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

Type Act

Publication 2014-06-22

Last updated 2025-04-02

State In force

Source Irish Statute Book

articles 172

(3) In the application of this Chapter in relation to a protected person or a child who is married, the references in sections 79 and 79B to a parent or guardian of the person or child, as the case may be, shall be construed as references to his or her spouse.”.

130. Amendment of section 77(5) of Act of 2008

130. Section 77(5) of the Act of 2008 is amended by—

(a) the deletion of “and” at the end of paragraph (b),

(b) the insertion of the following paragraph after paragraph (b):

“(ba) in the case of a request pursuant to Article 7 of the 2008 Council Decision, or that Article insofar as it is applied by Article 1 of the 2009 Agreement with Iceland and Norway, for the DNA profile of a person who is suspected of having committed the offence concerned whose DNA profile is not in the possession of the appropriate authority, a statement issued by the Commissioner of the Garda Síochána or the Director of Public Prosecutions, as may be appropriate, confirming that the requirements for the taking of a DNA sample from the person under the law of the State would be complied with if the person were in the State, and”.

131. Amendment of section 78 of Act of 2008

131. Section 78 of the Act of 2008 is amended by—

(a) the deletion of “and” at the end of paragraph (a),

(b) the substitution of the following paragraphs for paragraph (b):

“(b) a brief description of the conduct constituting the offence,

(d) a statement confirming that any evidence that may be furnished in response to the request will not, without the consent of the Minister, be used for any purpose other than that specified in the request, and

(e) in the case of a request pursuant to Article 7 of the 2008 Council Decision, or that Article insofar as it is applied by Article 1 of the 2009 Agreement with Iceland and Norway, for the DNA profile of a person who is suspected of having committed the offence concerned whose DNA profile is not in the possession of the Garda Síochána—

(i) an investigation warrant in respect of the person, or

(ii) a statement issued by the competent authority in the member state concerned in connection with a criminal investigation in that member state confirming that the requirements for the taking of a DNA sample from the person under the law of that member state would be complied with if the person were in that member state.”,

(d) the addition of the following subsection:

“(2) In this section—

‘competent authority’, in relation to a member state, means the authority in the member state that is competent to issue an investigation warrant or statement for the purposes of Article 7 of the 2008 Council Decision or that Article insofar as it is applied by Article 1 of the 2009 Agreement with Iceland and Norway;

‘investigation warrant’ means a warrant or order issued by the competent authority in a member state requiring a person to have identification evidence, other than fingerprints, palm prints or photographs, taken from him or her for the purposes of a criminal investigation, or criminal proceedings, in that member state.”.

132. Amendment of section 79 of Act of 2008

132. Section 79 of the Act of 2008 is amended—

(a) in subsection (1), by the substitution of the following paragraphs for paragraphs (b) and (c):

“(b) that the purpose for which the evidence is sought specified in the request, or any other purpose for which the consent of the Minister is sought, is one in respect of which the evidence could be obtained in the State if the criminal proceedings for, or the criminal investigation of, the offence concerned in the designated state concerned were being conducted in the State, and

(i) will be returned by the requesting authority—

(I) when no longer required for the purpose specified in the request (or any other purpose for which the consent of the Minister has been obtained), unless the Minister indicates otherwise, or

(II) when requested by the Minister for the purposes of destroying the evidence—

(A) to comply with a request to do so by or on behalf of the person to whom the identification evidence relates, or

(B) in accordance with section 4 of the Criminal Justice (Forensic Evidence) Act 1990, Part 10 of the Act of 2014 or any statutory provision providing for the destruction of fingerprints, palm prints or photographs of persons, as may be appropriate,

(ii) will be dealt with in accordance with subsections (10) and (11).”,

(b) in subsection (2), by—

(i) the substitution of “the identification evidence requested is not in the possession of the Garda Síochána and subject to section 79A, the Commissioner shall instruct” for “the identification evidence requested is not in the possession of the Garda Síochána, the Commissioner shall instruct”,

(ii) the deletion of “and” at the end of paragraph (c), and

(iii) the substitution of the following paragraphs for paragraph (d):

“(d) that, if he or she does consent to provide it, it may be given in evidence in any proceedings in that state, and

(e) that the evidence may be destroyed in accordance with this section.”,

(c) in subsection (3), by the substitution of “Subject to subsections (11H) to (11Q), if the person consents to provide the evidence” for “If the person consents to provide the evidence”,

(d) in subsection (8), by the insertion of “, if appropriate,” after “and the record shall”,

(e) in subsection (9) (b), by the substitution of “taken under subsection (3) or section 79A” for “taken under subsection (3) ”,

(f) by the insertion of the following subsections after subsection (9):

“(9A) When transmitting the identification evidence to the requesting authority, the Minister may specify conditions regarding the use of the evidence.

(9B) Subject to subsections (10) and (11) —

(a) any identification evidence taken under subsection (3) or section 79A that is transmitted to the requesting authority and returned by that authority when no longer required for the purpose specified in the request (or any other purpose for which the consent of the Minister had been obtained) shall be destroyed as soon as practicable after its return, and

(b) a DNA sample that is taken from a person under section 79A, and the DNA profile of the person generated from the sample, shall be destroyed when the Central Authority receives confirmation from the requesting authority that it has received the DNA profile of the person generated from the sample.

(9C) The provisions of subsections (7), (8), (9) and (11) of section 3, and section 97, of the Act of 2014 insofar as they apply to the destruction of samples and DNA profiles of persons under that Act shall apply, with any necessary modifications, in relation to the destruction of identification evidence, other than fingerprints, palm prints or photographs of persons, under subsection (9B).

(9D) The provisions of section 8H of the Criminal Justice Act 1984 insofar as they apply to the destruction of fingerprints, palm prints or photographs of persons shall apply, with any necessary modifications, in relation to the destruction of fingerprints, palm prints or photographs of persons under subsection (9B).”,

(g) by the substitution of the following subsection for subsection (10):

“(10) When transmitting the identification evidence to the requesting authority the Central Authority shall, if subsection (1) (c) (i) does not apply and subject to subsection (11), obtain an assurance that the evidence, as well as the record of any analysis of the evidence, or any other record relating to it, that may be made in the requesting state, will be destroyed when no longer required for the purpose specified in the request concerned (or any other purpose for which the consent of the Minister is obtained) and, in any event, not later than the expiration of the period of 3 months from the date on which any of the following circumstances first apply to the person the subject of that request:

(a) proceedings for an offence are not instituted against that person within the period of 12 months from the taking of the identification evidence concerned from him or her 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;

(b) proceedings for an offence have been instituted against that person and he or she is acquitted or the charge against him or her is dismissed or the proceedings are discontinued;

(i) in proceedings for an offence, is the subject of an order corresponding to or in the nature of a probation order under section 1(1) or (2) of the Probation of Offenders Act 1907, other than an order corresponding to or in the nature of an order under the said section 1(2) that is discharged on the appeal of that person against conviction for the offence if on appeal his or her conviction is affirmed, and

(ii) has not been convicted of an offence during the period of 3 years from the making of an order referred to in subparagraph (i);

(d) that person is convicted of an offence and the conviction is quashed; or

(e) that person is convicted of an offence and the conviction is declared to be a miscarriage of justice under the law of that state corresponding to section 2 of the Criminal Procedure Act 1993.”,

(h) by the substitution of the following subsection for subsection (11):

“(11) The Minister may, at the request of the requesting authority and having consulted the Commissioner, direct that the retention period in respect of identification evidence transmitted to the requesting authority be extended in accordance with an order made under subsection (11A).”,

(i) by the insertion of the following subsections after subsection (11):

“(11A) If a judge of the District Court is satisfied, on an application in that behalf by the Commissioner, that there is good reason why identification evidence transmitted pursuant to a request should not be destroyed by the requesting authority in accordance with subsection (10), or a request to do so under subsection (11R), the judge may make an order authorising the retention of the identification evidence for such purpose permitted by this section for such period as he or she considers appropriate.

(11B) If the Commissioner intends to make an application under subsection (11A), he or she shall inform by notice in writing the person from whom the identification evidence concerned was taken, and any person who gave consent to the taking of that identification evidence from that person, of that intention.

(11C) If, on an application under subsection (11A), the person from whom the identification evidence was taken, or any other person who gave consent to the taking of that identification evidence from that person, applies to be heard by the judge of the District Court, an order shall not be made under that subsection unless a reasonable opportunity has been given to that person to be heard.

(11D) An application under subsection (11A) shall be made to a judge of the District Court who is assigned to the district court district in which the person from whom the identification evidence concerned was taken resides.

(11E) An application under subsection (11A) shall be heard otherwise than in public.

(11F) In determining an application under subsection (11A), a judge of the District Court may make such order as to costs as the judge considers appropriate.

(11G) A notice under subsection (11B) may be sent or given to a 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.

(11H) Subject to subsection (11I), in this section ‘consent’ means—

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

(b) in the case of a protected person—

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

(ii) an order of the District Court under section 79B authorising the taking of the identification evidence concerned from the person,

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

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

(II) an order of the District Court under section 79B authorising the taking of the identification evidence concerned from the child,

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

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

(II) an order of the District Court under section 79B authorising the taking of the identification evidence concerned from the child.

(11I) Where, in relation to the criminal proceedings for, or the criminal investigation of, the offence concerned in the designated state concerned, identification evidence is to be taken from a protected person or a child, the consent in writing of a parent or guardian of the protected person or child shall not be sought from a parent or guardian of the protected person or child, as the case may be, if—

(a) he or she is the victim of that offence in circumstances in which the protected person or child, as the case may be, is suspected of having committed that offence,

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

(c) a member not below the rank of inspector has reasonable grounds for suspecting him or her of complicity in that offence, or

(d) a member not below the rank of inspector has reasonable grounds for believing that he or she is likely to obstruct the course of justice.

(11J) Subsection (11I) shall not prevent a parent or guardian of a protected person or a child who does not fall under paragraph (a), (b), (c) or (d)of that subsection from giving the consent required.

(11K) Before a member seeks the consent in writing of a parent or guardian of a protected person to the taking of identification evidence from the person, the member shall inform the parent or guardian of the matters referred to in subsection (2) in relation to the person.

(11L) Before a member seeks the consent in writing of a parent or guardian of a child to the taking of identification evidence from the child, the member shall inform the parent or guardian of the matters referred to in subsection (2) in relation to the child.

(11M) If a person withdraws a consent he or she had given to the taking of identification evidence under this section (or if the withdrawal of that consent can reasonably be inferred from the conduct of the person) before or during the taking of the identification evidence, that withdrawal of consent shall be treated as a refusal to give consent to the taking of that identification evidence.

(11N) A withdrawal of consent under subsection (11M) shall be recorded in writing by a member as soon as practicable after such withdrawal.

(11O) Subject to subsections (11R) and (11S), the consent of a person to the taking of identification evidence under this section may not be withdrawn after the identification evidence has been taken.

(11P) In this section references to a person giving his or her consent in writing to the taking of identification evidence under this section (whether from the person himself or herself or another person) shall include references to—

(a) the person signing a document, or

(b) in case the person is unable to write, the person making his or her mark on a document,

to indicate his or her consent.

(11Q) The identification evidence concerned shall, if it is reasonably practicable to do so, be taken from a protected person or a child in the presence of the person who gave consent under this section for the taking of that identification evidence from the protected person or child, as the case may be, unless the protected person or child indicates that he or she does not wish to have that person present.

(11R) If the identification evidence taken under this section and transmitted pursuant to a request relates to a person who was not, at the time the evidence was taken, suspected of having committed the offence concerned in the designated state concerned, the person, or another person who gave consent to the taking of the identification evidence from the person, may by notice in writing sent or given to the Commissioner request the destruction of the evidence.

(11S) The Commissioner shall, following the receipt of a notice under subsection (11R), inform the Minister of it and the Minister shall, subject to an order made under subsection (11A), request the requesting authority to which the identification evidence concerned was transmitted to destroy the evidence as soon as practicable and, in any event, to do so not more than 4 months after the receipt by the Commissioner of the notice under subsection (11R).

(11T) In this section and in section 79A a reference to identification evidence in the possession of the Garda Síochána shall include a reference to identification evidence in the possession of Forensic Science Ireland of the Department of Justice and Equality.”,

and

(j) by the substitution of the following subsection for subsection (12):

“(12) In this section ‘retention period’ means—

(a) in the case of identification evidence, other than a fingerprint, palm print or photograph of a person, the period from the taking of the evidence concerned from the person to the latest date for the destruction of that evidence under subsection (10), and

(b) in the case of identification evidence consisting of a fingerprint, palm print or photograph of a person (including any related records)—

(i) 6 years from the taking of the evidence concerned from the person, or

(ii) if the person falls under paragraph (d) or (e) of subsection (10), 3 months from the quashing of the conviction concerned or the declaration that the conviction concerned is a miscarriage of justice, as the case may be,

whichever is the later.”.

133. Request pursuant to Article 7 of 2008 Council Decision or that Article as applied by 2009 Agreement with Iceland and Norway

133.The Act of 2008 is amended by the insertion of the following section after section 79:

“ 79A. (1) If the request for obtaining identification evidence for use in a member state under section 78—

(a) is pursuant to Article 7 of the 2008 Council Decision or that Article insofar as it is applied by Article 1 of the 2009 Agreement with Iceland and Norway, and

(b) is for the DNA profile of a person who is suspected of having committed the offence concerned,

then, following compliance with section 79(1), this section shall apply to the request if the identification evidence sought pursuant to the request is not in the possession of the Garda Síochána.

(2) The Commissioner shall instruct a member of the Garda Síochána to inform the person whose DNA profile is sought pursuant to the request that—

(a) his or her DNA profile has been requested by the member state concerned for the purposes of criminal proceedings, or a criminal investigation, in that member state,

(b) if he or she consents to provide a DNA sample from which his or her DNA profile may be generated, the DNA profile will be transmitted to the member state concerned in accordance with this Chapter,

(d) if he or she does not consent to provide a DNA sample, an application may be made to a judge of the District Court under subsection (5) for an order under that subsection.

(3) If the person concerned consents to provide a DNA sample, a member of the Garda Síochána may take, or cause to be taken, a DNA sample from him or her.

(4) If the person concerned does not consent to provide a DNA sample, an application may be made for an order under subsection (5).

(5) A judge of the District Court may, on an application in that behalf by a member of the Garda Síochána not below the rank of superintendent, make an order—

(a) authorising the Garda Síochána to send a notice to the person concerned requiring him or her to attend at a named Garda Síochána station on a day, and at a time of day or between times of day, specified in the notice for the purpose of having a DNA sample taken from him or her, and

(b) in the event of his or her failure or refusal to comply with the notice, authorising the Garda Síochána to arrest the person concerned and detain him or her in a Garda Síochána station for a period not exceeding 4 hours from the time the person concerned is arrested for that purpose,

if the judge is satisfied that—

(i) the request concerned complies with section 79(1), and

(ii) the conduct alleged to constitute the offence concerned would, if it took place in the State, constitute a relevant offence, and

(iii) the person concerned has not consented to the taking of a DNA sample from him or her pursuant to the request concerned.

(6) If an order is made under subsection (5), a notice pursuant to the order may be sent by a member of the Garda Síochána to the person concerned.

(7) A notice under subsection (6) shall, in the case of a child, also be sent to a parent or guardian of the child and, if the member of the Garda Síochána sending the notice knows or believes that the person concerned to whom the notice is being sent is a protected person, the member shall also send the notice to a parent or guardian of the person.

(8) If the person concerned to whom a notice is sent under subsection (6) fails or refuses to comply with the notice, a member of the Garda Síochána may arrest that person and detain him or her in a Garda Síochána station for such period as is authorised by the order made under subsection (5) concerned for the purpose of having a DNA sample taken from him or her.

(9) If—

(a) the person concerned, in compliance with a notice sent to him or her under subsection (6), attends at the Garda Síochána station named in the notice, or

(b) he or she fails or refuses to comply with a notice sent to him or her under subsection (6) and he or she is arrested and detained in a Garda Síochána station,

for the purpose of having a DNA sample taken from him or her, a member of the Garda Síochána may, subject to subsection (11), take, or cause to be taken, a DNA sample from him or her.

(10) The provisions of sections 10(1), 14, 23 and 24, subsections (3) to (7) of section 21 and subsections (3) to (7) of section 22, of the Act of 2014 insofar as they relate to the taking of a non-intimate sample (within the meaning of that Act) from a person shall apply, with any necessary modifications, to the taking of a DNA sample from a person under subsection (9), (13) or (17), as may be appropriate.

(11) Before a member of the Garda Síochána takes, or causes to be taken, a DNA sample from a person under subsection (9), (13) or (17), the member shall, as may be appropriate, inform the person of the following:

(a) that the DNA profile of the person has been requested by the member state concerned for the purposes of criminal proceedings, or a criminal investigation, in that member state;

(b) that an order has been made by a judge of the District Court under subsection (5) authorising the sending of a notice to the person requiring him or her to attend at a named Garda Síochána station on a day, and at a time of day or between times of day, specified in the notice, or, in the event of his or her failure or refusal to comply with the notice, the arrest and detention of the person in a Garda Síochána station for the period specified in the order, for the purpose of having a DNA sample taken from him or her;

(c) in a case in which a DNA sample already taken from the person has proved to be insufficient or was inadequately labelled—

(i) that that DNA sample has proved to be insufficient or was inadequately labelled, as may be appropriate, and

(ii) that another DNA sample may be taken from the person under subsection (13) or (17), as the case may be;

(d) that the DNA sample will be used to generate a DNA profile in respect of the person and that the DNA profile will be transmitted to the member state concerned in accordance with this Chapter;

(e) that the DNA profile of the person generated from the DNA sample may be given in evidence in any proceedings in the member state concerned;

(f) that the provisions of sections 10(1), 14, 23 and 24, subsections (3) to (7) of section 21 and subsections (3) to (7) of section 22, of the Act of 2014 insofar as they relate to the taking of a non-intimate sample (within the meaning of that Act) from a person shall apply, with any necessary modifications, to the taking of the DNA sample from the person; and

(g) that the DNA sample, and the DNA profile of the person generated from the sample, may be destroyed in accordance with section 79.

(12) Where a DNA sample taken from a person under subsection (3) proves to be insufficient or is inadequately labelled, this section insofar as it relates to the taking of a DNA sample from the person shall apply, with any necessary modifications, to the taking of a second or further sample from the person.

(13) Where—

(a) a person is arrested and detained under subsection (8), and

(b) a DNA sample taken from the person during the period of detention proves to be insufficient or is inadequately labelled,

a second DNA sample may be taken from the person in accordance with subsections (9) to (11) while he or she is so detained.

(14) When a DNA sample or, if appropriate, a second DNA sample has been taken from a person who is detained under subsection (8), the person shall be released from custody forthwith unless his or her detention is authorised apart from this section.

(15) Where—

(a) a DNA sample is taken from a person who is detained under subsection (8),

(b) the person is released from that detention, and

a member of the Garda Síochána not below the rank of superintendent may apply to a judge of the District Court for an order under subsection (16).

(16) A judge of the District Court may, on an application in that behalf under subsection (15), make an order—

(b) in the event of his or her failure to comply with the notice, authorising the Garda Síochána to arrest the person concerned and detain him or her in a Garda Síochána station for a period not exceeding 4 hours from the time the person concerned is arrested for that purpose,

if the judge is satisfied that—

(i) the first DNA sample concerned was taken from the person concerned in accordance with this section,

(ii) the first DNA sample concerned taken from the person concerned has proved to be insufficient or was inadequately labelled, as the case may be, and

(iii) the member state concerned is still seeking the DNA profile of the person concerned pursuant to the request concerned.

(17) If an order is made under subsection (16) for the purpose of having a second DNA sample taken from the person, subsections (6) to (9)shall, with any necessary modifications, apply to the taking of the second DNA sample from him or her.

(18) When a second DNA sample has been taken from a person who is detained pursuant to an order under subsection (16), the person shall be released from custody forthwith unless his or her detention is authorised apart from this section.

(19) If a second DNA sample is taken from a person under subsection (13), the references in subsections (15) to (18) —

(a) to a first DNA sample shall be construed as references to a second DNA sample, and

(b) to a second DNA sample shall be construed as references to a third DNA sample,

taken, or to be taken, from the person.

(20) Subsections (4), (7), (8), (9), (9A), (10), (11) and (11A) to (11Q) of section 79 shall apply in respect of a request to which this section applies.

(21) An application under subsection (4) or (15) shall be made to a judge of the District Court who is assigned to the district court district in which the person whose DNA profile is being sought pursuant to the request concerned resides.

(22) If—

(a) the conduct alleged to constitute the offence concerned would not, if it took place in the State, constitute a relevant offence, or

(b) the request is for the DNA profile of a person who is not suspected of having committed the offence concerned in the member state concerned,

then, section 79 and not this section shall apply to the request.”.

134. Application for court order authorising taking of identification evidence from protected person or child under Act of 2008

134.The Act of 2008 is amended by the insertion of the following section after section 79A (inserted by section 133):

“ 79B. (1) If—

(a) a member of the Garda Síochána is unable, having made reasonable efforts to do so, to contact a parent or guardian of a protected person or child, as the case may be, for the purposes of ascertaining whether or not he or she consents to the taking of the identification evidence concerned from the person or child, as the case may be, under section 79,

(b) subject to subsection (11J) of section 79, the circumstances referred to in subsection (11I) of that section exist in relation to a parent or guardian of a protected person or child, as the case may be, or

(c) a protected person or child, as the case may be, does not have, or a member of the Garda Síochána not below the rank of inspector cannot, having made reasonable efforts to do so, ascertain within a reasonable period whether the person or child, as the case may be, has, a living parent or guardian from whom consent to the taking of the identification evidence concerned from the person or child, as the case may be, may be sought under section 79,

a member of the Garda Síochána not below the rank of inspector may apply to a judge of the District Court for an order authorising the taking of the identification evidence concerned from the protected person or child, as the case may be.

(2) A member of the Garda Síochána who intends to make an application under subsection (1) shall inform the protected person or child, as the case may be, concerned of that intention.

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

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

(b) that a parent or guardian of the protected person or child, as the case may be, concerned to whom section 79(11I) applies shall be excluded from the Court during the hearing of the application,

or both if—

(i) on an application in that behalf by a member of the Garda Síochána not below the rank of inspector, the judge is satisfied that it is desirable to do so in order to avoid a risk of prejudice to the criminal proceedings, or the criminal investigation, for the offence concerned in the designated state concerned in connection with which the identification evidence concerned has been sought pursuant to the request, or

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

(4) A judge of the District Court shall, for the purposes of determining an application under subsection (1) —

(a) be satisfied that the request for the identification evidence concerned complies with section 79(1), and

(b) have regard to—

(i) the nature and seriousness of the offence concerned in the designated state concerned,

(ii) in so far as they can be ascertained, the wishes of the protected person or child, as the case may be, concerned regarding whether the identification evidence concerned should be taken from him or her, and

(iii) whether it would be in the interests of justice in all the circumstances of the case, having due regard to the best interests of the protected person or child, as the case may be, concerned, to make an order authorising the taking of the identification evidence concerned from the protected person or child, as the case may be, concerned,

before making an order under this section.

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

(6) A judge of the District Court may, if he or she considers it appropriate to do so, make an order authorising the taking of the identification evidence concerned from the protected person or child, as the case may be, concerned in accordance with section 79.

(7) An application under subsection (1) shall be made to a judge of the District Court who is assigned to the district court district in which the protected person or child concerned resides.”.

135. Recording of supply and receipt of data for requests pursuant to Article 7 of 2008 Council Decision or that Article as applied by 2009 Agreement with Iceland and Norway

135.The Act of 2008 is amended by the insertion of the following section after section 79B (inserted by section 134):

“ 79C. (1) The Central Authority shall record, in accordance with subsection (2), the supply and receipt of data—

(a) in the case of requests under section 77, and

(b) in the case of requests referred to in section 78,

that are made pursuant to Article 7 of the 2008 Council Decision or that Article insofar as it is applied by Article 1 of the 2009 Agreement with Iceland and Norway.

(2) The recording of the supply and receipt of data under subsection (1)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 reason for the request concerned;

(d) the name or reference code of the Central Authority and the name or reference code of the appropriate authority within the meaning of section 77 concerned or of the authority which supplied or received the data, as the case may be.

(3) Records created under this section may be used only for the purposes of monitoring data protection and ensuring data security.

(4) The Central Authority 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.

(5) Whenever requested to do so by the Data Protection Commissioner, the Central Authority 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.

(6) The Central Authority shall—

(a) using the records created under this section, carry out random checks on the lawfulness of the supply and receipt of data,

(b) retain the results of those random checks for a period of 18 months from the time that they were carried out for the purposes of inspection by the Data Protection Commissioner, and

(7) A data controller who supplies or receives data—

(a) in the case of requests under section 77, or

(b) in the case of requests referred to in section 78,

that are made pursuant to Article 7 of the 2008 Council Decision, or that Article insofar as it is applied by Article 1 of the 2009 Agreement with Iceland and Norway, shall furnish such of the particulars specified in subsection (2) in relation to those data as the data controller has, as soon as reasonably practicable, to the Central Authority for the purposes of enabling the Central Authority to comply with this section.

(8) In this section ‘reference code’, in relation to the Central Authority or other authority, means the reference code that is assigned to the Central Authority or that other authority, as the case may be, for the purposes of the 2008 Council Decision or the 2009 Agreement with Iceland and Norway.”.

136. Amendment of section 107 of Act of 2008

136.Section 107 of the Act of 2008 is amended by the addition of the following subsection:

“(4) This section is without prejudice to the application of Chapter 4 of Part 12 of the Act of 2014 to requests made or received under Chapter 3 of Part 5 pursuant to Article 7 of the 2008 Council Decision or that Article insofar as it is applied by Article 1 of the 2009 Agreement with Iceland and Norway.”.

137. Amendment of section 108 of Act of 2008

137.Section 108 of the Act of 2008 is amended by the insertion of “, 79A(5) or (16) ” after “of a power conferred by section 74(8), 75(9)”.

138. Amendment of section 109 of Act of 2008

138.Section 109 of the Act of 2008 is amended by the insertion of the following subsection after subsection (1):

“(1A) Without prejudice to the generality of subsection (1), regulations may be made by the Minister for the purposes of Chapter 3 of Part 5 regarding the obtaining or transmission of identification evidence within the meaning of that Chapter.”.

Chapter 6

139. Amendment of section 50 of Act of 2006

139.Section 50 of the Act of 2006 is amended—

(a) in subsection (1), by—

(i) the substitution of “In this section and in section 50A” for “In this section”,

(ii) the insertion of the following definitions:

“ ‘ Act of 2014 ’ means the Criminal Justice (Forensic Evidence and DNA Database System) Act 2014;

‘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 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;

‘guardian’, in relation to a child (including a protected person who is a child), has the meaning it has 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;

‘nurse’ means a person whose name is entered for the time being in the nurses’ division of the register of nurses and midwives established under section 46 of the Nurses and Midwives Act 2011;

‘parent’, in relation to a protected person or child, has the meaning it has in the Act of 2014;

‘protected person’ means, subject to subsection (1A), 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;

‘retention period’ means—

(a) in the case of identification evidence, other than a fingerprint, palm print, iris identification or photograph of a person, the period from the taking of the evidence concerned to the latest date for the destruction of that evidence under subsection (12), and

(b) in the case of identification evidence consisting of a fingerprint, palm print, iris identification or photograph of a person (including any related records)—

(i) 6 years from the taking of the evidence concerned from the person, or

(ii) if the person falls under paragraph (c) or (d) of subsection (12), 3 months from the quashing or reversing, as the case may be, of the conviction concerned,

whichever is the later.”,

(iii) the substitution of the following definition for the definition of “consent”:

“ ‘consent’, subject to subsections (1B) and (1J), means—

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

(b) in the case of a protected person—

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

(ii) an order of the District Court under section 50A authorising the taking of the identification evidence concerned from the person,

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

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

(II) an order of the District Court under section 50A authorising the taking of the identification evidence concerned from the child,

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

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

(II) an order of the District Court under section 50A authorising the taking of the identification evidence concerned from the child;”,

and

(iv) 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, iris identification or photograph of the person, or

(b) a bodily sample from the person or the DNA profile of the person generated from such a sample,

and includes any related records.”,

(b) by the insertion of the following subsections after subsection (1):

“(1A) 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.

(1B) Where, in relation to the ICC offence concerned, identification evidence is to be taken from a protected person or a child, the consent in writing of a parent or guardian of the protected person or child shall not be sought from a parent or guardian of the protected person or child, as the case may be, if—

(a) he or she is the victim of that offence in circumstances in which the protected person is suspected of having committed that offence,

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

(c) a member of the Garda Síochána (in this section called ‘a member’) not below the rank of inspector has reasonable grounds for suspecting him or her of complicity in that offence, or

(d) a member not below the rank of inspector has reasonable grounds for believing that he or she is likely to obstruct the course of justice.

(1C) Subsection (1B) shall not prevent a parent or guardian of a protected person or a child who does not fall under paragraph (a), (b), (c) or (d)of that subsection from giving the consent required.

(1D) Before a member seeks the consent in writing of a parent or guardian of a protected person to the taking of identification evidence from the person, the member shall inform the parent or guardian of the matters referred to in subsection (4) in relation to the person.

(1E) Before a member seeks the consent in writing of a parent or guardian of a child to the taking of identification evidence from the child, the member shall inform the parent or guardian of the matters referred to in subsection (4) in relation to the child.

(1F) If a person withdraws a consent he or she had given to the taking of identification evidence under this section (or if the withdrawal of that consent can reasonably be inferred from the conduct of the person) before or during the taking of the identification evidence, that withdrawal of consent shall be treated as a refusal to give consent to the taking of that identification evidence.

(1G) A withdrawal of consent under subsection (1F) shall be recorded in writing by a member as soon as practicable after such withdrawal.

(1H) Subject to subsections (1L) and (1M), the consent of a person to the taking of identification evidence under this section may not be withdrawn after the identification evidence has been taken.

(1I) In this section references to a person giving his or her consent in writing to the taking of identification evidence under this section (whether from the person himself or herself or another person) shall include references to—

(a) the person signing a document, or

(b) in case the person is unable to write, the person making his or her mark on a document,

to indicate his or her consent.

(1J) In the application of this section and section 50A in relation to a protected person or a child who is married, the references to a parent or guardian of the person or child, as the case may be, shall be construed as references to his or her spouse.

(1K) The identification evidence concerned shall, if it is reasonably practicable to do so, be taken from a protected person or a child in the presence of the person who gave consent under this section for the taking of that identification evidence from the protected person or child, as the case may be, unless the protected person or child indicates that he or she does not wish to have that person present.

(1L) If identification evidence taken under this section and transmitted pursuant to a request relates to a person who was not, at the time the evidence was taken, suspected of having committed the ICC offence concerned, the person, or another person who gave consent to the taking of the identification evidence from the person, may by notice in writing sent or given to the Commissioner request the destruction of the evidence.

(1M) The Commissioner shall, following the receipt of a notice under subsection (1L), inform the Minister of it and the Minister shall, subject to an order made under subsection (13A), request the Court to which the evidence concerned was transmitted to destroy the evidence as soon as practicable and, in any event, to do so not more than 4 months after the receipt by the Commissioner of the notice under subsection (1L).

(1N) In this section a reference to identification evidence in the possession of the Garda Síochána shall include a reference to identification evidence in the possession of Forensic Science Ireland of the Department of Justice and Equality.”,

“(b) that the evidence—

(i) will be returned by the Court—

(I) when no longer required for that purpose, unless the Minister indicates otherwise, or

(II) when requested by the Minister for the purposes of destroying the evidence—

(A) to comply with a request to do so by or on behalf of the person to whom the identification evidence relates, or

(ii) will be dealt with in accordance with subsections (12) and (13).”,

(d) in subsection (4), by—

(i) the deletion of “of the Garda Síochána (a ‘member’)”,

(ii) the deletion of “and” at the end of paragraph (c), and

(iii) the substitution of the following paragraphs for paragraph (d):

“(d) that, if he or she does consent to provide it, it may be given in evidence in proceedings before the Court, and

(e) that the evidence may be destroyed in accordance with this section.”,

(e) in subsection (5), by the substitution of “Subject to subsections (1B) to (1K), if a person consents to provide the evidence” for “If the person consents to provide the evidence”,

(f) in subsection (7), by the insertion of “or nurse” after “may be taken under this section only by a doctor”,

(g) by the insertion of the following subsections after subsection (11):

“(11A) Subject to subsections (12) and (13), any identification evidence taken under subsection (5) that is transmitted to the Court and returned by it when no longer required for the purpose specified in the request shall be destroyed as soon as practicable after its return.

(11B) The provisions of subsections (7), (8), (9) and (11) of section 3, and section 97, of the Act of 2014 insofar as they apply to the destruction of samples and DNA profiles of persons under that Act shall apply, with any necessary modifications, in relation to the destruction of identification evidence, other than fingerprints, palm prints, iris identifications or photographs of persons, under subsection (11A).

(11C) The provisions of section 8H of the Criminal Justice Act 1984 insofar as they apply to the destruction of fingerprints, palm prints or photographs of persons shall apply, with any necessary modifications, in relation to the destruction of fingerprints, palm prints, iris identifications or photographs of persons under subsection (11A).”,

(h) by the substitution of the following subsection for subsection (12):

“(12) When transmitting the identification evidence to the Court the Minister shall, if subsection (3) (b) (i) does not apply and subject to subsection (13), obtain an assurance that the evidence, as well as the record of any analysis of the evidence, or any other record relating to it, that may be made by the Court, will be destroyed when no longer required for the purpose specified in the request concerned and, in any event, not later than the expiration of the period of 3 months from the date on which any of the following circumstances first apply to the person the subject of that request:

(a) proceedings for an ICC offence are not instituted against that person within the period of 12 months from the taking of the identification evidence concerned from him or her 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;

(b) proceedings for an ICC offence have been instituted against that person and he or she is acquitted or the charge against him or her is dismissed or the proceedings are discontinued;

(d) that person is convicted of an ICC offence and the conviction is reversed following an application pursuant to Article 84.”,

(i) by the substitution of the following subsection for subsection (13):

“(13) The Minister may, at the request of the Court and having consulted the Commissioner, direct that the retention period in respect of identification evidence transmitted to the Court be extended in accordance with an order made under subsection (13A).”,

and

(j) by the insertion of the following subsections after subsection (13):

“(13A) If a judge of the District Court is satisfied, on an application in that behalf by the Commissioner, that there is good reason why identification evidence transmitted pursuant to a request should not be destroyed by the Court in accordance with subsection (12), or a request to do so under subsection (1L), the judge may make an order authorising the retention of the identification evidence for such purpose permitted by this section for such period as he or she considers appropriate.

(13B) If the Commissioner intends to make an application under subsection (13A), he or she shall inform by notice in writing the person from whom the identification evidence concerned was taken, and any person who gave consent to the taking of that identification evidence from that person, of that intention.

(13C) If, on an application under subsection (13A), the person from whom the identification evidence was taken, or any other person who gave consent to the taking of that identification evidence from that person, applies to be heard by the judge of the District Court, an order shall not be made under that subsection unless a reasonable opportunity has been given to that person to be heard.

(13D) An application under subsection (13A) shall be made to a judge of the District Court who is assigned to the district court district in which the person from whom the identification evidence concerned was taken resides.

(13E) An application under subsection (13A) shall be heard otherwise than in public.

(13F) In determining an application under subsection (13A), a judge of the District Court may make such order as to costs as the judge considers appropriate.

(13G) A notice under subsection (13B) may be sent or given to a person in one of the following ways:

(a) by delivering it to the person or his or her solicitor;

140. Application for court order authorising taking of identification evidence from protected person or child under Act of 2006

140.The Act of 2006 is amended by the insertion of the following section after section 50:

“ 50A. (1) If—

(b) subject to subsection (1C) of section 50, the circumstances referred to in subsection (1B) of that section exist in relation to a parent or guardian of a protected person or child, as the case may be, or

(2) A member of the Garda Síochána who intends to make an application under subsection (1) shall inform the protected person or child, as the case may be, concerned of that intention.

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

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

(b) that a parent or guardian of the protected person or child, as the case may be, concerned to whom section 50(1B) applies shall be excluded from the Court during the hearing of the application,

or both if—

(i) on an application in that behalf by a member of the Garda Síochána not below the rank of inspector, the judge is satisfied that it is desirable to do so in order to avoid a risk of prejudice to the investigation or prosecution of the ICC offence concerned in connection with which the identification evidence concerned has been sought pursuant to the request, or

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

(4) A judge of the District Court shall, for the purposes of determining an application under subsection (1) —

(a) be satisfied that the request for the identification evidence concerned complies with subsections (2) and (3) of section 50, and

(b) have regard to—

(i) the nature and seriousness of the ICC offence concerned being investigated or prosecuted by the Court,

before making an order under this section.

(7) An application under subsection (1) shall be made to a judge of the District Court who is assigned to the district court district in which the protected person or child concerned resides.”.

Chapter 7

141. Definition

141. In this Chapter “law enforcement agency” means—

(a) a police force or other authority in a place other than the State which is responsible for the prevention, detection or investigation of criminal offences in relation to that place, or

(b) the International Criminal Police Organisation (Interpol).

142. Transmission of DNA profiles from missing and unknown persons index of DNA Database System to law enforcement agency

142. (1) Subject to subsections (2) and (3), the Commissioner may obtain from the Director of FSI and transmit a DNA profile of a person that is entered in the missing and unknown persons index of the DNA Database System to a law enforcement agency for the purpose of the law enforcement agency conducting a search by comparing the DNA profile with DNA profiles held by it and informing the Commissioner of the outcome of that search with a view to—

(a) finding or identifying the missing person,

(b) identifying the seriously ill, or severely injured, person who is unable by reason of the illness or injury to identify himself or herself, or

as may be appropriate.

(2) A DNA profile transmitted by the Commissioner under subsection (1) to a law enforcement agency shall be used by the law enforcement agency only for the purpose specified in that subsection.

(3) When transmitting a DNA profile of a person under subsection (1) to a law enforcement agency, the Commissioner may specify conditions regarding—

(a) the number and frequency of searches that may be conducted by the law enforcement agency to compare the DNA profile with DNA profiles held by it, and

(b) the arrangements for the return, or destruction, of the DNA profile.

143. Receipt of DNA profiles in respect of missing persons, etc., from law enforcement agency in designated state

143. (1) Subject to subsections (2) and (3), the Commissioner may receive from a law enforcement agency in a designated state (including the International Criminal Police Organisation (Interpol)) a DNA profile of a person who is—

(a) a missing person,

(b) a seriously ill, or severely injured, person who is unable by reason of the illness or injury to identify himself or herself, or

and may transmit the DNA profile to the Director of FSI to enter it, in accordance with the request of the law enforcement agency, in the missing and unknown persons index of the DNA Database System for the purpose of conducting a search by comparing the DNA profile with DNA profiles in that System under section 68 and informing that law enforcement agency of the outcome of the search with a view to finding or identifying the person, as may be appropriate.

(2) If, on a comparison of a DNA profile entered in the DNA Database System under subsection (1) with other DNA profiles in that System in accordance with section 68 a match of DNA profiles is found, the Commissioner shall inform the law enforcement agency that supplied the DNA profile of the match.

(3) The Commissioner may, in relation to a matching DNA profile referred to in subsection (2), provide particulars of the identity of the person to whom the matching DNA profile relates to the law enforcement agency concerned.

(4) A DNA profile entered in the DNA Database System under subsection (1) —

(a) may be removed from that System following a comparison of it with other DNA profiles in that System under section 68, or

(b) may be retained in that System for the purpose of conducting such number of comparisons of it with other DNA profiles in that System under that section, and at such frequency, as may be specified by or agreed with the law enforcement agency that supplied the DNA profile to the Commissioner.

(5) A DNA profile entered in the DNA Database System under subsection (1) shall be removed from that System in accordance with any condition to do so specified by the law enforcement agency that supplied the DNA profile to the Commissioner.

144. Receipt of DNA profiles from law enforcement agency in place other than designated state

144. (1) Subject to subsections (2) and (3), the Commissioner may receive a DNA profile of a person from a law enforcement agency in a place other than a designated state (including the International Criminal Police Organisation (Interpol))—

(a) for the purposes of the investigation of criminal offences in that place, or

(b) for the purpose of—

(i) finding or identifying a missing person,

(ii) identifying a seriously ill, or severely injured, person who is unable by reason of the illness or injury to identify himself or herself, or

(iii) identifying the body of an unknown deceased person,

and may transmit the DNA profile to the Director of FSI to enter it, in accordance with the request of the law enforcement agency, in the crime scene index, the reference index or, as may be appropriate, the missing and unknown persons index of the DNA Database System for the purpose of conducting a search by comparing the DNA profile with DNA profiles in that System under section 68 and informing that law enforcement agency of the outcome of the search.

(3) If the matching DNA profile referred to in subsection (2) is in respect of a missing person, a seriously ill, or severely injured, person or a deceased person, the Commissioner may provide particulars of the identity of the person to the law enforcement agency concerned.

(4) A DNA profile entered in the DNA Database System under subsection (1) —

(a) may be removed from that System following a comparison of it with other DNA profiles in that System under section 68, or

145. Receipt of crime scene evidence from law enforcement agency

145. (1) The Commissioner may arrange for evidence taken from a crime scene (including crime scene samples) received from a law enforcement agency to be compared with intimate samples and non-intimate samples taken under this Act for the purposes of the investigation of criminal offences in a place (whether within or outside the State).

(2) The Commissioner may provide to the law enforcement agency that supplied the evidence from a crime scene under subsection (1) information relating to the results of any comparison of it with intimate samples and non-intimate samples taken under this Act other than information relating to the identity of any person from whom an intimate sample or a non-intimate sample was taken under this Act.

(3) The Director of FSI shall compare, or arrange for the comparison of, any evidence sent to him or her by the Commissioner under subsection (1) with any intimate samples or non-intimate samples taken under this Act that are in his or her possession.

146. Saver

146. This Chapter shall not affect the operation of F45[section 93 of thePolicing, Security and Community Safety Act 2024] or the Act of 2008.

Chapter 8

147. Definitions (Chapter 8)

147.In this Chapter—

“accredited”, in relation to a forensic service provider carrying out laboratory activities, means the forensic service provider is accredited by a national accreditation body as complying with the standard EN ISO/IEC 17025 entitled “General requirements for the competence of testing and calibration laboratories”;

“dactyloscopic data” means fingerprint images, images of fingerprint latents, palm prints, palm print latents and templates of such images (coded minutiae);

“forensic service provider” means any organisation, whether public or private, that carries out laboratory activities at the request of competent law enforcement or judicial authorities in the State or a Member State;

“Irish National Accreditation Board” means the committee commonly known by that name established pursuant to section 10 of the Industrial Development Act 1993;

“laboratory activities” means measures taken in a laboratory when locating and recovering traces on items, as well as developing, analysing and interpreting forensic evidence, with a view to providing expert opinions or exchanging forensic evidence;

“national accreditation body” means—

(a) in the case of the State, the Irish National Accreditation Board, and

(b) in the case of a Member State, the sole body in the Member State that performs accreditation with authority derived from the Member State in accordance with Regulation (EC) No. 765/2008;

“results”, in relation to laboratory activities, means any analytical outputs and directly associated interpretation.

148. Recognition of accredited forensic service providers carrying out laboratory activities in Member States

148. (1) The results of an accredited forensic service provider carrying out the laboratory activities referred to in subsection (2) in a Member State shall be recognised by the authorities in the State which are responsible for the prevention, detection and investigation of criminal offences as being as reliable as the results of an accredited forensic service provider carrying out such laboratory activities in the State.

(2) The laboratory activities to which subsection (1) applies are those that result in the generation of—

(a) DNA profiles, or

(b) dactyloscopic data.

PART 13 Miscellaneous

149. Sample may be taken from person even if bodily sample taken previously

149.For the avoidance of doubt it is hereby declared that, subject to sections 25, 30, 38, 39, 47 and 51, a sample may be taken from a person under a provision of this Act even if a bodily sample had been taken from the person under—

(a) the Criminal Justice (Forensic Evidence) Act 1990 or otherwise prior to the commencement of this section, or

(b) the same or another provision of this Act previously.

150. Authorised persons

150. (1) A member of the Garda Síochána not below the rank of superintendent may appoint in writing a person (other than a member of the Garda Síochána) to be an authorised person for the purposes of Parts 3, 5 and 6 (in this Act called an “authorised person”).

(2) An authorised person may perform the functions conferred on an authorised person by Parts 3, 5 and 6.

(3) An authorised person shall be furnished with a warrant of appointment and shall, when performing a function under Parts 3 and 6, if requested by a person affected, produce the warrant of appointment or a copy of it to the person.

(4) An appointment to be an authorised person under this section may be revoked in writing by a member of the Garda Síochána not below the rank of superintendent.

151. Authorised members of staff of children detention schools

151. (1) The Director of a children detention school may appoint in writing a member of the staff of the school to be an authorised member of the staff for the purposes of Part 4 (in this Act called an “authorised member of the staff”).

(2) An authorised member of the staff of a children detention school may perform the functions conferred on such a member of the staff of the school by Part 4.

(3) An appointment to be an authorised member of the staff of a children detention school may be revoked in writing by the Director of the school.

152. Delegation of functions of Commissioner under this Act

152. (1) The Commissioner may, in writing, delegate any of his or her functions under this Act to—

(a) members of the Garda Síochána specified by rank or name, or

(b) members of F46[garda staff] 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

(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 this Act 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.

153. Delegation of functions of governor of prison or place of detention or Director of children detention school under this Act

153. (1) The governor of a prison or a place of detention may, in writing, delegate any of his or her functions under this Act to a prison officer of the prison or the place of detention, as the case may be, specified by grade, name or otherwise.

(2) The Director of a children detention school may, in writing, delegate any of his or her functions under this Act to a member of the staff of the school specified by grade, name or otherwise.

(3) 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 governor of a prison or a place of detention or the Director of a children detention school, as the case may be, at any time.

(4) The delegation of a function under this section does not preclude the governor of a prison or a place of detention or the Director of a children detention school, as the case may be, from performing the function.

(5) Where the functions of the governor of a prison or a place of detention or the Director of a children detention school under a provision of this Act are delegated to a person, any references in that provision to the governor of a prison or a place of detention or the Director of a children detention school, as the case may be, shall be construed as references to that person.

(6) 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 governor of the prison or place of detention or the Director of the children detention school, as the case may be, concerned.

(7) The Director of a children detention school shall inform the board of management of the school of a delegation under this section but, if he or she does not do so, it shall not affect the validity of the delegation or of any act or thing done pursuant to it.

(8) In this section “board of management”, in relation to a children detention school, shall be construed in accordance with section 164 of the Act of 2001.

154. Delegation of functions of Director of FSI under this Act

154. (1) The Director of FSI may, in writing, delegate any of his or her functions under this Act to members of the staff of FSI specified by grade, 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

(3) The delegation of a function under this section does not preclude the Director of FSI from performing the function.

(4) Where the functions of the Director of FSI under a provision of this Act are delegated to a member of the staff of FSI, any references in that provision to the Director of FSI shall be construed as references to that member of staff.

(5) An act or thing done by a member of the staff of FSI pursuant to a delegation under this section has the same force and effect as if done by the Director of FSI.

155. Further provisions regarding taking of samples under this Act or certain identification evidence under Act of 2008 or Act of 2006

155. (1) A sample under this Act or identification evidence under the Act of 2008 or the Act of 2006—

(a) shall be taken from a person in circumstances affording reasonable privacy to the person, and

(b) shall not be taken from a person in the presence or view of a person whose presence is not necessary for the purposes of the taking of the sample or that identification evidence, as the case may be, or required or permitted by this Act or each of those Acts, as the case may be.

(2) Nothing in this Act authorises the taking of a sample or such identification evidence from a person in a cruel, inhuman or degrading manner.

(3) A sample shall not be taken under Part 2 from a person who is in custody under any of the provisions referred to in section 9(1) while he or she is being questioned under that provision and, if questioning has not been completed before the sample is to be taken, it shall be suspended while the sample is being taken.

(4) In this section “identification evidence” —

(a) in the case of the Act of 2008, has the meaning given to it by section 76of that Act other than a fingerprint, palm print or photograph of a person, and

(b) in the case of the Act of 2006, has the meaning given to it by section 50 of that Act other than a fingerprint, palm print, iris identification or photograph of a person.

156. Regulations regarding taking of samples

156. (1) Subject to this Act, the Minister shall make regulations relating to the taking of samples under this Act.

(2) (a) Without prejudice to the generality of subsection (1), the regulations shall, in relation to the taking of samples under Part 4 from child offenders, prescribe arrangements regarding the timing of the taking of such samples from child offenders having regard to—

(i) the desirability, where appropriate, of taking such samples while child offenders are detained in a children detention school or a place of detention,

(ii) in the case of child offenders who are so detained, the desirability of taking such samples at as late a date as is practicable consistent with the requirements of this Act regarding the taking of such samples, and

(iii) the need for child offenders to be of an age at which they have the capacity to understand the general nature and effect of the taking of such samples from them.

(b) Regulations under this subsection may prescribe different arrangements regarding the taking of samples under Part 4 from child offenders of different ages and in respect of child offenders who are detained in a children detention school or a place of detention and those who are not so detained.

(3) Without prejudice to the generality of subsection (1), the regulations may prescribe all or any of the following:

(a) the manner in which samples may be taken under this Act;

(b) the location and physical conditions in which samples may be taken under this Act;

(c) the persons (including members of the Garda Síochána, prison officers, authorised members of the staff of a children detention school or authorised persons), and the number of such persons, who may be present when samples are taken, or to be taken, under this Act;

(d) the manner in which, and by whom, the following shall be recorded in the records of a Garda Síochána station or, in the case of F47[the Police Ombudsman, the records of the Police Ombudsman]:

(i) an authorisation given by a member of the Garda Síochána under this Act;

(ii) a consent given, a refusal to give consent or a withdrawal of consent by a person (or child) under this Act;

(iii) the giving of information to a person (or child) by a member of the Garda Síochána or an authorised person under this Act;

(iv) a notice sent or given by a member of the Garda Síochána, or sent or given to a member of the Garda Síochána, under this Act;

(v) an application or a request relating to the destruction of a sample, or the removal of a DNA profile from the DNA Database System, or both made under Part 10;

(vi) a notice sent or given by the Commissioner to a person (or child) under section 98;

(vii) particulars of the location, time and manner of the taking of a sample authorised to be taken by a member of the Garda Síochána under this Act;

(e) the manner in which, and by whom, the following shall be recorded in the records of a prison:

(i) an authorisation given by the governor of the prison;

(ii) the giving of information to an offender by a prison officer under Part 4;

(iii) particulars of the location, time and manner of the taking of a sample by a prison officer under this Act;

(f) the manner in which, and by whom, the following shall be recorded in the records of a children detention school:

(i) an authorisation given by the Director of the school under this Act;

(ii) the giving of information to a child offender by an authorised member of the staff of the school under Part 4;

(iii) particulars of the location, time and manner of the taking of a sample by an authorised member of the staff of the school under this Act;

(g) the manner in which, and by whom, the following shall be recorded in the records of a place of detention:

(i) an authorisation given by the governor of the place of detention under this Act;

(ii) the giving of information to a child offender by a prison officer in a place of detention under Part 4;

(iii) particulars of the location, time and manner of the taking of a sample by a prison officer in a place of detention under this Act.

157. Codes of practice

157. (1) The Commissioner shall, as soon as practicable after the commencement of this section and following consultation with the Director of FSI, prepare for submission to the Minister a draft code of practice for the purposes of providing practical guidance as to the procedures regarding the taking of samples by—

(a) members of the Garda Síochána,

(b) authorised persons, or

from persons or bodies of deceased persons, as the case may be, under this Act or causing such samples to be taken.

(2) The Ombudsman Commission shall, as soon as practicable after the commencement of this section and following consultation with the Director of FSI, prepare for submission to the Minister a draft code of practice for the purposes of providing practical guidance as to the procedures regarding the taking by designated officers of the Ombudsman Commission within the meaning of Part 4 of the Act of 2005 of samples from persons under this Act or causing such samples to be taken.

F48[(2A) Where, immediately before the coming into operation of section 170 of thePolicing, Security and Community Safety Act 2024, a code of practice prepared undersubsection (2)has been approved under this section, the code of practice shall be deemed to have been prepared by the Police Ombudsman.]

(3) The Director General of the Irish Prison Service of the Department of Justice and Equality shall, as soon as practicable after the commencement of this section and following consultation with the Director of FSI, prepare for submission to the Minister a draft code of practice for the purposes of providing practical guidance as to the procedures regarding the taking by prison officers of samples from persons under this Act or causing such samples to be taken.

(4) The Director of FSI shall, as soon as practicable after the commencement of this section, prepare for submission to the Minister a draft code of practice for the purpose of providing practical guidance as to the procedures regarding the taking by persons who are authorised in writing by the Director of FSI of samples from persons under this Act or causing such samples to be taken.

(5) The National Director of the Irish Youth Justice Service of the Department of Children and Youth Affairs shall, as soon as practicable after the commencement of this section and following consultation with the Director of FSI, prepare for submission to the Minister a draft code of practice for the purposes of providing practical guidance as to the procedures regarding the taking by authorised members of the staff of children detention schools of samples from children under this Act or causing such samples to be taken.

(6) A code of practice prepared under this section shall be submitted to the Minister for approval.

(7) The Minister may approve, or approve subject to modifications, a code of practice submitted to the Minister under subsection (6) and, when a code of practice has been so approved, it shall apply and have effect in accordance with its terms.

(8) (a) A code of practice approved under this section may be amended or revoked.

(b) Amendments to such a code of practice, other than amendments of a minor or technical nature, shall be submitted to the Minister for approval.

(c) If it is proposed to revoke a code of practice approved under this section, the proposed revocation shall be submitted to the Minister for approval.

(9) The Minister may approve, or approve subject to modifications, an amended code of practice submitted to the Minister under subsection (8)(b) and, when such a code of practice has been so approved, it shall apply and have effect in accordance with its terms.

(10) The Minister may approve the revocation of a code of practice.

(11) A code of practice, or an amended code of practice, approved by the Minister under this section shall be made publicly available by the Commissioner or other person or body who prepared it.

158. Protocols

158. (1) As soon as practicable after the commencement of this section, the Director of FSI, the Commissioner and the Ombudsman Commission shall, by written protocols, make arrangements concerning the following matters:

(a) the transmission of samples taken under this Act by the Garda Síochána or the Ombudsman Commission to FSI;

(b) the reporting by the Director of FSI of the results of searches of the DNA Database System to the Garda Síochána or the Ombudsman Commission, as may be appropriate;

F49[(1A) Where, immediately before the coming into operation of section 170 of thePolicing, Security and Community Safety Act 2024, arrangements, by written protocols, have been made concerning the matters referred to insubsection (1), the arrangements shall be deemed to have been made by the Director of FSI, the Commissioner and the Police Ombudsman.]

(2) As soon as practicable after the commencement of this section, the Director of FSI, the Director General of the Irish Prison Service of the Department of Justice and Equality and the National Director of the Irish Youth Justice Service of the Department of Children and Youth Affairs shall, by written protocols, make arrangements concerning the transmission of samples taken under this Act from persons in prisons, places of detention and children detention schools to FSI.

159. Disclosure of information

159. (1) Without prejudice to the Official Secrets Act 1963 and subject to section 69, a person who has, or has had, access to information relating to a sample taken from a person (or child) under this Act, or information in the DNA Database System, shall not disclose the information except for one or more of the following purposes:

(a) the purposes of the investigation of an offence or an inquiry relating to a missing person, an unknown person or an unknown deceased person;

(b) the purpose of a decision whether to institute proceedings for an offence;

(d) the purpose of determining whether it is necessary to take a sample under this Act;

(e) the purposes of an inquest under the Coroners Act 1962;

(f) the purpose of making the information available to the person to whom the information relates;

(g) the purposes of a review of an alleged miscarriage of justice under section 2 of the Criminal Procedure Act 1993;

(h) the purposes of administering the DNA Database System;

(i) the purposes of automated searching and automated comparison of DNA profiles in the DNA Database System in accordance with Chapter 2of Part 12;

(j) the purposes of a request under Chapter 3 of Part 5 of the Act of 2008 or a request under section 50 of the Act of 2006;

(k) the purposes of compliance with section 8 or 9 of the Europol Act 2012;

(l) the purposes of Chapter 7 of Part 12;

(m) the purposes of an investigation of a complaint concerning the conduct of a member of the Garda Síochána by the F50[Police Ombudsman];

(n) the purposes of the performance by the Committee of its functions under this Act;

(o) the purposes of the performance by the Data Protection Commissioner of his or her functions under the Data Protection Act 1988;

(p) the purposes of civil proceedings (including disciplinary proceedings) regarding the manner in which a sample was taken under this Act;

(q) the disclosure of the information to any person if the person to whom the information relates consents to its disclosure to that person;

(r) any other purpose that is prescribed.

(2) A person who intentionally or recklessly discloses information in contravention of this section shall be guilty of an offence and shall be liable—

(a) on summary conviction, to a class A fine or imprisonment for a term not exceeding 12 months or both, or

(b) on conviction on indictment, to a fine not exceeding €50,000 or imprisonment for a term not exceeding 5 years or both.

160. Offences and penalties

160. (1) A person who obstructs or attempts to obstruct any member of the Garda Síochána or other person acting under powers conferred by Part 2 other than section 11 shall be guilty of an offence and shall be liable—

(a) on summary conviction, to a class A fine or imprisonment for a term not exceeding 12 months or both, or

(b) on conviction on indictment, to a fine not exceeding €30,000 or imprisonment for a term not exceeding 3 years or both.

(2) A person who obstructs or attempts to obstruct a member of the Garda Síochána, a prison officer of a prison or a place of detention or an authorised member of the staff of a children detention school acting under powers conferred by section 11, 31, 32 or 34 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.

(3) A person who—

(a) obstructs a member of the Garda Síochána in the exercise of his or her powers under section 35, or

(b) does not comply, or obstructs compliance, with an order made by a judge of the District Court under that section,

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.

(4) A person who obstructs or attempts to obstruct the Committee in the performance of its functions under Part 9 shall be guilty of an offence and shall be liable on summary conviction to a class A fine or imprisonment for a term not exceeding 12 months or both.

(5) The application of this section to a child is without prejudice to section 108 of the Act of 2001.

161. Authorisations under this Act

161. (1) An authorisation given under—

(a) section 11(2), 12(2)(a), 13(2), 20(1)(b)(i), 24(3), 25(3)(i), 29(2), 34(2), 48(3) or 50(2),

(b) subsection (4) or (5) of section 21,

(d) subsection (5) or (7)(a) of section 31,

(e) subsection (5) or (7)(a) of section 32,

(f) paragraph (a),(b) or(c) of section 36(3), or

(g) subsection (7)(a) or (8)(a) of section 38 ,

may be given orally but, if it is given orally, it shall be confirmed in writing as soon as practicable.

(2) The Minister may prescribe the form of any authorisation referred to in subsection (1).

162. Evidence of certain authorisations under this Act

162. (1) In any criminal proceedings, a certificate to which an authorisation given under Part 2 other than section 11, or a copy of such an authorisation, is annexed—

(a) purporting to be signed by a member of the Garda Síochána, and

(b) stating that—

(i) he or she gave the authorisation concerned, and

(ii) if appropriate, the grounds on which that authorisation was given,

shall be admissible as evidence of the matters stated in the certificate.

(2) In any criminal proceedings, the court may—

(a) if it considers that the interests of justice so require, direct that oral evidence be given of the matters stated in a certificate under this section, and

(b) adjourn the proceedings to a later date for the purpose of receiving the oral evidence.

(3) The Minister may prescribe the form of a certificate under this section.

163. Service of notices

163.A notice that is required to be sent or given to a person under this Act 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;

This document does not substitute the official text published in the Irish Statute Book. We accept no responsibility for any inaccuracies arising from the transcription of the original into this format.

This text is published under Irish Statute Book's own terms of reuse, not a Legalize or public-domain licence. Irish Statute Book
CC-BY 4.0 (Oireachtas Open Data PSI Licence)
Contains Irish Public Sector Information licensed under the Oireachtas (Houses of the Oireachtas) Open Data PSI Licence / Creative Commons Attribution 4.0 International, sourced from https://www.irishstatutebook.ie.