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.”.