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

33.

Former offenders

33. (1) Subject to this section, a sample may be taken under section 34 from a person (including a child) (in this Act called a “former offender”)—

(a) who at any time before the commencement of sections 31 and 32 would, if those sections had been in operation at that time, have been an offender or a child offender but who, on the commencement of those sections, was not an offender or a child offender, as the case may be, by reason of the fact that—

(i) the sentence for the offence concerned of which the person had been convicted had expired, or

(ii) in the case of a sex offender, the notification period had ended,

(b) who at any time after the commencement of sections 31 and 32 was an offender or a child offender and—

(i) a sample under those sections—

(I) was not taken from him or her, or

(II) was taken from him or her but the sample has proved to be insufficient,

and

(ii) who is no longer an offender or a child offender, as the case may be, by reason of the fact that—

(I) the sentence for the offence concerned of which the person had been convicted has expired, or

(II) in the case of a sex offender, the notification period has ended,

or

(c) who—

(i) whether before or after the commencement of sections 31 and 32 has been or is convicted, in a place other than the State, of an offence that corresponds to a relevant offence or a sexual offence and has been or is sentenced in that place in respect of that offence, and

(ii) is no longer subject to that sentence.

(2) A person shall not be a former offender unless—

(a) insofar as it can reasonably be ascertained, his or her DNA profile is not entered in the reference index of the DNA Database System, and

(b) having regard to the following matters, a member of the Garda Síochána not below the rank of superintendent or a judge of the District Court, as the case may be, is satisfied that it is appropriate for a sample under section 34 to be taken from the person:

(i) the number of relevant offences or sexual offences of which the person has been convicted;

(ii) the seriousness of the relevant offence or offences or sexual offence or offences of which the person has been convicted;

(iii) the nature of the relevant offence or offences or sexual offence or offences of which the person has been convicted and whether evidence relating to DNA is likely to assist with the investigation or prosecution of such an offence or such offences;

(iv) the duration of the sentence or sentences of imprisonment or detention imposed on the person in respect of the relevant offence or offences or sexual offence or offences of which he or she has been convicted;

(v) the period that has elapsed since the expiry of the sentence for the relevant offence concerned or, if more than one such offence, the expiry of the sentence for the relevant offence that was the last to expire or, if the person was convicted of a sexual offence, the period that has elapsed since the end of the notification period or, if more than one such period, the end of the last one;

(vi) in relation to any offence of which the person was convicted when he or she was a child if the conviction is one to which this section applies, the age of the person at the time of such conviction;

(vii) any other matter that the member of the Garda Síochána or the judge, as the case may be, considers appropriate.

(3) A person shall not be a former offender if a period of not less than 10 years, or such shorter period as may be prescribed by the Minister, has elapsed since—

(a) the expiry of the sentence for a relevant offence of which the person has been convicted or, if more than one such offence, the expiry of the sentence for the relevant offence that was the last to expire, or

(b) if the person was convicted of a sexual offence, the end of the notification period or, if more than one such period, the end of the last one,

whichever is the later.

(4) A person shall not be a former offender unless he or she—

(a) is ordinarily resident in the State, or

(b) has his or her principal residence in the State.

(5) This section shall, in relation to a relevant offence or a sexual offence of which a person was convicted when he or she was a child, apply to the conviction for the offence concerned—

(a) in the case of a conviction in the State, only if the offence concerned is one that is required to be tried by the Central Criminal Court, or

(b) in the case of a conviction in a place other than the State, only if the offence concerned is one that corresponds to an offence that is required to be tried by the Central Criminal Court.

(6) In this section references to—

(a) a relevant offence shall include references to an offence under the law of a place other than the State that corresponds to a relevant offence, and

(b) a sexual offence shall include references to an offence under the law of a place other than the State that corresponds to a sexual offence.

(7) For the purposes of this section—

(a) an offence under the law of a place other than the State corresponds to a relevant offence where the act or omission constituting the offence under the law of that place would, if done or made in the State, constitute a relevant offence, and

(b) an offence under the law of a place other than the State corresponds to a sexual offence where the act constituting the offence under the law of that place would, if done in the State, constitute a sexual offence.

(8) In this section references, in relation to a person who was convicted of a sexual offence, to the end of the notification period shall include references to the end of the equivalent period under the law of a place other than the State in which the person was convicted during which information of a similar nature to that required to be notified by a person who is subject to the requirements of Part 2 of the Sex Offenders Act 2001 is to be notified to the police in that place.

(9) In this section references to a sentence of imprisonment or detention imposed on a person include references to—

(a) a sentence of imprisonment or detention imposed on the person the execution of the whole or a part of which is suspended, and

(b) in the case of a person other than a child, a sentence of imprisonment imposed on the person following the contravention by him or her of a condition in an order made by a court under section 100 of the Criminal Justice Act 2006.

(10) In this section—

“the end of the notification period”, in relation to a person who was convicted of a sexual offence, means the end of the period for which he or she was subject to the requirements of Part 2 of the Sex Offenders Act 2001;

“the expiry of the sentence”, in relation to a person, means—

(a) the expiry of the sentence of imprisonment or detention imposed on him or her by a court in respect of a relevant offence of which he or she was convicted, or

(b) the expiry of the sentence of imprisonment or detention determined by the High Court in respect of an offence of which he or she was convicted outside the State—

(i) on his or her transfer to the State and imprisonment or detention, as may be appropriate, in a prison, a children detention school or a place of detention, as the case may be, in the State under the Transfer of Sentenced Persons Act 1995, or

(ii) on his or her committal to a prison or Saint Patrick’s Institution under the Transfer of Sentenced Persons Act 1995,

as the case may be;

“police”, in relation to a place referred to in subsection (8), means any police force in that place, or a member thereof, whether that force is organised at a national, regional or local level.