There are provisions for the taking of samples in connection with investigations. Reasonable force may be used to take samples if the person is imprisoned, in a child detention centre or other place of detention. It must be authorised by the governor or person in charge of the place of detention.
There are provisions to deal with where a mass screen of a class of persons may be conducted. Samples that may be taken in this context are limited to mouth swabs or head hair.
A member of An Garda Síochána or an authorised person may request a person voluntarily to give a sample for the purpose of generating a DNA profile in relation to the investigation of particular offences or incidents that may involve offences. It does not apply to persons in custody or offenders who have been sampled under other parts of legislation. An authorised person is a person authorised in writing by a member, not below the rank of Chief Superintendent.
Before seeking consent of a volunteer, for the taking of a sample, the authorised person or member must inform the volunteer of certain matters including that he is not obliged to provide a sample. Consent must be in writing. If it is withdrawn, before taking, it is treated as a refusal. The refusal must be recorded in writing.
The refusal of consent is not by itself reasonable cause to suspect the person of having committed the offence concerned for the purpose of arrest and detention or any other powers of detention.
Entry onto DNA Register
Entry of samples taken into the DNA System will not be routine. They must be subject to the consent of the volunteer. This is a separate consent, to that of taking the sample.
A member of Garda Síochána not below the rank of Sergeant may at the time a sample is being taken from a volunteer (who is not a child or protected person) request the consent to entry. He must be informed of certain matters before his profile may be entered including that he is not obliged to so consent, the effect of such entry and rules regarding destruction of the sample.
There is provision for a mass screening of a class of persons defined by characteristics. This must be authorised by a member of the rank of Chief Superintendent or above. He must have reasonable grounds for believing that the mass screening of the target group is likely to further the investigation of the offence and is a reasonable and proportionate measure in the investigation of the offence.
The mass screening may only be conducted in relation to arrestable offences i.e. those carrying a maximum sentence of five years or more. The target category may be marked by sex, age, kinship, geographic area, time or other matters as are appropriate to the circumstances. A person who comes within the target class is a volunteer and is not obliged to agree to the request to provide a sample. His written consent is required.
Volunteers, they must be given information similar to that required in other circumstances under the legislation. Persons whose samples are part of a mass screening may not be used for the purpose of the DNA Database System. It must be tested and retained for the purpose of the investigation. Refusal of consent is not grounds for suspicion in itself for the purpose of powers of arrest.
There is provision for the taking of samples from offenders and former offenders and from bodies of deceased persons, where there is suspected to be an offence. These are limited to mouth swabs and head hair in the case of persons. Hair may be used to generate a DNA profile in relation to deceased persons
Samples from Offenders
Samples may be taken for the purpose of generating a DNA profile for entry onto the DNA System from offenders who are subject to sentence in connection with a relevant offence or are serving sentences of imprisonment following transfer from another State in respect of a corresponding offence.
The sample must be taken as soon as practicable, when a person comes within the relevant category. It may be taken by a prison officer following authorisation by the prison governor. Where the person is not in custody, it may be taken by a member of Garda Síochána after authorisation. A person may be required pursuant to a notice to attend. Non-compliance is an offense. Samples may be required from offenders subject to registration under the Sex Offenders Act.
There are specific provisions in respect of child offenders under 18. A sample may be taken for the purpose of generating a DNA profile for entry in the DNA database. They apply to children who are sentenced to detention, sentenced afterwards or transferred and offenders subject to registration under the Sex Offenders Act.
The sample is to be taken as soon as possible after the child comes within the relevant category. There is provision for authorisations and for where a child is not in detention. Similar requirements for notices to attend apply in the same way as in respect of an adult offenders.
There are provisions in relation to the manner in which former offenders may be required to provide samples for the purpose of generating a DNA profile for entry in the DNA Database System. A former offender is a person who is no longer subject to sentence or in the case of a sex offender, no longer subject to the notification obligations in the Sex Offenders Act.
A former offender is one who would have been subject to the requirements had they been in force when he was convicted etc. A person is deemed not a former offender, unless his DNA profile is not already entered on the index of the DNA database and a senior member of An Garda Síochána or a judge of the District Court is satisfied, aving regard to a range of its factors, that it is appropriate for a sample to be taken.
if the person is not ordinarily resident and does not have his principal place of residence in the state
a period of 10 years has elapsed since the expiry of the last sentence for a relevant offence or termination of notification, obligations as a sex offender.
Where a member of An Garda Síochána above the rank of Superintendent is satisfied in relation to a former offender that it is in the interest of the protection of society and desirable for the purpose of assisting in the investigation of offences, do have a sample taken from the person, he may authorise the taking.
Where it is given, a member may request the former offender to attend at a station. The person is put on notice that if he does not attend, an application may be made for an order for his arrest without further notice. Failure to comply is a criminal offence. An application may be made to the District Court by a member not below the rank of Superintendent.
A sample may be taken from the body of a deceased person for the purpose of generating a DNA profile for entry onto the database. There must be reasonable grounds for suspecting that the person has committed a relevant offence prior to his death and that the taking of the sample will further the investigation. It must be authorised by a District Court judge.
The sample is to be taken by a registered medical practitioner or other prescribed persons. The profile entered may be compared with other profiles in the index and profiles contained in the crimes scene index. Once the exercise has been completed, the profile must be removed from the system and the sample destroyed unless the member in charge is satisfied that it should be retained for the purpose of that investigation. Exhumation is not authorised under this provision.
Use of Force
Reasonable force may be used under the mandatory provisions for the purpose of taking samples. This may occur where a person is in prison, children’s detention school or other place of detention. It must be authorised by the governor or the director of the detention centre.
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 force must be authorised by the governor or director. The taking of the sample with the use of reasonable force must be recorded by electronic means.
There are provisions where samples taken may be required to be retaken where they are insufficient. There are different provisions, where the insufficiency becomes apparent within one hour or later in the case of persons within prisons or places of detention. Fresh authorisation is otherwise required.
In the case of persons who are not imprisoned, or in detention, etc. an authorisation may be given for resampling.
Part 5 of the Act allows for taking of samples from persons who are at risk of inadvertently contaminating crime scenes in the course of their duties and for entry of their DNA profiles onto the register in one of the three elimination indexes of the Database System.
It provides for taking of samples from members of An Garda Síochána and the Garda Síochána Ombudsmen Commission and civilians involved in crime scene investigation. There are procedures for taking samples. Different provisions apply for those personnel employed at the commencement of the legilsaiton and those later employed.
There is provision for prescribing of categories of persons who are in risk of contaminating crime scenes. The Minister may prescribe persons including members of State Pathologist Office, Ombudsmen’s Commission and other persons as he considers appropriate.
Tracing Missing Persons
Part 6 provides for the taking of samples in relation to missing persons, from seriously ill or severely injured persons who are unable to identify themselves and from unknown deceased persons for the purpose of entry on the DNA profiles in the missing and unknown persons index of the DNA Database System.
A sample may be taken in relation to a person from clothing or belongings of a missing person or blood relative for the purpose of the DNA Database System. It may be taken if a member of an Garda Síochána of the rank of Inspector or above, is satisfied that the circumstances of the disappearance so require or that following natural or other disaster, one or more persons are missing.
Authorisation is required by the Inspector for taking of the sample. The authorisation may only be given if the officer believes that the taking of the sample and the entry of the related DNA profile in the missing and unknown persons index of DNA database may assist in finding or identifying the missing person.
The blood relative must consent. They must be given certain information. They may withdraw the consent.A sample is limited to a mouth swab or plucked head hair.
There are provisions for taking samples from persons who are seriously ill or injured who cannot identify themselves. High Court authorisation is required. A medical practitioner must certify that the person is so suffering and is unable to identify himself and this is likely to endure for a prolonged period.
In the case of unknown deceased persons, a coroner to whom the death is reportable may authorise the taking of the sample for the purpose of the missing and unknown persons index on the DNA Database System where he or she has reason tto believe hat such course of action may assist in identifying the person.
The above provisions are not intended to limit any other enactment relating to the exercise of the powers and functions of An Garda Síochána.
There are special provisions for taking samples from protected persons, i.e., vulnerable persons and children and in the case of missing and unknown persons. In the case of children and protected persons, the explanation must be given in language, which they can understand.
In the case of children or protected persons, the consent of another, usually a parent or guardian in the case of children, is required. Where the consent of relevant persons cannot be obtained, an order on foot of an application may be made by the District Court, authorising the taking of the sample. There are equivalent provisions in respect of protected persons.