No. 34/1990:

CRIMINAL JUSTICE (FORENSIC EVIDENCE) ACT, 1990

ARRANGEMENT OF SECTIONS

Section

1. Interpretation.

2. Power to take bodily samples.

3. Inferences from refusal to consent to taking a sample.

4. Destruction of records and samples.

5. Regulations regarding taking of samples.

6. Repeals.

7. Expenses.

8. Short title and commencement.

ACTS REFERRED TO

Number 34 of 1990

CRIMINAL JUSTICE (FORENSIC EVIDENCE) ACT, 1990

AN ACT TO AMEND AND EXTEND THE LAW TO AUTHORISE THE TAKING OF BODILY SAMPLES FOR FORENSIC TESTING FROM PERSONS SUSPECTED OF CERTAIN CRIMINAL OFFENCES.

[24th December, 1990]

BE IT ENACTED BY THE OIREACHTAS AS FOLLOWS:

1.—In this Act

"appropriate consent" has the meaning assigned to it by section 2 (10) of this Act;

"the Minister" means the Minister for Justice;

"prescribed" means prescribed by regulations made by the Minister under section 5 of this Act;

"prison" means any place for which rules or regulations may be made under the Prisons Acts, 1826 to 1980, or section 13 of the Criminal Justice Act, 1960 ;

"registered dentist" means a person whose name is entered for the time being on the Register of Dentists maintained under the Dentists Act, 1985 ;

"registered medical practitioner" has the meaning assigned to it by section 2 of the Medical Practitioners Act, 1978 ;

"samples" means the samples or other things referred to in section 2 (1) (a) to (e) of this Act.

2.—(1) Subject to the provisions of subsections (4) to (8) of this section, where a person is in custody under the provisions of section 30 of the Offences against the State Act, 1939 , or section 4 of the Criminal Justice Act, 1984 , a member of the Garda Síochána may take, or cause to be taken, from that person for the purpose of forensic testing all or any of the following samples, namely—

( a ) a sample of—

(i) blood,

(ii) pubic hair,

(iii) urine,.

(iv) saliva,

(v) hair other than pubic hair,

(vi) a nail,

(vii) any material found under a nail,

( b ) a swab from any part of the body other than a body orifice or a genital region,

( c ) a swab from a body orifice or a genital region,

( d ) a dental impression,

( e ) a footprint or similar impression of any part of the person's body other than a part of his hand or mouth.

(2) Subject to the provisions of subsections (3) to (8) of this section, where a person is in prison, a member of the Garda Síochána may take, or cause to be taken, from that person for the purpose of forensic testing all or any of the samples specified in subsection (1) of this section.

(3) The power conferred by subsection (2) of this section shall only be exercisable—

( a ) where the sample to be taken is required in connection with an offence other than the offence in respect of which the person is in prison or an offence of which he could be convicted on an indictment alleging that offence, and

( b ) where the sample to be taken is required in connection with an investigation in respect of the commission of an offence under the Offences against the State Act, 1939 , or an offence which is for the time being a scheduled offence for the purposes of Part V of that Act or an offence to which section 4 of the Criminal Justice Act, 1984 , applies.

(4) A sample may be taken under this section only if—

( a ) a member of the Garda Síochána not below the rank of superintendent authorises it to be taken, and

( b ) in the case of a sample mentioned in subparagraph (i), (ii), (iii) or (iv) of paragraph (a) of subsection (1) of this section, or in paragraph (c) or (d) of the said subsection (1), the appropriate consent has been given in writing.

(5) An authorisation to take a 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—

(i) in a case where the person is in custody, in the offence in respect of which he is in custody, or

(ii) in a case where the person is in prison, in the commission of an offence under the Offences against the State Act, 1939 , or an offence which is for the time being a scheduled offence for the purposes of Part V of that Act or an offence to which section 4 of the Criminal Justice Act, 1984 , applies,

and

( b ) for believing that the sample will tend to confirm or disprove the involvement of the person from whom the sample is to be taken in the said offence.

(6) Before a member of the Garda Síochána takes, or causes to be taken, a sample under subsection (1) of this section, or seeks the consent of the person from whom the sample is required to the taking of such a sample, the member shall inform the person—

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

( b ) that an authorisation has been given under subsection (4) (a) of this section and of the grounds on which it has been given, and

( c ) that the results of any tests on the sample may be given in evidence in any proceedings.

(7) An authorisation under subsection (4) (a) of this section may be given orally but, if it is given orally, it shall be confirmed in writing as soon as is practicable.

(8) A sample of a kind specified in subparagraph (i) or (ii) of paragraph (a) of subsection (1) of this section or in paragraph (c) of the said subsection (1) may be taken only by a registered medical practitioner and a dental impression may be taken only by a registered dentist or a registered medical practitioner.

(9) A person who obstructs or attempts to obstruct any member of the Garda Siochfina or any other person acting under the powers conferred by subsection (1) of this section shall be guilty of an offence and shall be liable on summary conviction to a fine not exceeding £1,000 or to imprisonment for a term not exceeding 12 months or to both.

(10) In this Act "appropriate consent" means—

( a ) in the case of a person who has attained the age of 17 years, the consent of that person,

( b ) in the case of a person who has not attained the age of 17 years but has attained the age of 14 years, the consent of that person and of a parent or guardian of that person, and

( c ) in the case of a person who has not attained the age of 14 years, the consent of a parent or guardian of that person.

(11) The powers conferred by this section are without prejudice to any other powers exercisable by a member of the Garda Síochána.

3.—(1) Where a consent required under section 2 of this Act is refused without good cause, in any proceedings against a person for an offence—

( a ) the court, in determining—

(i) whether to send forward that person for trial, or

(ii) whether there is a case to answer, and

( b ) the court (or, subject to the judge's directions, the jury), in determining whether that person is guilty of the offence charged (or of any other offence of which he could lawfully be convicted on that charge),

may draw such inferences, if any, from the refusal as appear proper; and the refusal may, on the basis of such inferences, be treated as, or as being capable of amounting to, corroboration of any evidence in relation to which the refusal is material, but a person shall not be convicted of an offence solely on an inference drawn from such refusal.

(2) The reference in subsection (1) of this section to evidence shall, in relation to the preliminary examination of a charge, be taken to include a statement of the evidence to be given by a witness at the trial.

(3) Subsection (1) of this section shall not have effect in relation to an accused unless he has been told in ordinary language by a member of the Garda Síochána when seeking his consent that the sample was required for the purpose of forensic testing, that his consent was necessary and, if his consent was not given, what the effect of a refusal by him of such consent could be.

(4) This section shall not apply—

( a ) to a person who has not attained the age of 14 years, or

( b ) in a case where an appropriate consent has been refused by a parent or guardian.

4.—(1) Subject to subsection (5) of this section, every record identifying the person from whom a sample has been taken pursuant to section 2 of this Act shall, if not previously destroyed, be destroyed as this section directs and every sample identified by such record shall be destroyed in like manner.

(2) Where proceedings for any offence in respect of which a person could be detained under section 30 of the Offences against the State Act, 1939 , or section 4 of the Criminal Justice Act, 1984 , are not instituted against the person from whom the sample was taken within six months from the taking of the sample and the failure to institute the proceedings within that period is not due to the fact that he has absconded or cannot be found, the destruction of the record and the sample identified by such record shall be carried out on the expiration of that period unless an order has been made under subsection (5) of this section.

(3) Where proceedings have been so instituted and the person is acquitted or discharged or the proceedings are discontinued, the destruction of the record and the sample identified by such record shall be carried out on the expiration of twenty-one days after the acquittal, discharge or discontinuance unless an order has been made under subsection (5) of this section.

( 4 ) ( a ) Where a person from whom a sample has been taken is the subject of an order under subsection (1) or (2) of section 1 of the Probation of Offenders Act, 1907, the destruction of the said sample and every record identifying such sample shall be carried out on the expiration of 3 years from the making of the order; provided that he has not been convicted of an offence to which section 4 of the Criminal Justice Act, 1984 , applies during that period.

( b ) Paragraph (a) of this subsection shall not apply to an order under section 1 (2) of the Probation of Offenders Act, 1907, discharged on the appeal of a person against conviction if on appeal his conviction is affirmed.

(5) If a court is satisfied, on an application being made to it by or on behalf of the Director of Public Prosecutions or the person from whom the sample was taken, that there is good reason why records and samples to which this section applies should not be destroyed under this section, it may make an order authorising the retention of such records and samples for such purpose or period as it may direct.

5.—(1) The Minister shall make regulations relating to the taking of samples for the purposes of this Act.

(2) Without prejudice to the generality of subsection (1) of this section, the regulations shall—

( a ) make provision for the recording in the records of a Garda Síochána station of—

(i) an authorisation to take a sample given under section 2 (4) (a) of this Act and any consent given under section 2 (4) (b) of this Act,

(ii) a refusal to consent to the taking of a sample in cases where consent is to be given under section 2 (4) (b) of this Act,

(iii) particulars of the time and manner of the taking of a sample pursuant to this Act, and

( b ) make provision for the taking of samples from persons who have not attained the age of 17 years.

(3) Every regulation made under this section shall be laid before each House of the Oireachtas as soon as may be after it is made and, if a resolution annulling the regulation is passed by either such House within the next twenty-one days on which that House has sat after the regulation has been laid before it, the regulation shall be annulled accordingly, but without prejudice to the validity of anything previously done thereunder.

6.—Section 7 (1) (e) of the Criminal Law Act, 1976 , and section 6 (1) (e) of the Criminal Justice Act, 1984 , are hereby repealed.

7.—The expenses incurred by the Minister in the administration of this Act shall, to such extent as may be sanctioned by the Minister for Finance, be paid out of moneys provided by the Oireachtas.

8.—(1) This Act may be cited as the Criminal Justice (Forensic Evidence) Act, 1990 .

(2) This Act shall come into operation on such day as may be fixed therefor by order of the Minister.