I move amendment No. 43:
In page 33, before section 49, but in Part 5, to insert the following new section:
"49.—(1) In this section—
‘bodily sample' means any of the following—
(a) a sample of blood, hair, urine or saliva,
(b) a nail or any material found under a nail,
(c) a swab from any part of the body,
(d) a footprint or a similar impression of any part of the body, including a dental impression;
‘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 17 years, the consent of that person,
(b) in the case of a person who has not attained the age of 17 years but has attained the age of 14 years, the consent of that person and of his or her parent or guardian, and
(c) in the case of a person who has not attained the age of 14 years, the consent of his or her parent or guardian;
‘dentist' means a person whose name is entered for the time being in the Register of Dentists maintained under the Dentists Act 1985;
‘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;
‘identification evidence' means a fingerprint, palm print or photograph of, or bodily sample from, a person and any related records.
(2) Subject to section 4, the Minister may, in pursuance of a request from the International Criminal Court under Article 93.1(a) for assistance in obtaining identification evidence, send the request to the Commissioner of the Garda Síochána for necessary action, if satisfied as to the matters mentioned in subsection (3).
(3) The matters referred to in subsection (2) are—
(a) that any identification evidence provided will be used only for the investigation or prosecution of an ICC offence, and
(b) that the evidence—
(i) will be returned by the Court when no longer required for that purpose, unless the Minister indicates otherwise, or
(ii) will be dealt with in accordance with subsections (12) and (13).
(4) 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 by the International Criminal Court in connection with the investigation or prosecution of an offence within its jurisdiction,
(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 proceedings before the Court.
(5) 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.
(6) If a person who is to provide the identification evidence is in custody—
(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 where the person is in custody or at another place.
(7) 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, and a dental impression may be so taken only by a dentist or doctor.
(8) If required by the Court, the Commissioner may arrange for a forensic test to be performed on a swab from a body orifice or a genital region.
(9) A sample of hair other than pubic hair may be taken under this section by cutting hairs or by plucking hairs singly with their roots and, where hairs are plucked, no more 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 or comparison purposes.
(10) 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 Court,
and the record shall include a copy of the consent to the taking of the evidence.
(11) The Commissioner shall send to the Minister any identification evidence—
(a) in the possession of the Garda Síochána, or
(b) taken under subsection (5), together with a copy of the record made under subsection (10),
for transmission to the Court.
(12) When transmitting the identification evidence and record to the Court the Minister shall, if subsection (3)(b)(i) does not apply and subject to subsection (13), obtain an assurance that the evidence 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 due to the fact that the person has absconded or cannot be found, or
(b) if the person is prosecuted and is acquitted or discharged or the proceedings are discontinued, on the expiration of 21 days thereafter.
(13) The Minister may, at the request of the Court and having consulted the Director of Public Prosecutions, direct that any period mentioned in subsection (12) be extended for good reason.”.
This amendment substitutes a revised section for the existing section 49. The latter provides the mechanism whereby the International Criminal Court may request identification evidence to be provided so as to assist with the identification of a person. The section sets out the procedure to be followed when a request to obtain identification evidence is received and provides that identification evidence may be taken from a person only with his or her consent, if it is not already in the possession of the Garda. Intimate bodily samples may only be taken by doctors and dental impressions only by doctors or dentists. Provision is also made for the destruction of that identification evidence.
The purpose of the amendment is to align the provisions in the International Criminal Court Bill with those in the Criminal Justice (Mutual Assistance) Bill, which I recently introduced in the Seanad with a Second Stage contribution in Irish. In particular, it will be aligned with sections 61 and 64 of that Bill. The Criminal Justice (Mutual Assistance) Bill deals with mutual legal assistance in respect of criminal matters. It provides the legal basis for general mutual assistance, while the International Criminal Court Bill will provide, inter alia, for mutual assistance for the International Criminal Court. Accordingly, it makes sense to have the relevant provisions in both Bills closely aligned. Hence, the general law in respect of obtaining samples on the basis of mutual assistance will be the law for both the International Criminal Court and for foreign courts. I intend to align the two regimes.