DEFENCE FORCES (EVIDENCE) ACT 2022

• (c) the performance by a person or body (including the Medical Bureau of Road Safety) or any functions of the person or body under that enactment.

• (2) If a DNA profile is generated from a sample taken from a person under any provision of another enactment, it shall not be entered in the DNA (Military Police) Database System, unless it is provided for in this Act.

78. Procedures that may be used for transmission of certain samples for forensic testing

78. (1) A relevant sample may be placed in a tamper-evident container.

• (2) Whenever a relevant sample is placed in a tamper-evident container under subsection (1), the tamper-evident container shall be sealed immediately.

• (3) The person who, under subsection (2), seals a tamper-evident container containing a relevant sample shall—

• (a) ensure that a unique number for the purpose of facilitating the identification of the sample is marked on the tamper-evident container,

• (b) ensure that particulars regarding the type of sample concerned are recorded on the tamper-evident container or on the relevant sample or anything attached to or enclosing it, and

• (c) record his or her name, and the date of sealing the tamper-evident container, thereon.

• (4) Where the procedures referred to in subsections (1) to (3) have been completed, a member of the Military Police shall forward, or cause to be forwarded, the sealed tamper-evident container containing the relevant sample concerned for forensic testing.

• (5) In any court-martial proceedings, it shall be presumed until the contrary is shown, that subsections (1) to (4) have been complied with in relation to a relevant sample.

• (6) In this section, “crime scene sample” means any substance or material (or a sample thereof) found at, or recovered from, a crime scene with a view to it being subject to forensic testing.

• (7) In this section and in section 79—

“forensic testing”, in relation to a relevant sample, means the examination and analysis of the sample and the carrying out of biochemical or other scientific tests and techniques used in connection with the detection and investigation of crime or the identification of persons or bodies, as may be appropriate, on the sample and, if appropriate, includes the generation of a DNA profile from the sample in respect of a person;

“relevant sample” means—

• (a) an intimate sample,

• (b) a non-intimate sample, or

• (c) a crime scene sample;

“tamper-evident container”, in relation to a relevant sample, means a container, whether comprising a tube, envelope, bag or other receptacle, into which the sample is placed and which—

• (a) is marked with a unique number for the purpose of facilitating the identification of the sample,

• (b) is sealable after the sample is placed in it without interfering with the integrity of the sample, and

• (c) once sealed cannot be opened, whether by cutting, tearing or other means, without leaving visible evidence of having been opened or of an attempt having been made to do so.

79. Provisions relating to evidence in court-martial proceedings regarding certain samples

79. (1) In any court-martial proceedings, a certificate purporting to be signed by a member of the staff of FSI and stating, in relation to a relevant sample—

• (a) that the sample was contained in a tamper-evident container marked with a unique number that is specified in the certificate,

• (b) that he or she conducted a thorough examination of the tamper-evident container immediately before opening it and that the container displayed no sign of anyone having opened or attempted to open it,

• (c) that he or she opened the tamper-evident container in which the sample was contained and removed the sample from it for forensic testing, and

• (d) the date of opening the tamper-evident container and removing the sample from it,

shall, until the contrary is shown, be evidence of the matters stated in the certificate without proof of any signature thereon or that any such signature is that of such member of staff of FSI.

• (2) In any court-martial 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.

80. Service of notices

80. 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;

• (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.

81. Code of practice

81. (1) The provost marshal 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 members of the Military Police from persons under this Act or causing such samples to be taken.

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

• (3) The Minister may approve, or approve subject to modifications, a code of practice submitted to the Minister under subsection (2) and, when a code of practice has been so approved, it shall apply and have effect in accordance with its terms.

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

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

• (6) 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.

• (7) The Minister may approve, or approve subject to modifications, an amended code of practice submitted to the Minister under subsection (5) and, when such a code of practice has been so approved, it shall apply and have effect in accordance with its terms.

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

• (9) A code of practice, or an amended code of practice, approved by the Minister under this section shall be made publicly available by the provost marshal.

PART 11 Amendment of Act of 2014

82. Amendment of section 2 of Act of 2014 (interpretation)

82.Section 2 of the Act of 2014 is amended, in subsection (1), by the insertion of the following definitions:

“ ‘Act of 2022’ means the Defence Forces (Evidence) Act 2022;

‘DNA (Military Police) Database System’ has the meaning it has in the Act of 2022;”.

83. Amendment of section 68 of Act of 2014 (permitted searching)

83. Section 68 of the Act of 2014 is amended by the insertion of the following subsection:

• “(10) A DNA profile entered in the DNA Database System may be compared with a DNA profile entered in the DNA (Military Police) Database System, established under section 25 of the Act of 2022, in accordance with section 32 of that Act.”.

84. Amendment of section 72 of Act of 2014 (functions of committee)

84. Section 72 of the Act of 2014 is amended—

• (a) in subsection (1), by—

• (i) the substitution of “the DNA Database System and the DNA (Military Police) Database System” for “the DNA Database System”,

• (ii) the substitution of “those Systems” for “the System” in each place where it occurs, and

• (iii) the substitution of “this Act and the Act of 2022” for “this Act”,

• (b) in subsection (2) —

• (i) in paragraph (a), by—

• (I) the substitution of “this Act and the Act of 2022” for “this Act”, and

• (II) the substitution of “the DNA Database System or the DNA (Military Police) Database System, as the case may be,” for “the DNA Database System,”,

• (ii) in paragraph (b), by the substitution of “this Act and the Act of 2022” for “this Act”,

• (iii) in paragraph (c), by—

• (I) the substitution of “the DNA Database System and the DNA (Military Police) Database System are” for “the DNA Database System is”,

• (II) the substitution of “those Systems” for “the System”, and

• (III) the substitution of “this Act or the Act of 2022, as the case may be,” for “this Act”,

• (iv) in paragraph (d), by—

• (I) the substitution of “the DNA Database System and the DNA (Military Police) Database System” for “the DNA Database System”, and

• (II) the substitution of “the Ombudsman Commission, the Military Police Corps” for “the Ombudsman Commission”,

and

• (v) by the substitution of the following paragraph for paragraph (e):

• “(e) the practices and procedures employed by the Director of FSI to ensure that samples taken under this Act or the Act of 2022 for the purpose of generating DNA profiles for entry in the DNA Database System or the DNA (Military Police) Database System, as the case may be, are destroyed, and the DNA profiles generated from those samples are removed from the system concerned, in accordance with Part 10 or the Act of 2022, as the case may be,”,

• (c) in subsection (3) by—

• (i) the substitution of “the DNA Database System and the DNA (Military Police) Database System” for “the DNA Database System”, and

• (ii) the substitution of “the Minister, the Minister for Defence and the Director of FSI” for “the Minister and the Director of FSI”,

• (d) by the substitution of the following subsection for subsection (4):

• “(4) The Committee may, and if so requested by the Minister (in respect of the DNA Database System) or the Minister for Defence (in respect of the DNA (Military Police) Database System) shall, review any matter relating to the management and operation of the DNA Database System or the DNA (Military Police) Database System and shall submit a report in writing of any such review to the Minister (where the report relates to the DNA Database System) or the Minister for Defence (where the report relates to the DNA (Military Police) Database System).”,

• (e) by the substitution of the following subsection for subsection (5):

• “(5) Subject to subsections (6) and (7), a Minister of the Government to whom a report was submitted under subsection (4) shall, as soon as practicable after receiving the report, cause a copy of it to be laid before each House of the Oireachtas and to be published in such manner as the Minister of the Government concerned considers appropriate.”,

• (f) by the substitution of the following subsection for subsection (6):

• “(6) A Minister of the Government to whom a report was submitted under subsection (4) may, when laying a copy of the report before each House of the Oireachtas or publishing the report, omit any matter from the copy of the report that is so laid or published if he or she is of the opinion that the disclosure of the matter—

  • (a) would be prejudicial to the security of the DNA Database System, the security of the DNA (Military Police) Database System, the security of the State or the investigation of criminal offences, or

  • (b) may infringe the constitutional rights of any person.”,

and

• (g) in subsection (7), by the substitution of “a Minister of the Government” for “the Minister”.

85. Amendment of section 73 of Act of 2014 (cooperation with committee)

85. Section 73 of the Act of 2014 is amended—

• (a) in subsection (3), by the substitution of “the Garda Síochána, the Military Police Corps” for “the Garda Síochána”, and

• (b) in subsection (4), by the substitution of “The Garda Síochána, the Military Police Corps” for “The Garda Síochána”.

86. Amendment of section 109 of Act of 2014 (interpretation (Part 12))

86. Section 109 of the Act of 2014 is amended in subsection (1) by—

• (a) the insertion of the following definitions:

“‘crime scene (Military Police) index’ has the meaning it has in the Act of 2022;

‘reference (Military Police) index’ has the meaning it has in the Act of 2022;”,

and

• (b) in the definition of “note”, the substitution of “the DNA Database System or the DNA (Military Police) Database System” for “the DNA Database System”.

87. Amendment of section 113 of Act of 2014 (automated searching of certain DNA data in DNA Database System)

87. Section 113 of the Act of 2014 is amended—

• (a) by the substitution of the following subsection for subsection (1):

• “(1) For the purposes of the investigation of criminal offences in a designated state, the national contact point shall allow the national contact point of that designated state access to—

  • (a) the reference data in the DNA Database System in respect of DNA profiles entered in that System in—

    • (i) the crime scene index, and

    • (ii) the reference index, other than DNA profiles entered in that index under section 28,

    and

  • (b) the reference data in the DNA (Military Police) Database System in respect of DNA profiles entered in that System in—

    • (i) the crime scene (Military Police) index, and

    • (ii) the reference (Military Police) index, other than DNA profiles entered in that index under section 24 of the Act of 2022,

    for the purpose of conducting an automated search of those reference data by comparing a DNA profile (whether identified or unidentified) in an individual case supplied by the national contact point of that designated state with the DNA profiles referred to in paragraphs (a) and (b) to ascertain whether there is a match between them.”,

• (b) in subsection (2), by the substitution of “the DNA Database System or the DNA (Military Police) Database System, as the case may be,” for “the DNA Database System” in each place where it occurs, and

• (c) by the substitution of the following subsection for subsection (3):

• “(3) If, in relation to a DNA profile supplied by the national contact point of a designated state pursuant to subsection (1), a match of DNA profiles is found, a note to that effect may be entered in the appropriate system in relation to the DNA profile for which a match is found in the DNA Database System or the DNA (Military Police) Database System, as the case may be.”.

88. Amendment of section 114 of Act of 2014 (automated comparison of unidentified DNA profiles supplied by designated state with certain DNA profiles in DNA Database System)

88. Section 114 of the Act of 2014 is amended—

• (a) in subsection (1), by the substitution of “the DNA Database System or the DNA (Military Police) Database System, as the case may be,” for “the DNA Database System”,

• (b) by the substitution of the following subsection for subsection (2):

• “(2) If a request under subsection (1) is acceded to, the national contact point shall allow the national contact point of the designated state concerned access to—

  • (a) the reference data in the DNA Database System in respect of the DNA profiles entered in that System in—

    • (i) the crime scene index, and

    • (ii) the reference index, other than DNA profiles entered in that index under section 28,

    and

  • (b) the reference data in the DNA (Military Police) Database System in respect of the DNA profiles entered in that System in—

    • (i) the crime scene (Military Police) index, and

    • (ii) the reference (Military Police) index, other than DNA profiles entered in that index under section 24 of the Act of 2022,

    for the purposes of conducting an automated comparison of unidentified DNA profiles supplied in an automated way by the national contact point of that designated state with the DNA profiles referred to in paragraphs (a) and (b) to ascertain whether there is a match between any of them.”,

• (c) in subsection (3), by the substitution of “the DNA Database System or the DNA (Military Police) Database System, as the case may be,” for “the DNA Database System” in each place where it occurs, and

• (d) by the substitution of the following subsection for subsection (4):

• “(4) If, following a comparison of DNA profiles pursuant to subsection (2), a match of DNA profiles is found, a note to that effect may be entered in the appropriate system in relation to the DNA profile for which a match is found in the DNA Database System or the DNA (Military Police) Database System, as the case may be.”.

89. Amendment of section 115 of Act of 2014 (automated searching for certain DNA profiles in DNA analysis files of designated state)

89. Section 115 of the Act of 2014 is amended—

• (a) by the substitution of the following subsection for subsection (1):

• “(1) For the purposes of the investigation of criminal offences in the State, an authorised officer for DNA data may, in connection with an individual case—

  • (a) supply through the DNA Database System a DNA profile entered in—

    • (i) the crime scene index, or

    • (ii) the reference index, other than DNA profiles entered in that index under section 28,

    or

  • (b) supply through the DNA (Military Police) Database System a DNA profile entered in—

    • (i) the crime scene (Military Police) index, or

    • (ii) the reference (Military Police) index, other than DNA profiles entered in that index under section 24 of the Act of 2022,

    to the national contact point of a designated state for the purpose of conducting an automated search of the reference data in the DNA analysis files of that designated state by comparing the DNA profile concerned with the DNA profiles in those files to ascertain whether there is a match between them.”,

and

• (b) in subsection (3), by the substitution of “the DNA Database System or the DNA (Military Police) Database System, as the case may be,” for “the DNA Database System”.

90. Amendment of section 116 of Act of 2014 (automated comparison of DNA profiles in crime scene index with DNA profiles in DNA analysis files of designated state)

90. Section 116 of the Act of 2014 is amended—

• (a) in subsection (2), by the substitution of “the DNA Database System, or the crime scene (Military Police) index of the DNA (Military Police) Database System,” for “the DNA Database System”, and

• (b) by the substitution of the following subsection for subsection (4):

• “(4) If, following a comparison of DNA profiles under subsection (2), a match of DNA profiles is found in the DNA analysis files of the designated state concerned, a note to that effect may be entered in the DNA Database System or the DNA (Military Police) Database System, as the case may be, in relation to the DNA profile, in respect of which the match was found, in—

  • (a) the crime scene index of the DNA Database System, or

  • (b) the crime scene (Military Police) index of the DNA (Military Police) Database System.”.

91. Amendment of section 118 of Act of 2014 (dactyloscopic data to which this Chapter applies)

91. Section 118 of the Act of 2014 is amended in paragraph (a) by the substitution of “a member of the Garda Síochána or a member of the Military Police Corps,” for “a member of the Garda Síochána,”.

92. Amendment of section 124 of Act of 2014 (purposes for which data may be processed)

92. Section 124 of the Act of 2014 is amended—

• (a) in subsection (1)(c), by the substitution of “the DNA Database System or the DNA (Military Police) Database System, as the case may be” for “the DNA Database System”, and

• (b) in subsection (3)(b), by the substitution of “the DNA Database System or the DNA (Military Police) Database System, as the case may be” for “the DNA Database System”.

PART 12 Miscellaneous amendments

93. Amendment of section 187A of Act of 1954 (summary court-martial)

93.Section 187A of the Act of 1954 is amended—

• (a) in subsection (3) —

• (i) by the substitution in paragraph (b) of “or 178C,” for “or 178C, and”,

• (ii) by the substitution in paragraph (c) of “for legal aid, and” for “for legal aid.”, and

• (iii) by the insertion of the following paragraphs after paragraph (c):

• “(d) applications under section 35(1) of the Act of 2022,

• (e) appeals under section 37(6) of the Act of 2022,

• (f) applications under section 45(1) of the Act of 2022,

• (g) appeals under section 48(6) of the Act of 2022,

• (h) appeals under section 52(11) of the Act of 2022, and

• (i) applications under section 60 of the Act of 2022.”,

and

• (b) by the insertion of the following subsection after subsection (3):

• “(4) In this section, “Act of 2022” means the Defence Forces (Evidence) Act 2022.”.

94. Amendment of Courts-Martial Appeals Act 1983

94. The Courts-Martial Appeals Act 1983 is amended—

• (a) in section 25—

• (i) by the insertion of the following definition:

“‘Act of 2022’ means the Defence Forces (Evidence) Act 2022;”,

and

• (ii) by the substitution of the following definition for the definition of “legal aid certificate”:

“‘legal aid certificate’ means a legal aid (preliminary proceedings) certificate, a legal aid (court-martial) certificate, a legal aid (case stated) certificate, a legal aid (application concerning forensic evidence retention period) certificate, a legal aid (court-martial appeal) certificate or a legal aid (Supreme Court) certificate;”,

• (b) in section 26(b), by the substitution of “any of the provisions of the Act of 1954 or the Act of 2022 or any instrument made under either of those Acts” for “any of the provisions of the Act of 1954 or any instrument made under that Act”, and

• (c) by the insertion of the following section after section 27A:

“Legal aid (application concerning forensic evidence retention period) certificate

27B. (1) Where—

• (a) a person appeals to the summary court-martial under section 37(6), 48(6) or 52(11) of the Act of 2022 or makes an application to the summary court-martial under section 45(1) or 60(6) of the Act of 2022, and

• (b) a certificate for free legal aid (in this Part referred to as a ‘legal aid (application concerning forensic evidence retention period) certificate’) is granted in respect of the person concerned by the prescribed authority,

the person shall be entitled to free legal aid in the preparation and conduct of his or her appeal or the application, as the case may be, and to have a solicitor and counsel assigned to him or her for that purpose in such manner as may be prescribed by regulations under section 33 of this Act.

• (2) A legal aid (application concerning forensic evidence retention period) certificate shall be granted in respect of a person concerned if (but only if)—

  • (a) application is made therefor, and

  • (b) it appears to the prescribed authority that the means of the person concerned are insufficient to enable him or her to obtain legal aid.”.

Footnotes