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

34.

Taking of samples from former offenders

34. (1) A sample taken under this section from a former offender shall be used to generate a DNA profile in respect of the former offender to be entered in the reference index of the DNA Database System.

(2) If a member of the Garda Síochána not below the rank of superintendent is satisfied that—

(a) a person is a former offender, and

(b) it is in the interests of the protection of society, and it is desirable for the purpose of assisting the Garda Síochána in the investigation of offences, to have a sample under this section taken from the person,

the member may authorise the making of a request of the person under subsection (3).

(3) A member of the Garda Síochána may, if so authorised under subsection (2), request a person in respect of whom the authorisation under that subsection has been given to have a sample under this section taken from him or her.

(4) A member of the Garda Síochána who makes a request under subsection (3) shall indicate to the person concerned that if he or she does not comply with the request that an application may be made to a judge of the District Court under subsection (6) for an order to authorise the sending of a notice under that subsection to him or her.

(5) If a person of whom a request is made under subsection (3) does not comply with the request, an application may be made for an order under subsection (6).

(6) 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 authorising the Garda Síochána to send a notice to a 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 for the purpose of having a sample under this section taken from him or her if the judge is satisfied that—

(a) the person is a former offender, and

(b) it is in the interests of justice in all the circumstances of the case to make the order.

(7) If an order is made under subsection (6), a notice pursuant to the order may be sent by a member of the Garda Síochána to the former offender concerned.

(8) A notice under subsection (7) 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 former offender 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.

(9) Subject to this Act, a member of the Garda Síochána may take, or cause to be taken, from a former offender a sample under this section.

(10) A member of the Garda Síochána shall inform a former offender of the following before taking, or causing to be taken, a sample under this section from him or her:

(a) that an authorisation to request a sample under this section from the former offender has been given under subsection (2) or, as may be appropriate, a judge of the District Court has made an order under subsection (6) authorising the sending of a notice under that subsection to him or her requiring him or her to attend at a named Garda Síochána station for the purpose of having a sample under this section taken from him or her;

(b) in a case in which a sample already taken under this section from the former offender has proved to be insufficient—

(i) that that sample has proved to be insufficient, and

(ii) that a request for the taking of a second sample from him or her has been made under subsection (1) of section 39 or a judge of the District Court has made an order under subsection (4) of that section for the taking of a second sample from him or her, as may be appropriate;

(c) that the sample will be used to generate a DNA profile in respect of the former offender to be entered in the reference index of the DNA Database System and the effect of such an entry;

(d) that the sample, or the DNA profile generated from the sample in respect of the person, may be transmitted or provided to a person or body in connection with the investigation of criminal offences or criminal proceedings (whether within or outside the State) as provided for in or permitted by this Act; and

(e) that the sample may be destroyed, and the DNA profile in respect of the former offender entered in the reference index of the DNA Database System may be removed from that System, in accordance with Part 10.

(11) Subject to subsection (12), a person who fails or refuses, without reasonable cause, to comply with a notice under subsection (7), shall be guilty of an offence and shall be liable on summary conviction—

(a) if the person is not a child, to a class A fine or imprisonment for a term not exceeding 12 months or both, and

(b) if the person is a child, to a class C fine or detention for a term not exceeding 6 months or both.

(12) It shall be a defence in proceedings for an offence under subsection (11) for the person charged with the offence to show that he or she is not a former offender.