The Criminal Justice (Forensic Evidence and DNA Database System) Act 2014 replaced existing statutory and common law principles regarding taking of samples for forensic testing in criminal investigations. It repealed the previous 1990 legislation.
The legislation provides for establishment of a database of DNA for use by the Garda Síochána in criminal investigations and to assist in finding missing and unknown persons. It provides for the taking of samples. It provides for management and oversight of the system.
The Act regulates taking of samples from persons who are neither suspects nor offenders in order to generate DNA profiles in connection with investigations.
DNA profile is information relating to a person derived from the non-coding part of the DNA, which refers to the chromosome regions of a person’s DNA that are not known to provide any functional properties of that person.
An intimate sample is a sample of blood, pubic hair or urine; a swab from a genital region or body orifice other than the mouth or a dental impression.A non-intimate sample is a sample of saliva, hair other than pubic hair or a nail or any material found under a nail; a swab from any part of the body orifice or a genital region or a skin impression including a foot print.
A match means that there is a degree of correspondence between two samples, two profiles that they are indistinguishable and it is probable that they relate to the same person, with a degree of probability that can be demonstrated statistically.
A protected person means a child or person with mental or physical disability who lacks the capacity to understand, the nature and effect of taking a sample from her or him.
The types of sample that can be taken for the purpose of the DNA database system from a volunteer is restricted to hair other than pubic hair or a mouth swab. In the case of human remains, sample means a sample of biological material from the person from which a DNA profile may be generated. The process by which a sample of hair other than pubic hair may be taken is set out.
Types of Sample
Part 2 deals with taking of samples from persons in Garda custody as suspects. Samples may be taken by persons detained under various legislation, deal with detention and questioning of person for the purpose of investigation of offences. A sample may be taken from a person who has been arrested and detained in prison for the investigation of an offence other than that in respect of which he has been imprisoned.
The effect is that the power to take samples is linked to arrestable offences i.e. those providing for imprisonment for five years or more on conviction as a maximum sentence.
There are three types of samples that may be taken. A sample under section 11 is a sample for the purpose of generation of a DNA profile in relation to a person or entry into the DNA Data System. There is provision for intimate and non-intimate samples for the purpose of proving or disproving involvement in crime.
The member in charge of the Garda station where a person is being detained must determine whether the person is a protected person. Protected persons are entitled to additional safeguards. If an intimate sample is to be taken, the opinion that the person is a protected person must be certified by a medical practitioner.
Samples under Part 2 and 4 may be transmitted outside the State pursuant to a request under the Criminal Justice (Mutual Assistance) Act 2008 or from the International Criminal Court. DNA profiles generated from samples taken under the Act may be provided to Europol.
Samples taken for the DNA Database System may be treated as non-intimate samples for evidential purposes in certain circumstances. This may apply where during the same period of detention, a sample has been taken and a decision is subsequently made that a non-intimate sample is required for the purpose of investigation at hand. Before a DNA database sample may be treated as an evidential sample, similar procedures applicable to the evidential sample must apply.
Taking of Samples
A member of An Garda Síochána shall not take a body samples from a detained person other than in accordance with the legislation. This abolishes common law powers to do so.
A member of the Garda Síochána may take a sample from a detained person for the purpose of generating a DNA profile for entry into the DNA Database System. This is for the purpose of evidence. The decision must be authorised by a member of an Garda Siochana, not below the rank of Sergeant.
Although the person’s consent to the taking of the sample is not required, he must be informed of certain matters before the sample is taken. He must be warned that reasonable force may be used in the event that he or she fails to allow the sample. The Minister may exclude certain offences from this provision where the evidence of this nature is not relevant.
There are provisions in respect of the application or non-application of the provision to young persons under 14 and protected persons.
Registered medical practitioners or nurses authorised to take intimate samples, in the case of dental impressions, registered dentists may take them. Intimate samples are insofar as practicable to be taken by a person of the same sex as the person from whom the sample is taken.
An intimate sample from a detained person may only be taken if a member of an Garda Síochána not below the rank of Inspector has authorised it and given the appropriate written consent and the appropriate written consent has been given by the detained person.
The sample may be used for the DNA database. Before giving authorisation, the member must be satisfied there are reasonable grounds for suspecting that the involvement of the person detained in the relevant offence and for believing the sample will tend to prove or disprove involvement.
Before the detained person is requested to consent, he must be informed of certain matters, including the consequence of not consenting. If consent is given, but withdrawn, there is a refusal and the below mentioned provisions apply:the withdrawal must be recorded in writing. The withdrawal must take place before a sample is taken.
In the case of a non-intimate sample taken from a detained person for the purpose of investigation, the offence for which he is detained and for evidential purposes, the sample may be taken if a member of An Garda Síochána not below the rank of Inspector authorises it.
The consent of the person concerned is not required. The member must be satisfied that there are reasonable grounds for suspecting the involvement of the person in the offence concerned or for believing the sample would tend to prove or disprove the involvement of the person in the offence.
Although the consent is not required, the person must be informed of various matters including that reasonable force may be used in the event the person does not co-operate.
Consequences of Refusal
There is provision for the consequence of a refusal of consent to a sample. Refusal without reasonable cause may give rise to an adverse inference in subsequent criminal proceeding. This may be taken as corroborating evidence but may not be the main or sole basis of conviction.
The adverse inferences will only apply if certain steps are taken. The person must be told in ordinary language that a failure to consent or withdrawal of consent could give rise to an inference that he is being given the opportunity to consult a solicitor before refusing and the request was recorded by electronic means or the person consented in writing to it not being so recorded.
The provisions do not apply to protected persons, i.e. children under 18, unless the requisite parental consent is given or District Court order is made.
Children & Vulnerable Persons
Information must be given to children and protected persons in a manner which is appropriate to their level of understanding. The consent required to an intimate sample referred to above refers to the consent of an adult. In the case of a protected person or minor or a child under 14, the consent of the child and either parent or guardian or order of a District Court suffices.
In the case of someone below 14, the consent of a parent or guardian or order of the District Court is required. In the case of child over 14, the consent of the child and the guardian or District Court order is required.
There are provisions for where consent of a parent and guardian is not required due it being inappropriate including in particular where the parent or guardian is complicit in an offence or may obstruct the course of justice.
There is provision for application to the District Court by a person not below the rank of Inspector, for an order to take an intimate sample from a protected person or child. This may arise where the parent or guardian cannot be contacted or will not give attend at a Garda station within the reasonable time or where the parent or guardian’s consent is excluded as above or where parents or guardians cannot be ascertained within a reasonable time.
The court is to have regard to certain matters, including the best interest of the persons concerned, the nature of the offence, the reasons for parents, guardians’ refusal of consent. A parent or guardian must be given a reasonable opportunity to be heard.
Taking of Samples Children & Protected
There are detailed provisions regarding taking intimate samples from protected persons and children. A person other than a member of An Garda Síochána must be present unless the protected person indicates that they do not wish to have the person present. The person may be the parent or guardian or other adult nominated by the member in charge.
The person must be of the same sex, insofar as practicable. They must be suitable, by reason of training or experience with persons who have physical or mental disabilities.
Non-intimate samples, where reasonably practicable would be taken in the presence of a parent or guardian who attends the Garda station, unless the person indicates she does not wish the person to be present. The parent, guardian etc. would be excluded or various grounds, where, for example, they are complicit in an offence or have been a victim of an offence or are likely to obstruct the course of justice. They may be removed if they attempt to obstruct.
The member in charge of Garda station is obliged to inform the protected person that he is entitled to have an adult relative or other adult reasonably named by him. The person is to be notified as soon as practicable.
Use of Force
The use of force is not permitted to take a non-intimate samples from children under 12. The question of force does not arise in relation to intimate samples.
Reasonable force must be authorised by a member of An 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 sample by the reasonable force, must be recorded by electronic means.
There are special provisions applicable to protected persons and children. A person other than a member of An Garda Síochána must be present when force is being used to take a sample from a protected person or a child, unless they indicate they do not wish to have the person present. The person may be a parent, guardian, or adult relative or other person reasonably named.
There are provisions as to when a sample, which is insufficient, may be retaken. There are different procedures, depending on whether the insufficiency becomes apparent when the person is in detention or after release.
Where the person is still in detention and the insufficiency becomes apparent within one hour, after an hour the sample may be retaken only if a fresh authorisation is given.
Where in the case of evidential samples, where the insufficiency becomes apparent after the person has been released without charge, the sample may only be retaken and member not below the rank of Superintendent authorises it and the person attends with Garda Síochána for the purpose of it being taken.
The necessary authorisation may be given only if a member has reasonable grounds for suspecting the involvement of the person in the offence concerned and the sample will tend to prove or disprove his involvement. The authorisation may be given once only and is not for not more than six months since the taking of the first sample has elapsed.
Where the necessary authorisation is given, the person must attend the Garda station for the purpose of having the sample taken. If he fails or refuses to do so without reasonable cause, a member not below the rank of Superintendent may apply for a warrant for his arrest and detention for the purpose of taking the sample. Detention figured this maximum of four hours.
The Criminal Justice Forensic Evidence Act 1990 was passed to authorize the taking of bodily samples for forensic testing from person suspected of certain criminal offences. It was repealed by the 2014 Act.
Where a person is in custody under any of the lawful parts of detention, e.g., Criminal Justice Act 1984, offences against state act, drug trafficking act, a member from Garda Síochána may cause to be taken for the purpose of forensic testing or any of the following samples.
- Pubic hair;
- Nail or material under the nail.
- Swab from any part of the body including the mouth;
- Swab from a bodily orifice other than the mouth or genital region;
- A dental impression;
- A foot print or similar impression;
The power is only exercisable where the sample is taken in connection with an offence other than that in respect of which the person is imprisoned or in a sense of which he could be convicted on indictment alleging that offence and where the sample is for the purpose of investigation a scheduled offence under the offences against state act.
An arrestable offence i.e., one baring imprisonment of five years upwards or drug trafficking offences. A sample may only be taken if it is authorized by a member of Garda Síochána not below the rank of superintendent and in the case of certain sensitive samples; certain consents in writing have been given.
Procedures; Pre-2014 Act
The authorization to take the sample must only be given where the Garda Síochána have reasonable ground for suspecting the involvement of the person from whom the sample is to be taken when the commission of the relevant offense and there is ground for believing that the sample will tend to so confirm or disprove the involvement of the person from which the sample is to be taken in the said offence.
Before taking or causing the sample to be taken, or taking a prior consent is required. The member must inform the person concerned of the nature of the suspected offence, that the requisite authorization above has been given and that the result of the test maybe used in evidence in any proceeding.
Certain samples may only be taken by registered medical practitioners on the case of dental impressions by a dental practitioner.
Where hair sample, where the pubic hair is taken, the sample maybe taken by plucking hairs from the roots provided that no more hair than is reasonably necessary, should be taken.
It is an offence to obstruct or tend to obstruct a member of Garda Síochána or the person exercising powers under the legislation subject to conviction on summary proceedings or fine of €3,000 or up to 12 months imprisonment or both.
In the case of type of samples that require consent, the consent is of the person and in the case of persons under 17 that of the parent or guardian. Where consent is refused that reason will cause in proceedings the court may in determining the matter draw such influences if any from the refusal as appear proper.
The refusal may on the basis of such influences be treated as being capable of amounting to corroboration of any evidence in relation to which the refusal is material. A person may not, however, be convicted on the basis, solely of an influence drawn from the refusal.
The above provision only applies if the Garda Síochána has warned the person in ordinary language of the consequences of refusal when seeking consent.
Retention of Records Pre-2014 Act
There are provisions for destruction of records and samples when matters have been disposed off. Where proceedings have been instituted and the person has been acquitted or discontinued samples must be destroyed after a further 21 days.
Where proceedings are not instituted within 12 months of taking the sample and the failure is not due to the person having absconded or not been found, the records are to be destroyed unless an order is given to the contrary.
Where a person is subject to a probation order samples and records relating to it are to be destroyed after three years provided he is not convicted of an arrestable offence in the meantime.
The records may be retained if there is good reason to do so and the court so consents on application made to it.
The Minister for Justice has power to make regulations regarding the taking of samplings, superintendent authorization, keeping of record, keeping of samples under the relevant matter.