THE COURT OF APPEAL
Record No. 248/2015
Birmingham J.
Mahon J.
Edwards J. The Director of Public Prosecutions
Respondent
Appellant
JUDGMENT of the Court delivered on the 13th day of October 2016 by Mr. Justice Mahon
1. The appellant was convicted by a jury at Longford Circuit Criminal Court on 19th February 2015 of one count of aggravated burglary, contrary to s. 13(1) and (3) of the Criminal Justice (Theft and Fraud Offences) Act 2001, and one count of unlawfully using a mechanically propelled vehicle contrary to s. 112 of the Road Traffic Act 1961 (as amended by s. 65 of the Road Traffic Act 1968, and as amended by s. 18 of the Road Traffic Act 2006). This is an appeal against these convictions.
2. On 23rd October 2015, the appellant was sentenced to ten years imprisonment, with the final three years of that sentence suspended on conditions, in relation to his conviction for aggravated burglary, and a one year sentence of imprisonment in respect of the unlawful taking of the vehicle. The sentences were ordered to be served concurrently.
The background facts
3. On 3rd July 2011, at about 3.30 a.m. a couple (Mr. Higgins and Ms. Reilly) were awoken by a noise in their home outside Ballymahon in Co. Longford. Mr. Higgins went downstairs to investigate the noise. As he entered the kitchen, he was confronted by a man with a Dublin accent, wearing a hoody, and wielding a large kitchen knife, which he proceeded to hold against Mr. Higgins’s throat. He was told to return upstairs immediately, otherwise he would be killed. In the meantime Ms. Reilly telephoned the gardaí from an upstairs telephone. From his upstairs bedroom window, Mr. Higgins witnessed the theft of his E220 Mercedes from his driveway and it being driven away behind a black coloured vehicle, which he had earlier noticed parked immediately outside his house and which had a visibly damaged front.
4. Mr. Higgins’s car was later found crashed and burned out near Strokestown in Co. Roscommon. Inside were a number of items which had been stolen from his home, including a laptop and two televisions.
5. Earlier, an incident had taken place at Main Street, Longford. CCTV footage at a nightclub premises in the town showed two men leaving the nightclub and getting into a black Volvo car. Shortly afterwards the black Volvo car rear ended another car, pushing that car into collision with an unmarked Garda car in which Gda. Orla Geraghy was the observer. The black Volvo car then reversed at speed and drove towards Ballymahon, Co. Longford. Gda. Geraghty recognised the driver, (who was not the appellant), and the car was subsequently traced to an address at Roosky in Co. Roscommon. The car was seized by the gardaí, and its examination established the presence of impact damage to the front grill and displacement of the front bumper which was consistent with the description of the damaged front of the black car which Mr. Higgins noticed parked outside his house.
6. Other CCTV footage showed the two occupants of the black Volvo car leaving the car at Main Street, Longford before entering the nightclub. At trial, there was identification evidence of the appellant being one of these individuals.
The grounds of appeal
7. The appeal is essentially concerned with the retention of the DNA sample taken from the appellant on 22nd November 2011. In his Notice of Appeal the appellant lists the following grounds:-
(a) the learned trial judge erred in law in finding that the retention by An Garda Siochana of the DNA sample taken from the appellant on 22nd November 2011 beyond the time limits allowed by statute was not in breach of the appellant’s constitutional rights;
(b) the learned trial judge erred in law in finding that the results of the examination of the DNA sample taken from the appellant on 22nd November 2011 was admissible as evidence in the trial;
(c) the learned trial judge erred in law in admitting evidence based on DNA sample retained by An Garda Síochána in breach of the appellant’s constitutional rights.
8. At this Court’s request, additional and most helpful written submissions were provided by both parties in relation to, inter alia, the constitutional rights to bodily integrity and privacy in the context of these proceedings, and in the light of the recent judgment of this court in DPP v. Harty [2016] IECA 142.
The relevant legislative provisions
9. In relation to the date of this offence, the relevant statutory provisions are to be found in the Criminal Justice (Forensic Evidence) Act 1990 (the Act of 1990), as amended by the Criminal Justice Act 2006 (the Act of 2006). Subsequently, and currently, the relevant legislative provisions are to be found in the Criminal Justice (Forensic Evidence and DNA Database System) Act 2014.
10. Section 2 of the Act of 1990 (as amended) provides An Garda Síochána with the power to take or cause to be taken from a person for the purpose of forensic testing certain types of samples, from a list of stated samples in s. 2(1). Section 4 of the Act of 1990 (as amended) provides for the destruction of such samples.
11. Section 4 of the Act of 1990 (as amended) provides (to the extent relevant) as follows:-
"4(1) Subject to subsection (5) of this section, every record identifying the person from whom a sample has been taken pursuant to section 2 of this Act shall, if not previously destroyed, be destroyed as this section directs, and every sample identified by such record shall be destroyed in like manner.
(2) Where proceedings for any offence in respect of which a person could be detained under section 30 of the Offences against the State Act, 1939, or section 4 of the Criminal Justice Act, 1984 , or section 2 of the Criminal Justice (Drug Trafficking) Act 1996, or section 50 of the Criminal Justice Act 2007 are not instituted against the person from whom the sample was taken within twelve months from the taking of the sample, and the failure to institute the proceedings within that period is not due to the fact that he has absconded or cannot be found, the destruction of the record and the sample identified by such record shall be carried out on the expiration of that period unless an order has been made under subsection (5) of this section.
(5) If a court is satisfied, on an application being made to it by or on behalf of the Director of Public Prosecutions, or the person from whom the sample was taken, that there is good reason why records and samples to which this section applies should not be destroyed under this section, it may make an order authorising the retention of such records and samples for such purpose or period as it may direct.”
The facts relating to the taking of the sample
12. The sample was in fact taken to facilitate a comparison of the appellant’s DNA profile with a DNA profile generated from a blood stain which was found at the crime scene on 25th July 2011. On 22nd November 2011, the appellant was arrested and the relevant sample was taken for the said forensic purposes using a DNA kit. This sample was received by the Forensic Science Laboratory on 23rd November 2011, and the DNA Kit was returned to the gardaí on 23rd January 2012. On 30th October 2012 the DPP issued the direction to charge the appellant. The appellant was arrested and charged on 8th January 2013 with the offences of which he was later found guilty.
13. The proceedings against the appellant did not commence until 8th January 2013, some fourteen months after the taking of the Buccal sample. This was well outside the twelve month period from the date when the sample is taken, such period being stipulated in s. 4 of the Act of 1990 to be the period within which proceedings must be commenced unless one of the stated exceptions to that general rule applies. None of the exceptions provided for in s. 4 of the Act of 1990 applied in the circumstances of this case. It is clear that the legislation, properly applied to the circumstances of this case, and interpreted with reference to s. 11(h) of the Interpretation Act 1937, required the destruction of both the record and the sample itself on or before midnight on the 21st November 2012.
14. The Act of 1990 had originally specified a six month period during which a sample and its associated record could be retained. This was extended to twelve months by s. 14 of the amending Act of 2006.
15. It was accepted at the trial that the sample and any record relating thereto ought to have been destroyed prior to the commencement of these proceedings on 8th January 2013, in the absence of any order having been made permitting their retention.
16. On the third day of the trial counsel for the appellant applied to the learned trial judge to exclude the forensic evidence on the basis that the sample ought to have been destroyed on or before the 21st November 2012, and certainly prior to the commencement of these proceedings. In the course of his submissions to the learned trial judge, counsel for the appellant stated:-
“The sample should have been destroyed and all records of the sample should have been destroyed not later than 21st November of 2012, and it is not available to the prosecution simply to hang onto it with a reason for it. Again, as I say, the statute authorises in very limited term gross interference with a constitution right to bodily integrity, and where there is a statutory exception from the constitution it has to be followed precisely.”
and
“It may be that some sample was floating around, having been lawfully obtained and lawfully retained either by the guards or in the Forensic Science Lab. It may be that that was lawful but the obligation is on the prosecution to prove that and they have not done so.”
17. The respondent sought, through her counsel, to persuade the learned trial judge that proceedings had indeed been instituted within the twelve month period stipulated by statute. He based this argument on the fact that the respondent had received the file from the gardaí within the twelve month period and had, also within the twelve month period, (on 30th October 2012), given directions to prosecute on the various charges. He argued that on that basis the twelve month period stipulated by statute had not been exceeded.
18. The court is however satisfied that this submission is not sustainable, and that the proceedings in this case undoubtedly commenced on 8th January 2013. It does, however, help to explain why the sample was retained beyond the twelve month period without the necessary application to the District Court, a relatively straightforward procedure. The sample was retained because of the expected arrest and charging of the appellant, such expectation dating from, at the latest, 30th October 2012, some three weeks or so prior to the expiry of the twelve month period.
19. In the course of considering the issue, the learned trial judge commented as follows:-
“Now, the final issue relates to the admissibility of DNA results from the buccal sample. No, I want some more discussion in relation to this because I am not satisfied that I have all the information that I require. In particular, on the face of it, it would look like the DNA samples were taken outside the twelve month period. I am satisfied to make a determination that as far as I am concerned, criminal proceedings are instituted when a person is arrested and charged and not before that. The giving of directions by the DPP, in my view, forms part of the decision to prosecute that does not form part of the proceedings. So, on the fact of it, the DNA sample appears not to have been destroyed. But, the evidence is that the sample was analysed while it was lawfully held by the State and the fact that it was not destroyed subsequently, as it should have been, I am not sure that that of itself renders it inadmissible.”
20. On the fourth day of the trial, the learned trial judge ruled as follows:-
“I am satisfied that the jurisprudence indicates that I have a discretion as to whether or not I should allow the evidence to be introduced. Taken this case as a whole, I am satisfied that the breach here was a breach of legal rights and I am also satisfied that the interests of justice dictate that the samples should be admitted in evidence and the result of the DNA profile should be admitted in evidence.”
21. The learned trial judge had earlier concluded that if the matter was simply a breach of a legal right, he, as the trial judge, had a discretion in relation to the admissibility of the forensic evidence. On the other hand, he stated that he would not have had any such discretion if satisfied that it was a breach of the plaintiff’s constitutional rights, save in exceptional circumstances, and would, in those circumstances, have had to rule the evidence inadmissible.
22. The appellant submitted that the taking of a sample from a person amounts to an interference with a person’s constitutional rights to privacy and bodily integrity. He maintained that the power conferred on a member of An Garda Siochana by the Act of 1990 permitting the taking of a DNA sample, and the creation and retention of a record of either the taking of that sample or concerning the results of any associated forensic scientific analysis, does not act to set to one side the constitutional right to bodily integrity. What it does do is permit the taking of a sample in particular circumstances subject to the observance of certain conditions relating to its taking, one of which is to limit the time (subject to some exceptions, none of which apply here) during which the sample (or its record) can be retained. The effect of this, according to counsel for the appellant, is to abrogate by law the subject person’s right to bodily integrity but only to the very limited extent permitted by the terms of the relevant statute, which must rigorously and strictly adhered to. The appellant maintains that once the stipulated time limit was exceeded the consequence of that was to render the entire procedure an unlawful one, with the further consequence that the taking of the sample has to be regarded in the circumstances as having breached the appellant’s constitutional right to bodily integrity.
23. The appellant further submits that the appellant’s constitutional right to privacy has been breached. He quotes from Hamilton P.’s judgment in the case of Kennedy v. Ireland [1987] IR587 as follows:-
“.. Though not specifically guaranteed by the Constitution, the right of privacy is one of the fundamental personal rights of the citizen which flow from the Christian and democratic nature of the State. It is not an unqualified right. Its exercise may be restricted by the constitutional rights of others, or by requirements of the common good, and is subject to the requirements of public order and morality… The nature of the right to privacy must be such as to ensure the dignity and freedom of an individual in the type of society envisaged by the Constitution, namely, a sovereign, independent and democratic society. The dignity and freedom of an individual in a democracy cannot be ensured if his communications of a private nature, be they written or telephonic, are deliberately, consciously and unjustifiably intruded upon and interfered with.”
24. The appellant also relies extensively on Article 8 of the European Convention on Human Rights (ECHR). Reference was made to the legal position in England and Wales where there is no time restriction in relation to the retention of DNA samples and accompanying records.
25. The appellant referred the court to the decision of the ECtHR in S. and Marper v. The United Kingdom (Applications nos. 30562/04 and 30566/04), and its consideration of the issue of the retention of cellular samples and DNA profiles. In the course of its judgment, the ECtHR stated:-
“The United Kingdom is the only member State expressly to permit the systematic and indefinite retention of DNA profiles and cellular samples of persons who have been acquitted or in respect of whom criminal proceedings have been discontinued. Five States (Belgium, Hungary, Ireland, Italy and Sweden) require such information to be destroyed ex officio upon acquittal or the discontinuance of the criminal proceedings..”
26. That judgment also stated the following:-
“In conclusion, the Court finds that the blanket and indiscriminate nature of the powers of retention of the fingerprints, cellular samples and DNA profiles of persons suspected but not convicted of offences, as applied in the case of the present applicants, fails to strike a fair balance between the competing public and private interests and that the respondent State has overstepped any acceptable margin of appreciation in this regard. Accordingly, the retention at issue constitutes a disproportionate interference with the applicants' right to respect for private life and cannot be regarded as necessary in a democratic society. This conclusion obviates the need for the Court to consider the applicants' criticism regarding the adequacy of certain particular safeguards, such as too broad an access to the personal data concerned and insufficient protection against the misuse or abuse of such data.
27. While this judgment of the ECtHR is clearly critical of “the blanket and indiscriminate nature of the powers of retention of the … DNA profiles of persons …”, such is not the case in this country. There is no such ‘blanket’ or ‘indiscriminate’ power vested in the authorities to retain the DNA profiles of individuals.
28. The appellant also makes detailed submissions in relation to the discretion of the trial judge to admit evidence in breach of a statutory right.
29. Extracts from the judgment of Kingsmill Moore J. in The People v. O’Brien [1965] 1 I.R. and in the Court of Criminal Appeal in DPP v. Jaguitis [2013] 2 I.R. 250, and Supreme Court judgments in the recent case of DPP v. J.C. [2015] IESC 31 were also referred to in the context of the discretion enjoyed by a trial judge to admit illegally obtained evidence. He quoted the following extract from the judgment of Clarke J. in J.C., namely:-
“6.1 It bears noting that, while a significant amount of the recent focus in the jurisprudence in this area has concerned evidence obtained in circumstances of unconstitutionality, evidence obtained illegally is also a matter with which the courts should be significantly concerned. It is true that there is a particular onus on the courts to discourage unconstitutionality having regard to the constitutional imperative placed on the courts to uphold the Constitution and to vindicate constitutional rights. However, there is also an obligation on the courts to uphold the law and to discourage illegality.
6.2 It should not, therefore, be taken that evidence obtained in circumstances of illegality should readily be admitted. Where the absence of legality arises in circumstances properly described as reckless or grossly negligent, then the relevant evidence should be excluded even if the illegality concerned does not result in a breach of constitutional rights.”
30. The extract from Clarke J.’s judgment quoted above is particularly relevant, it was submitted, to the evidence from Dr. Doak, the Forensic Science Laboratory witness at the trial whose evidence was, to the effect, that the legislative provisions requiring the destruction of DNA samples and their associated records after the expiry of the time permitted for their lawful retention had been largely ignored by the authorities.
31. In reply, counsel for the respondent submitted that there had been no breach of the appellant’s constitutional rights. She argued that the taking of a DNA sample from the appellant in November 2011 was fully compliant with the provisions of the Act of 1990 (as amended), and therefore that procedure did not, either at the time, or at any time subsequently, retrospectively or otherwise, result in an infringement of the appellant’s constitutional rights. It was, in effect, acknowledged on behalf of the respondent that there was a failure to observe the rules and conditions upon which the sample was taken from the appellant in November 2011 to the extent that, had they been complied with, the sample and / or its record would not have been available post the 21st of November 2012. The respondent submitted:-
Absent an application for extension of the retention period pursuant to s. 4(5) of the Act, the appellant sample should have been destroyed within twelve months of the sample having been taken, namely, on or after 21st November 2012. In fact, the appellant was charged on 8th January 2013 approximately six weeks later. The sole purpose for retaining the sample was to admit it as an exhibit in the anticipated trial of the appeal, not to mind it for genetic material of a personal or sensitive nature, assuming such information to be recoverable from the sample and / or capable of interpretation.
32. It is appropriate at this juncture to consider the facts of this case in the context of the constitutional rights to privacy and bodily integrity
33. In McGinley v. Judge Reilly and the DPP [2006] IEHC 357, the case concerned an application to have the forensic evidence relating to a hair sample and a cigarette butt destroyed in circumstances where an application to court for the extension of time for the retention of samples had been made. In his judgment, Peart J. held (as per the head note):
“that the applicants rights to bodily integrity and fair procedures must be balanced with the constitutional obligation on the second respondent to prosecute offences and there was no prejudice to the applicant by having time extended for retention of the samples which outweigh the entitlement of the people to have offences prosecuted and have at a trial any relevant and necessary forensic evidence obtained in accordance with the Act of 1990.”
34. A right to privacy is not explicitly guaranteed by the Constitution. In 1987, a right to privacy was successfully invoked in the case of Kennedy v. Ireland [1987] IR587; [1988] ILRM 472. In that case the plaintiffs complained of unjustifiable tapping of their telephones by the State, and in particular they sought damages for this breach of their right to privacy.
35. In the course of his judgment, Hamilton P. stated:-
“The right to privacy is not an issue, the issue is the extent of that right or the extent of the right “to be let alone."
Though not specifically guaranteed by the Constitution, the right of privacy is one of the fundamental personal rights of the citizen which flow from the Christian and democratic nature of the State. It is not an unqualified right. Its exercise may be restricted by the constitutional rights of others, or by the requirements of the common good, and it is subject to the requirements of public order and morality..
The nature of the right to privacy must be such as to ensure the dignity and freedom of an individual in the type of society envisaged by the Constitution, namely, a sovereign, independent and democratic society. The dignity and freedom of an individual in a democratic society cannot be ensured if his communications of a private nature, be they written or telephone, are deliberately, consciously and unjustifiably intruded upon and interfered with. I emphasise the words "deliberately, consciously and unjustifiably" because an individual must accept the risk of accidental interference with the communications, and the fact that in certain circumstances the exigencies of the common good may require and justify such intrusion and interference. No such circumstances exist in this case.”
36. The constitutional right to privacy was also considered in the case of Herrity v. Associated Newspapers (Ireland) Limited [2009] IR 316. The case concerned the disclosure of telecommunications messages of another party without their consent and to the references to such information gleaned from same in a newspaper. In the course of her judgment, Dunne J. concluded that the breach of the constitutional right to privacy is actionable against a private person or entity. In her judgment, she referred to the comments of Clarke J. in Cogley v. RTE [2005] IEHC 180, [2005] 4 IR 79, and his reference to the judgment of Hamilton P. in Kennedy v. Ireland [1987] IR 687. Clarke J. stated:-
“… It should also be noted that the express recognition of an obligation to respect the privacy of others contained in the Broadcasting Acts 1960 to 1976 referred to above is also not unqualified in that it places an obligation on the Broadcasting Authority not to "unreasonably encroach" on the privacy of an individual. Thus it is clear that while persons such as the plaintiffs have a constitutional right to privacy and an arguable entitlement to ensure that the Broadcasting Authority does not unreasonably interfere with their privacy in the course of making and broadcasting programmes, those rights are not unqualified.”
37. In discussing that judgment of Clarke J., Dunne J. in Herrity said:-
“He pointed out the importance of weighing in the balance any public interest issues which arise …”
38. It was held in Ryan v. Attorney General [1965] 1 I.R. 294, that the right to body integrity is one of the unspecified rights guaranteed by Art. 43.3.2.
39. McGinley v. Reilly and DPP [2009] 3I.R. 125, was concerned with a sample taken pursuant to s. 2 of the Criminal Justice (Forensic Act 1990). In the course of his judgment, Peart J. stated:-
“The purpose of testing the sample is so that relevant forensic evidence may be available for any trial of the person which might take place in the future. That purpose is unaffected by the fact that on the 14th March, 2006, the applicant had not yet been charged with any offence. The Director of Public Prosecutions has the constitutional obligation to prosecute offences. The People of this State have an entitlement and a right to have offences prosecuted. The applicant's rights to bodily integrity and his other undoubted rights, including fair procedures, must be balanced fairly with society's rights.”
40. In a recent decision of this court in the case of DPP v. Harty [2016] IECA 142, it was decided that the results of a blood test carried out on the appellant shortly after a car accident, and while a patient in hospital, could be used as evidence as to his blood / alcohol level in connection with a prosecution for drink driving. The appellant had consented to the gardai being provided with a medical report on the injuries sustained by him. That written consent was however used to obtain a copy of the results of the blood samples taken from the appellant. It was held that the appellant had not consented to the results of blood samples being provided to the gardaí as the consent actually provided was for the release of medical reports. In the court’s judgment, delivered by Sheehan J., it was stated:-
“We are satisfied that in the circumstances of this case, the appellant's claim that his constitutional right to privacy was breached in respect of the toxicology report at issue is defeated by the overriding public interest on foot of which the gardaí were under an obligation to properly investigate the suspected serious crime of dangerous driving causing death and to gather evidence relevant to that investigation. To the extent that the garda action may have interfered with the privacy of the appellant, it was a proportionate interference having regard to the greater public interest and was necessary in the circumstances of the case. Equally, any claim by the appellant to confidentiality in the said record must also fail for the same reason. We are satisfied that in the circumstances of the case, the appellant's consent was not in fact required for the release of the toxicology report to the gardaí.”
41. Earlier in that judgment, Sheehan J. stated:-
“He had no absolute entitlement to expect that his privacy would be maintained and his records kept confidential. His entitlement was no more than to expect that his records would not be disclosed, save where that was required by exigencies of the common good.
The exigencies of the common good include, undoubtedly, a public interest in the prosecution of persons suspected of having committed serious crimes and the need for the gardaí to gather evidence to facilitate and support such prosecutions. While a person is entitled to expect that a keeper of his or her medical records will not lightly or arbitrarily disclose them and will in general strive to maintain confidentiality with respect to them, it may be reasonable in the circumstances of a particular case for the gardaí to request relevant records from a hospital and for the hospital to release them...
…In that regard, it is a matter of some importance, as correctly identified by the trial judge, that the toxicology results were not obtained from the hospital by any deliberate subterfuge or misrepresentation.”
42. In DPP v. JC [2015] IESC 31, which concerned an appeal brought by the Director pursuant to s. 23 of the Criminal Procedure Act 2010, seeking a review of the decision of a trial judge to exclude evidence in circumstances where the taking of that evidence involved a breach of constitutional rights. In the course of his judgment, and with which the majority of the Supreme Court judges agreed, Clarke J. set out a test to be followed in order to effect an appropriate balance between competing factors and circumstances where evidence arose in this way. That test is as follows:-
(i) The onus rests on the prosecution to establish the admissibility of all evidence. The test which follows is concerned with objections to the admissibility of evidence where the objection relates solely to the circumstances in which the evidence was gathered and does not concern the integrity or probative value of the evidence concerned.
(ii) Where objection is taken to the admissibility of evidence on the grounds that it was taken in circumstances of unconstitutionality, the onus remains on the prosecution to establish either:
(a) that the evidence was not gathered in circumstances of unconstitutionality; or
(b) that if it was, it remains appropriate for the court to nonetheless admit the evidence.
The onus in seeking to justify the admission of evidence taken in unconstitutional circumstances places on the prosecution an obligation to explain the basis on which it is said that the evidence should nonetheless be admitted and also to establish any facts necessary to justify such a basis.
(iii) Any facts relied on by the prosecution to establish any of the matters referred to at (ii) must be established beyond reasonable doubt.
(iv) Where evidence is taken in deliberate and conscious violation of constitutional rights then the evidence should be excluded save in those exceptional circumstances considered in the existing jurisprudence. In this context, deliberate and conscious refers to knowledge of the unconstitutionality of the taking of the relevant evidence rather than applying to the acts concerned. The assessment as to whether evidence was taken in deliberate and conscious violation of constitutional rights requires an analysis of the conduct and state of mind not only of the individual who actually gathered the evidence concerned but also of any other senior official or officials within the investigating or enforcement authority concerned who are involved either in that decision or in decisions of that type generally or in putting in place policies concerning evidence gathering of the type concerned.
(v) Where evidence is taken in circumstances of unconstitutionality but where the prosecution establishes that same was not conscious and deliberate in the sense previously appearing, then a presumption against the admission of the relevant evidence arises. Such evidence should be admitted where the prosecution establishes that the evidence was obtained in circumstances where any breach of rights was due to inadvertence or derives from subsequent legal developments.
(vi) Evidence which is obtained or gathered in circumstances where same could not have been constitutionally obtained or gathered should not be admitted even if those involved in the relevant evidence gathering were unaware due to inadvertence of the absence of authority.
Conclusion
43. In this case, the sample was retained for the purposes, and for the sole purposes, of its use as proof of identity in the course of the appellant’s trial. It had not been used for any other purpose and there was no intention to use it for any other purpose. The sample was taken from the plaintiff in entirely appropriate circumstances and in accordance with law. What was unlawful was the manner in which it was retained beyond a certain date, and in the absence of any court order permitting its retention beyond that date.
44. The use of the sample in the way described does not render the taking of the sample to have been undertaken in circumstances which amounted to a breach of the appellant’s constitutional rights. Had the sample been taken at a time when it was intended, having taken the sample, to use it in a manner which was not provided for by law, including the intention that it be retained for a period of time beyond that prescribed by law, the taking of the sample may well have amounted to a breach of the plaintiff’s constitutional rights. However, the sample was taken at a time when it was perfectly lawful to take it and when there was no breach of constitutional rights in its taking involved. The fact that sometime later the destruction of that sample was not effected as provided for by legislation, does not retrospectively create a breach of the appellant’s constitutional rights. The legislation does permit the retention of a sample / record of a sample for an extended period in particular circumstances, or a court application to extend the time for retention could have been made, but was not. What occurred was a breach of the appellant’s legal rights, in that the sample/record of the sample was not destroyed as required by statute.
45. If it was indeed the position (and which this court is satisfied does not arise in this case) that the taking of the sample in circumstances where there then existed no provision for its destruction after a certain time period, amounted to a breach of the appellant’s constitutional rights, it was not taken in deliberate and conscious violation of constitutional rights such as would warrant its exclusion as evidence.
46. While the Court views with some concern the evidence given by Mr. Doak concerning the absence, at a time material to this case, of any system for the routine destruction of records of DNA analysis which were required by the legislation then in force to be destroyed, the Court is not satisfied that his evidence went so far as to establish a calculated and cynical disregard for the policy of the legislature. The problem as described by Mr Doak was one of technical difficulty of giving effect to the stated policy of the legislature. Though it is irrelevant to the circumstances of this case, we have been given to understand that that problem no longer exists following the enactment of the Criminal Justice (Forensic Evidence and DNA Database System) Act 2014
47. In this case the sample was taken lawfully and was initially lawfully retained. During the period in which it was lawfully retained a “match” was identified, and there followed a direction from the respondent to prosecute on indictment. Thereafter the legal authority to retain the sample expired, and its continued retention became unlawful. As such, it was a matter within the discretion of the learned trial judge as to whether or not the evidence in controversy should be admitted. Her decision to admit the evidence, in the circumstances of this case, was not an error of principle.
48. The appeal is dismissed.
