 2 or 3 when they are no longer required for the purpose for which they were supplied and, in any event, shall do so not later than the expiration of the maximum period (if any) prescribed by the law of the designated state concerned and specified by the national contact point of that designated state at the time the data were supplied.
F43[(7) Subject tosubsection (8)and notwithstanding section 77(7) of the Act of 2008, a data controller shall destroy data received pursuant to an Article 7 request or a request pursuant to Article 532 of the Trade and Cooperation Agreement when they are no longer required for the purpose for which they were supplied and, in any event, shall do so not later than the expiration of the maximum period (if any) prescribed by the law of the Member State concerned or Iceland, Norway or the United Kingdom, as the case may be, and specified by the authority in that Member State or Iceland, Norway or the United Kingdom, as the case may be, at the time the data were supplied.]
(8) Where, under subsection (6) or (7), a national contact point or a data controller, as the case may be, reasonably believes that the destruction of the data concerned would prejudice the interests of the data subject, the data shall instead be blocked and those data may be supplied or otherwise further processed only for a purpose relating to the protection of those interests.
(9)(a) If a data subject contests the accuracy of data supplied or received pursuant to Chapter 2 or 3 and the accuracy of those data cannot be ascertained, the national contact point shall, as soon as reasonably practicable, inform the data subject accordingly.
(b) If the data subject so requests, the national contact point shall note on those data that the accuracy of them cannot be ascertained, and such a note may be removed only if—
(i) the data subject consents to its removal, or
(ii) the Data Protection Commissioner or the Circuit Court, on application made to the Commissioner or the Court in that behalf, is satisfied that the note may be removed.
126. Authorised officers
126. (1) The national contact point in relation to DNA data may appoint in writing a member of the staff of FSI to be an authorised officer for DNA data for the purposes of sections 115 and 116and this Chapter.
(2) The national contact point in relation to dactyloscopic data may appoint in writing a member of the Garda Síochána, or a member of F44[garda staff], who is assigned to duties in the Technical Bureau of the Garda Síochána to be an authorised officer for dactyloscopic data for the purposes of section 120 and this Chapter.
(3) An appointment to be an authorised officer for DNA data may be revoked in writing by the national contact point in relation to DNA data and, in any event, such an appointment shall cease upon the person ceasing to be a member of the staff of FSI.
(4) An appointment to be an authorised officer for dactyloscopic data may be revoked in writing by the national contact point in relation to dactyloscopic data and, in any event, such an appointment shall cease upon the person ceasing to be assigned to duties in the Technical Bureau of the Garda Síochána.
(5) The national contact point in relation to DNA data may provide particulars of the authorised officers for DNA data to the Data Protection Commissioner and shall do so if so requested by the Data Protection Commissioner.
(6) The national contact point in relation to DNA data shall provide particulars of the authorised officers for DNA data to the national contact point in relation to DNA data of a designated state or the data protection authority in a designated state or both, if requested to do so by such national contact point or data protection authority, as the case may be.
(7) The national contact point in relation to dactyloscopic data may provide particulars of the authorised officers for dactyloscopic data to the Data Protection Commissioner and shall do so if so requested by the Data Protection Commissioner.
(8) The national contact point in relation to dactyloscopic data shall provide particulars of the authorised officers for dactyloscopic data to the national contact point in relation to dactyloscopic data of a designated state or the data protection authority in a designated state or both, if requested to do so by such national contact point or data protection authority, as the case may be.
127. Recording of automated supply of data
127. (1) The national contact point in relation to DNA data shall record, in accordance with subsection (3), the supply and receipt of data, including whether or not a match of DNA profiles is found, pursuant to sections 113, 114, 115 and 11.
(2) The national contact point in relation to dactyloscopic data shall record, in accordance with subsection (3), the supply and receipt of data, including whether or not a match of dactyloscopic data is found, pursuant to sections 119 and 120.
(3) The recording of the supply and receipt of data under subsection (1) or (2)shall be in a permanent legible form or be capable of being converted into a permanent legible form and shall include the following particulars in relation to the data:
(a) a description of the data supplied or received;
(b) the date and time of the supply or receipt of the data;
(c) the name or reference code of the national contact point concerned and the name or reference code of the national contact point of the designated state concerned; and
(d) in the case of data supplied pursuant to section 115, 116 or 120 —
(i) the reason for the search or comparison concerned,
(ii) the identifier of the authorised officer for DNA data or the authorised officer for dactyloscopic data, as the case may be, who supplied the data for the purpose of conducting the search or comparison concerned, and
(iii) the identifier of the authorised officer for DNA data or the authorised officer for dactyloscopic data, as the case may be, who authorised the conduct of the search or comparison concerned.
(4) Records created under this section may be used only for the purposes of monitoring data protection and ensuring data security.
(5) The national contact point in relation to DNA data and the national contact point in relation to dactyloscopic data shall—
(a) retain the records created under this section for a period of 2 years from the time of their creation, and
(b) immediately after that period, destroy those records.
(6) Whenever requested to do so by the Data Protection Commissioner, the national contact point in relation to DNA data and the national contact point in relation to dactyloscopic data shall furnish the records created under this section to the Data Protection Commissioner as soon as practicable, but in any event not later than 4 weeks, after the receipt of a request to do so.
(7) The national contact point in relation to DNA data and the national contact point in relation to dactyloscopic data shall—
(a) using the records created under this section, carry out random checks on the lawfulness of the supply and receipt by them of data,
(b) retain the results of those random checks for a period of 18 months from the time they were carried out for the purposes of inspection by the Data Protection Commissioner, and
(c) immediately after that period, destroy those results.
(8) In this section—
“identifier”, in relation to an authorised officer, means the user identification or user certificate that is assigned to the authorised officer for the purposes of a European Union or international instrument;
“reference code”, in relation to a national contact point, means the reference code that is assigned to the national contact point for the purposes of a European Union or international instrument.
Chapter 5
128. Amendment of section 2(1) of Act of 2008
128.Section 2(1) of the Act of 2008 is amended—
(a) by the insertion of the following definitions:
‘2008 Council Decision’ means Council Decision 2008/615/JHA of 23 June 2008^9 on the stepping up of cross-border cooperation, particularly in combating terrorism and cross-border crime;
‘2009 Agreement with Iceland and Norway’ means the Agreement between the European Union and Iceland and Norway on the application of certain provisions of Council Decision 2008/615/JHA on the stepping up of cross-border cooperation, particularly in combating terrorism and cross-border crime and Council Decision 2008/616/JHA on the implementation of Decision 2008/615/JHA on the stepping up of cross-border cooperation, particularly in combating terrorism and cross-border crime, and the Annex thereto, done at Stockholm on 26 November 2009 and at Brussels on 30 November 2009^10;”,
(b) in the definition of “international instrument”, by the insertion of the following paragraphs after paragraph (g):
“(ga) Article 7 of the 2008 Council Decision;
(gb) Article 1 of the 2009 Agreement with Iceland and Norway insofar as it applies Article 7 of the 2008 Council Decision in bilateral relations between Iceland or Norway and each member state of the European Union and in relations between Iceland and Norway;”,
and
(c) by the substitution of the following paragraph for paragraph (a) of the definition of “member state”:
“(a) a member state of the European Union (other than the State), for the purposes of mutual assistance under the provisions of the 2000 Convention, 2001 Protocol, Articles 49 and 51 of the Schengen Convention, Framework Decision, 2005 Council Decision, Article 7 of the 2008 Council Decision or Article 1 of the 2009 Agreement with Iceland and Norway insofar as it applies Article 7 of the 2008 Council Decision in bilateral relations between Iceland or Norway and each member state of the European Union (other than the State) and in relations between Iceland and Norway, and”.
129. Amendment of section 76 of Act of 2008
129.Section 76 of the Act of 2008 is amended by—
(a) the insertion of the following definitions:
“ ‘ Act of 2014 ’ means the Criminal Justice (Forensic Evidence and DNA Database System) Act 2014;
‘child’ means a person who has not attained the age of 18 years;
‘data controller’ has the meaning it has in section 1(1) of the Data Protection Act 1988;
‘DNA’ means deoxyribonucleic acid;
‘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 bodily sample or DNA sample from 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;
‘DNA sample’, in relation to a person, means a sample of hair other than pubic hair of the person or a swab from the mouth (including the inside of the mouth) of the person;
‘guardian’, in relation to a child (including a protected person who is a child), has the meaning it has in the Act of 2014;
‘inadequately labelled’ and ‘insufficient’, in relation to a DNA sample, have the meanings they have in the Act of 2014;
‘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;
‘parent’, in relation to a protected person or a child, has the meaning it has in the Act of 2014;
‘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 identification evidence 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 identification evidence being taken from him or her;
‘relevant offence’ has the meaning it has in the Act of 2014.”,
(b) the substitution of the following definition for the definition of “identification evidence”:
“ ‘identification evidence’, in relation to a person, means—
(a) a fingerprint, palm print or photograph of the person,
(b) a bodily sample from the person or the DNA profile of the person generated from such a sample, or
(c) a DNA sample from the person or the DNA profile of the person generated from such a sample,
and includes any related records;”,
(c) the designation of that section (as amended by paragraphs (a) and (b)) as subsection (1), and
(d) the addition of the following subsections after subsection (1):
“(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.
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