Criminal Justice (Forensic Evidence and DNA Database System) Act 2014

2.

Interpretation

2. (1) In this Act—

“Act of 1939” means Offences Against the State Act 1939;

“Act of 1984” means Criminal Justice Act 1984;

“Act of 1990” means Criminal Justice (Forensic Evidence) Act 1990;

“Act of 1996” means Criminal Justice (Drug Trafficking) Act 1996;

“Act of 2001” means Children Act 2001;

“Act of 2005” means Garda Síochána Act 2005;

“Act of 2006” means International Criminal Court Act 2006;

“Act of 2007” means Criminal Justice Act 2007;

“Act of 2008” means Criminal Justice (Mutual Assistance) Act 2008;

“analysis”, in relation to a sample, includes comparison and matching;

“appropriate consent” has the meaning assigned to it by section 15;

“authorised member of the staff”, in relation to a children detention school, shall be construed in accordance with section 151;

“authorised person” shall be construed in accordance with section 150;

“body”, in relation to a deceased human person (including a foetus or stillborn child), means the body or a part of the body of the person and includes the decomposed or cremated remains of the person;

“child” means a person who has not attained the age of 18 years and, for the purposes of sections 32 and 38, includes a person who has attained the age of 18 years who is detained in a children detention school in accordance with section 155 of the Act of 2001;

“child offender” shall be construed in accordance with section 32(1);

“children detention school” has the meaning it has in section 3(1) of the Act of 2001;

“code of practice” means a code of practice that is approved by the Minister under section 157 ;

“Commissioner” means the Commissioner of the Garda Síochána;

“Committee” means the DNA Database System Oversight Committee established by section 71 ;

“crime scene” shall be construed in accordance with section 61(2);

“crime scene index”, in relation to the DNA Database System, shall be construed in accordance with section 61;

“crime scene sample”, other than in sections 168 and 169, means a sample of biological material found at, or recovered from, a crime scene from which a DNA profile in respect of a person may be generated;

“Director”, in relation to FSI, means the officer who is for the time being in charge of FSI;

“Director”, in relation to a children detention school, has the meaning it has in section 157 of the Act of 2001;

“DNA” means deoxyribonucleic acid;

“DNA Database System” shall be construed in accordance with section 59;

“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 sample of biological material that is clearly identifiable as relating to 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;

“elimination (crime scene investigators) index”, in relation to the DNA Database System, shall be construed in accordance with section 64;

“elimination (Garda Síochána) index”, in relation to the DNA Database System, shall be construed in accordance with section 63;

“elimination (prescribed persons) index”, in relation to the DNA Database System, shall be construed in accordance with section 65;

“enactment” means a statute or an instrument made under a power conferred by statute;

“forensic testing”, in relation to a sample (other than a crime scene 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;

“former offender” shall be construed in accordance with section 33;

“FSI” means Forensic Science Ireland (formerly known as Forensic Science Laboratory) of the Department of Justice and Equality;

“governor”, in relation to a prison or a place of detention, means—

(a) the governor of the prison or the place of detention, as the case may be, or

(b) a person who is for the time being performing the functions of governor of the prison or the place of detention, as the case may be;

“guardian”, in relation to a child (including a protected person who is a child), means—

(a) a person who is guardian of the child pursuant to the Guardianship of Infants Act 1964 or who is appointed to be guardian of the child by deed or will or order of a court, or

(b) a person who has custody or care of the child by order of a court, but does not include the Health Service Executive;

“identification division”, in relation to the DNA Database System, shall be construed in accordance with section 59(4);

“inadequately labelled”, in relation to a sample, means incorrectly labelled or labelled in such a manner that it is not possible to identify with certainty the person from whom the sample was taken;

“insufficient”, in relation to a sample, means, subject to section 3(5), insufficient in quantity or quality for the purpose of enabling information to be produced by the means of analysis used or to be used in relation to the sample for the forensic testing of it;

“intimate sample” means any of the following taken, or to be taken, from a person under section 12:

(a) a sample of—

(i) blood,

(ii) pubic hair, or

(iii) urine;

(b) a swab from a genital region or a body orifice other than the mouth; or

(c) a dental impression;

“investigation division”, in relation to the DNA Database System, shall be construed in accordance with section 59(3);

“match”, in relation to two DNA profiles but other than in Chapter 2of Part 12, means that there is such a degree of correspondence between them that they are indistinguishable and it is probable that they relate to the same person, and the degree of that probability can be indicated statistically;

“member in charge” of a Garda Síochána station has the meaning assigned to it by Regulation 4 of the Criminal Justice Act 1984 (Treatment of Persons in Custody in Garda Síochána Stations) Regulations 1987 (S.I. No. 119 of 1987) subject to the modification that the reference in paragraph (1) of that Regulation to the member who is in charge of a Garda Síochána station at a time when the member in charge of the station is required to do anything or cause anything to be done pursuant to those Regulations shall be construed as a reference to the member who is in charge of the Garda Síochána station at a time when the member in charge is required to do anything or cause anything to be done under this Act;

“member of the staff of FSI” means an officer of the Minister who is assigned to perform duties in FSI;

“Minister” means Minister for Justice and Equality;

“missing person” means a person who, whether before or after the commencement of this section, is observed to be missing from his or her normal patterns of life, in relation to whom those persons who are likely to have heard from the person are unaware of the whereabouts of the person and that the circumstances of the person being missing raises concerns for his or her safety and well-being;

“missing and unknown persons index”, in relation to the DNA Database System, shall be construed in accordance with section 66 ;

“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;

“non-intimate sample” means any of the following taken, or to be taken, from a person under section 13 :

(a) a sample of—

(i) saliva,

(ii) hair other than pubic hair,

(iii) a nail, or

(iv) any material found under a nail;

(b) a swab from any part of the body including the mouth but not from any other body orifice or a genital region; or

(c) a skin impression;

“offender” shall be construed in accordance with section 31(1);

“Ombudsman Commission” means the Garda Síochána Ombudsman Commission;

“parent”, in relation to a protected person or child, means—

(a) in a case in which one parent has the sole custody, charge or care of the person or child, that parent,

(b) in a case in which the person or child has been adopted under the Adoption Act 2010 (or, if adopted outside the State, his or her adoption is recognised under the law of the State), the adopter or either of the adopters or the surviving adopter, and

(c) in any other case, either parent;

“place of detention”, in relation to a child offender (being a male aged 16 or 17 years), means—

(a) Saint Patrick’s Institution, or

(b) a place of detention provided under section 2 of the Prisons Act 1970, and “prison officer”, in relation to a place of detention, shall be construed accordingly;

“prescribed” means prescribed by regulations made by the Minister under section 5 ;

“prison” means a place of custody administered by the Minister (other than a Garda Síochána station) and includes—

(a) Saint Patrick’s Institution other than in respect of the detention of males aged 16 and 17 years therein,

(b) a place of detention provided under section 2 of the Prisons Act 1970 other than in respect of the detention of males aged 16 and 17 years therein, and

(c) a place specified under section 3 of the Prisons Act 1972, and “prison officer”, in relation to a prison, and “imprisonment” shall be construed accordingly;

“protected person” means, subject to subsection (2), 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 a sample 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 a sample being taken from him or her;

“reference index”, in relation to the DNA Database System, shall be construed in accordance with section 62 ;

“registered dentist” means a person whose name is entered for the time being in the Register of Dentists established under section 26 of the Dentists Act 1985;

“registered medical practitioner” means a person who is a registered medical practitioner within the meaning of section 2 of the Medical Practitioners Act 2007;

“registered 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;

“relevant offence” means an offence in respect of which a person may be detained under any of the provisions referred to in section 9(1) (whether or not the person concerned was so detained);

“request under Chapter 3 of Part 5 of the Act of 2008” means a request for assistance which is made by a requesting authority within the meaning of section 2(1) of the Act of 2008 under and in accordance with a relevant international instrument within the meaning of the said section 2(1);

“request under section 50 of the Act of 2006” means a request from the International Criminal Court under Article 93.1(a) of the Rome Statute of the International Criminal Court, done at Rome on 17 July 1998, for assistance under section 50 of the Act of 2006 in obtaining identification evidence within the meaning of that section;

“sample” means a sample taken, or to be taken, from a person under Part 2, 3, 4, 5 or 6 and, if the context so requires, a crime scene sample;

“sexual offence” has the meaning it has in section 3 of the Sex Offenders Act 2001 (and includes such an offence that is a relevant offence);

“sex offender” —

(a) in the case of an offender, shall be construed in accordance with section 31(1)(d), and

(b) in the case of a child offender, shall be construed in accordance with section 32(1)(d);

“skin impression”, in relation to a person, means any record (other than a fingerprint) which is a record (in any form and produced by any method) of the skin pattern and other physical characteristics or features of the whole or any part of his or her foot or of any other part of his or her body;

“unknown deceased person” shall be construed in accordance with section 50;

“unknown person” shall be construed in accordance with section 49.

(2) 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.

(3) Subject to section 48(5), references in section 11 and in Part 3, 4, 5, 6 or 7 to a sample—

(a) in relation to a person, means a sample of hair other than pubic hair of the person or a swab from the mouth of the person, and

(b) in relation to the body of a deceased person, means a sample of biological material from the body of the deceased person from which a DNA profile in respect of the person may be generated.

(4) In this Act references to the mouth of a person shall be construed as including references to the inside of the mouth of the person.

(5) In the application of this Act in relation to a protected person who is married—

(a) the references in sections 15, 16, 21, 23, 24, 25, 31, 34 , 38, 39 , 54, 55, 58, 77 and 81 to a parent or guardian of the person shall be construed as references to his or her spouse, and

(b) the references in sections 21, 23, 24, 54, 55, 57 and 58 to a relative of the protected person shall be construed as including references to his or her parent or guardian.

(6) In the application of this Act in relation to a child who is married—

(a) the references in sections 15, 17, 19, 22, 24, 25, 32, 34, 38, 39, 54, 55, 58, 77 and 81 to a parent or guardian of the child shall be construed as references to his or her spouse, and

(b) the references in sections 22, 24, 54, 55, 57 and 58 to a relative of the child shall be construed as including references to his or her parent or guardian.

(7) If a person is regarded as a protected person for the purposes of this Act, the person shall not thereby be regarded as lacking capacity for purposes other than those to which this Act relates.