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

81. (1) A DNA profile of a person in the reference index of the DNA Database System shall not be removed from that System under section 80 in any case in which the Commissioner determines that it is necessary to retain the DNA profile in that index of that System to assist in the investigation or prosecution of offences.

• (2) The Commissioner may determine under subsection (1) that the DNA profile of a person shall be retained in the reference index of the DNA Database System in either of the following circumstances:

• (a) in relation to the investigation of the relevant offence concerned in connection with which the sample concerned was taken from the person (from which his or her DNA profile was generated)—

• (i) a decision whether or not to institute proceedings against the person for that offence has not been taken, or

• (ii) the investigation of that offence has not been concluded;

or

• (b) having regard to the matters specified in subsection (3), the Commissioner believes it is necessary to do so 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 relevant offence concerned or he or she being the subject of an order under section 1(1) of the Probation of Offenders Act 1907.

• (3) The matters referred to in subsection (2)(b) 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 relevant offence concerned in connection with which the sample concerned was taken from him or her (from which his or her DNA profile was generated);

• (b) the nature and seriousness of that relevant offence;

• (c) whether any alleged victim, or any intended victim, of that relevant 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 relevant offence;

• (d) the age of the person concerned at the time that the sample concerned was taken from him or her (from which his or her DNA profile was generated); and

• (e) any other matter that the Commissioner considers appropriate for the purposes of the determination.

• (4) Subject to subsection (7), if, in relation to the DNA profile of a person, the Commissioner makes a determination under subsection (1) on the basis that subsection (2)(a) applies, he or she may, during the retention period referred to in section 80, give an authorisation to extend that period by a period of 12 months.

• (5) Subject to subsection (7), the Commissioner may, while an authorisation under subsection (4) 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 not more than 12 months commencing on the expiration of the period of 12 months to which the authorisation previously given relates if he or she makes a determination under subsection (1) on the basis that subsection (2)(a) applies.

• (6) Subject to subsection (7), the Commissioner may, while an authorisation under subsection (4) or (5), 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 further period commencing on the expiration of the period of 12 months to which the authorisation previously given relates if he or she makes a determination under subsection (1) on the basis that subsection (2)(b) applies.

• (7) An authorisation under subsection (4), (5) or (6) may not be given if to do so would involve the retention of the DNA profile of the person concerned—

• (a) in the case of a child or a protected person, for a period of more than 3 years from—

• (i) the taking of the sample concerned from the child or protected person, as the case may be, or

• (ii) if appropriate, the date on which that sample is deemed under section 86 to have been taken from him or her,

whichever is the later, and

• (b) in the case of any other person, for a period of more than 6 years from—

• (i) the taking of the sample concerned from the person, or

• (ii) if appropriate, the date on which that sample is deemed under section 86 to have been taken from him or her,

whichever is the later.

• (8) Subject to subsection (9), if, in relation to the DNA profile of a person, the Commissioner makes a determination under subsection (1) on the basis that subsection (2)(b) applies, he or she may, during the retention period referred to in section 80, give an authorisation to extend that period.

• (9) An authorisation under subsection (8) may extend the retention period referred to in section 80 for no longer than—

• (a) in the case of a child or a protected person, a period of 3 years from—

• (i) the taking of the sample concerned from the child or protected person, as the case may be, or

• (ii) if appropriate, the date on which that sample is deemed under section 86 to have been taken from him or her,

whichever is the later, and

• (b) in the case of any other person, a period of 6 years from—

• (i) the taking of the sample concerned from the person, or

• (ii) if appropriate, the date on which that sample is deemed under section 86 to have been taken from him or her,

whichever is the later.

• (10) Whenever the Commissioner gives an authorisation under subsection (4), (5), (6) or (8), he or she shall, in relation to the DNA profile of the person that is the subject of the authorisation, cause—

• (a) the person, and

• (b) if the 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 that the authorisation has been given under subsection (4), (5), (6) or (8), as may be appropriate, the date on which that authorisation was given and of the right of appeal under subsection (11).

• (11) The person to whom the authorisation concerned relates (in this section called “the appellant”) or, if that person is a child or a protected person, a parent or guardian on his or her behalf may, within the period of 3 months from the date of the notice under subsection (10) concerned, appeal to the District Court against that authorisation.

• (12) An appeal under subsection (11) shall—

• (a) be on notice to the Commissioner, and

• (b) be heard otherwise than in public.

• (13) If, on an appeal under subsection (11), the District Court—

• (a) confirms the authorisation concerned, or

• (b) allows the appeal,

the Commissioner shall give effect to the decision of the Court.

• (14) 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 sample concerned was taken (from which the DNA profile of the appellant was generated).

• (15) The District Court may make such order as to costs as it considers appropriate on an appeal under subsection (11).

• (16) Nothing in this section shall—

• (a) prevent or restrict the exercise of powers conferred by section 11, 12, 13, 30 or 31,

• (b) pending the conclusion of proceedings under this section, prevent or restrict the use of the DNA profile concerned for the purposes of—

• (i) this Act,

• (ii) a criminal investigation, or

• (iii) other proceedings.

82. Removal in exceptional circumstances of certain DNA profiles in reference index of DNA Database System from that System

82. (1) Notwithstanding sections 80 and 81, if the Commissioner is satisfied that exceptional circumstances exist that justify the removal from the DNA Database System of a DNA profile that was generated from a sample taken from a person under section 11, 12 or 13 and entered in the reference index of that System, the DNA profile concerned shall be so removed as soon as practicable after the application of those circumstances in relation to that DNA profile 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 any of the provisions referred to in section 9(1) for the purposes of the investigation of a relevant offence during which the sample concerned was taken (from which his or her DNA profile was generated), that no such offence was committed;

• (b) it is established that the detention of the person concerned under any of the provisions referred to in section 9(1) for the purposes of the investigation of a relevant offence during which the sample concerned was taken (from which his or her DNA profile was generated) was on the basis of the mistaken identity of the person concerned as the perpetrator of that relevant offence; or

• (c) it is determined by a court that the detention of the person concerned under any of the provisions referred to in section 9(1) for the purposes of the investigation of a relevant offence during which the sample concerned was taken (from which his or her DNA profile was generated) was unlawful.

83. Application of this Part to former offenders

83. (1) A person from whom a sample was taken under section 34 may apply to the Commissioner under this section to have his or her DNA profile that was generated from the sample and entered in the reference index of the DNA Database System removed from that System.

• (2) An application under subsection (1)may be made by a person if a conviction for any offence to which regard was had under section 33 for the purposes of determining whether he or she was a former offender—

• (a) has been quashed, or

• (b) has been declared to be a miscarriage of justice under section 2 of the Criminal Procedure Act 1993.

• (3) An application under subsection (1) shall be made in writing and shall contain sufficient particulars relating to the sample or DNA profile concerned to facilitate its identification.

• (4) The Commissioner shall, as soon as may be after the receipt of an application under subsection (1), acknowledge the receipt of it by notice in writing.

• (5) The Commissioner shall, as soon as may be but not later than 3 months after the receipt of an application under subsection (1), determine the application.

• (6) The Commissioner shall, for the purposes of determining an application under subsection (1), consider in accordance with section 33 whether the person concerned is a former offender.

• (7) The determination of the Commissioner of an application under subsection (1) may provide for the retention in, or the removal from, the DNA Database System of the DNA profile of the person concerned.

• (8) The Commissioner shall cause the person concerned to be informed by notice in writing of the determination and the reasons for it, the date on which it was made and of the right of appeal under subsection (9).

• (9) Where the Commissioner, in relation to an application under subsection (1) —

• (a) refuses the application, or

• (b) does not determine the application within the time limit specified in subsection (5) in which case the application shall be deemed to have been refused,

the person concerned or, if that person is a child or a protected person, a parent or guardian on his or her behalf may, within the period of 3 months from the date of the determination or, as may be appropriate, the latest date for making a determination under subsection (5), appeal to the District Court against the determination.

• (10) An appeal under subsection (9) shall—

• (a) be on notice to the Commissioner, and

• (b) be heard otherwise than in public.

• (11) If, on an appeal under subsection (9), the District Court—

• (a) confirms the determination concerned, or

• (b) allows the appeal,

the Commissioner shall ensure that effect is given to the decision of the Court.

• (12) 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 person concerned resides or, if that person 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 sample concerned was taken.

• (13) The District Court may make such order as to costs as it considers appropriate on an appeal under subsection (9).

• (14) Nothing in this section shall—

• (a) prevent or restrict the exercise of powers conferred by section 34 or 39, or

• (b) pending the conclusion of proceedings under this section, prevent or restrict the use of the DNA profile concerned for the purposes of—

• (i) this Act,

• (ii) a criminal investigation, or

• (iii) other proceedings.

84. Removal of DNA profiles in respect of former child offenders from DNA Database System in certain circumstances

84. (1) Subject to sections 85, 86 and 93, the DNA profile generated from a sample taken under section 11, 12, 13 or 32 and entered in the reference index of the DNA Database System in respect of a person who was a child offender to whom subsection (2) applies shall, if not previously removed, be removed from that System—

• (a) within the period of 4 years from the taking of the sample from the person if a sentence other than one of detention was imposed on the person, or

• (b) within the period of 6 years from the expiry of the sentence imposed on, or, as the case may be, the end of the notification period in relation to, the person,

in respect of the offence to which that subsection applies (in this section called the “retention period”).

• (2) This section applies to a person who was a child offender if the offence in connection with which the sample concerned was taken (from which his or her DNA profile was generated) is an offence other than—

• (a) an offence that is triable by the Central Criminal Court, or

• (b) an offence, or one of a category of offences, specified in an order made by the Minister under this subsection that are, for the purposes of this subsection, excluded from its application by reason of the nature and seriousness of such an offence or offences.

• (3) In this section—

“the end of the notification period”, in relation to a child offender who was a sex offender, means the end of the period for which he or she was 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, has the meaning it has in section 32.

85. DNA profiles not to be removed from DNA Database System in certain circumstances

85. (1) Section 80 or 84 shall not apply to a person if, during the retention period—

• (a) proceedings for a relevant offence (“the subsequent relevant offence”) other than the offence in connection with which the sample concerned was taken (from which his or her DNA profile was generated and entered in the reference index of the DNA Database System) have not been instituted against the person, where the failure to institute such proceedings against him or her within the retention period is due to the fact that he or she absconded or could not be found,

• (b) proceedings for a relevant offence (“the subsequent relevant offence”) other than the offence in connection with which the sample concerned was taken (from which his or her DNA profile was generated and entered in the reference index of that System) have been instituted against the person, unless—

• (i) the person has been acquitted of that relevant offence,

• (ii) the charge against the person in respect of that relevant offence has been dismissed under section 4E of the Criminal Procedure Act 1967, or

• (iii) the proceedings for that relevant offence have been discontinued,

or

• (c) the person has been convicted of another relevant offence (“the subsequent relevant offence”) or sexual offence, unless—

• (i) the conviction for that relevant or sexual offence, as the case may be, is quashed, or

• (ii) the conviction for that relevant offence or sexual offence, as the case may be, is declared to be a miscarriage of justice under section 2 of the Criminal Procedure Act 1993.

• (2) In the circumstances referred to in subsection (1), this Part shall apply in relation to the retention of the DNA profile of the person concerned in the reference index of the DNA Database System by reference to the subsequent relevant offence referred to in paragraph (a), (b) or (c) of that subsection, or the sexual offence referred to in that paragraph (c), as may be appropriate.

• (3) In this section references to the retention period shall be construed as references to—

• (a) in the case of section 80, the retention period under that section and any extension of that period under an authorisation given under subsection (4), (5), (6) or (8) of section 81, and

• (b) in the case of section 84, the retention period within the meaning of that section.

86. Date on which sample under section 11, 12, 13, 31 or 32 may be deemed to have been taken in certain circumstances

86. (1) This section applies where a sample (in this section called “the first sample”) is taken from a person—

• (a) under section 11, 12 or 13 while he or she is detained under any of the provisions referred to in section 9(1) for the purposes of the investigation of a relevant offence, or

• (b) under section 31 or 32 in connection with a conviction for a relevant offence or a sexual offence,

and a DNA profile in respect of the person is generated from that sample and entered in the reference index of the DNA Database System.

• (2) If, in the circumstances referred to in subsection (1) in relation to a person—

• (a) but for the taking from him or her of the first sample, a sample may be, but is not, taken from him or her on a date after the first sample was taken (“the subsequent date”)—

• (i) under section 11 while the person is detained under any of the provisions referred to in any paragraph of section 9(1) for the purposes of the investigation of a relevant offence other than the offence in connection with which the first sample was taken, or

• (ii) under section 31 or 32 in connection with a conviction for a relevant offence or sexual offence other than the offence in connection with which the first sample was taken,

or

• (b) an intimate sample or a non-intimate sample taken from the person on a date after the taking of the first sample (“the subsequent date”) for the investigation of a relevant offence other than the offence in connection with which the first sample was taken is not used to generate a DNA profile in respect of the person to be entered in the reference index of the DNA Database System as his or her DNA profile has already been entered in that index,

the first sample shall be deemed to have been taken from him or her on the subsequent date—

• (i) for the purposes of the application of subsection (7) or (9) of section 81 to the person, and

• (ii) for the purposes of the application of subsection (1) of section 84 to the person so that the retention period under that section shall be—

• (I) in the case of a person falling under paragraph (a) of that subsection, the period of 4 years from the subsequent date, or

• (II) in the case of a person falling under paragraph (b) of that subsection, the period of 6 years from the subsequent date but only if that period is longer than the retention period under that subsection.

• (3) The subsequent date for the purposes of subsection (2)(a) shall be the latest date on which a sample under section 11, 31 or 32, as the case may be, may have been taken from the person concerned.

Chapter 2 Application of this Part to persons from whom samples were taken under Part 3

87. Destruction of samples taken from persons under Part 3 and destruction, or removal from DNA Database System, of their DNA profiles

87. (1) Subject to subsection (2) —

• (a) a person from whom a sample was taken under section 27 or 29, or

• (b) in the case of a protected person or a child, the person who gave consent under section 54 to the taking of a sample under section 27 or 29 from the protected person or child, as the case may be,

may request the destruction of the sample, or the DNA profile generated from the sample in respect of the person from whom it was taken, or both by notice in writing sent or given to the Commissioner.

• (2) Where the DNA profile in respect of a person from whom a sample was taken under section 27 is entered in the reference index of the DNA Database System under section 28, a request by the person under subsection (1) to have his or her DNA profile destroyed shall be regarded as including a request to have his or her DNA profile removed from that System.

• (3) Subject to subsections (4) to (7) and section 93, a sample taken from a person under section 27 or 29, and the DNA profile generated from the sample in respect of the person from whom it was taken, shall be destroyed not more than 3 months after the receipt by the Commissioner of the notice under subsection (1).

• (4) Where the DNA profile in respect of a person from whom a sample was taken under section 27 is entered in the reference index of the DNA Database System under section 28, the Commissioner may request the person to consent to the removal of the DNA profile in respect of the person from that System and its retention solely for the purposes of the investigation of the particular offence in connection with the investigation of which the sample was taken.

• (5) If the person referred to in subsection (4) consents in writing to the retention of his or her DNA profile in relation to the investigation of the particular offence concerned, then, subject to subsection (6), the DNA profile that was generated from the sample in respect of that person shall be removed from the DNA Database System and retained solely for the purposes of the investigation of that offence.

• (6) A member of the Garda Síochána shall, before the consent of the person concerned is obtained under subsection (5), inform that person of the following effects of giving that consent:

• (a) that the DNA profile in respect of that person generated from the sample that has already been taken from him or her shall be removed from the DNA Database System and retained solely for the purposes of the investigation of the particular offence concerned; and

• (b) that the DNA profile in respect of that person may be destroyed in accordance with subsections (1) and (3).

• (7) A consent under subsection (5) shall specify the particular offence that is being investigated to which it relates.

• (8) Subject to subsection (10), a sample taken from a person under section 27 or 29, and the DNA profile generated from the sample in respect of the person from whom it was taken, shall, if not previously destroyed, be destroyed not more than 3 months after the investigation of the offence in relation to which the sample was taken is concluded or any proceedings in respect of that offence are determined, whichever is the later.

• (9) The member of the Garda Síochána in charge of the investigation of the offence referred to in subsection (8) shall determine, for the purposes of that subsection, when the investigation of that offence is concluded.

• (10) Where the DNA profile in respect of a person from whom a sample was taken under section 27 is entered in the reference index of the DNA Database System under section 28, that DNA profile shall not be removed from that System unless the person makes a request, or is regarded under subsection (2) as having made such a request, to have it so removed and, on such a request being made or regarded as having been made, his or her DNA profile shall be removed as soon as practicable thereafter from that System.

Chapter 3 Application of this Part to persons from whom samples were taken under Part 5

88. Destruction of samples taken from persons under sections 41 and 42 and removal of their DNA profiles from DNA Database System

88. (1) Subject to subsection (4), a sample taken from a person under section 41 or 42 shall be destroyed—

• (a) as soon as a DNA profile has been generated from the sample, or

• (b) before the expiration of the period of 6 months from the taking of the sample,

whichever occurs later.

• (2) Subject to subsections (5) and (6), the DNA profile in respect of a person to whom section 41(2) or 42(2) applies entered in the elimination (Garda Síochána) index or the elimination (crime scene investigators) index of the DNA Database System shall not be removed from that System until the expiration of the period of 10 years after—

• (a) in the case of a member of the Garda Síochána to whom section 41(2)(a) or 42(2)(a) applies, the person ceases to be a member of the Garda Síochána,

• (b) in the case of a person to whom section 41(2)(b) or paragraph (b) or (c) of section 42(2) applies, the person ceases to be employed by the Garda Síochána as such a person, but where he or she is appointed as a member of the Garda Síochána paragraph (a) applies to the person,

and the DNA profile concerned shall be removed from that System as soon as practicable after that period.

• (3) A person—

• (a) to whom subsection (3) of section 41 applies and from whom a sample was taken under that section, or

• (b) to whom subsection (3) of section 42 applies and from whom a sample was taken under that section,

may, at any time and without specifying a reason, request the destruction of the sample if not already destroyed, and the removal of his or her DNA profile from the DNA Database System, by notice in writing sent or given to the Commissioner.

• (4) Subject to subsections (5) and (6), a sample taken under section 41 or 42 from a person referred to in subsection (3) shall be destroyed if not previously destroyed, and his or her DNA profile shall be removed from the DNA Database System, not more than 3 months after the receipt by the Commissioner of the notice under that subsection.

• (5) If the Director of FSI, following consultation with the Commissioner, is satisfied that there is good reason relating to the investigation of offences why a DNA profile in respect of a person entered in the elimination (Garda Síochána) index or the elimination (crime scene investigators) index of the DNA Database System should not be removed from that System under subsection (2) or (4), the Director may, subject to subsection (6), direct that the DNA profile should not be removed from that System.

• (6) At the end of each year, the Director of FSI shall carry out a review to determine whether any of the DNA profiles in respect of persons referred to in subsection (5) shall be removed from the DNA Database System and he or she shall consult the Commissioner for the purposes of that review.

• (7) The Director of FSI shall inform by notice in writing a person from whom a sample was taken under section 41 or 42 —

• (a) if a direction is given by the Director under subsection (5) in relation to the DNA profile in respect of the person, and

• (b) if appropriate, of a determination under subsection (6) in relation to the DNA profile in respect of the person.

• (8) In this section “member of the Garda Síochána” has the meaning it has in Part 5.

89. Destruction of samples taken from persons under section 43 and removal of their DNA profiles from DNA Database System

89. (1) Subject to subsection (4), a sample taken from a person under section 43 shall be destroyed—

• (a) as soon as a DNA profile has been generated from the sample, or

• (b) before the expiration of the period of 6 months from the taking of the sample,

whichever occurs later.

• (2) Subject to subsections (5) and (6), the DNA profile in respect of a member of the staff of FSI entered in the elimination (crime scene investigators) index of the DNA Database System shall not be removed from that System until the expiration of the period of 10 years after he or she ceases to be such a member of staff, and that DNA profile shall be removed from that System as soon as practicable after that period.

• (3) A member of staff of FSI to whom subsection (3) of section 43 applies and from whom a sample was taken under that section may, at any time and without specifying a reason, request the destruction of the sample if not already destroyed, and the removal of his or her DNA profile from the DNA Database System, by notice in writing sent or given to the Director of FSI.

• (4) Subject to subsections (5) and (6), a sample taken under section 43 from a member of the staff of FSI referred to in subsection (3) shall be destroyed if not previously destroyed, and his or her DNA profile shall be removed from the DNA Database System, not more than 3 months after the receipt by the Director of FSI of the notice under that subsection.

• (5) If the Director of FSI is satisfied that there is good reason relating to the investigation of offences why a DNA profile in respect of a member of the staff of FSI entered in the elimination (crime scene investigators) index of the DNA Database System should not be removed from that System under subsection (2) or (4), the Director may, subject to subsection (6), direct that the DNA profile shall not be removed from that System.

• (6) At the end of each year, the Director of FSI shall carry out a review to determine whether any of the DNA profiles in respect of members of the staff of FSI referred to in subsection (5) shall be removed from the DNA Database System.

• (7) The Director of FSI shall inform by notice in writing a person from whom a sample was taken under section 43—

• (a) if a direction is given by the Director under subsection (5) in relation to the DNA profile in respect of the person, and

• (b) if appropriate, of a determination under subsection (6) in relation to the DNA profile in respect of the person.

90. Destruction of samples taken from persons under section 44 and removal of their DNA profiles from DNA Database System

90. (1) A sample taken from a prescribed person under section 44 shall be destroyed—

• (a) as soon as a DNA profile has been generated from the sample, or

• (b) before the expiration of the period of 6 months from the taking of the sample,

whichever occurs later.

• (2) Subject to subsections (5) and (6), the DNA profile in respect of a person from whom a sample under section 44 shall be taken that is entered in the elimination (crime scene investigators) index or the elimination (prescribed persons) index of the DNA Database System shall not be removed from that System until the expiration of the period of 10 years after the person ceases to be a prescribed person, and that DNA profile shall be removed from that System as soon as practicable after that period.

• (3) A prescribed person from whom a sample under section 44 may be taken and from whom such a sample was taken may, at any time and without specifying a reason, request in the prescribed manner the destruction of the sample if not already destroyed and the removal of his or her DNA profile from the DNA Database System.

• (4) Subject to subsections (5) and (6), a sample taken under section 44 from a prescribed person referred to in subsection (3) shall be destroyed if not previously destroyed, and his or her DNA profile shall be removed from the DNA Database System, not more than 3 months after he or she makes the request under that subsection in the prescribed manner.

• (5) If the Director of FSI is satisfied that there is good reason relating to the investigation of offences why a DNA profile entered in the elimination (crime scene investigators) index or the elimination (prescribed persons) index of the DNA Database System should not be removed from that System under subsection (2) or (4), the Director may, subject to subsection (6), direct that the DNA profile shall not be removed from that System.

• (6) At the end of each year, the Director of FSI shall carry out a review to determine whether any of the DNA profiles in respect of persons referred to in subsection (5) shall be removed from the DNA Database System.

• (7) The Director of FSI shall inform by notice in writing a prescribed person from whom a sample was taken under section 44—

• (a) if a direction is given by the Director under subsection (5) in relation to the DNA profile in respect of the person, and

• (b) if appropriate, of a determination under subsection (6) in relation to the DNA profile in respect of the person.

91. Destruction of sample taken from person under section 45 or 46 and his or her DNA profile

91. (1) When the DNA profile of a person from whom a sample was taken under section 45 or 46 has been compared with a DNA profile that was generated from the crime scene sample concerned, then, subject to subsections (2) and (3), the sample taken from the person, and the DNA profile generated from the sample in respect of the person, shall be destroyed as soon as practicable.

• (2) If—

• (a) the Commissioner, in the case of a sample taken from a person under section 45, or

• (b) the Director of FSI, in the case of a sample taken from a person under section 46,

is satisfied that there is good reason relating to the investigation of a particular offence why the sample taken from the person under section 45 or 46, as the case may be, or the DNA profile generated from the sample in respect of the person, or both should not be destroyed, he or she may direct that the sample or DNA profile or both shall not be destroyed until a period of not more than 3 months has elapsed after the investigation of that offence is concluded or any proceedings in respect of that offence are determined whichever is the later.

• (3) The member of the Garda Síochána who is in charge of the investigation of the offence referred to in subsection (2) shall determine, for the purposes of that subsection, when the investigation of that offence is concluded.

• (4) The Commissioner in the case of a person from whom a sample was taken under section 45, and the Director of FSI in the case of a person from whom a sample was taken under section 46, shall inform the person by notice in writing if a direction is given by the Commissioner or the Director, as the case may be, under subsection (2) in relation to the DNA profile in respect of the person.

Chapter 4 Application of this Part to persons from whom, or in relation to whom, samples were taken under Part 6

92. Destruction of samples taken from persons under Part 6 and removal of their DNA profiles from DNA Database System

92. (1) A person referred to in subsection (1)(b) of section 48 from whom a sample was taken under that section, or, in the case of a protected person or a child, the person who gave consent under section 54 to the taking of a sample under that section from the protected person or the child, as the case may be, may request the destruction of the sample, or the removal from the DNA Database System of the DNA profile generated from the sample in respect of the person, or both by notice in writing sent or given to the Commissioner.

• (2) Subject to subsections (7) to (9), a sample taken under section 48 from a person referred to in subsection (1)(b) of that section shall be destroyed, or the DNA profile generated from the sample in respect of the person shall be removed from the DNA Database System, or both not more than 3 months after the receipt by the Commissioner of the notice under subsection (1).

• (3) Subject to subsections (7) to (10), a sample taken under section 48 from a person referred to in subsection (1)(b) of that section shall, if not previously destroyed, be destroyed, and the DNA profile generated from the sample in respect of the person shall, if not previously removed, be removed from the DNA Database System, not more than 3 months after the missing person in relation to whose disappearance the sample was taken is found or identified.

• (4) Subject to subsections (7) to (10), a sample taken under section 48 in relation to a missing person shall be destroyed, and the DNA profile generated from the sample in respect of the missing person shall be removed from the DNA Database System, not more than 3 months after that person is found or identified.

• (5) Subject to subsections (7) to (9), a sample taken under section 49 from an unknown person shall be destroyed, and the DNA profile generated from the sample in respect of the unknown person shall be removed from the DNA Database System, not more than 3 months after the unknown person is identified.

• (6) Subject to subsections (7) to (10), a sample taken from the body of a deceased person under section 50 shall be destroyed, and the DNA profile generated from the sample in respect of the person shall be removed from the DNA Database System, not more than 3 months after the person is identified.

• (7) Nothing in this section shall require the destruction of a sample, or the removal from the DNA Database System of the DNA profile generated from the sample, if the sample or the DNA profile or both are required for the purposes of—

• (a) the investigation of an offence in connection with the disappearance of a missing person, the circumstances whereby an unknown person became seriously ill, or severely injured, and unable to identify himself or herself or the death of an unknown deceased person, as the case may be, or

• (b) an inquest regarding the death of an unknown deceased person or, if appropriate, a missing person, if the person is deceased when he or she is found or identified.

• (8) Subject to subsection (10), if a sample, or the DNA profile generated from the sample in respect of a person, or both are required for the purposes of the investigation of an offence referred to in subsection (7)(a), the sample shall be destroyed, and the DNA profile shall be removed from the DNA Database System, not more than 3 months after the investigation of the offence is completed or any proceedings in respect of that offence are determined, whichever is the later.

• (9) The member of the Garda Síochána in charge of the investigation of an offence referred to in subsection (7)(a) shall determine, for the purposes of subsection (8), when the investigation of that offence is completed.

• (10) If a sample, or the DNA profile generated from the sample in respect of a person, or both are required for the purposes of an inquest referred to in subsection (7)(b), the sample shall be destroyed, and the DNA profile shall be removed from the DNA Database System, not more than 3 months after the conclusion of the inquest unless the coroner conducting that inquest orders otherwise.

• (11) This section shall, with any necessary modifications, apply to a sample that is regarded under subsection (11) or (12) of section 48 as having been taken under that section.

• (12) This section shall, with any necessary modifications, apply to a sample that is regarded under subsection (6) or (7) of section 50 as having been taken under that section.

Chapter 5 Miscellaneous matters relating to destruction of samples and destruction, or removal from DNA Database System, of DNA profiles

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. F33[Application of Part to Police Ombudsman

99. The references in this Part to the Commissioner shall, for the purposes of the application of this Part to the Police Ombudsman, be construed as references to the 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: