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Criminal Justice (Mutual Assistance) Act 2008
Chapter 3 Identification evidence | ||
[GA] |
Definitions (Chapter 3). |
76 .— In this Chapter— |
[GA] | “ bodily sample ” means any of the following: | |
[GA] | (a) a sample of blood, hair, urine or saliva; | |
[GA] | (b) a nail or any material found under a nail; | |
[GA] | (c) a swab from any part of the body; | |
[GA] | (d) a footprint or a similar impression of any part of the body, including a dental impression; | |
[GA] | “ dentist ” means a person whose name is entered for the time being in the Register of Dentists maintained under the Dentists Act 1985 ; | |
[GA] | “ doctor ” means a person whose name is entered for the time being in the General Register of Medical Practitioners established under section 26 of the Medical Practitioners Act 1978 ; | |
[GA] | “identification evidence” means a fingerprint, palm print or photograph of, or bodily sample from, a person and includes any related records; | |
[GA] | “nurse” means a person whose name is entered for the time being in the register of nurses established under section 27 of the Nurses Act 1985 . | |
[GA] |
Identification evidence for use in State. |
77 .— (1) Where it appears to a judge of any court that— |
[GA] | (a) criminal proceedings have been instituted or a criminal investigation is taking place, and | |
[GA] | (b) identification evidence for the purposes of the proceedings or investigation may be obtained from an authority in a designated state, | |
[GA] | the judge may issue a letter (a “ letter of request ”) requesting assistance in obtaining the evidence. | |
[GA] | (2) Application for a letter of request may be made by the Director of Public Prosecutions or a person charged in any proceedings that have been instituted. | |
[GA] | (3) The letter of request shall be sent to— | |
[GA] | (a) the Central Authority for transmission to the appropriate authority, or | |
[GA] | (b) in urgent cases, directly to that authority. | |
[GA] | (4) Notwithstanding subsections (1) to (3), where proceedings for an offence have been instituted or an offence is being investigated, the Director of Public Prosecutions may issue and transmit a letter of request directly to the appropriate authority. | |
[GA] | (5) The letter of request shall include— | |
[GA] | (a) a statement that the evidence is required for the purpose of criminal proceedings or a criminal investigation and will be returned to the appropriate authority when no longer required for that purpose, unless the authority indicates otherwise, | |
[GA] | (b) a brief description of the conduct constituting the offence concerned, and | |
[GA] | (c) any other available information that may assist the appropriate authority in complying with the request. | |
[GA] | (6) Evidence obtained by virtue of this section shall not, without the consent of the appropriate authority, be used for any purpose other than that specified in the letter of request. | |
[GA] | (7) When any such evidence is no longer required for that purpose (or for any other purpose for which such consent has been obtained), it shall be returned to the appropriate authority unless the authority indicates that it need not be returned. | |
[GA] | (8) In any proceedings a document purporting to be— | |
[GA] | (a) a report of the taking of the identification evidence in the designated state and to be signed by, and to state the rank or other qualification of, the person who took the evidence, or | |
[GA] | (b) a record of the evidence kept by the appropriate authority and certified by it or on its behalf, | |
[GA] | is admissible, without further proof, as evidence of the matters stated in it. | |
[GA] | (9) In this section, “appropriate authority” means the authority in the designated state concerned appearing to the Director of Public Prosecutions to possess the identification evidence requested or to have the function of obtaining or arranging to obtain it. | |
[GA] |
Identification evidence for use outside State. |
78 .— A request for obtaining identification evidence for use in a designated state shall include— |
[GA] | (a) a statement that the evidence is required in connection with criminal proceedings, or a criminal investigation, in that state, and | |
[GA] | (b) a brief description of the conduct constituting the offence. | |
[GA] |
Action on request. |
79 .— (1) The Minister may send the request to the Commissioner of the Garda Síochána for the necessary action if satisfied— |
[GA] | (a) that it complies with section 78 , | |
[GA] | (b) that any identification evidence that may be furnished in response to the request will not, without the consent of the Minister, be used for any purpose other than that specified in the request, and | |
[GA] | (c) that the evidence— | |
[GA] | (i) will be returned by the requesting authority when no longer required for that purpose (or any other purpose for which such consent has been obtained), unless the Minister indicates otherwise, or | |
[GA] | (ii) will be dealt with in accordance with subsections (10) and (11). | |
[GA] | (2) If or in so far as the identification evidence requested is not in the possession of the Garda Síochána, the Commissioner shall instruct a member of the Garda Síochána (a “member”) to inform the person who is to provide the evidence— | |
[GA] | (a) of the nature of the evidence, | |
[GA] | (b) that it has been requested in connection with criminal proceedings, or a criminal investigation, in the designated state concerned, | |
[GA] | (c) that he or she is not obliged to provide the evidence, and | |
[GA] | (d) that, if he or she does consent to provide it, it may be given in evidence in any proceedings in that state. | |
[GA] | (3) If the person consents to provide the evidence, the member may take the evidence, or cause it to be taken, in compliance with the request and any requirements specified in the request in relation to its taking. | |
[GA] | (4) If a person who is to provide the identification evidence is in a prison— | |
[GA] | (a) evidence may be taken under this section only if it relates to an offence other than that for which the person is in custody, and | |
[GA] | (b) any evidence provided may be taken at the prison or at another place. | |
[GA] | (5) A bodily sample consisting of blood, pubic hair or a swab from a body orifice (other than the mouth) or a genital region may be taken under this section only by a doctor or nurse, and a dental impression may be so taken only by a dentist or doctor. | |
[GA] | (6) If required by the requesting authority, the Commissioner may arrange for a forensic test to be performed on a swab from a body orifice or a genital region. | |
[GA] | (7) Where a sample of hair other than pubic hair is taken in accordance with this section— | |
[GA] | (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 | |
[GA] | (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. | |
[GA] | (8) The following particulars shall be recorded by the member who takes identification evidence: | |
[GA] | (a) the place, time and date at which it was taken; | |
[GA] | (b) the result of any forensic test on the evidence; | |
[GA] | (c) any other relevant particulars, including any specified by the requesting authority, | |
[GA] | and the record shall include a copy of the consent to the taking of the evidence. | |
[GA] | (9) The Commissioner shall send to the Central Authority any identification evidence— | |
[GA] | (a) in the possession of the Garda Síochána, or | |
[GA] | (b) taken under subsection (3), together with a copy of the record made under subsection (8), | |
[GA] | for transmission to the requesting authority. | |
[GA] | (10) When transmitting the identification evidence and record to the requesting authority the Central Authority shall, if subsection (1)(c)(i) does not apply and subject to subsection >(11), obtain an assurance that the evidence, as well as the record of any analysis of the evidence, or any other record relating to it, that may be made in the requesting state, will be destroyed— | |
[GA] | (a) if the person the subject of the investigation is not prosecuted, on the expiration of 12 months from the taking of the evidence, unless the failure to prosecute is not due to the fact that the person has absconded or cannot be found, | |
[GA] | (b) if the person is prosecuted and is acquitted or discharged or the proceedings are discontinued, on the expiration of 21 days thereafter, or | |
[GA] | (c) if the person is prosecuted and made subject to an order corresponding to or in the nature of a probation order under section 1(1) of the Probation of Offenders Act 1907, on the expiration of a period of 3 years from the making of the order, unless the person is convicted during that period of an offence under the law of the country concerned corresponding to an arrestable offence. | |
[GA] | (11) The Minister may, at the request of the requesting authority and having consulted the Director of Public Prosecutions, direct that any period mentioned in subsection (10) be extended for good reason. | |
[GA] | (12) In this section— | |
[GA] | “arrestable offence” means an offence for which a person of full capacity and not previously convicted may, under or by virtue of any enactment or of the common law, be punished by imprisonment for a term of 5 years or by a more severe penalty, and includes an attempt to commit any such offence; | |
[GA] | “ consent ” means consent in writing and a reference to the consent of a person is a reference to— | |
[GA] | (a) in the case of a person who has attained the age of 18 years, the consent of that person, | |
[GA] | (b) in the case of a person who has not attained the age of 18 years but has attained the age of 12 years, the consent of that person and of his or her parent or guardian, and | |
[GA] | (c) in the case of a child aged 10 or 11 years who is detained on suspicion of having committed an offence mentioned in subsection (2) of section 52 (restriction on criminal proceedings against children) of the Children Act 2001 , as substituted by section 129 of the Criminal Justice Act 2006 , the consent of his or her parent or guardian. |