77. (1) An intimate sample or a non-intimate sample taken from a person shall not be destroyed under section 76 in any case in which the Commissioner determines that any of the following circumstances apply:

(a) a decision has not been taken whether or not to institute proceedings against the person for the offence concerned in connection with which the sample concerned was taken;

(b) the investigation of that relevant offence has not been concluded;

(c) the sample concerned, and the results of any forensic testing of it, are likely to be required for the prosecution of an offence connected with the event, incident or circumstances the subject of the relevant offence concerned—

(i) for use as evidence in such proceedings,

(ii) for disclosure to, or use by, a defendant in such proceedings, or

(iii) to support the admissibility of any evidence on which the prosecution may seek to rely in such proceedings;

(d) having regard to the matters specified in subsection (2), the Commissioner believes it is necessary to retain the sample concerned in connection with the investigation of the relevant offence concerned taking account of all the circumstances of the case and the reasons why—

(i) proceedings for that offence have not been instituted against the person, or

(ii) if such proceedings have been instituted against the person, they were determined without he or she being convicted of the relevant offence concerned or he or she being the subject of an order under section 1(1) of the Probation of Offenders Act 1907.

(2) The matters referred to in subsection (1)(d) to which the Commissioner shall have regard are the following:

(a) whether the person concerned has any previous conviction for an offence similar in nature or gravity to the relevant offence concerned in connection with which the sample concerned was taken from him or her;

(b) the nature and seriousness of that relevant offence;

(c) whether any alleged victim, or any intended victim, of that relevant offence was—

(i) a child,

(ii) a vulnerable person, or

(iii) associated with the person,

at the time of the commission, or alleged commission, of that relevant offence; and

(d) any other matter that the Commissioner considers appropriate for the purposes of the determination.

(3) If, in relation to an intimate sample or a non-intimate sample taken from a person, the Commissioner determines that one of the paragraphs of subsection (1) applies, then, he or she may, during the retention period referred to in section 76, give an authorisation to extend that period by a period of 12 months.

(4) The Commissioner may, while an authorisation under subsection (3) or this subsection, as may be appropriate, is still in force, give an authorisation under this subsection to extend the retention period on a second or further occasion for a period of 12 months commencing on the expiration of the period of 12 months to which the authorisation previously given relates if he or she determines that one of the paragraphs of subsection (1) applies.

(5) Whenever the Commissioner gives an authorisation under subsection (3) or (4), he or she shall, in relation to an intimate sample or a non-intimate sample taken from a person that is the subject of the authorisation, cause—

(a) the person from whom the sample concerned was taken, and

(b) if that person is a protected person or a child, a parent or guardian of the person or child, as the case may be,

to be informed by notice in writing that the authorisation has been given under subsection (3) or (4), as may be appropriate, the date on which that authorisation was given and of the right of appeal under subsection (6).

(6) The person to whom the authorisation concerned relates (in this section called “the appellant”) or, if that person is a child or a protected person, a parent or guardian on his or her behalf may, within the period of 3 months from the date of the notice under subsection (5) concerned, appeal to the District Court against that authorisation.

(7) An appeal under subsection (6) shall—

(a) be on notice to the Commissioner, and

(b) be heard otherwise than in public.

(8) If, on an appeal under subsection (6), the District Court—

(a) confirms the authorisation concerned, or

(b) allows the appeal,

the Commissioner shall give effect to the decision of the Court.

(9) The jurisdiction conferred on the District Court by this section shall be exercised by a judge of the District Court who is assigned to the district court district in which the appellant ordinarily resides or, if the appellant does not ordinarily reside in the State, by a judge of the District Court who is assigned to the district court district in which the sample concerned was taken.

(10) The District Court may make such order as to costs as it considers appropriate on an appeal under subsection (6).

(11) Nothing in this section shall—

(a) prevent or restrict the exercise of powers conferred by section 12 or 13, or

(b) pending the conclusion of proceedings under this section, prevent or restrict the use of the sample concerned for the purposes of—

(i) this Act,

(ii) a criminal investigation, or

(iii) other proceedings.