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

81.

Extension of retention period under section 80 for certain DNA profiles in reference index of DNA Database System in certain circumstances

81. (1) A DNA profile of a person in the reference index of the DNA Database System shall not be removed from that System under section 80 in any case in which the Commissioner determines that it is necessary to retain the DNA profile in that index of that System to assist in the investigation or prosecution of offences.

(2) The Commissioner may determine under subsection (1) that the DNA profile of a person shall be retained in the reference index of the DNA Database System in either of the following circumstances:

(a) in relation to the investigation of the relevant offence concerned in connection with which the sample concerned was taken from the person (from which his or her DNA profile was generated)—

(i) a decision whether or not to institute proceedings against the person for that offence has not been taken, or

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

or

(b) having regard to the matters specified in subsection (3), the Commissioner believes it is necessary to do so 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.

(3) The matters referred to in subsection (2)(b) 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 (from which his or her DNA profile was generated);

(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;

(d) the age of the person concerned at the time that the sample concerned was taken from him or her (from which his or her DNA profile was generated); and

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

(4) Subject to subsection (7), if, in relation to the DNA profile of a person, the Commissioner makes a determination under subsection (1) on the basis that subsection (2)(a) applies, he or she may, during the retention period referred to in section 80 , give an authorisation to extend that period by a period of 12 months.

(5) Subject to subsection (7), the Commissioner may, while an authorisation under subsection (4) 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 not more than 12 months commencing on the expiration of the period of 12 months to which the authorisation previously given relates if he or she makes a determination under subsection (1) on the basis that subsection (2)(a) applies.

(6) Subject to subsection (7), the Commissioner may, while an authorisation under subsection (4) or (5), 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 further period commencing on the expiration of the period of 12 months to which the authorisation previously given relates if he or she makes a determination under subsection (1) on the basis that subsection (2)(b) applies.

(7) An authorisation under subsection (4), (5)or (6) may not be given if to do so would involve the retention of the DNA profile of the person concerned—

(a) in the case of a child or a protected person, for a period of more than 3 years from—

(i) the taking of the sample concerned from the child or protected person, as the case may be, or

(ii) if appropriate, the date on which that sample is deemed under section 86 to have been taken from him or her,

whichever is the later, and

(b) in the case of any other person, for a period of more than 6 years from—

(i) the taking of the sample concerned from the person, or

(ii) if appropriate, the date on which that sample is deemed under section 86 to have been taken from him or her,

whichever is the later.

(8) Subject to subsection (9), if, in relation to the DNA profile of a person, the Commissioner makes a determination under subsection (1) on the basis that subsection (2)(b) applies, he or she may, during the retention period referred to in section 80 , give an authorisation to extend that period.

(9) An authorisation under subsection (8) may extend the retention period referred to in section 80 for no longer than—

(a) in the case of a child or a protected person, a period of 3 years from—

(i) the taking of the sample concerned from the child or protected person, as the case may be, or

(ii) if appropriate, the date on which that sample is deemed under section 86 to have been taken from him or her,

whichever is the later, and

(b) in the case of any other person, a period of 6 years from—

(i) the taking of the sample concerned from the person, or

(ii) if appropriate, the date on which that sample is deemed under section 86 to have been taken from him or her,

whichever is the later.

(10) Whenever the Commissioner gives an authorisation under subsection (4), (5), (6) or (8), he or she shall, in relation to the DNA profile of the person that is the subject of the authorisation, cause—

(a) the person, and

(b) if the 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 (4), (5), (6) or (8), as may be appropriate, the date on which that authorisation was given and of the right of appeal under subsection (11).

(11) 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 (10)concerned, appeal to the District Court against that authorisation.

(12) An appeal under subsection (11) shall—

(a) be on notice to the Commissioner, and

(b) be heard otherwise than in public.

(13) If, on an appeal under subsection (11), the District Court—

(a) confirms the authorisation concerned, or

(b) allows the appeal,

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

(14) 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 (from which the DNA profile of the appellant was generated).

(15) The District Court may make such order as to costs as it considers appropriate on an appeal under subsection (11).

(16) Nothing in this section shall—

(a) prevent or restrict the exercise of powers conferred by section 11 , 12 , 13 , 30 or 31 ,

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

(i) this Act,

(ii) a criminal investigation, or

(iii) other proceedings.