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

25.

Re-taking of certain samples under Part 2 in certain circumstances

25. (1) Where—

(a) a person is detained for a period under any of the provisions referred to in section 9(1), and

(b) a sample under section 11 taken from the person during the period of detention proves to be insufficient or an intimate sample or a non-intimate sample taken from the person during the period of detention proves to be insufficient or is inadequately labelled,

a second sample under section 11 or a second intimate sample or non-intimate sample, as the case may be, may be taken from the person in accordance with this Part while he or she is so detained only if, subject to subsection (2) and section 3(6), an authorisation to take the second sample is given under section 11(2), 12(2)(a) or 13(2), as the case may be.

(2) An authorisation under section 11(2), 12(2)(a) or 13(2), as the case may be, to take a second sample from a person referred to in subsection (1) may be given on one occasion only during a period of detention of the person under any of the provisions referred to in section 9(1).

(3) Where—

(a) a non-intimate sample is taken from a person who is detained under any of the provisions referred to in section 9(1),

(b) the person is released without any charge having been made against him or her, and

(c) the sample proves to be insufficient or is inadequately labelled,

a second non-intimate sample may be taken from the person in accordance with this Part only if—

(i) a member of the Garda Síochána not below the rank of superintendent authorises it to be taken, and

(ii) the person attends at a Garda Síochána station in accordance with this section for the purpose of having the second non-intimate sample taken from him or her.

(4) An authorisation under paragraph (i)of subsection (3) to take a second non-intimate sample from a person in accordance with that subsection shall not be given unless the member of the Garda Síochána giving it has reasonable grounds—

(a) for suspecting the involvement of the person from whom the first non-intimate sample concerned was taken in the offence in respect of which he or she was detained when that sample was taken, and

(b) for believing that a second non-intimate sample will tend to confirm or disprove the involvement of that person in that offence.

(5) An authorisation under paragraph (i)of subsection (3) to take a second non-intimate sample from a person in accordance with that subsection—

(a) may be given on one occasion only, and

(b) may not be given if a period of more than 6 months has elapsed since the first non-intimate sample concerned was taken from the person.

(6) If an authorisation under subsection (3)(i)to take a second non- intimate sample from a person has been given, a member of the Garda Síochána may, within the period specified in subsection (7), require the person by notice in writing to attend at a specified Garda Síochána station within the period specified in subsection (9)(a) for the purpose of having a second non-intimate sample taken from him or her.

(7) The period referred to in subsection (6) for requiring the person concerned to attend at a specified Garda Síochána station is one month from the date on which a member of the Garda Síochána of the rank of superintendent in the Garda Síochána district in which the first non-intimate sample concerned was taken is informed of the fact that that sample has proved to be insufficient or was inadequately labelled, as the case may be.

(8) A notice under subsection (6) shall, in the case of a protected person or child, also be sent to a parent or guardian of the person or child, as the case may be.

(9) A notice under subsection (6) shall state that the first non-intimate sample concerned taken from the person concerned has proved to be insufficient or was inadequately labelled, as may be appropriate, and a requirement in the notice to attend at a specified Garda Síochána station—

(a) shall give the person concerned a period of not less than 10 working days within which he or she shall so attend, and

(b) may direct the person concerned to so attend on specified days and at a specified time of day or between specified times of day.

(10) If the person concerned fails or refuses without reasonable cause to comply with a notice under subsection (6), a member of the Garda Síochána not below the rank of superintendent may apply to a judge of the District Court for a warrant for the arrest of the person and his or her detention in a Garda Síochána station for the purpose of having a second non-intimate sample taken from him or her.

(11) A judge of the District Court may, on an application under subsection (10), issue a warrant for the arrest of the person concerned and his or her detention in a Garda Síochána station for such period not exceeding 4 hours from the time the person concerned is arrested for the purpose of having a second non-intimate sample taken from him or her if the judge is satisfied that—

(a) the first non-intimate sample concerned was taken from the person concerned in accordance with this Part,

(b) the first non-intimate sample concerned taken from the person concerned has proved to be insufficient or was inadequately labelled, as the case may be,

(c) the person concerned has failed or refused without reasonable cause to comply with a notice under subsection (6), and

(d) in all the circumstances of the case, it is in the interests of justice to issue a warrant for the arrest and detention in a Garda Síochána station of the person concerned for the purpose of having a second such sample taken from him or her.

(12) If a warrant for the arrest and detention of a person is issued under subsection (11) for the purpose of having a second non-intimate sample taken from the person, the sample shall be taken from him or her in accordance with this Part.

(13) When a second non-intimate sample has been taken from a person who is detained pursuant to a warrant issued under subsection (11), the person shall be released from custody forthwith unless his or her detention is authorised apart from this section.

(14) Nothing in this section shall require the second non-intimate sample to be taken from a person under this section to be of the same type of biological material as the first sample taken from the person which proved to be insufficient or was inadequately labelled, provided that the second sample concerned is one that is permitted to be taken under section 13 .

(15) If a second non-intimate sample is taken from a person under subsection (1), the references in this section other than in that subsection—

(a) to a first non-intimate sample shall be construed as references to a second non-intimate sample, and

(b) to a second non-intimate sample shall be construed as references to a third non-intimate sample,

taken, or to be taken, from the person.

(16) A sample taken, or to be taken, from a person under this section shall, for the purposes of this Act, be regarded as if it is to be taken, or had been taken, from the person under section 11 , 12 or 13 , as may be appropriate.

(17) In this section references to the detention of a person for a period under any of the provisions referred to in section 9(1) shall, if appropriate, include references to the detention of the person for consecutive periods under the provision concerned.