Ireland

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Ireland plans to establish a DNA database to meet its obligations under the European Union's Pruem Decisions (which require sharing of DNA profile matches across borders in the EU). A Bill published in 2010 was delayed until after the Irish elections in February 2011, and was substantially revised before publication in September 2013. The Bill includes provisions for collection of DNA and fingerprints on arrest for offences carrying potential sentences of 5 years or more. It also allows for DNA match sharing agreements with other states (likely to mean the USA).

Resources

Detailed analysis

CRG analysis of a previous version of the Bill (from 2010)

I. Law on Point

Criminal Justice (Forensic Evidence and DNA Database System) Bill of 2010[1]


II. Entry Criteria

Section 56 provides that EFÉ shall establish the DNA Database System as soon as may be after commencement of this section. The System shall comprise 2 divisions: the investigation division and the identification division. The investigation division is to contain the following indexes of DNA profiles: the crime scene index, the reference index and the elimination indexes. The identification division is to contain one index of DNA profiles, the missing and unknown persons index. Each index is also to contain information that may be used to identify the sample from which each profile was generated.

Section 57 restricts the purposes for which the System may be used to the investigation of criminal offences and the finding or identification of missing persons, the identification of seriously ill, or severely injured, persons who are unable to indicate their identity or the identification of the bodies of unknown deceased persons. Subsection (2) is illustrative of these purposes.

Section 58 provides that the crime scene index shall contain DNA profiles generated from samples of biological material found at, or recovered from, crime scenes. Crime scene samples predating the commencement of the Bill are included. Crime scene is defined for the purposes of the Bill.

Section 59 provides that the reference index shall contain DNA profiles generated from samples taken from persons under sections 11, 12, and 13 (i.e. from person in Garda custody), section 27 (in accordance with 27(7) to (9) — certain volunteers who specifically consent to the entry of their profiles in the System) and 30, 31, 33, (offenders and former offenders) and 34 (deceased suspects).

Section 60 provides that the elimination (Garda Síochána) index shall contain DNA profiles generated from samples taken under sections 39 (from certain Garda personnel).

Section 61 provides that the elimination (crime scene investigators) index shall contain DNA profiles generated from samples taken under sections 40 (from certain Garda personnel), 41 (staff members of EFÉ) and 42 (certain prescribed persons).

Section 62 provides that the elimination (prescribed persons) index shall contain DNA profiles generated from samples taken under section 42 (from certain prescribed persons).

Section 63 provides that the missing and unknown persons index shall contain profiles generated from samples taken under sections 46 (missing persons), 47 (seriously ill or severely injured persons) and 48 (unknown deceased persons).

Section 64 provides that EFÉ shall establish and operate the DNA Database System in accordance with the Bill. Subsection (2) is illustrative of the functions that EFÉ will be required to perform in relation to the System. Subsection (3) provides that the Director of EFÉ may make arrangements with other laboratories to perform one of its functions in relation to the DNA Database System — the generation of DNA profiles from samples taken under the Bill. Any such arrangements must be in compliance with the requirements of the Bill.

Section 65 specifies the rules in accordance with which a DNA profile entered in an index may be compared with another profile in that index or with a DNA profile in another index. The only purpose for which a profile may be compared with another profile other than in accordance with the specified rules is for the purpose of the administration of the System. In all cases a profile entered in an index may be compared with other profiles in the same index. As regards comparisons between profiles entered in different indexes: a profile in the crime scene index may be compared with a profile in the reference index and with profiles in the elimination indexes under certain conditions; a profile in the reference index may be compared with a profile in the crime scene index or in the missing and unknown persons index; a profile entered in the missing and unknown persons index may be compared with a profile in the reference index or the crime scene index but only for the purposes of identification. Searches of the System may only be conducted by a staff member of EFÉ. Profiles entered in the System may not be compared with profiles that are not entered in the System except in accordance with sections 96 and 97 which concern international cooperation.


III. Sample Collection


Taking of bodily samples from persons in custody of Garda Síochána

Section 9 provides that a sample or samples may be taken from a person who is detained under any of the existing Garda Síochána detention powers: section 30 of the Offences Against the State Act 1939, section 4 of the Criminal Justice Act 1984, section 2 of the Criminal Justice (Drug Trafficking) Act 1996, and section 50 of the Criminal Justice Act 2007. Samples may also be taken where a person is detained under any of these powers on the basis of a rearrest warrant issued under section 30A of the 1939 Act, section 10 of the 1984 Act, section 4 of the 1996 Act and section 51 of the 2007 Act. Linking the power to take samples with the detention powers means that in general the offence threshold for the taking of a sample is a maximum sentence of imprisonment of 5 years or more subject to limited exceptions in the case of the Offences Against the State Act 1939 and the Criminal Justice (Drug Trafficking) Act 1996 which contain a small number of offences which do not meet the 5 year threshold.

A sample or samples may be taken from a person in prison who is arrested by the Garda Síochána under section 42 of the Criminal Justice Act 1999 for the purposes of the investigation of an offence other than the offence in respect of which he or she is in prison and who is detained pursuant to section 4 of the 1984 Act.

The three categories of samples that may be taken are specified: a sample under section 11 of the Bill i.e. a sample for the purpose of the generation of a DNA profile in respect of the person for entry in the DNA Database System which is to be established under section 56 and intimate and non-intimate samples under sections 12 and 13 for the purpose of proving or disproving the involvement of the person in the offence in respect of which he or she is detained i.e. for evidential purposes.

Section 10 provides that it is the responsibility of the member in charge of the Garda station in which a person is detained under any of the Garda detention powers listed in section 9(a) through (d) to determine whether that person is a protected person. This determination is required because Part 2 of the Bill provides additional safeguards in respect of detained persons who are protected persons. ‘‘Member in charge’’ is defined in section 2 and refers to the member in charge appointed under the Criminal Justice Act 1984 (Treatment in Custody) Regulations 1987. In the event that the taking of an intimate sample is authorised under section 12 the opinion of the member in charge that the person is a protected person must be certified by a medical practitioner.

Section 11 permits a member of the Garda Síochána to take a sample from a detained person for the purpose of generating a DNA profile for entry in the reference index of the DNA Database System— the sample is not taken for evidential purposes. A member not below the rank of sergeant must authorise the taking of the sample. Notwithstanding that the consent of the person to the taking of the sample is not required the person is to be informed of various matters before the sample is taken, including (where applicable) that reasonable force may be used in the event that he or she fails or refuses to allow the sample to be taken. Protected persons and children under 14 years of age are excluded from the application of this section. The Minister, by order, shall exclude certain offences from the scope of this section because their nature is such that evidence relating to DNA would not assist with their investigation or prosecution. As regards the application of this section to children who are 14 years or older the Minister is required to review this within 7 years of the commencement of the section and may, having regard to the outcome of the review, vary the application of the section to such children.

Section 12 concerns the taking of an intimate sample from a detained person for the purposes of the investigation of the offence in respect of which the person is detained and for evidential purposes in any proceedings. If the sample taken is one which may be used to generate a DNA profile in respect of the person then the sample may also be used for the purpose of the DNA Database System. A sample of this type may only be taken if a member of the Garda Síochána not below the rank of inspector has authorised it and the appropriate written consent has been given by the detained person concerned. Before giving the necessary authorisation the member must be satisfied that there are reasonable grounds for suspecting the involvement of the person in the offence in respect of which the person concerned is detained and for believing that the sample will tend to confirm or disprove the involvement of the person in the offence. Before the detained person is requested to consent he or she must be informed of various matters including the consequences of not consenting which are detailed in section 19.

Section 13 concerns the taking of a non-intimate sample from a detained person for the purposes of the investigation of the offence in respect of which the person is detained and for evidential purposes in any proceedings. If the sample taken is one which may be used to generate a DNA profile in respect of the person then the sample may also be used for the purpose of the DNA Database System. A sample of this type may only be taken if a member of the Garda Síochána not below the rank of inspector has authorised it. Unlike in the case of intimate samples under section 12 the consent of the person concerned is not required. Before giving the necessary authorisation the member must be satisfied that there are reasonable grounds for suspecting the involvement of the person in the offence in respect of which the person concerned is detained and for believing that the sample will tend to confirm or disprove the involvement of that person in the offence. Notwithstanding that the person’s consent is not required he or she is to be informed of various matters before the sample is taken including that reasonable force may be used in the event that he or she fails or refuses to allow the sample to be taken. Non-intimate samples are taken or caused to be taken by a member of the Garda Síochána.

Section 15 defines the meaning of the ‘‘appropriate consent’’ which is required under section 12 before an intimate sample may be taken. In the case of an adult (i.e. a person aged 18 years or older other than a protected person) his or her consent is required. In the case of a protected person the consent of his or her parent or guardian or an order from a District Court judge under section 16 is required. In the case of a child aged 14 or older, the consent of the child and either a parent or guardian or an order from a District Court judge under section 17 is required. In the case of a child who is below the age of 14 the consent of his or her parent or guardian or an order from a District Court judge under section 17 is required. A parent or guardian may be excluded from giving consent in certain circumstances; namely where he or she is the victim of the offence, has been arrested in respect of the offence or the member in charge has reasonable grounds for suspecting that the parent or guardian is complicit in the offence concerned or is likely to obstruct the course of justice. The exclusion of one parent or guardian on one of these grounds does not prevent another parent or guardian from being asked to give consent. Before consent is sought from a parent or guardian he or she must be given the information that is required to be given to the detained person under section 12.

Sections 16 and 17 concern protected persons and children respectively and provide that in certain circumstances a member of the Garda Síochána not below the rank of inspector may apply to a District Court judge for an order to take an intimate sample from a protected person or child. The circumstances in which such an application may be made are where a parent or guardian: cannot be contacted despite reasonable efforts; has been contacted but indicates that he or she cannot or will not attend at the Garda station within a reasonable period of time; is excluded from giving consent under section 15; refuses to give consent in the case of a protected person or in the case of child where the child’s consent is not required (those under 14 years), or where the consent of the child is required (those aged 14 years or older) where the child has consented; or the protected person or child does not have, or it cannot be ascertained, within a reasonable period of time that he or she has a living parent or guardian from whom consent may be sought.

Section 19 concerns the consequences that may follow a refusal to consent to the taking of an intimate sample. A refusal to consent without reasonable cause may give rise to an adverse inference being drawn in subsequent criminal proceedings. Such an adverse inference may be treated as corroborating any evidence to which it is relevant — it may not be the sole or main basis of a conviction. The adverse inference may not be drawn if certain steps have not been followed. The steps are that the person was told in ordinary language that a failure to consent could give rise to such an inference being drawn, that he or he was given a reasonable opportunity to consult a solicitor before refusing consent and that the request for consent was video-recorded or the person consented in writing to it not being so recorded. This section does not apply to: a protected person, a child who is under 14 years, or a child who is 14 years or older who gave the necessary consent but whose parent or guardian refused consent unless the child refuses to comply with a District Court order under section 17 authorising the taking of the sample.

Section 20 concerns the circumstances in which a sample taken for the purposes of the DNA Database System under section 11 may be treated as a non-intimate sample taken under section 13 for evidential purposes. This may occur where during the same period of detention a sample has been taken under section 11 and a decision is subsequently made that a non-intimate sample under section 13 is required for the purposes of the investigation at hand i.e. to prove or disprove the person’s involvement in the offence in connection with which he or she is detained. Before a section 11 sample may be treated as a section 13 sample similar procedures that apply to the taking of a section 13 sample must be followed — a member not below the rank of inspector must authorise the change of use of the sample and the person must be informed of certain matters including that the result of forensic tests on the sample may be used in evidence.

Section 24 sets out the circumstances in which a section 11 or section 13 sample may be taken with the use of reasonable force. The use of force is not permitted to take section 11 samples from children or section 13 samples from children under 12 years. Force does not apply in the case of samples taken under section 12 i.e. intimate samples. Reasonable force must be authorised by a member of the Garda Síochána not below the rank of superintendent. The detained person must be informed in advance of the intention to use reasonable force and that the necessary authorisation has been given. The use of reasonable force must be observed by a member not below the rank of inspector who is to determine the number of members necessary. The taking of a sample with the use of reasonable force must be video-recorded. Special provisions apply in case of protected persons and children (where section 13 samples are required) — a person other than a member of the Garda Síochána must be present when force is being used to take a sample unless the protected person or child indicates that he or she does not wish to have the person present. The person may be the parent/guardian or adult relative or other adult reasonably named by the person who attends at the Garda or in their absence or exclusion under section 21 or 22 another adult nominated by the member in charge.


Taking of samples from volunteers to generate DNA profiles

Section 27 provides that a member of the Garda Síochána or an authorised person may request a person i.e. a volunteer to have a sample taken for the purpose of generating a DNA profile in respect of him or her in relation to the investigation of a particular offence or an incident that may involve the commission of an offence. This section does not apply to persons in the custody of the Garda Síochána or offenders who may be sampled under section 30 or 31. An authorised person refers to a person appointed in writing under section 104 by a member not below the rank of superintendent for the purposes of sections 39 and 40 and Parts 3 and 6. In the event that the DNA profile of a victim or a person reasonably considered to be a victim is required in relation to the investigation of an offence or incident this section applies i.e. he or she is to be treated as a volunteer. Before seeking the consent of a volunteer to the taking of a sample the member or authorised person must inform the volunteer of certain matters including that he or she is not obliged to provide the sample. The volunteer’s consent must be in writing.

In general profiles generated from samples taken from volunteers will not be entered in the DNA Database System — they will be retained for use in connection with the particular offence/incident only. Subsections (7) to (9) provide an exception to this general rule. A member not below the rank of sergeant may at the time that a sample is being taken under this section from a volunteer (or afterwards), inform the volunteer (other than a protected person, a child, or a victim or a person reasonably considered to be a victim) that he or she may consent to the entry of his or her profile in the reference index of the DNA Database System. This consent is a separate consent to the consent required to the taking of the sample in relation to a particular investigation or incident but must also be in writing. The person must be informed of certain matters before his or her profile may be entered in the reference index including that he or she is not obliged to consent to its entry, the effect of such entry and the rules governing the destruction of the sample and the removal of the profile from the System.

Section 28 sets out the circumstances in which a mass screening of a class of persons defined by certain characteristics may be conducted. It provides that a mass screening must be authorised by a member not below the rank of chief superintendent. In order to authorise a mass screening the member must have reasonable grounds for believing that the mass screening of the target class is likely to further the investigation of the offence and is a reasonable and proportionate measure to be taken in the investigation of that offence. A mass screening may only be conducted in respect of a relevant offence which is defined in section 2(1) as an offence in respect of which a person may be detained under any of the Garda detention powers listed in section 9(a)to(d) — generally offences which attract a maximum sentence of 5 years or more. The target class may be determined by sex, age, kinship, geographic area, time, or any other matter which the authorising member considers appropriate. A person who comes within the target class is a volunteer and therefore is not obliged to accede to a request to provide a sample. His or her written consent is required. As is the case with all volunteers, he or she must be informed of certain matters before his or her consent is sought. A sample taken as part of a mass screening may not be used for the purposes of the DNA Database System — it is tested and retained for the purposes of the investigation of the relevant offence in respect of which it was taken.


Taking of samples from other persons or bodies for reference index of DNA Database System

Section 30 concerns adult offenders. It provides that a sample may be taken for the purpose of generating a DNA profile in respect of the person for entry in the reference index of the DNA Database System from offenders who: on commencement of the section are still subject to sentence in connection with a relevant offence, are sentenced after commencement (whether convicted before or after commencement) in respect of a relevant offence, are serving sentences of imprisonment in the State following transfer (whether before or after commencement of the section) under the Transfer of Sentenced Persons Act 1995 or the Transfer of Execution of Sentences Act 2005 in respect of an offence that corresponds to a relevant offence, and persons who (on or after commencement of the section) are subject to the notification requirements of Part 2 of the Sex Offenders Act 2001.

The sample is to be taken as soon as practicable after a person comes within one of the eligible categories and in any event before expiry of the sentence or the notification requirements. Where the offender is in prison the sample will be taken by a prison officer following authorisation by the prison governor (who may delegate his/her powers under section 107). Where the offender is not in prison the sample may be taken by a member of the Garda Síochána where an authorisation to do so has been given by a member not below the rank of sergeant and the offender attends at a station for that purpose pursuant to ‘‘a notice to attend’’ issued by a member not below the rank of inspector. Non-compliance with the notice to attend without reasonable cause may result in the offender being prosecuted summarily. The section specifies the information that is to be given to the offender by the prison officer or the member, as the case may be, before the sample is taken.

Section 31 concerns child offenders. For the purposes of this section ‘‘child’’ is not limited to persons under 18 years of age — a wider definition is required having regard to section 155(2) of the Children Act 2001 which allows certain offenders detained in children detention schools to remain for a period up to six months after attaining the age of 18 years. The section provides that a sample may be taken for the purpose of generating a DNA profile in respect of a child offender for entry in the reference index of the DNA Database System from children who: on commencement of the section are still subject to sentence in connection with a relevant offence, are sentenced to detention after commencement (whether convicted before or after commencement) in respect of a relevant offence, are serving sentences of detention in the State following transfer (whether before or after commencement of the section) under the Transfer of Sentenced Persons Act 1995 or the Transfer of Execution of Sentences Act 2005 in respect of an offence that corresponds to a relevant offence, and child offenders who (on or after commencement of the section) are subject to the notification requirements of Part 2 of the Sex Offenders Act 2001.

Section 32 contains the criteria that must be met before a person comes within the term ‘‘former offender’’. A former offender is a person who is no longer subject to a sentence for a relevant offence (or a corresponding offence in the case of convictions in other jurisdictions) or in the case of a sex offender, is no longer subject to notification requirements under the Sex Offenders Act 2001 (or corresponding requirements in the case of convictions in other jurisdictions). A person is not a former offender for the purpose of this section: if his /her DNA profile is already entered in the reference index of the DNA Database (in so far as that can be ascertained) and a member of the Garda Síochána or a judge of the District Court is not satisfied having regard to a range of specified factors that it is appropriate that a sample be taken under section 33; the person concerned is not ordinarily resident in the State or does not have his or her principal residence in the State; and a period of 10 years has elapsed since the expiry of the last sentence for a relevant offence of which the person was convicted or, in the case of a sex offender, since the end of the last notification period to which he or she was subject. Only certain convictions handed down when the person was a child are eligible for consideration — those triable by the Central Criminal Court and any other offences prescribed having regard to their nature and seriousness.

Section 33 sets out the procedures to apply in the case of former offenders. Where a member not below the rank of superintendent is satisfied that a person is a former offender and that it is in the interests of the protection of society and desirable for the purpose of assisting in the investigation of offences to have a sample taken from the person under this section the member may authorise the taking of the sample. Where such an authorisation has been given a member may request the former offender concerned to attend at the station for the purpose of having the sample taken. The person shall be put on notice that if he or she does not attend an ex parte application may be made to a District Court judge for an order authorising the sending of a notice to attend — failure to comply with which without reasonable cause is a summary offence. Should an application to a District Court judge be necessary it must be made by a member not below the rank of superintendent. In the event that the person is prosecuted for not complying with the court order it shall be a defence for him or her to show that he or she is not a former offender. Before a sample is taken under this section the former offender must be given certain information.

Section 34 allows a sample to be taken from the body of a deceased person for the purpose of generating a DNA profile in respect of the person to be entered in the reference index of the DNA Database System. The taking of such a sample must be authorised by a District Court judge on the application of a member not below the rank of superintendent. An application may be made where the member has reasonable grounds for suspecting that the person, prior to his or her death, has committed a relevant offence and that the taking of a sample will further the investigation of the offence concerned. The judge may make further orders in relation to entry, search and seizure on the application of the member in order to allow the order to take the sample to be executed. Samples under this section are to be taken by registered medical practitioners or any other prescribed persons. A profile entered in the reference index of the System in accordance with this section may be compared with the other profiles in that index and with the profiles contained in the crime scene index of the System in accordance with section 65(3). Once this exercise has been completed the profile is to be removed from the System and the sample destroyed unless the member in charge of the investigation of the offence concerned is satisfied that the sample and profile should be retained for the purposes of that investigation. This section does not authorise the exhumation of a body.

Section 35 sets out the circumstances in which reasonable force may be used to take samples under Part 4. Reasonable force may only be used to take samples under this Part where the person concerned is in prison, a children detention school or other place of detention. Reasonable force must be authorised by the governor of the prison/place of detention or the director of the children detention school. The person must be informed in advance of the intention to use reasonable force and that the necessary authorisation has been given. The use of reasonable force must be observed by the governor/director of the children detention school who is to determine the number of prison officers/staff of the children detention school that is reasonably necessary for the purposes of the section. The taking of a sample with the use of reasonable force must be video-recorded.


Taking of samples from persons or bodies for purposes of identification division of DNA Database System

Section 46 concerns missing persons, whether they went missing before or after commencement. It provides that a sample may be taken in relation to such a person from his or her clothing or other belongings or from his or her blood relatives for the purposes of the missing and unknown persons index of the DNA Database System. A sample may only be taken for the purposes of the Garda investigation of the disappearance of the person if the circumstances of the disappearance so require or following a natural or other disaster, one or more persons are missing. Authorisation is required at inspector level or above for the taking of the sample. The authorisation may only be given if the member giving it believes that the taking of the sample and the entry of the related DNA profile in the missing and unknown persons index of the DNA Database System may assist with finding or identifying the missing person. Before a sample may be taken from a blood relative his or her consent must be obtained in writing. Such a person is to be given certain information before the sample is taken. A sample, in the case of a blood relative, is restricted to a mouth swab or plucked head hairs (as set out in section 2(3)). A sample relating to a missing person that is in the possession of the Garda Síochána or EFÉ arising from the investigation into the disappearance of the person may be used for the purposes of this section.

Section 47 concerns persons who are seriously ill or severely injured and who, by reason of that illness or injury, cannot identify themselves. It provides that a sample (restricted to a mouth swab or plucked head hair) may be taken from such a person for the purposes of the missing and unknown persons index of the DNA Database System on the authorisation of the High Court. A court application may only be made where: a medical practitioner certifies that the person concerned is suffering from a serious illness or has sustained a severe injury by reason of which he or she is unable to identify him or herself and that inability is likely to endure for a prolonged period; and the person concerned (other than a child or a protected person) has been consulted with regard to the making of the application in so far as that is possible. A court application may be made by the Health Services Executive, the owner or manager of a hospital or nursing home or the Garda Commissioner. The matters of which the High Court has to be satisfied before making an order are specified. A sample taken under this section must be taken by a medical practitioner/nurse or any other prescribed person.

Section 48 concerns unknown deceased persons. It provides that a coroner to whom the death of the unknown deceased person is reportable may authorise the taking of a sample from the body of the person for the purposes of the missing and unknown persons index of the DNA Database System where he or she has reason to believe that such a course of action may assist with identifying the person. The coroner is to inform the superintendent of the Garda district in which the unknown deceased person was located of the giving of the authorisation. A sample taken under this section must be taken by a medical practitioner or any other prescribed person. A sample taken from the body of the unknown deceased person already in the possession of the coroner may be used for the purposes of this section.


Removal Criteria and Sample Retention

Section 72 defines who constitutes an applicant for the purposes of section 74 (i.e. who may apply to the Commissioner for the destruction of his or her sample and removal of a profile (if any) from the System. Subject to certain qualifications an applicant is a person who: was not proceeded against, or if proceeded against was acquitted or the proceedings were dismissed or discontinued; who is subject to an order under section 1 of the Probation of Offenders Act 1907; or whose conviction was quashed or declared to be a miscarriage of justice. In the case of a person who was not proceeded against a period of 12 months must elapse between the taking of the sample concerned and the application. Furthermore the failure to institute proceedings must not be due to the fact that the person absconded or could not be located.

Section 73 provides that in exceptional circumstances a person against whom proceedings have not been brought does not have to wait for the usual period of 12 months to elapse before making an application under section 74 to the Commissioner. Subsection (2) is illustrative of what constitutes exceptional circumstances.

Section 74 provides that an applicant (within the meaning of section 72) may apply in writing to the Commissioner to have his or her sample destroyed and any profile removed from the System. The Commissioner must determine the application within 12 weeks and provide written reasons. In determining the application the Commissioner must be satisfied that the person is ‘‘an applicant’’ and have regard, in particular to a range of specified matters. The Commissioner may grant the application in full or in part. Where the Commissioner does not grant the application in full or does not make a determination within the 12 weeks the applicant may appeal to the District Court. The appeal is to be on notice and shall be heard in private.

Section 75 concerns former offenders. It provides that a person from whom a sample was taken under section 33 may apply to the Commissioner for the destruction of that sample/removal of that profile in the event that any conviction to which regard was had when making a determination as to whether he or she was a former offender under section 32 has been quashed or declared to be a miscarriage of justice.

Section 76, subject to certain qualifications, applies a default destruction period of 3 years to samples taken under section 11, 30, 31, or 33 i.e. samples taken under Parts 2 and 4 for the purposes of the DNA Database System.

Section 77 subject to certain qualifications, applies a default destruction period of 3 years to samples taken under sections 12 and 13 (intimate and non-intimate samples for evidential purposes). The circumstances in which this section applies include where the person was not proceeded against within the default destruction period, or if proceeded against was acquitted or the proceedings were dismissed or discontinued or who is subject to an order under section 1 of the Probation of Offenders Act 1907.

Section 78 subject to certain qualifications, applies default removal periods of 10 years for adults and 5 years for children and protected persons in the case of DNA profiles entered in the System. The circumstances in which this section applies include where the person was not proceeded against within the relevant default removal period, or if proceeded against was acquitted or the proceedings were dismissed or discontinued or who is subject to an order under section 1 of the Probation of Offenders Act 1907.

Section 79 makes an exception to the indefinite retention arrangements applicable to the DNA profiles of convicted persons entered in the System. The exception applies in the case of child offenders (other than those convicted of offences triable by the Central Criminal Court or prescribed by the Minister having regard to their nature and seriousness). A default removal period of 10 years applies subject to certain qualifications such as the child offender not being convicted of an offence within the default period.

Section 80 specifies the circumstances in which a person who would otherwise come within the meaning of ‘‘applicant’’ in section 72 is excluded and in which the default removal periods in sections 78 and 79 do not apply. The circumstances are: the fact that the person was not proceeded against for an offence other than the offence in connection with which the sample was taken was due to the fact that he or she absconded or could not be located; proceedings for another offence have been instituted against the person and he or she has not been acquitted or the proceedings have not been dismissed or discontinued; the person has been convicted of another offence and that conviction has not been quashed or declared to be a miscarriage of justice.

Section 81 deals with the application of the time periods under section 72 and 78 where an opportunity to take a sample from a person arose during the relevant period but was not taken (e.g. where the person was arrested and detained but a sample was not taken because his or her profile was already on the System). Where this is the case the date on which the subsequent sample could have been taken is deemed to be the date on which the first sample was taken i.e. the clock is re-started.

Section 82 concerns the destruction/removal arrangements for Part 3 (volunteers). A volunteer (or in the case of a child or protected person the person who gave consent) may request the destruction of his or her sample and any profile by notice in writing to the Commissioner. Pursuant to the request the sample/profile is to be destroyed within 2 months subject to section 88. If a sample/profile has not been destroyed previously it is to be destroyed within 2 months of the completion of the investigation or any proceedings in connection with the offence in respect of which it was taken. Where a volunteer consented to the entry of his or her profile in the DNA Database System a request for destruction is to be construed as including a request for removal. In such a case the Commissioner may request the volunteer to agree to his or her profile being removed from the System but retained in connection with the particular investigation in respect of which it was taken. The written consent of the volunteer is required to such a request.

Section 86 sets out the destruction arrangements to apply to a sample taken under section 43 or 44. In general once the necessary comparison between the profile generated from the sample taken under either of those sections with the crime scene sample concerned has been completed the sample and profile are to be destroyed as soon as practicable. An exception may be made where the Commissioner, or the Director, as the case may be, is satisfied that there is good reason relating to the investigation of a particular offence why the sample/profile should be retained. If such is the case the sample/profile is to be destroyed not more than 2 months after the completion of the investigation or any proceedings, which ever is the later.

Section 87 concerns the destruction of samples/profiles relating to Part 6 (identification). A blood relative of a missing person (or in the case of a child or protected person the person who gave consent) may request the destruction of his or her sample and the removal of the profile by notice in writing to the Commissioner. Pursuant to the request the sample/profile is to be destroyed within 2 months. A sample/profile taken from a blood relative (if not previously destroyed) or relating to the missing person is to be destroyed and the profile removed within 2 months of the missing person having been located or identified. Similar arrangements apply in the case of samples taken from unknown persons (living or deceased). Certain qualifications apply in all cases. The section does not authorise the destruction of a sample or the removal of a profile where it is required for the purposes of: an investigation into the disappearance of a missing person or into how the unknown living person became ill or was injured or the unknown deceased person died; or an inquest.

Section 88 provides that the Commissioner may apply to a District Court judge to retain a sample beyond the default destruction periods or a profile beyond the default removal periods (in sections 76, 77, 78 or 79) where there is good reason to do so. A member not below the rank of superintendent may make an application to a District Court judge to retain a sample/profile taken from a volunteer under section 27 or 28 where there is good reason relating to the investigation of the particular offence in respect of which it was taken.

An application is to be on notice. The hearing is to be in private. An order may not be made unless the person concerned, where he or she applies to be heard, has been given a reasonable opportunity to be heard.

Section 91 provides that the Minister may by order alter (in the main by deceasing) the default destruction periods and default removal periods specified in this Part having regard to a review conducted under section 90. Section 92 provides that where a sample is to be destroyed or a profile is to be removed the Commissioner shall request or cause to be requested EFÉ to carry out the necessary actions. Section 93 specifies the circumstances in which a person is to be notified of the destruction of a sample or the removal of a profile from the System. Section 94 provides that the references in this Part to the Commissioner, for the purposes of the application of this Part, shall be construed as references to the Ombudsman Commission.




  1. Key definitions in subsection (1) include: ‘‘EFÉ’’, ‘‘DNA profile’’, ‘‘intimate sample’’, ‘‘non-intimate sample’’, ‘‘match’’, ‘‘protected person’’. ‘‘EFÉ’’ refers to Eolaíocht Fhóiréinseach Éireann — the new name for the Forensic Science Laboratory of the Department of Justice, Equality and Law Reform. ‘‘DNA profile’’ in relation to a person is confined to information derived from the non-coding part of DNA which refers to the chromosome regions of a person’s DNA that are not known to provide any functional properties of the person. ‘‘intimate sample’’ refers to: a sample of blood, pubic hair or urine; a swab from a genital region or a body orifice (other than the mouth), or a dental impression. ‘‘non-intimate sample’’ refers to: a sample of saliva, hair other than pubic hair or a nail or any material found under the nail; a swab from any part of the body including the mouth but not from any other body orifice or a genital region; or a skin impression (such as a foot print). Subsection (4) provides that references to the mouth are to be interpreted as including references to the inside of the mouth. ‘‘match’’ refers to the relationship between two DNA profiles and ‘‘means that there is such a degree of correspondence between them that they are indistinguishable and it is probable that they relate to the same person, and the degree of probability can be indicated statistically.’’ ‘‘protected person’’ refers to a person (including a child) who by reason of a mental or physical disability lacks the capacity to understand the general nature and effect of the taking of a sample from him or her, or to indicate (by speech, sign language or any other means of communication) whether he or she consents to a sample being taken from him or her. Subsection (2) excludes intoxication whether by alcohol, drugs or other substances from the meaning of ‘‘mental or physical disability’’. Subsection (7) provides that the fact that a person is regarded as a protected person for the purposes of the Bill does not have any bearing on whether he or she lacks capacity for other purposes.