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

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PART 4

TAKING OF SAMPLES FROM OTHER PERSONS OR BODIES FOR REFERENCE INDEX OF DNA DATABASE SYSTEM

Taking of samples from offenders

31. (1) A sample may be taken under this section from a person (in this section called an “offender”)—

(a) who has been convicted of a relevant offence before the commencement of this section and, at that commencement, a sentence of imprisonment has been imposed by a court on the offender in respect of the offence and—

(i) the offender is serving the sentence in prison,

(ii) the offender is temporarily released under section 2 of the Criminal Justice Act 1960 , or

(iii) the sentence is otherwise still in force or current,

(b) who at any time before or after the commencement of this section has been or is convicted of a relevant offence and, after that commencement, a sentence of imprisonment is imposed by a court on the offender in respect of the offence,

(c) who—

(i) at any time before or after the commencement of this section has been or is convicted outside the State of an offence, and

(ii) at any time after that commencement, is serving a sentence of imprisonment, or the balance thereof, in a prison in the State in respect of that offence pursuant to—

(I) a warrant issued by the High Court under the Transfer of Sentenced Persons Act 1995 authorising the bringing of the person into the State and his or her imprisonment in the State, or

(II) an order of the High Court under the Transfer of Execution of Sentences Act 2005 committing the person to a prison,

provided that, when issuing the warrant or making the order, as the case may be, the offence that the High Court determined to be the corresponding offence in the State to that offence is a relevant offence, or

(d) who may fall under paragraph (a), (b) or (c) and who, on or at any time after the commencement of this section is, or becomes, subject to the requirements of Part 2 of the Sex Offenders Act 2001 (in this Act called a “sex offender”).

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

(3) A sample under this section shall be taken from an offender as soon as practicable after the commencement of this section or he or she becomes an offender, whichever occurs first and, in any event, the sample shall be taken from him or her before the expiry of the sentence concerned or, if he or she is a sex offender, before the end of the notification period.

(4) Subject to this Act, a prison officer may take, or cause to be taken, a sample under this section from an offender who is in prison.

(5) A sample under this section shall be taken from an offender referred to in subsection (4) in the prison in which he or she is imprisoned, but only if the governor of the prison authorises it to be taken.

(6) Subject to this Act, a member of the Garda Síochána may take, or cause to be taken, a sample under this section from an offender who is not in prison.

(7) A sample under this section may be taken from an offender referred to in subsection (6) only if—

(a) a member of the Garda Síochána not below the rank of sergeant authorises it to be taken, and

(b) the offender attends at a Garda Síochána station in accordance with this section for the purpose of having the sample taken from him or her.

(8) A prison officer or a member of the Garda Síochána, as may be appropriate, shall inform an 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 take the sample from him or her has been given under subsection (5) or (7)(a), as the case may be;

(b) in a case in which a sample already taken under this section from the offender, or a sample already taken from him or her under section 32 when he or she was a child offender, has proved to be insufficient—

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

(ii) that either—

(I) another authorisation under subsection (5) or (7)(a), as the case may be, is not, by virtue of section 3 (6), required, or

(II) an authorisation to take a second sample under this section from him or her has, in accordance with subsection (3) or (5), as may be appropriate, of section 38 , been given under subsection (5) or, if appropriate, that an authorisation under section 38 (7)(a) has been given for the taking of a second such sample from him or her;

(c) if appropriate, that where the offender fails or refuses to allow the sample to be taken from him or her, reasonable force may be used in accordance with section 36 to take the sample;

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

(e) 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

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

(9) Where a sample under this section has not been taken from an offender in prison, a member of the Garda Síochána not below the rank of inspector in the Garda Síochána district in which the offender ordinarily resides may require the offender by notice in writing to attend at a specified Garda Síochána station within the period specified in subsection (11)(a) for the purpose of having such a sample taken from him or her.

(10) If the member of the Garda Síochána sending a notice under subsection (9) knows or believes that the 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.

(11) A requirement in a notice under subsection (9) to attend at a specified Garda Síochána station—

(a) shall give the offender concerned a period of not less than 10 working days within which he or she shall so attend, and

(b) may direct the offender concerned to so attend on specified days and at a specified time of day or between specified times of day.

(12) An offender who fails or refuses, without reasonable cause, to comply with a notice under subsection (9) shall be guilty of an offence and shall be liable on summary conviction to a class A fine or imprisonment for a term not exceeding 12 months or both.

(13) In this section references to a sentence of imprisonment imposed by a court on an offender include references to—

(a) a sentence of imprisonment imposed by a court on the offender the execution of the whole or a part of which is suspended,

(b) a sentence of imprisonment imposed by a court on the offender following the contravention by him or her of a condition in an order made by the court under section 100 of the Criminal Justice Act 2006 , and

(c) a sentence of detention imposed by a court on the offender when he or she was a child where he or she is transferred to a prison to serve the remainder of the sentence in accordance with section 155 of the Act of 2001.

(14) In this section—

“the end of the notification period”, in relation to a sex offender, means the end of the period for which he or she is subject to the requirements of Part 2 of the Sex Offenders Act 2001 ;

“the expiry of the sentence”, in relation to an offender other than a sex offender, means—

(a) in the case of an offender falling under paragraph (a) or (b) of subsection (1), the expiry of the sentence of imprisonment imposed by a court on him or her in respect of the relevant offence concerned,

(b) in the case of an offender falling under subsection (1)(c), the expiry of the sentence of imprisonment determined by the High Court in respect of the offence concerned of which he or she was convicted outside the State—

(i) on his or her transfer to the State and imprisonment in a prison in the State under the Transfer of Sentenced Persons Act 1995 , or

(ii) on his or her committal to a prison in the State under the Transfer of Execution of Sentences Act 2005 ,

as the case may be;

“temporary release”, in relation to an offender, means the release of the offender from prison for a temporary period in accordance with a direction given by the Minister under section 2 of the Criminal Justice Act 1960 .