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

• Permanent Page URL

Taking of intimate samples from persons in custody of Garda Síochána

12. (1) Subject to this Act, a member of the Garda Síochána may take, or cause to be taken, an intimate sample under this section from a person who is detained under any of the provisions referred to in section 9 (1) for the purposes of forensic testing and, if appropriate, the generation of a DNA profile in respect of the person to be entered in the reference index of the DNA Database System.

(2) An intimate sample may be taken under this section only if—

(a) a member of the Garda Síochána not below the rank of inspector authorises it to be taken for the purposes specified in subsection (1), and

(b) the appropriate consent has been given in writing to the taking of the sample.

(3) An authorisation to take an intimate sample under this section shall not be given unless the member of the Garda Síochána giving it has reasonable grounds—

(a) for suspecting the involvement of the person from whom the sample is to be taken in the commission of the offence in respect of which he or she is detained, and

(b) for believing that the sample will tend to confirm or disprove the involvement of that person in the commission of the offence concerned.

(4) The results of the forensic testing of an intimate sample may be given in evidence in any proceedings.

(5) Before a member of the Garda Síochána seeks the consent of a person from whom an intimate sample is required to the taking of such a sample or the member takes, or causes to be taken, such a sample from the person, the member shall inform the person of the following:

(a) the nature of the offence in the commission of which it is suspected that the person has been involved;

(b) that an authorisation to take the sample from him or her has been given under subsection (2)(a)and the grounds on which it has been given;

(c) that in a case in which an intimate sample already taken from the person has proved to be insufficient—

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

(ii) that either—

(I)another authorisation under subsection (2)(a) is not, by virtue of section 3 (6), required, or

(II)an authorisation to take a second intimate sample from him or her has, in accordance with section 25 (1), been given under subsection (2)(a) and the grounds on which it has been given;

(d) that the results of the forensic testing of the sample may be given in evidence in any proceedings;

(e) if appropriate, the matters referred to in subsections (2) and (3) of section 19 if that section is to have effect in relation to the person;

(f) if appropriate, that the sample will be used to generate a DNA profile in respect of the person to be entered in the reference index of the DNA Database System and the effect of such an entry;

(g) 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;

(h) that the sample may be compared under section 145 with evidence taken from a crime scene (including crime scene samples) received from a law enforcement agency within the meaning of Chapter 7 of Part 12; and

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

(6) If a person expressly withdraws the appropriate consent given under subsection (2)(b) (or if the withdrawal of that consent can reasonably be inferred from the conduct of the person) before or during the taking of an intimate sample under this section—

(a) that withdrawal of consent shall be treated as a refusal to give the appropriate consent to the taking of the sample under this section, and

(b) the provisions of this Part shall apply accordingly.

(7) A withdrawal under subsection (6) of the appropriate consent given under subsection (2)(b) shall be recorded in writing by a member of the Garda Síochána as soon as practicable after such withdrawal.

(8) The appropriate consent given under subsection (2)(b) to the taking of an intimate sample under this section may not be withdrawn after the sample has been taken.