8A.— (1) A fingerprint, palm print or photograph taken from or of a person shall not be destroyed under section 8 in any case in which the Commissioner determines that any of the following circumstances apply:

(a) a decision has not been taken whether or not to institute proceedings against the person for the offence concerned in connection with which the fingerprint, palm print or photograph concerned was taken;

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

(c) the fingerprint, palm print or photograph concerned, and the results of any examination or analysis of it, are likely to be required for the prosecution of an offence connected with the event, incident or circumstances the subject of the offence concerned—

(i) for use as evidence in such proceedings,

(ii) for disclosure to, or use by, a defendant in such proceedings, or

(iii) to support the admissibility of any evidence on which the prosecution may seek to rely in such proceedings;

(d) having regard to the matters specified in subsection (2), the Commissioner believes it is necessary to retain the fingerprint, palm print or photograph concerned in connection with the investigation of the offence concerned taking account of all the circumstances of the case and the reasons why—

(i) proceedings for that offence have not been instituted against the person, or

(ii) if such proceedings have been instituted against the person, they were determined without he or she being convicted of the offence concerned or he or she being the subject of an order under section 1(1) of the Probation of Offenders Act 1907;

F31[(da) the person is subject to the requirements of Part 2 of the Sex Offenders Act 2001 and there are reasonable grounds for believing that the fingerprint, palm print or photograph of the person may be required for the purposes of establishing or verifying the identity of the person;]

(e) there are reasonable grounds for believing that the fingerprint, palm print or photograph of the person may be required in connection with the investigation of an offence to which section 4 applies, other than the offence in connection with which the fingerprint, palm print or photograph was taken, which the person is suspected of having committed.

(2) The matters referred to in subsection (1)(d) to which the Commissioner shall have regard are the following:

(a) whether the person concerned has any previous conviction for an offence similar in nature or gravity to the offence concerned in connection with which the fingerprint, palm print or photograph concerned was taken from or of him or her;

(b) the nature and seriousness of that offence;

(c) whether any alleged victim, or any intended victim, of that offence was—

(i) a child,

(ii) a vulnerable person, or

(iii) associated with the person,

at the time of the commission, or alleged commission, of that offence; and

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

(3) If, in relation to a fingerprint, palm print or photograph taken from or of a person, the Commissioner determines that one of the paragraphs of subsection (1) applies, then, he or she may, during the retention period referred to in section 8, give an authorisation to extend that period by a period of 12 months.

(4) The Commissioner may, while an authorisation under subsection (3) or this subsection, as may be appropriate, is still in force, give an authorisation under this subsection to extend the retention period on a second or further occasion for a period of 12 months commencing on the expiration of the period of 12 months to which the authorisation previously given relates if he or she determines that one of the paragraphs of subsection (1) applies.

(5) Whenever the Commissioner gives an authorisation under subsection (3) or (4), he or she shall, in relation to a fingerprint, palm print or photograph taken from or of a person that is the subject of the authorisation, cause the person to be informed by notice in writing that the authorisation has been given under subsection (3) or (4), as may be appropriate, the date on which that authorisation was given and of the right of appeal under subsection (6).

(6) The person to whom the authorisation concerned relates (in this section called "the appellant") may, within the period of 3 months from the date of the notice under subsection (5) concerned, appeal to the District Court against that authorisation.

(7) An appeal under subsection (6) shall—

(a) be on notice to the Commissioner, and

(b) be heard otherwise than in public.

(8) If, on an appeal under subsection (6), the District Court—

(a) confirms the authorisation concerned, or

(b) allows the appeal,

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

(9) The jurisdiction conferred on the District Court by this section shall be exercised by a judge of the District Court who is assigned to the district court district in which the appellant ordinarily resides or, if the appellant does not ordinarily reside in the State, by a judge of the District Court who is assigned to the district court district in which the fingerprint, palm print or photograph concerned was taken.

(10) The District Court may make such order as to costs as it considers appropriate on an appeal under subsection (6).

(11) In this section—

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

"civil partner" has the meaning it has in section 3 of the Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010;

"cohabitant", in relation to a person, means another person who is neither married to the person nor a civil partner of the person who is living with the person as a husband or wife, or as a civil partner, of the person;

"vulnerable person" means a person, other than a child, whose capacity to guard himself or herself against violence, exploitation or abuse, whether physical, sexual or emotional, by another person is significantly impaired through—

(a) a physical disability, illness or injury,

(b) a disorder of the mind, whether as a result of mental illness or dementia, or

(c) an intellectual disability.

(12) For the purposes of this section a person shall be regarded as associated with another person if—

(a) he or she is a spouse or a former spouse of the person,

(b) he or she is a civil partner or a former civil partner of the person,

(c) he or she is a cohabitant or a former cohabitant of the person,

(d) he or she is a relative of the person, or

(e) he or she has or has had an intimate personal relationship with the person for a significant period of time.

(13) Nothing in this section shall—

(a) prevent or restrict the exercise of powers conferred by section 6 or 6A, or

(b) pending the conclusion of proceedings under this section, prevent or restrict the use of the fingerprint, palm print or photograph concerned for the purposes of—

(i) this Act,

(ii) a criminal investigation, or

(iii) other proceedings.]