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):

“(11A) Subject to subsections (12) and (13), any identification evidence taken under subsection (5) that is transmitted to the Court and returned by it when no longer required for the purpose specified in the request shall be destroyed as soon as practicable after its return.

(11B) 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, iris identifications or photographs of persons, under subsection (11A).

(11C) 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, iris identifications or photographs of persons under subsection (11A).”,

(h) by the substitution of the following subsection for subsection (12):

“(12) When transmitting the identification evidence to the Court the Minister shall, if subsection (3) (b) (i) does not apply and subject to subsection (13), 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 by the Court, will be destroyed when no longer required for the purpose specified in the request concerned 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 ICC 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 ICC 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 is convicted of an ICC offence and the conviction is quashed; or

(d) that person is convicted of an ICC offence and the conviction is reversed following an application pursuant to Article 84.”,

(i) by the substitution of the following subsection for subsection (13):

“(13) The Minister may, at the request of the Court and having consulted the Commissioner, direct that the retention period in respect of identification evidence transmitted to the Court be extended in accordance with an order made under subsection (13A).”,

and

(j) by the insertion of the following subsections after subsection (13):

“(13A) 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 Court in accordance with subsection (12), or a request to do so under subsection (1L), 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.

(13B) If the Commissioner intends to make an application under subsection (13A), 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.

(13C) If, on an application under subsection (13A), 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.

(13D) An application under subsection (13A) 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.

(13E) An application under subsection (13A) shall be heard otherwise than in public.

(13F) In determining an application under subsection (13A), a judge of the District Court may make such order as to costs as the judge considers appropriate.

(13G) A notice under subsection (13B) 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.”.