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26 2006

CRIMINAL JUSTICE ACT 2006

PART 2

Investigation of Offences

Designation of place as crime scene.

5 .— (1) Where a member of the Garda Síochána is in—

(a) a public place, or

(b) any other place under a power of entry authorised by law or to which or in which he or she was expressly or impliedly invited or permitted to be,

and he or she has reasonable grounds for believing that—

(i) an arrestable offence was, is being, or may have been committed in the place, or

(ii) there is, or may be, in the place evidence of, or relating to, the commission of an arrestable offence that was or may have been committed elsewhere,

he or she may, pending the giving of a direction under subsection (3) in relation to the place, take such of the steps specified in subsection (4) as he or she reasonably considers necessary to preserve any evidence of, or relating to, the commission of the offence.

(2) A member of the Garda Síochána who exercises powers under subsection (1) shall, as soon as reasonably practicable, request or cause a request to be made to a member of the Garda Síochána not below the rank of superintendent to give a direction under subsection (3) in relation to the place concerned.

(3) A member of the Garda Síochána not below the rank of superintendent may give a direction designating a place as a crime scene if he or she has reasonable grounds for believing that—

(a) either—

(i) an arrestable offence was, is being, or may have been committed in the place, or

(ii) there is, or may be, in the place evidence of, or relating to, the commission of an arrestable offence that was, or may have been, committed elsewhere,

and

(b) it is necessary to designate the place as a crime scene to preserve, search for and collect evidence of, or relating to, the commission of the offence.

(4) A direction under subsection (3) shall authorise such members of the Garda Síochána as a member of the Garda Síochána not below the rank of superintendent considers appropriate to take such steps, including all or any of the following, as they reasonably consider necessary to preserve, search for and collect evidence at the crime scene to which the direction relates:

(a) delineating and segregating the area of the crime scene by means of notices, markings or barriers;

(b) directing a person to leave the crime scene;

(c) removing a person who fails to comply with a direction to leave the crime scene;

(d) directing a person not to enter the crime scene;

(e) preventing a person from entering the crime scene;

(f) permitting a person authorised under subsection (5) to enter the crime scene;

(g) preventing a person from removing anything which is, or may be, evidence or otherwise interfering with the crime scene or anything at the scene;

(h) securing the crime scene from any unauthorised intrusion or disturbance;

(i) searching the crime scene and examining the scene and anything at the scene; and

(j) photographing or otherwise recording the crime scene or anything at the scene.

(5) A member of the Garda Síochána not below the rank of superintendent may authorise such persons as he or she considers appropriate to enter a crime scene for a specified purpose and for such period as he or she may determine.

(6) The period for which a direction under subsection (3) is in force shall not be longer than is reasonably necessary to preserve, search for and collect the evidence concerned.

(7) A direction under subsection (3) in relation to a place other than a public place shall, subject to subsections (9) to (11), cease to be in force 24 hours after it is given.

(8) (a) A direction under subsection (3) may be given orally or in writing and, if it is given orally, shall be recorded in writing as soon as reasonably practicable but a failure to record the direction shall not by itself render any evidence inadmissible.

(b) A direction under subsection (3) or, if it is given orally, the written record of it shall be signed by the member of the Garda Síochána giving it, shall describe the place thereby designated as a crime scene, shall state the date and time when it is given, the name and rank of the member giving it and that the member has reasonable grounds for believing that the direction is necessary to preserve, search for and collect the evidence concerned.

(9) If a judge of the District Court is satisfied by information on oath of a member of the Garda Síochána not below the rank of superintendent that—

(a) a direction under subsection (3) designating a place as a crime scene is in force,

(b) there are reasonable grounds for believing that there is, or may be, evidence at the crime scene,

(c) the continuance of the direction in force is necessary to preserve, search for and collect any such evidence, and

(d) the investigation of the offence to which any such evidence relates is being conducted diligently and expeditiously,

the judge may make an order continuing the direction in force for such further period, not exceeding 48 hours, as may be specified in the order commencing upon the expiration of the period for which the direction is in force.

(10) A direction under subsection (3) may be continued in force under subsection (9) not more than three times.

(11) If the High Court is satisfied, upon application being made to it in that behalf by a member of the Garda Síochána not below the rank of superintendent, that—

(a) a direction under subsection (3) designating a place as a crime scene is in force,

(b) there are reasonable grounds for believing that there is, or may be, evidence at the crime scene,

(c) exceptional circumstances exist which warrant the continuance of the direction in force to preserve, search for and collect any such evidence, and

(d) the investigation of the offence to which any such evidence relates is being conducted diligently and expeditiously,

the Court may make an order continuing the direction in force for such period as it considers appropriate and that is specified in the order (whether or not the direction has been continued in force under subsection (9)) commencing upon the expiration of the period for which the direction is in force.

(12) A member of the Garda Síochána who intends to make an application under subsection (9) or (11) shall, if it is reasonably practicable to do so before the application is made, give notice of it to—

(a) the occupier of the place the subject of the application, or

(b) if it is not reasonably practicable to ascertain the identity or whereabouts of the occupier or the place is unoccupied, the owner, unless it is not reasonably practicable to ascertain the identity or whereabouts of the owner.

(13) If, on an application under subsection (9) or (11), the occupier or owner of the place concerned applies to be heard by the Court, an order shall not be made under subsection (9) or (11), as may be appropriate, unless an opportunity has been given to the person to be heard.

(14) The High Court or a judge of the District Court, as may be appropriate, may attach such conditions as the Court or the judge considers appropriate to an order under subsection (9) or (11) for the purpose of protecting the interests of the occupier or owner of the place which is the subject of the order.

(15) A direction under subsection (3) shall be deemed to continue in force until the determination of an application under subsection (9) or (11) if—

(a) the direction is in force when the application is made, and

(b) the direction would, but for this subsection, expire before the determination of the application by reason of the fact that, pursuant to subsection (13), an opportunity is given to a person to be heard.

(16) A person who obstructs a member of the Garda Síochána in the exercise of his or her powers under this section or who fails to comply with a direction under this section shall be guilty of an offence and shall be liable on summary conviction to a fine not exceeding €3,000 or imprisonment for a term not exceeding 6 months or both.

(17) A member of the Garda Síochána may arrest without warrant any person whom the member reasonably suspects of committing or having committed an offence under subsection (16).

(18) Nothing in this section shall prevent—

(a) the designation of a place as a crime scene, or

(b) a member of the Garda Síochána from taking any of the steps referred to in subsection (4) at a place so designated,

if the owner or occupier of the place consents to such designation or the taking of any of those steps.

(19) In this section—

“ evidence ” means evidence of, or relating to, the commission of an arrestable offence;

“ preserve ”, in relation to evidence, includes any action to prevent the concealment, loss, removal, contamination or destruction of, or damage or alteration to, the evidence.

Search warrants in relation to arrestable offences.

6 .— (1) The Criminal Justice (Miscellaneous Provisions) Act 1997 is amended by—

(a) the substitution of the following section for section 10:

“Search warrants in relation to arrestable offences.

10.— (1) If a judge of the District Court is satisfied by information on oath of a member not below the rank of sergeant that there are reasonable grounds for suspecting that evidence of, or relating to, the commission of an arrestable offence is to be found in any place, the judge may issue a warrant for the search of that place and any persons found at that place.

(2) A search warrant under this section shall be expressed, and shall operate, to authorise a named member, accompanied by such other members or persons or both as the member thinks necessary—

(a) to enter, at any time or times within one week of the date of issue of the warrant, on production if so requested of the warrant, and if necessary by the use of reasonable force, the place named in the warrant,

(b) to search it and any persons found at that place, and

(c) to seize anything found at that place, or anything found in the possession of a person present at that place at the time of the search, that that member reasonably believes to be evidence of, or relating to, the commission of an arrestable offence.

(3) A member acting under the authority of a search warrant under this section may—

(a) require any person present at the place where the search is being carried out to give to the member his or her name and address, and

(b) arrest without warrant any person who—

(i) obstructs or attempts to obstruct the member in the carrying out of his or her duties,

(ii) fails to comply with a requirement under paragraph (a), or

(iii) gives a name or address which the member has reasonable cause for believing is false or misleading.

(4) A person who obstructs or attempts to obstruct a member acting under the authority of a search warrant under this section, who fails to comply with a requirement under subsection (3)(a) or who gives a false or misleading name or address to a member shall be guilty of an offence and shall be liable on summary conviction to a fine not exceeding €3,000 or imprisonment for a term not exceeding 6 months or both.

(5) The power to issue a warrant under this section is without prejudice to any other power conferred by statute to issue a warrant for the search of any place or person.

(6) In this section—

‘arrestable offence’ has the meaning it has in section 2 (as amended by section 8 of the Criminal Justice Act 2006) of the Criminal Law Act 1997 ;

‘ place’ means a physical location and includes—

(a) a dwelling, residence, building or abode,

(b) a vehicle, whether mechanically propelled or not,

(c) a vessel, whether sea-going or not,

(d) an aircraft, whether capable of operation or not, and

(e) a hovercraft.”,

and

(b) the deletion of the First Schedule.

(2) This section shall not affect the validity of a warrant issued under section 10 of the Criminal Justice (Miscellaneous Provisions) Act 1997 before the commencement of this section and such a warrant shall continue in force in accordance with its terms after such commencement.

Power to seize and retain evidence.

7 .— (1) Where a member of the Garda Síochána who is in—

(a) a public place, or

(b) any other place under a power of entry authorised by law or to which or in which he or she was expressly or impliedly invited or permitted to be,

finds or comes into possession of any thing, and he or she has reasonable grounds for believing that it is evidence of, or relating to, the commission of an arrestable offence, he or she may seize and retain the thing for use as evidence in any criminal proceedings for such period from the date of seizure as is reasonable or, if proceedings are commenced in which the thing so seized is required for use in evidence, until the conclusion of the proceedings, and thereafter the Police (Property) Act 1897 shall apply to the thing so seized in the same manner as that Act applies to property which has come into the possession of the Garda Síochána in the circumstances mentioned in that Act.

(2) If it is represented or appears to a member of the Garda Síochána proposing to seize or retain a document under this section that the document was, or may have been, made for the purpose of obtaining, giving or communicating legal advice from or by a barrister or solicitor, the member shall not seize or retain the document unless he or she suspects with reasonable cause that the document was not made, or is not intended, solely for any of the purposes aforesaid.

(3) The power under this section to seize and retain evidence is without prejudice to any other power conferred by statute or otherwise exercisable by a member of the Garda Síochána to seize and retain evidence of, or relating to, the commission or attempted commission of an offence.

Arrestable offences.

8 .— Section 2(1) of the Criminal Law Act 1997 is amended in the definition of “arrestable offence” by the substitution of “under or by virtue of any enactment or the common law” for “under or by virtue of any enactment”.

Amendment of section 4 of Act of 1984.

9 .— Section 4 of the Act of 1984 is amended—

(a) in subsection (1), by the substitution of “under or by virtue of any enactment or the common law” for “under or by virtue of any enactment”,

(b) by the substitution of the following subsection for subsection (2):

“(2) (a) Where a member of the Garda Síochána arrests without warrant, whether in a Garda Síochána station or elsewhere, a person whom he or she, with reasonable cause, suspects of having committed an offence to which this section applies, the person—

(i) if not already in a Garda Síochána station, may be taken to and detained in a Garda Síochána station, or

(ii) if he or she is arrested in a Garda Síochána station, may be detained in the station,

for such period as is authorised by this section if the member of the Garda Síochána in charge of the station to which the person is taken on arrest or in which he or she is arrested has at the time of the person's arrival at the station or his or her arrest in the station, as may be appropriate, reasonable grounds for believing that his or her detention is necessary for the proper investigation of the offence.

(b) Where a member of the Garda Síochána arrests a person pursuant to an authority of a judge of the District Court under section 10(1), the person may be taken to and detained in a Garda Síochána station for such period as is authorised by this section if the member of the Garda Síochána in charge of the station to which the person is taken on arrest has at the time of the person's arrival at the station reasonable grounds for believing that his or her detention is necessary for the proper investigation of the offence.”,

(c) in subsection (3)—

(i) by the insertion of the following paragraph after paragraph (b):

“(bb) A member of the Garda Síochána not below the rank of chief superintendent may direct that a person detained pursuant to a direction under paragraph (b) be detained for a further period not exceeding twelve hours if he or she has reasonable grounds for believing that such further detention is necessary for the proper investigation of the offence concerned.”,

(ii) in paragraph (c), by the substitution of “paragraph (b) or (bb)” for “paragraph (b)”,

and

(d) in subsection (9), by the substitution of “for longer than twenty-four hours” for “for longer than twelve hours”.

Amendment of Criminal Justice (Drug Trafficking) Act 1996.

10 .— The Criminal Justice (Drug Trafficking) Act 1996 is amended—

(a) in section 2—

(i) in subsection (1), by the substitution of the following paragraph for paragraph (a):

“(a) Where a member of the Garda Síochána arrests without warrant, whether in a Garda Síochána station or elsewhere, a person (an ‘arrested person’) whom he or she, with reasonable cause, suspects of having committed a drug trafficking offence, the arrested person—

(i) if not already in a Garda Síochána station, may be taken to and detained in a Garda Síochána station, or

(ii) if he or she is arrested in a Garda Síochána station, may be detained in the station,

for a period or periods authorised by subsection (2) if the member of the Garda Síochána in charge of the station to which the arrested person is taken on arrest or in which he or she is arrested has at the time of the arrested person's arrival at the station or his or her arrest in the station, as may be appropriate, reasonable grounds for believing that his or her detention is necessary for the proper investigation of the offence.”,

(ii) by the insertion of the following subsection after subsection (7):

“(7A) Notwithstanding subsections (2) and (7), if—

(a) an application is made under subsection (2) for a warrant authorising the detention for a further period of a person detained under that subsection, and

(b) the period of detention under that subsection has not expired at the commencement of the hearing of the application but would, but for this subsection, expire during that hearing,

it shall be deemed not to expire until the determination of the application.”,

and

(b) in section 4(3), by the insertion of the following paragraph as paragraph (a) and the re-lettering of paragraphs (a) and (b) as paragraphs (b) and (c):

“(a) the substitution for paragraph (a) in subsection (1) of the following paragraph:

‘(a) Where a member of the Garda Síochána arrests a person (an “arrested person”) under a warrant issued pursuant to section 4(1), the arrested person may be taken to and detained in a Garda Síochána station for a period or periods authorised by subsection (2) if the member of the Garda Síochána in charge of the station to which the arrested person is taken on arrest has at the time of the arrested person's arrival at the station reasonable grounds for believing that his or her detention is necessary for the proper investigation of the offence.’.”.

Amendment of section 42 of Criminal Justice Act 1999.

11 .— Section 42 of the Criminal Justice Act 1999 is amended—

(a) in subsection (2), by the deletion of subsection (2) and substitution with the following:

“(2) A member of an Garda Síochána may arrest a prisoner on the authority of a judge of the District Court who is satisfied, on information supplied on oath by a member of the Garda Síochána not below the rank of superintendent, that the following conditions are fulfilled:

(a) there are reasonable grounds for suspecting that the prisoner has committed an offence or offences other than the offence or offences in connection with which he or she is imprisoned;

(b) the arrest of the prisoner is necessary for the proper investigation of the offence or offences that he or she is suspected of having committed; and

(c) where the prisoner has previously been arrested for the same offence or offences, whether prior to his or her imprisonment or under this section, further information has come to the knowledge of the Garda Síochána since that arrest as to the prisoner’s suspected participation in the offence or offences for which his or her arrest is sought.”,

and

(b) in subsection (5)—

(i) in paragraph (a), by the substitution of “the offence or offences in respect of which he or she was arrested” for “the offence in respect of which he or she was arrested”, and

(ii) in paragraph (b), by the substitution of “the proper investigation of that offence or those offences” for “the proper investigation of that offence”.

Power of Garda Síochána to photograph arrested persons.

12 .— (1) Where a person is arrested by a member of the Garda Síochána under any power conferred on him or her by law, the member may photograph the person or cause him or her to be photographed in a Garda Síochána station as soon as may be after his or her arrest for the purpose of assisting with the identification of him or her in connection with any proceedings that may be instituted against him or her for the offence in respect of which he or she is arrested.

(2) The power conferred by subsection (1) shall not be exercised except on the authority of a member of the Garda Síochána not below the rank of sergeant.

(3) An authority under subsection (2) may be given orally but, if it is given orally, it shall be confirmed in writing as soon as practicable.

(4) The provisions of section 8 of the Act of 1984 shall apply to photographs (including negatives) taken pursuant to this section as they apply to photographs taken pursuant to section 6 of that Act subject to the modification that the reference in section 8(2) of that Act to proceedings for an offence to which section 4 of that Act applies shall be construed as a reference to proceedings for an offence in respect of which the person concerned is arrested, and any other necessary modifications.

(5) A person who refuses to allow himself or herself to be photographed pursuant to this section shall be guilty of an offence and shall be liable on summary conviction to a fine not exceeding €3,000 or imprisonment for a term not exceeding 6 months or both.

(6) The power conferred by this section is without prejudice to any other power exercisable by a member of the Garda Síochána to photograph a person.

Amendment of Act of 1984.

13 .— The Act of 1984 is amended—

(a) in section 6(4), by the substitution of “€3,000” for “£1,000”,

(b) in section 8—

(i) in subsection (2), by the substitution of “within the period of twelve months” for “within the period of six months”,

(ii) by the substitution of the following subsections for subsection (3):

“(3) Where proceedings have been so instituted and—

(a) the person is acquitted,

(b) the charge against the person in respect of the offence concerned is dismissed under section 4E of the Criminal Procedure Act 1967 , or

(c) the proceedings are discontinued,

the destruction shall be carried out on the expiration of a period of 21 days after the acquittal, dismissal or discontinuance, as the case may be.

(3A) For the purposes of subsection (3)(b), a charge against the person in respect of the offence concerned shall be regarded as dismissed when—

(a) the time for bringing an appeal against the dismissal has expired,

(b) any such appeal has been withdrawn or abandoned, or

(c) on any such appeal, the dismissal is upheld.”,

and

(iii) in subsection (7)—

(I) by the substitution of “for a period not exceeding twelve months” for “for a period not exceeding six months”, and

(II) by the substitution of “for the purpose of proceedings or further proceedings” for “for the purpose of further proceedings”,

and

(c) in section 28(4), by the substitution of “€3,000” for “£1,500”.

Amendment of Criminal Justice (Forensic Evidence) Act 1990.

14 .— The Criminal Justice (Forensic Evidence) Act 1990 is amended—

(a) in section 2—

(i) in subsection (1)—

(I) by the substitution of “the provisions of subsections (4) to (8A)” for “the provisions of subsections (4) to (8)”,

(II) by the substitution of the following paragraph for paragraph (b):

“(b) a swab from any part of the body including the mouth but not from any other body orifice or a genital region,”,

(III) by the substitution of the following paragraph for paragraph (c):

“(c) a swab from a body orifice, other than the mouth, or a genital region,”,

(IV) in paragraph (e), by the deletion of “or mouth”,

(ii) by the insertion of the following subsection after subsection (1):

“(1A) A reference in subsection (1) of this section to the mouth shall be read as including a reference to the inside of the mouth.”,

(iii) in subsection (2), by the substitution of “the provisions of subsections (3) to (8A)” for “the provisions of subsections (3) to (8)”,

(iv) in subsection (4)(b), by the substitution of “subparagraph (i), (ii) or (iii) of paragraph (a) of subsection (1) of this section” for “subparagraph (i), (ii), (iii) or (iv) of paragraph (a) of subsection (1) of this section”,

(v) in subsection (5), by the insertion in paragraph (a)(ii) after “applies” of “or a drug trafficking offence within the meaning of section 3(1) of the Criminal Justice Act 1994 ”,

(vi) by the insertion of the following subsection after subsection (8):

“(8A) Where a sample of hair other than pubic hair is taken in accordance with this section—

(a) the sample may be taken by plucking hairs with their roots and, in so far as it is reasonably practicable, the hairs shall be plucked singly, and

(b) no more hairs shall be plucked than the person taking the sample reasonably considers to be necessary to constitute a sufficient sample for the purpose of forensic testing.”,

(vii) in subsection (9), by the substitution of “€3,000” for “£1,000”,

(b) in section 4—

(i) in subsection (2), by the substitution of “within twelve months from the taking of the sample” for “within six months from the taking of the sample”, and

(ii) by the substitution of the following subsections for subsection (3):

“(3) Where proceedings have been so instituted and—

(a) the person is acquitted,

(b) the charge against the person in respect of the offence concerned is dismissed under section 4E of the Criminal Procedure Act 1967 , or

(c) 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, dismissal or discontinuance, as the case may be, unless an order has been made under subsection (5) of this section.

(3A) For the purposes of subsection (3)(b) of this section, a charge against the person in respect of the offence concerned shall be regarded as dismissed when—

(a) the time for bringing an appeal against the dismissal has expired,

(b) any such appeal has been withdrawn or abandoned, or

(c) on any such appeal, the dismissal is upheld.”,

(c) in section 5(2), by the deletion of “and” at the end of paragraph (a) and the insertion of the following paragraph after paragraph (a):

“(aa) make provision for—

(i) the manner in which samples may be taken,

(ii) the location and physical conditions in which samples may be taken, and

(iii) the persons (including members of the Garda Síochána), and the number of such persons, who may be present when samples are taken, and”.