Criminal Justice (Forensic Evidence and DNA Database System) Act 2014

Inferences from refusal to consent, or withdrawal of consent, to taking of intimate sample

19. (1) Subject to subsection (5), where in any proceedings against a person for an offence (other than an offence under section 160 (1)) evidence is given that the accused refused without reasonable cause to give an appropriate consent required under section 12 (2)(b) or he or she without reasonable cause withdrew the appropriate consent given thereunder, then—

(a) the court, in determining—

(i) whether a charge against the accused should be dismissed under Part IA of the Criminal Procedure Act 1967 , or

(ii) whether there is a case to answer,


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

may draw such inferences from the refusal or withdrawal, as the case may be, as appear proper; and the refusal or withdrawal 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 or withdrawal is material, but a person shall not be convicted of such an offence solely or mainly on an inference drawn from such refusal or withdrawal.

(2) Subsection (1) shall not have effect in relation to an accused unless—

(a) he or she has been told in ordinary language by a member of the Garda Síochána when seeking his or her consent that—

(i) the sample was required for the purpose of forensic testing,

(ii) his or her consent was necessary, and

(iii) if his or her consent was not given, what the effect of a refusal or withdrawal by him or her of such consent might be,


(b) he or she was informed before such refusal or withdrawal of consent occurred that he or she had the right to consult a solicitor and, other than where he or she waived that right, he or she was afforded an opportunity to so consult before such refusal or withdrawal occurred.

(3) This section shall not apply to a refusal by a person to give the appropriate consent, or the withdrawal of such consent, unless the seeking of such consent by a member of the Garda Síochána is recorded by electronic or similar means or the person consents in writing to it not being so recorded.

(4) References in subsection (1) to evidence shall, in relation to the hearing of an application under Part IA of the Criminal Procedure Act 1967 for the dismissal of a charge, be taken to include a statement of the evidence to be given by a witness at the trial.

(5) This section shall not apply—

(a) to a protected person,

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

(c) in a case where the appropriate consent has been refused, or been withdrawn, by a parent or guardian of a child unless a judge of the District Court makes an order under section 17 (6) and the child refuses to comply with the order.