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

54.

Consent to taking of certain samples under Parts 3 and 6 from protected persons or children

54. (1) The references in subsection (4) of section 27 , subsection (5) of section 29 and subsection (7) of section 48 to the consent in writing of a person from whom a sample may be taken under any of those sections shall, in the case of a child who has attained the age of 16 years, be construed as references to the consent in writing of the child.

(2) Subject to subsections (3) to (8), the references in subsection (4) of section 27 , subsection (5) of section 29 and subsection (7) of section 48 to the consent in writing of a person from whom a sample may be taken under any of those sections shall, in the case of a protected person or a child who has not attained the age of 16 years, be construed as references to—

(a) in the case of a protected person, the consent in writing of a parent or guardian of the person, and

(b) in the case of such a child (other than a protected person)—

(i) who has attained the age of 14 years, the consent in writing of the child and of a parent or guardian of the child,

(ii) who has not attained the age of 14 years, the consent in writing of a parent or guardian of the child.

(3) If the consent in writing of a parent or guardian of a protected person, or of a child referred to in subsection (2)(b), to the taking of the sample concerned from the protected person or child, as the case may be, cannot be obtained, a grandparent, or a brother or sister who is an adult, of the protected person or child or a child who is an adult of the protected person may, subject to subsection (5), give that consent.

(4) If—

(a) the consent in writing of a parent or guardian, a grandparent, a brother or sister who is an adult of a protected person or a child referred to in subsection (2)(b), or the consent in writing of a child who is an adult of the protected person, to the taking of the sample concerned from the protected person or child, as the case may be, cannot be obtained, and

(b) in the case of a child referred to in subsection (2)(b)(i), the child has consented in writing to the taking of the sample concerned from him or her,

an application may be made to a judge of the District Court under section 56 for an order to authorise the taking of that sample from the protected person or child, as the case may be, without the consent referred to in paragraph (a).

(5) Where, in relation to the investigation of an offence, a sample is to be taken under section 27 , 29 or 48 from a protected person or a child, the consent in writing of a parent or guardian, or other relative referred to in subsection (3), as the case may be, of the protected person or child to the taking of the sample concerned from the person or child shall not be sought from a parent or guardian, or such a relative, of the person or child, as the case may be, if—

(a) the parent, guardian or relative has been arrested in respect of the offence,

(b) a member of the Garda Síochána not below the rank of inspector has reasonable grounds for suspecting him or her of complicity in the offence, or

(c) a member of the Garda Síochána not below the rank of inspector has reasonable grounds for believing that he or she is likely to obstruct the course of justice.

(6) Subject to subsection (7), subsection (5) shall not prevent a parent or guardian, or other relative referred to in subsection (3), of a protected person or a child who does not fall under paragraph (a), (b) or (c) of subsection (5) from giving the consent required for the taking of the sample concerned from the person or child, as the case may be.

(7) If the circumstances referred to in subsection (5) exist in relation to a parent or guardian of a protected person or a child referred to in subsection (2)(b), then, subject to subsection (6) applying to another parent or guardian of the protected person or child, an application may be made to a judge of the District Court under section 56 for an order to authorise the taking of the sample concerned from the protected person or child, as the case may be, without the consent of a parent or guardian of the person or child provided that, in the case of a child referred to in subsection (2)(b)(i), the child has consented in writing to the taking of the sample concerned from him or her.

(8) In this section references to circumstances in which the consent of a parent or guardian, or other relative, of a protected person or child to the taking of a sample under section 27 , 29 or 48 , as the case may be, from the protected person or child, as the case may be, cannot be obtained shall be construed as references to either of the following:

(a) a member of the Garda Síochána is unable, having made reasonable efforts to do so, to contact a parent or guardian, or other relative, of the protected person or child for the purposes of ascertaining whether or not he or she consents to the taking of the sample concerned from the protected person or child; or

(b) the protected person or child does not have, or a member of the Garda Síochána cannot, having made reasonable efforts to do so, ascertain whether he or she has, a living parent or guardian, or other relative, from whom consent to the taking of the sample concerned from the protected person or child, as the case may be, may be sought.