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

• (a) a national contact point receives data under Chapter 2 or 3 without requesting them, or

• (b) a data controller receives data pursuant to an Article 7 request without requesting them,

the national contact point or the data controller, as the case may be, shall immediately check whether the data are necessary for the purpose for which they were supplied by the national contact point of the designated state concerned or the authority in the Member State concerned or Iceland or Norway, as may be appropriate.

• (4) Whenever, whether on notification from a data subject or otherwise, it comes to the attention of a national contact point that data received under Chapter 2 or 3 are either incorrect or should not have been supplied, the national contact point shall, after consultation with the national contact point of the designated state that supplied the data, correct or destroy, as may be appropriate, the data concerned.

• (5) Whenever, whether on notification from a data subject or otherwise, it comes to the attention of a data controller that data received pursuant to an Article 7 request are either incorrect or should not have been supplied, the data controller shall, after consultation with the authority in the Member State concerned or Iceland or Norway, as the case may be, that supplied the data, correct or destroy, as may be appropriate, the data concerned.

• (6) Subject to subsection (8), a national contact point shall destroy data received pursuant to Chapter 2 or 3 when they are no longer required for the purpose for which they were supplied and, in any event, shall do so not later than the expiration of the maximum period (if any) prescribed by the law of the designated state concerned and specified by the national contact point of that designated state at the time the data were supplied.

• F44[(7) Subject to subsection (8) and notwithstanding section 77(7) of the Act of 2008, a data controller shall destroy data received pursuant to an Article 7 request or a request pursuant to Article 532 of the Trade and Cooperation Agreement when they are no longer required for the purpose for which they were supplied and, in any event, shall do so not later than the expiration of the maximum period (if any) prescribed by the law of the Member State concerned or Iceland, Norway or the United Kingdom, as the case may be, and specified by the authority in that Member State or Iceland, Norway or the United Kingdom, as the case may be, at the time the data were supplied.]

• (8) Where, under subsection (6) or (7), a national contact point or a data controller, as the case may be, reasonably believes that the destruction of the data concerned would prejudice the interests of the data subject, the data shall instead be blocked and those data may be supplied or otherwise further processed only for a purpose relating to the protection of those interests.

(9)(a) If a data subject contests the accuracy of data supplied or received pursuant to Chapter 2 or 3 and the accuracy of those data cannot be ascertained, the national contact point shall, as soon as reasonably practicable, inform the data subject accordingly.

• (b) If the data subject so requests, the national contact point shall note on those data that the accuracy of them cannot be ascertained, and such a note may be removed only if—

• (i) the data subject consents to its removal, or

• (ii) the Data Protection Commissioner or the Circuit Court, on application made to the Commissioner or the Court in that behalf, is satisfied that the note may be removed.

126. Authorised officers

126. (1) The national contact point in relation to DNA data may appoint in writing a member of the staff of FSI to be an authorised officer for DNA data for the purposes of sections 115 and 116 and this Chapter.

• (2) The national contact point in relation to dactyloscopic data may appoint in writing a member of the Garda Síochána, or a member of F45[garda staff], who is assigned to duties in the Technical Bureau of the Garda Síochána to be an authorised officer for dactyloscopic data for the purposes of section 120 and this Chapter.

• (3) An appointment to be an authorised officer for DNA data may be revoked in writing by the national contact point in relation to DNA data and, in any event, such an appointment shall cease upon the person ceasing to be a member of the staff of FSI.

• (4) An appointment to be an authorised officer for dactyloscopic data may be revoked in writing by the national contact point in relation to dactyloscopic data and, in any event, such an appointment shall cease upon the person ceasing to be assigned to duties in the Technical Bureau of the Garda Síochána.

• (5) The national contact point in relation to DNA data may provide particulars of the authorised officers for DNA data to the Data Protection Commissioner and shall do so if so requested by the Data Protection Commissioner.

• (6) The national contact point in relation to DNA data shall provide particulars of the authorised officers for DNA data to the national contact point in relation to DNA data of a designated state or the data protection authority in a designated state or both, if requested to do so by such national contact point or data protection authority, as the case may be.

• (7) The national contact point in relation to dactyloscopic data may provide particulars of the authorised officers for dactyloscopic data to the Data Protection Commissioner and shall do so if so requested by the Data Protection Commissioner.

• (8) The national contact point in relation to dactyloscopic data shall provide particulars of the authorised officers for dactyloscopic data to the national contact point in relation to dactyloscopic data of a designated state or the data protection authority in a designated state or both, if requested to do so by such national contact point or data protection authority, as the case may be.

127. Recording of automated supply of data

127. (1) The national contact point in relation to DNA data shall record, in accordance with subsection (3), the supply and receipt of data, including whether or not a match of DNA profiles is found, pursuant to sections 113, 114, 115 and 116.

• (2) The national contact point in relation to dactyloscopic data shall record, in accordance with subsection (3), the supply and receipt of data, including whether or not a match of dactyloscopic data is found, pursuant to sections 119 and 120.

• (3) The recording of the supply and receipt of data under subsection (1) or (2) shall be in a permanent legible form or be capable of being converted into a permanent legible form and shall include the following particulars in relation to the data:

• (a) a description of the data supplied or received;

• (b) the date and time of the supply or receipt of the data;

• (c) the name or reference code of the national contact point concerned and the name or reference code of the national contact point of the designated state concerned; and

• (d) in the case of data supplied pursuant to section 115, 116 or 120—

• (i) the reason for the search or comparison concerned,

• (ii) the identifier of the authorised officer for DNA data or the authorised officer for dactyloscopic data, as the case may be, who supplied the data for the purpose of conducting the search or comparison concerned, and

• (iii) the identifier of the authorised officer for DNA data or the authorised officer for dactyloscopic data, as the case may be, who authorised the conduct of the search or comparison concerned.

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

• (5) The national contact point in relation to DNA data and the national contact point in relation to dactyloscopic data shall—

• (a) retain the records created under this section for a period of 2 years from the time of their creation, and

• (b) immediately after that period, destroy those records.

• (6) Whenever requested to do so by the Data Protection Commissioner, the national contact point in relation to DNA data and the national contact point in relation to dactyloscopic data shall furnish the records created under this section to the Data Protection Commissioner as soon as practicable, but in any event not later than 4 weeks, after the receipt of a request to do so.

• (7) The national contact point in relation to DNA data and the national contact point in relation to dactyloscopic data shall—

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

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

• (c) immediately after that period, destroy those results.

• (8) In this section—

“identifier”, in relation to an authorised officer, means the user identification or user certificate that is assigned to the authorised officer for the purposes of a European Union or international instrument;

“reference code”, in relation to a national contact point, means the reference code that is assigned to the national contact point for the purposes of a European Union or international instrument.

Chapter 5 Amendments of Criminal Justice (Mutual Assistance) Act 2008

128. Amendment of section 2(1) of Act of 2008

128. Section 2(1) of the Act of 2008 is amended—

• (a) by the insertion of the following definitions:

‘2008 Council Decision’ means Council Decision 2008/615/JHA of 23 June 2008⁹ on the stepping up of cross-border cooperation, particularly in combating terrorism and cross-border crime;

‘2009 Agreement with Iceland and Norway’ means the Agreement between the European Union and Iceland and Norway on the application of certain provisions of Council Decision 2008/615/JHA on the stepping up of cross-border cooperation, particularly in combating terrorism and cross-border crime and Council Decision 2008/616/JHA on the implementation of Decision 2008/615/JHA on the stepping up of cross-border cooperation, particularly in combating terrorism and cross-border crime, and the Annex thereto, done at Stockholm on 26 November 2009 and at Brussels on 30 November 2009¹⁰;”,

• (b) in the definition of “international instrument”, by the insertion of the following paragraphs after paragraph (g):

• “(ga) Article 7 of the 2008 Council Decision;

• (gb) Article 1 of the 2009 Agreement with Iceland and Norway insofar as it applies Article 7 of the 2008 Council Decision in bilateral relations between Iceland or Norway and each member state of the European Union and in relations between Iceland and Norway;”,

and

• (c) by the substitution of the following paragraph for paragraph (a) of the definition of “member state”:

• “(a) a member state of the European Union (other than the State), for the purposes of mutual assistance under the provisions of the 2000 Convention, 2001 Protocol, Articles 49 and 51 of the Schengen Convention, Framework Decision, 2005 Council Decision, Article 7 of the 2008 Council Decision or Article 1 of the 2009 Agreement with Iceland and Norway insofar as it applies Article 7 of the 2008 Council Decision in bilateral relations between Iceland or Norway and each member state of the European Union (other than the State) and in relations between Iceland and Norway, and”.

129. Amendment of section 76 of Act of 2008

129. Section 76 of the Act of 2008 is amended by—

• (a) the insertion of the following definitions:

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

‘child’ means a person who has not attained the age of 18 years;

‘data controller’ has the meaning it has in section 1(1) of the Data Protection Act 1988;

‘DNA’ means deoxyribonucleic acid;

‘DNA profile’, in relation to a person, means information comprising a set of identification characteristics of the non-coding part of DNA derived from an examination and analysis of a bodily sample or DNA sample from the person and that is capable of comparison with similar information derived from an examination and analysis of another sample of biological material for the purpose of determining whether or not that other sample could relate to that person;

‘DNA sample’, in relation to a person, means a sample of hair other than pubic hair of the person or a swab from the mouth (including the inside of the mouth) of the person;

‘guardian’, in relation to a child (including a protected person who is a child), has the meaning it has in the Act of 2014;

‘inadequately labelled’ and ‘insufficient’, in relation to a DNA sample, have the meanings they have in the Act of 2014;

‘non-coding part of DNA’, in relation to a person, means the chromosome regions of the person’s DNA that are not known to provide for any functional properties of the person;

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

‘protected person’ means, subject to subsection (2), a person (including a child) who, by reason of a mental or physical disability—

• (a) lacks the capacity to understand the general nature and effect of the taking of identification evidence from him or her, or

• (b) lacks the capacity to indicate (by speech, sign language or any other means of communication) whether or not he or she consents to identification evidence being taken from him or her;

‘relevant offence’ has the meaning it has in the Act of 2014.”,

• (b) the substitution of the following definition for the definition of “identification evidence”:

“ ‘identification evidence’, in relation to a person, means—

• (a) a fingerprint, palm print or photograph of the person,

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

• (c) a DNA sample from the person or the DNA profile of the person generated from such a sample,

and includes any related records;”,

• (c) the designation of that section (as amended by paragraphs (a) and (b)) as subsection (1), and

• (d) the addition of the following subsections after subsection (1):

• “(2) The reference in the definition of ‘protected person’ in subsection (1) to a mental or physical disability in relation to a person (including a child) shall be construed as not including a reference to the person being under the intoxicating influence of any alcoholic drink, drug, solvent or any other substance or combination of substances.

• (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,

• (c) a statement of the purpose for which the evidence is sought,

• (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.”,

• (c) the designation of that section (as amended by paragraphs (a) and (b)) as subsection (1), and

• (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

• (c) that the evidence—

  • (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,

    or

  • (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;

  • (c) that person—

    • (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,

  • (c) in the case of a child (other than a protected 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,

  • (c) the DNA profile of the person may be given in evidence in any proceedings in the member state concerned, and

  • (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

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

  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—

  • (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 second DNA sample taken from him or her, and

  • (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;

  • (c) the date the data were supplied or received;

  • (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

  • (c) immediately after that period, destroy those results.

• (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 Amendments of International Criminal Court Act 2006

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,

• (c) in the case of a child (other than a protected 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.”,

• (c) in subsection (3), by the substitution of the following paragraph for paragraph (b):

• “(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

    • (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,

    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):