Criminal Justice (Mutual Assistance) Act 2008

79.

Action on request.

79.— (1) The Minister may send the request to the Commissioner of the Garda Síochána for the necessary action if satisfied—

( a) that it complies with section 78 ,

F68 [ ( 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) . ]

(2) If or in so far as F68 [ the identification evidence requested is not in the possession of the Garda S í och á na and subject to section 79A , the Commissioner shall instruct ] a member of the Garda Síochána (a “member”) to inform the person who is to provide the evidence—

( a) of the nature of the evidence,

( b) that it has been requested in connection with criminal proceedings, or a criminal investigation, in the designated state concerned,

( c) that he or she is not obliged to provide the evidence, F69 [ ]

F68 [ ( d ) that, if he or she does consent to provide it, it may be given in evidence in any proceedings in that state, and ]

F70 [ ( e ) that the evidence may be destroyed in accordance with this section. ]

(3) F68 [ Subject to subsections (11H) to (11Q) , if the person consents to provide the evidence ], the member may take the evidence, or cause it to be taken, in compliance with the request and any requirements specified in the request in relation to its taking.

(4) If a person who is to provide the identification evidence is in a prison—

( a) evidence may be taken under this section only if it relates to an offence other than that for which the person is in custody, and

( b) any evidence provided may be taken at the prison or at another place.

(5) A bodily sample consisting of blood, pubic hair or a swab from a body orifice (other than the mouth) or a genital region may be taken under this section only by a doctor or nurse, and a dental impression may be so taken only by a dentist or doctor.

(6) If required by the requesting authority, the Commissioner may arrange for a forensic test to be performed on a swab from a body orifice or a genital region.

(7) Where a sample of hair other than pubic hair is taken in accordance with this section—

( a) the sample may be taken by plucking hairs with their roots and, in so far as it is reasonably practicable, the hairs shall be plucked singly, and

( b) no more hairs shall be plucked than the person taking the sample reasonably considers to be necessary to constitute a sufficient sample for the purpose of forensic testing.

(8) The following particulars shall be recorded by the member who takes identification evidence:

( a) the place, time and date at which it was taken;

( b) the result of any forensic test on the evidence;

( c) any other relevant particulars, including any specified by the requesting authority,

and the record shall F70 [ ,if appropriate, ] include a copy of the consent to the taking of the evidence.

(9) The Commissioner shall send to the Central Authority any identification evidence—

( a) in the possession of the Garda Síochána, or

( b) F68 [ taken under subsection (3) or section 79A ] , together with a copy of the record made under subsection (8),

for transmission to the requesting authority.

F70 [ (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) . ]

F68 [ (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 .

(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) . ]

F70 [ (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 S í och á na shall include a reference to identification evidence in the possession of Forensic Science Ireland of the Department of Justice and Equality. ]

F68 [ (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. ]

Annotations:

Amendments:

F68

Substituted (20.11.2015) by Criminal Justice (Forensic Evidence and DNA Database System) Act 2014 (11/2014), s. 132(a)-(c), (e), (g), (h), (j), S.I. No. 508 of 2015.

F69

Deleted (20.11.2015) by Criminal Justice (Forensic Evidence and DNA Database System) Act 2014 (11/2014), s. 132(b)(ii), S.I. No. 508 of 2015.

F70

Inserted (20.11.2015) by Criminal Justice (Forensic Evidence and DNA Database System) Act 2014 (11/2014), s. 132(b)(iii), (d), (f), (i), S.I. No 508 of 2015.