Defence Forces (Evidence) Act 2022

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Taking of intimate samples from persons in custody of Military Police

10. (1) Subject to this Act, a member of the Military Police may take, or cause to be taken, from a person who is placed in service custody in connection with a relevant offence, an intimate sample under this sectionfor the purposes of forensic testing and, if appropriate, the generation of a DNA profile in respect of the person to be entered in the reference (Military Police) index of the DNA (Military Police) Database System.

(2) An intimate sample may be taken under this section only if—

(a) a member of the Military Police not below the rank of captain authorises it to be taken for the purposes specified in subsection (1), and

(b) consent has been given in writing to the taking of the sample by the person from whom the sample is to be taken.

(3) An authorisation to take an intimate sample under this section shall not be given unless the member of the Military Police giving it has reasonable grounds—

(a) for suspecting the involvement of the person from whom the sample is to be taken in the commission of the relevant offence in respect of which he or she is placed in service custody, and

(b) for believing that the sample will tend to confirm or disprove the involvement of that person in the commission of that offence.

(4) Before a member of the Military Police seeks the consent of a person, from whom an intimate sample is required, to the taking of such a sample or the member takes, or causes to be taken, such a sample from the person, the member shall inform the person of the following:

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

(b) that an authorisation to take the sample from him or her has been given under subsection (2)(a) and the grounds on which it has been given;

(c) in a case in which an intimate sample already taken from the person has proved to be insufficient—

(i) that that sample has proved to be insufficient, and

(ii) that either—

(I) another authorisation under subsection (2)(a) is not, by virtue of section 4 (6), required, or

(II) an authorisation to take a second intimate sample from him or her has, in accordance with section 16 (1), been given under subsection (2)(a) and the grounds on which it has been given;

(d) that the results of the forensic testing of the sample may be given in evidence in any proceedings;

(e) if appropriate, that the sample will be used to generate a DNA profile in respect of the person to be entered in the reference (Military Police) index of the DNA (Military Police) Database System and the effect of such an entry;

(f) that the sample, or the DNA profile generated from the sample in respect of the person, may be transmitted or provided to a person or body in connection with the investigation of offences against military law and court-martial proceedings (whether within or outside the State) as provided for in, or permitted by, this Act;

(g) that the sample may be destroyed, and, if appropriate, the DNA profile in respect of the person entered in the reference (Military Police) index of the DNA (Military Police) Database System may be removed from that System, in accordance with Part 7 .

(5) If a person expressly withdraws the consent given under subsection (2)(b) (or if the withdrawal of that consent can reasonably be inferred from the conduct of the person) before or during the taking of an intimate sample under this section—

(a) that withdrawal of consent shall be treated as a refusal to give the consent to the taking of the sample under this section, and

(b) the provisions of this Part shall apply accordingly.

(6) A withdrawal under subsection (5) of the consent given under subsection (2)(b) shall be recorded in writing by a member of the Military Police as soon as practicable after such withdrawal.

(7) The consent given under subsection (2)(b) to the taking of an intimate sample under this section may not be withdrawn after the sample has been taken.