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

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Taking of samples from child offenders

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

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

(i) the child offender is serving the sentence in a children detention school or a place of detention,

(ii) the child offender is on a permitted absence from a children detention school or is temporarily released under section 2 of the Criminal Justice Act 1960 from a place of detention, 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 detention is imposed by a court on the child 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 detention, or the balance thereof, 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 child into the State and his or her detention in a children detention school or a place of detention, or

(II)an order of the High Court under the Transfer of Execution of Sentences Act 2005 committing the child to Saint Patrick’s Institution,

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 a child offender under this section shall be used to generate a DNA profile in respect of the child offender to be entered in the reference index of the DNA Database System.

(3) Subject to section 156 (2), a sample under this section shall be taken from a child offender as soon as practicable after the commencement of this section or he or she becomes a child 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, an authorised member of the staff of a children detention school in which a child offender is detained or a prison officer of a place of detention in which the child offender is detained may take, or cause to be taken, a sample under this section from the child offender.

(5) A sample under this section shall be taken from a child offender referred to in subsection (4) in the children detention school or, as the case may be, the place of detention in which he or she is detained, but only if the Director of the children detention school or the governor of the place of detention, as the case may be, 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 a child offender who is not in a children detention school or a place of detention.

(7) A sample under this section may be taken from a child 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 child 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) An authorised member of the staff of a children detention school, a prison officer of a place of detention or a member of the Garda Síochána, as may be appropriate, shall inform a child 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 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 section 38 (4), been given under subsection (5) or, if appropriate, that an authorisation under section 38 (8)(a) has been given for the taking of a second such sample from him or her;

(c) if appropriate, that where the child 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 child 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 child 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 a child offender in a children detention school or a place of detention, a member of the Garda Síochána not below the rank of inspector in the Garda Síochána district in which the child offender ordinarily resides may require the child 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) A notice under subsection (9)shall also be sent to a parent or guardian of the child offender concerned.

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

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

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

(12) A child 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 C fine or detention for a period not exceeding 6 months or both.

(13) For the avoidance of doubt it is hereby declared that references in this section to a relevant offence shall, in the case of a child offender aged 10 or 11 years, be construed as references to an offence referred to in section 52(2) of the Act of 2001.

(14) In this section references to a sentence of detention imposed by a court on a child offender include references to a sentence of detention imposed by a court on the child offender the execution of the whole or a part of which is suspended.

(15) 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 a child offender other than a sex offender, means—

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

(b) in the case of a child offender falling under subsection (1)(c), the expiry of the sentence of detention 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 detention in a children detention school or a place of detention in the State under the Transfer of Sentenced Persons Act 1995 , or

(ii) on his or her committal to Saint Patrick’s Institution under the Transfer of Execution of Sentences Act 2005 ,

as the case may be;

“permitted absence”, in relation to the absence of a child offender from a children detention school, means—

(a) the absence of the child offender from the school pursuant to an order under section 202 or 203 of the Act of 2001,

(b) the absence of the child offender from the school on a mobility trip within the meaning of section 204 of the Act of 2001,

(c) the absence of the child offender on temporary leave from the school granted in accordance with sections 205 and 206 of the Act of 2001, or

(d) the placing out of the child offender under supervision in the community under section 207 of the Act of 2001;

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