Criminal Justice (Mutual Assistance) Act 2008

Action on request.

79.— (1) The Minister may send the request to the Commissioner of the Garda Síochána for the necessary action if satisfied—

(a) that it complies with section 78 ,

(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

(c) that the evidence—

(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

(ii) will be dealt with in accordance with subsections (10) and (11).

(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—

(a) of the nature of the evidence,

(b) that it has been requested in connection with criminal proceedings, or a criminal investigation, in the designated state concerned,

(c) that he or she is not obliged to provide the evidence, and

(d) that, if he or she does consent to provide it, it may be given in evidence in any proceedings in that state.

(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.

(4) If a person who is to provide the identification evidence is in a prison—

(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

(b) any evidence provided may be taken at the prison or at another place.

(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.

(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.

(7) 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.

(8) The following particulars shall be recorded by the member who takes identification evidence:

(a) the place, time and date at which it was taken;

(b) the result of any forensic test on the evidence;

(c) any other relevant particulars, including any specified by the requesting authority,

and the record shall include a copy of the consent to the taking of the evidence.

(9) The Commissioner shall send to the Central Authority any identification evidence—

(a) in the possession of the Garda Síochána, or

(b) taken under subsection (3), together with a copy of the record made under subsection (8),

for transmission to the requesting authority.

(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—

(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,

(b) if the person is prosecuted and is acquitted or discharged or the proceedings are discontinued, on the expiration of 21 days thereafter, or

(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.

(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.

(12) In this section—

“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;

“consent” means consent in writing and a reference to the consent of a person is a reference to—

(a) in the case of a person who has attained the age of 18 years, the consent of that person,

(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

(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.