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You are here: BAILII >> Databases >> Supreme Court of Ireland Decisions >> DPP -v- Cash [2010] IESC 1 (18 January 2010) URL: http://www.bailii.org/ie/cases/IESC/2010/S1.html Cite as: [2010] 1 ILRM 389, [2010] IESC 1 |
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Judgment Title: DPP -v- Cash Composition of Court: Murray C.J., Denham J., Hardiman J., Geoghegan J., Fennelly J., Macken J., Finnegan J. Judgment by: Fennelly J. Status of Judgment: Approved
Outcome: Dismiss | ||||||||||||||||||
THE SUPREME COURT No. 206 & 258 of 2007 Murray C.J.Denham J. Hardiman J. Geoghegan J. Fennelly J. Macken J. Finnegan J. BETWEEN: THE DIRECTOR OF PUBLIC PROSECUTIONS (AT THE SUIT OF DETECTIVE GARDA BARRY WALSH) Respondent/Prosecutor - and - JOHN CASH JUDGMENT of Mr. Justice Fennelly delivered the 18th day of January 20101. This appeal has narrowed down to a single point. Does the prosecution have to prove that material (fingerprints), which is not produced in evidence at trial, but which grounded the suspicion which justified the arrest of the accused, was lawfully obtained? 2. There is a separate point concerning the lawful taking of a second set of fingerprints from the accused while in detention. This does not appear to be any longer in issue and I will refer to it briefly. 3. The appellant appeals against a number of rulings made by Charleton J. in the High Court on a case stated from the District Court. The Essential Facts 4. The appellant was born on 24th August 1986. He stands charged before the District Court with committing burglary by entering a building at Kylemore Rd, Clondalkin, Dublin 22 as a trespasser on 21st July 2003, with intent to commit the offence of theft, contrary to section 12 (1) (a) and (3) of the Criminal Justice (Theft and Fraud Offences) Act 2001. Sub-section 3 of the section provides that a “person guilty of burglary is liable on conviction on indictment to a fine or imprisonment for a term not exceeding 14 years or both.” 5. The facts are as found by the learned District Judge. They are set out in the case stated, which has been sent forward at the end of the prosecution case. I relate only those facts necessary for an appreciation of the legal points in issue on the appeal. The case is all about three sets of fingerprints, as I will now explain. 6. On 21st of July 2003, Detective Garda Barry Walsh attended at the house at Kylemore Road, where the burglary was alleged to have taken place, and met the owner. A bedroom window had been smashed and property taken. Garda William Jordan found finger marks on two pieces of glass in the window frame. The prints of these finger marks were retained at the Fingerprint Section of the Garda Technical Bureau. The matching of these fingerprints is central to the case. I will call them Prints 2, because they are the second set of prints in point of time. 7. Detective Garda Walsh gave evidence that he later received “confidential information” from the Garda Technical Bureau identifying the accused as a suspect. Having initially insisted that the information was confidential, the Garda told the court that he was referring to information to the effect that Prints 2 had been matched with an earlier set of fingerprints (Prints 1) found on record at the Garda Technical Bureau and said to belong to the accused. Detective Garda Walsh said, in evidence, that he did not know whether Prints 1 had been lawfully taken or lawfully kept by the Gardaí in accordance with the requirements of section 8 of the Criminal Justice Act, 1984. 8. On 23rd September 2003 Detective Garda Walsh arrested the accused pursuant to section 4 of the Criminal Law Act, 1997 on suspicion of commission of an arrestable offence as there defined, namely burglary. In evidence, he agreed that the sole basis for that suspicion was the information that Prints 2, taken from the broken window, had been matched with Prints 1 which were in garda records.. 9. Following arrest, the accused was taken to Clondalkin Garda Station and there detained pursuant to the provisions of section 4 of the Criminal Justice Act, 1984. It has not been contended that this detention was unlawful. 10. While he was in detention, the accused signed a written consent to the taking of his photograph and fingerprints. His fingerprints (Prints 3) were accordingly taken by Detective Garda Joseph Maguire. The Gardaí maintained in the District Court that they were taking the fingerprints on the basis of the consent of the accused and not pursuant to the statutory power conferred by section 6 of the Act of 1984 to take fingerprints from a person detained pursuant to section 4 of that Act. They would, on the other hand, have resorted to the statutory power, if the accused had refused consent. Insofar as the admissibility of Prints 3 is raised in the case stated and on this appeal, it must be assumed that the prints were taken with the consent of the appellant. Whether there was consent in fact is a matter for the learned District Judge to decide, having heard all the evidence. At this point, she has merely said that she is minded to admit the evidence. It is entirely possible that, having heard all the evidence, she will decide that Prints 3 were not taken with the consent of the appellant. 11. Prints 3 were produced to Detective Garda Gannon, a fingerprint expert. His evidence was that he was satisfied beyond doubt that Prints 2 and 3 were made by the same person. 12. Detective Garda Gannon also gave evidence regarding Prints 1. He produced these fingerprints which bore the name of the appellant and were dated 31st March 2002. He did not know whether those prints had been taken pursuant to section 6 of the Act of 1984. It was put to him that he could not “stand over whether these prints were lawfully taken or kept” and he agreed. The potential significance of this point is that section 8 of the Act of 1984 requires, subject to certain conditions, that a fingerprint and any record of it taken pursuant to section 6 be destroyed after six months, if there is no prosecution. Prints 1 were taken more than six months before the burglary of July 2003. District Court Proceedings and Case Stated 13. The proceedings were conducted before Judge Aingeal Ní Chondúin, a judge assigned to the Dublin Metropolitan District, sitting at the Children’s Court at Smithfield commencing on the 14th of October 2003. The substantive hearing took place on 30th January 2004. Some prosecution evidence was then heard. The matter was adjourned for further evidence and, for various reasons, from time to time. Ultimately it came on for further hearing on 20th December 2004, when further evidence was given. 14. At the end of the prosecution case, counsel for the appellant submitted that there was no case to answer. He sought a direction. It was common ground that the fingerprints represented the only evidence. The learned judge indicated that she was “minded to admit all the prosecution evidence and on that basis that the prosecution had made out a prima facie case and the accused had a case to answer.” 15. The learned judge decided to present a consultative case stated to the High Court pursuant to the provisions of section 52 of the Courts (Supplemental Provisions) Act, 1961. She posed the following questions:
(i) Whether, in circumstances where the basis of a Garda investigation is a record of the accused’s fingerprints, retained by Gardaí which, on being so challenged by the Defence, the Gardaí are not in a position to “stand over whether they were lawfully taken or kept”, the evidence obtained during that investigation can form the legitimate basis for an arrest and subsequent detention pursuant to section 4 of the Criminal Justice Act, 1984? (iii) Whether the Gardaí, following the entry into force of section 6 of the Criminal Justice Act, 1984 have a power to take fingerprints from a person who is in section 4 Garda detention, other than pursuant to the said section 6, in circumstances where a person has signed a written consent? (iv) If such a power does exist, is it lawfully exercised where a Garda witness has given evidence on oath that the ‘consent procedure’, rather than the procedure under section 6, is preferable so as to avoid the requirements of section 8 of the Criminal Justice Act pertaining to the keeping and destruction of fingerprints? (v) If such an exercise of power is not lawful, is any evidence obtained as a result inadmissible? (vi) If a Garda has the power to take a fingerprint from a detainee who has given signed consent to the taking of the print, is it open, as a matter of law, for me to find that he consented voluntarily in the circumstances where a garda witness agreed with the assertion of Counsel for the Accused that it was his intention that the fingerprints would be obtained from the accused ‘one way or another’ and it was conveyed to the accused that if he did not wish to give consent to have his fingerprints taken that permission would be sought from a Superintendent? (vii) If the answer to the previous question is No, is the consequential evidence admissible?” In reality, only paragraphs i) and ii) are now relevant. 16. All the other questions concern the admissibility of evidence of fingerprints (Prints 3) taken with the consent of a person detained pursuant to section 4 of the Act of 1984 and without resort to the statutory procedures laid down by section 6 of that Act. Charleton J answered the questions to the effect that the gardaí were entitled to seek the consent of an accused person to the giving of relevant samples and that a judge is entitled to assess the evidence in deciding whether there was in fact consent. Since the High Court decision, this Court, in DPP v Boyce, [2008] IESC 52; [2009] 1 ILRM 253 (judgment of 18th November 2008) has dealt with the admissibility of evidence based on a sample of the blood of an accused person taken in analogous circumstances. In that case, the gardaí did not avail of the power to take blood samples conferred by section 2 of the Criminal Justice (Forensic Evidence) Act, 1990. Denham J, delivering judgment on behalf of the majority of the Court held that the statute had not ousted the common law. The availability of a statutory procedure for taking a sample of blood did not prevent the gardaí from taking the sample with the consent of the detained person. At the hearing of the appeal in the present case, counsel for the appellant accepted that he could not distinguish this case from DPP v Boyce. In effect, if the blood sample taken with consent was admissible in evidence in that case, the same would apply to the fingerprints taken from the appellant while in detention in this case. The Relevance of the Lawfulness of Facts Relied on to Found Suspicion 17. I turn then to the question raised by the first two questions. The High Court judge answered the first question as follows:
18. In the course of his judgment, he expressed the following views, which I will quote more extensively later:
The Appeal 19. The fundamental assumption underlying the appellants arguments is that the decision of this Court in People (DPP) v. Kenny [1990] 2 I.R. 110 regarding the admissibility of unconstitutionally obtained evidence in criminal trials can be extended to encompass the lawful provenance of facts, such as Prints 1 in the present case, which do not form part of the evidence proffered at trial but which provided the basis for the suspicion justifying the arrest of the accused person. 20. Writing for the majority of the Court in Kenny’s case, Finlay C.J, at page 133 of the report, carefully balanced two possible rules or principles governing the exclusion of evidence obtained as a result of the unconstitutional invasion of the personal rights of the citizen. On the one hand, the rule could be applied only to evidence obtained by a person who knows or ought reasonably to know that he is invading a constitutional right. This he described as a “negative deterrent.” The alternative was, an “absolute protection rule of exclusion,” which, “whilst providing also that negative deterrent, incorporates as well a positive encouragement to those in authority over the crime prevention and detection services of the State to consider in detail the personal rights of the citizens as set out in the Constitution, and the effect of their powers of arrest, detention, search and questioning in relation to such rights.” 21. The Chief Justice opted for the latter formulation, concluding as follows:
22. Also underlying the appellant’s case are certain statutory provisions requiring the destruction, in certain circumstances and after certain times, of fingerprints in garda records. Section 8 of the Criminal Justice Act, 1984 provides in relevant part:
(2) Where proceedings for an offence to which section 4 applies are not instituted against the person within the period of six months from the date of the taking of the photograph or print and the failure to institute such proceedings within that period is not due to the fact that he has absconded or cannot be found, the destruction shall be carried out on the expiration of that period.” 23. There was, of course, no evidence as to whether the fingerprints (Prints 1) had been taken pursuant to these provisions or by consent. However, given the date (31st March 2002), the statute would, in circumstances such as those which prevail in the present case, have required their destruction if they had been obtained by virtue of section 6 of the Act. 24. The question posed in the present case is whether the absolute exclusionary rule laid down in Kenny should be extended to cover facts, not being offered as part of the evidence at a criminal trial, but giving rise to the suspicion which led to the arrest. 25. Counsel for the appellant was unable to point, either in written or oral submissions, to any authority in support of the desired extension of the principle laid down in Kenny. The decision of this Court in Director of Public Prosecutions v. McCreesh [1992] 2 I.R. 239 was, however, relied on as offering support by analogy. The Court, in that case, held that the arrest was invalid. I will discuss it more fully later. 26. At the hearing of the appeal, Mr Gerard Hogan, Senior Counsel for the appellant, argued that the appellant’s constitutional rights had been infringed when he was arrested pursuant to section 4 of the Act of 1997. The prints dated 31st March 2002 could not have been lawfully used to ground the arrest. Consideration of the Appellant’s Case 27. The appellant seeks to persuade the Court to extend the boundaries of Kenny. Under the absolute exclusionary rule laid down by this Court in that case, which the Chief Justice described as “the absolute protection rule of exclusion,” a trial judge is absolutely precluded, subject only to the extraordinary excusatory circumstances described in The People (Attorney General) v O’Brien [1965] I.R.142, from admitting into evidence any testimony obtained as a result of the breach of the constitutional rights of the accused person. The rationale for the rule, as explained by Finlay CJ is that:
To exclude only evidence obtained by a person who knows or ought reasonably to know that he is invading a constitutional right is to impose a negative deterrent. It is clearly effective to dissuade a policeman from acting in a manner which he knows is unconstitutional or from acting in a manner reckless as to whether his conduct is or is not unconstitutional. To apply, on the other hand, the absolute protection rule of exclusion whilst providing also that negative deterrent, incorporates as well a positive encouragement to those in authority over the crime prevention and detection services of the State to consider in detail the personal rights of the citizens as set out in the Constitution, and the effect of their powers of arrest, detention, search and questioning in relation to such rights. It seems to me to be an inescapable conclusion that a principle of exclusion which contains both negative and positive force is likely to protect constitutional rights in more instances than is a principle with negative consequences only. The exclusion of evidence on the basis that it results from unconstitutional conduct, like every other exclusionary rule, suffers from the marked disadvantage that it constitutes a potential limitation of the capacity of the courts to arrive at the truth and so most effectively to administer justice. I appreciate the anomalies which may occur by reason of the application of the absolute protection rule to criminal cases. The detection of crime and the conviction of guilty persons, no matter how important they may be in relation to the ordering of society, cannot, however, in my view, outweigh the unambiguously expressed constitutional obligation "as far as practicable to defend and vindicate the personal rights of the citizen.” 28. The Chief Justice delineated the precise boundaries of the rule as follows:
29. The rule laid down in that judgment, in its own terms, applies only to the exclusion of evidence proffered at a criminal trial. The word “exclusion” or its cognates, exclude, excluded or exclusionary occur seven times and the word “evidence” four times. More to the point, the Chief Justice was referring to “evidence obtained as a result of the invasion of the personal rights of a citizen” or which “results from unconstitutional conduct.” (emphasis added). The object of the rule is to provide positive encouragement to state authorities, when gathering evidence, to consider in detail the constitutional rights of persons affected by the exercise of their “powers of arrest, detention, search and questioning…” 30. DPP v Kenny was not concerned with the lawful provenance of evidence used to ground a suspicion, nor does the Chief Justice’s judgment advert to the possibility that the principle propounded could be applied to such an issue. 31. The appellant wishes to extend this rule in two respects. Firstly, it is to include matter providing the basis for the formation of suspicion of guilt, though it is not offered in evidence. Secondly, it is to apply to material already in existence and not obtained for the purpose of the particular criminal investigation. 32. Charleton J. commented very fully on the essence of the contention advanced in the following passage:
“A constable is justified in arresting a person without a warrant, upon a reasonable suspicion of a felony having been committed and of the person being guilty of it”. Their Lordships have not found any English authority in which reasonable suspicion has been equated with prima facie proof. In Dumbell v. Roberts [1944] 1 All E.R. 326, Scott L.J. said, at p. 329: “The protection of the public is safeguarded by the requirement, alike of the common law and, so far as I know, of all statutes, that the constable shall before arresting satisfy himself that there do in fact exist reasonable grounds for suspicion of guilt. That requirement is very limited. The police are not called upon before acting to have anything like a prima facie case for conviction; …”. There is another distinction between reasonable suspicion and prima facie proof. Prima facie proof consists of admissible evidence. Suspicion can take into account matters that could not be put in evidence at all. There is a discussion about the relevance of previous convictions in the judgment of Lord Wright in McArdle v. Egan (1934) 150 L.T. 412. Suspicion can take into account also matters which, though admissible, could not form part of a prima facie case. Thus the fact that the accused has given a false alibi does not obviate the need for prima facie proof of his presence at the scene of the crime; it will become of considerable importance in the trial when such proof as there is being weighed perhaps against a second alibi; it would undoubtedly be a very suspicious circumstance.” 33. The appellant would transpose a rule applicable to evidence presented at a criminal trial and apply it to material grounding a suspicion of guilt of a particular crime which influenced the mind of the arresting garda. If material could not be admitted in evidence, it could not justify a reasonable suspicion that an offence had been committed. The appellant would blur the distinction between the arrest and the trial. The first is an essential prerequisite of the second. The courts have always been astute to control the exercise of powers of arrest, to ensure that they are lawfully used and that they are not abused. 34. Firstly, an arrest will not be lawful if it is not justified by a power conferred by common law or by statute. In the present case, the appellant was arrested pursuant to a power conferred by section 4(3) of the Criminal Law Act, 1997 as follows:
35. It is accepted that the offence with which the appellant is charged is “an arrestable offence” i.e., that it potentially attracts a sentence of imprisonment for a term of five years at a minimum. The focus is on the expression, “with reasonable cause,” which equates to reasonable suspicion. Professor Dermot Walsh in his invaluable work on Criminal Procedure (Thomson Round Hall, Dublin 2002) lists a number of statutory formulations (see page 176 par. 4-39). The appellant submits that the onus rests on the prosecution to prove that the basis for the reasonable cause for the arrest was lawful. It has, of course, to be emphasised that the requirement of “reasonable cause” is not to be overlooked. An arrest without reasonable cause or suspicion or however that requirement is expressed in a particular statute is an unlawful act and may give rise to a claim for damages. As it happens, the Privy Council case of Hussein v Chong Fook Kam, cited above, is an example of a case where the suspicion was held not to have been reasonable: damages were awarded against the police. 36. Secondly, an arrest will be unlawful if it is effected for a purpose other than that for which it is authorised. If a person is arrested under a statutory power to arrest on suspicion of commission of a particular offence it can only be used for that purpose. In Oladapo v Governor of Cloverhill Prison [2009] IESC 42, a Nigerian national had been arrested pursuant to section 13 of the Immigration Act, 2004 on suspicion of having committed offences contrary to that Act. In reality, the purpose of his arrest ws not to charge him but to go through the process of denying him “permission to land”pursuant to another provision of the Act and thus to facilitate his deportation. Murray C.J., (with whom Denham and Fennelly JJ agreed) said: “A person may only be lawfully arrested on a criminal charge, where, apart from other criteria, there is a bona fide intention of charging that person with that offence.” Similarly, this Court has held that the Special Criminal Court did not have jurisdiction to try a person who had been arrested but not charged before the court forthwith, as required by a statutory provision then in force.(see O’Brien v Special Criminal Court [2008] 4 IR 514). 37. Thirdly, a person who has been lawfully arrested on a particular criminal charge must be brought before a court for that purpose as soon as is reasonably possible (Dunne v Clinton [1930] I.R. 366.). Walsh J expressed the matter as follows in Director of Public Prosecutions v Shaw [1092] 1 I.R. 1 at page 29:
38. As Charleton J. observed, it has never been held that “what would found a reasonable suspicion in law, requires to be based on the kind of evidence that would be admissible under the rules of evidence during the hearing of a criminal trial.” Counsel for the appellant was unable to refer to any authority to undermine that conclusion. Reliance was, however, placed on Director of Public Prosecutions v McCreesh [1992] 2 I.R. 239. In that case, the defendant's car had been seen parked on a public highway by members of the Garda Síochána, who had decided to investigate it in connection with reports of break-ins in the area. The defendant's car had taken off and had been followed by gardaí, who had been unable to catch up with it until the defendant had turned into the driveway of his home. The gardaí pursued him into the precincts of his own home. One garda formed the opinion that he was intoxicated as a result of smelling of intoxicating liquor. He was arrested pursuant to a provision of the Road Traffic Acts and taken to a garda station for the purposes of requiring a sample of blood or urine. Ultimately, he was prosecuted under a provision relating to his refusal to provide a sample of urine. It was a component of the offence that he be “an arrested person.” This Court held that his arrest had been unlawful, as the gardaí had been trespassers on the his property at the time of the purported arrest. The acts did not authorise the gardaí to enter upon the defendant’s property for the purpose of making an arrest. 39. The appellant submits that McCreesh is authority for the proposition that, where a suspicion used to ground an arrest is itself based on illegality, the subsequent arrest is unlawful together with the detention which follows and any subsequent procedures reliant upon the arrest. I do not accept that McCreesh stands as authority for any such broad proposition. In that case, the prosecution had to prove the arrest, as an element of the offence. It was the fact that the arrest was performed, without statutory authority, on private property which rendered it unlawful, not the contemporarneous suspicion formed by the garda as to the intoxicated condition of the defendant. 40. I prefer to return to the essentials of the appellant’s proposition. It is that there is an onus on the prosecution to prove that any material forming the basis of the suspicion or, using the language of the Act of 1997, “reasonable cause” which led to the arrest has a lawful origin. Professor Dermot Walsh in his Criminal Procedure, cited above, discusses the Privy Council decision in Hussein v Chong Fook Kam, which was cited by Charleton J. At page 177, having made reference to the exposition by Lord Devlin, he explains: “The prima facie proof would have to rest on the basis of admissible evidence, while a reasonable suspicion may take into account matters which would not be admissible at all.” 41. The lawfulness of an arrest and the admissibility of evidence at trial are different matters which will normally be considered in distinct contexts. Infringement of any of the basic rules regarding the first may give rise to a challenge to the lawfulness of the detention extending potentially to the jurisdiction of the court of trial. Normally, such matters require to be asserted in advance of trial. These issues emerge from the decisions of this Court in O’Brien v Special Criminal Court, cited above, and Brennan and others v Governor of Portlaoise Prison [2008] IESC 12. Geoghegan J discusses, in the latter case, the extent to which it is necessary to advance a challenge to jurisdiction before or at trial. 42. I conclude that the appellant has not established that an onus rests on the prosecution to establish the lawful provenance of material relied upon by a member of the Garda Síochána or that such material was obtained without breach of a constitutional right to form reasonable cause justifying an arrest. I would dismiss the appeal and affirm the order of the High Court. JUDGMENT delivered the 18th day of January, 2010 by Mr. Justice Hardiman. This is a case stated pursuant to s.52of the Courts (Supplemental Provisions) Act. The case was stated on the 21st July, 2005 by Judge Aingal Ní Chonduin, a judge of the District Court assigned to the Dublin Metropolitan District and sitting at the relevant time in the Childrens Court at Smithfield, Dublin. Background facts. John Cash, who was then below the age of majority, was charged with the offence of entering a building as a trespasser with intent to commit an arrestable offence therein, contrary to s.12(1)(a) and (3) of the Criminal Justice (Fraud and Theft Offences) Act, 2001. The specific terms of the charge against him were as follows:
The relevant evidence given by prosecution witnesses is summarised by the learned District Court Judge as follows: RELEVANT FACTS AS GIVEN IN EVIDENCE BY PROSECUTION WITNESSES 3. Detective Garda Barry Walsh arrived at St. Martin’s, Kylmore Road, Dublin 12 on the 21 July 2003 and was met there by the owner of the house, Rosin Walsh who told him that in her absence a bedroom window had been smashed and that property had been taken from the house. Detective Garda Walsh left the scene and contacted the Garda Divisional Scenes of Crime Office and requested a technical examination. That technical examination was conducted by Garda William Jordan on 22 July 2003. Garda Jordan gave evidence that he found finger marks on two pieces of glass in the window frame of St. Martin’s, Kylmore Road. He lifted these prints and brought them to the Fingerprint Section in the Garda Technical Bureau on 23 July 2003 where they were given a number TB 15107/2003, put into an envelope, signed and sealed by Garda Jordan. 4. Detective Garda Walsh gave evidence that some time after this he received “confidential information” from t he Garda Technical Bureau identifying one John Joseph Cash, the Accused, as a suspect in this case. During cross examination Detective Garda Walsh was asked by Counsel for the Accused if he was aware of the evidence grounding the arrest. He stated that it was confidential information and to disclose it to the court would be prejudicial to the accused. Under cross-examination by Counsel for the Accused, Detective Garda Walsh stated that the “confidential information” he was referring to was information that the prints taken from St. Martin’s and given the number TB 15107/2003 had been matched with a set of fingerprints of one John Joseph Cash on record at the Garda Technical Bureau. It was put to Detective Garda Walsh by Counsel for the accused that he had no knowledge as to how the print match had been made. He agreed. It was also put to Detective Garda Walsh that he did not know whether the fingerprints with which TB 15107/2003 had been matched (herein after referred to as the “original unexplained prints”) had been lawfully taken and lawfully kept by Gardaí in accordance with the requirements of section 8 of the Criminal Justice Act, 1984. He agreed with this. 5. On 23rd September 2003 Detective Garda Walsh, accompanied by Garda Brian O’Shaughnessy, arrested the Accused at his home at 24 Labre Park, Ballyfermot, Dublin 10 under the provisions of section 4 Criminal Law Act 1997 on suspicion of commission of an arrestable offence, namely burglary. Under cross-examination, Detective Garda Walsh stated that the sole basis of the suspicion for the arrest was the information he had received from the Garda Technical Bureau that the original unexplained prints had matched TB 15107/2003. 6. Detective Garda Walsh cautioned the Accused and brought him to Clondalkin Garda Station, having informed his parents Michael and Ellen Cash that they would be required to come to Clondalkin Garda Station as soon as practicable, as their son was under 18 years of age. Garda Walsh, Garda O’Shaughnessy and the Accused arrived at Clondalkin Garda Station at 8.10am. The Accused was given a written notice of his rights by Garda Connel Treanor. 7. Detective Garda Walsh then requested that the member in charge, Sergeant Philip Bourke, detain the Accused under the provisions of section 4 of the Criminal Justice Act, 1984. Detective Garda Walsh informed Sergeant Bourke that he was carrying out an investigation into the burglary at St. Martin’s and that as a result of prints taken from the scene, the Accused had been “nominated” as a suspect by the Garda Technical Bureau. On the basis of this information Sergeant Bourke detained the Accused under the provisions of section 4. 8. At 10.15am Sergeant Bourke, in the presence of Detective Garda Walsh, requested the Accused and his mother to sign a written consent to providing his photograph and fingerprints. It was put to Sergeant Bourke by Counsel for the accused that the Accused was initially anxious not to give his fingerprints. Sergeant Bourke stated that he informed the Accused that if didn’t wish to give his consent to have his fingerprints taken, that permission would be sought from a Superintendent. This was explained to the Accused and his mother. He stated that he explained and read over the consent from to the defendant and his parents. He stated that he was satisfied that both parents were aware of what was contained in the form. The Accused was asked by Sergeant Bourke in the presence of his mother if he would consent to having his fingerprints taken and he consented. The Accused signed the form in the presence of his mother. It was put to Sergeant Bourke during cross-examination by Counsel for the Accused that it was his intention that the fingerprints of the Accused would be taken ‘one way or another’. He agreed with this. Sergeant Bourke stated that if there was no consent to the taking of fingerprints then an application would have been made to the Superintendent. He went on to say that it was the policy of the gardai to offer the defendant the opportunity to provide prints first prior to making an application to the Superintendent. He stated that as a result of his experience, he believed it to be of courtesy to the defendant to do this. The Accused’s prints and photographs were taken by Detective Garda Joseph Maguire, who had been so instructed by Sergeant Bourke. Detective Garda Maguire stated that he took the prints based on the consent from and not under the Criminal Justice Act, 1984. Detective Garda Maguire was asked by Counsel for the Accused where his power to take prints by consent derived from. He could not say. He stated that while he was aware of the provisions of section 6 of the Criminal Justice Act, 1984, he was simply following orders. 9. During cross-examination Detective Garda Walsh was asked the reason why the consent procedure, rather that the procedure under section 6 Criminal Justice Act 1984 is used by Gardai, and was used in this case. Detective Garda Walsh stated that where prints are taken on consent they can be kept indefinitely whereas there was an obligation to destroy them after a period of time if they were taken under the 1984 Act. 10. Detective Garda Walsh then brought the set of prints which had been taken from the Accused on a Form PC 65 (herein after referred to as “PC 65 prints”) to the Fingerprint Section, Garda Technical Bureau, Phoenix Park where he handed them to Detective Garda Raymond Gannon. 11. Detective Garda Gannon, a fingerprint expert, compared the PC 65 prints with the TB 15107/03 prints taken from St. Martin’s and was satisfied beyond doubt that both prints were made by the same person. 12. Detective Garda Gannon during cross-examination by Counsel for the Accused was asked by the Defence if he was aware of the evidence grounding the arrest. He stated that it was confidential information and to disclose it to the court would be prejudicial to the Accused. The defence nevertheless wanted this information to be disclosed to the court. Detective Garda Gannon then produced a further set of fingerprints bearing the name of one John Joseph Cash and dated the 31 March 2002. He was asked by Counsel for the Accused whether these prints had been taken pursuant to section 6 of the Criminal Justice Act, 1984 or otherwise. He replied that he did not know. He was also asked if he was aware of the provisions of section 8 of that Act and the requirement thereunder to destroy prints after six months. He stated that he was not. It was put to Detective Garda Gannon by Counsel for the Accused that he could not “stand over whether these prints were lawfully taken or kept”. He agreed with this. 13. During cross-examination Detective Garda Gannon was asked whether he was the person who matched the TB 15107/03 prints taken from St. Martin’s to those of the Accused on some date prior to the 23 September thereby identifying the Accused as a suspect and leading to his arrest and detention on the 23 September 2003. Detective Garda Gannon stated that after opening a sealed envelope containing the TB 15107/03 prints that he matched them with the set of prints bearing the name John Cash dated the 31st of March, 2002, using the AFIS (“Automated Fingerprint Information Service”). 14. Detective Sergeant Garda Walsh was informed by Detective Garda Gannon that the TB 15107/03 prints from St. Martin’s matched the right forefinger and right middle finger taken from the Accused on the PC 65 form that morning. Detective Garda Walsh then returned to Clondalkin Garda Station where the Accused was still under Section 4 detention. 15. At Clondalkin Garda Station the Accused, in the presence of his mother, was interviewed by Garda Walsh and Garda O’Shaughnessy. During this interview the matching of the prints were put to the Accused and he was asked to explain this. It was put to him that he was responsible for the burglary at St. Martin’s. The Accused denied any involvement in the burglary at St. Martin’s and said that he was at a loss to explain how his prints appeared to match prints found at St. Martin’s. 16. At 2.10pm on the 23 September 2003 the Accused, in the presence of his mother, was charged by Sergeant Stephen Lydon as set out in Clondalkin Charge Sheet No. 210510 in relation to the burglary at St. Martin’s. The Accused was then released on station bail to appear at District Court 55 on 14 October 2003. 17. That was the end of the prosecution case. Counsel on behalf of the Accused at this point made an application for a direction dismissing the charge on the basis that there was no case to answer. It was common ground between Defence and Prosecution that the only evidence against the Accused was the fingerprint evidence.” It thus appears that, after a break in at a dwellinghouse, fingermarks were found on two pieces of glass in a window frame in the premises broken into. These were sent to the Garda Technical Bureau and they were matched, using a computerised process, with finger prints allegedly taken from the accused on a previous occasion, and dated, in the form in which they exist in the Technical Bureau’s record, 31st March, 2002. The comparison between these two sets of finger prints led to the arrest of the appellant in respect of the break in at “St. Martin’s” and is subsequently to his detention under the provisions of s.4 of the Criminal Justice Act, 1984. While the age of the appellant does not appear from the case stated it appears he was a child or young person requiring to be tried before the Childrens Court, at the time of all material appearances in the years 2003 - 2005. It further appears from the case stated that there was no evidence against the accused other than comparison of two sets of finger prints. Objection was taken on the part of the appellant to the admission of the finger print evidence on the basis that the arrest and detention under s.4 were unlawful because they were based on information from the Technical Bureau, which was in turn based on the March 2002 finger print kept in the records of that body. It was contended that the legality of the taking of that finger print, and of its preservation by the gardaí, had not been established. This last mentioned contention was based on the agreement of a Detective Garda Gannon, a finger print expert, that he could not “stand over whether these prints were lawfully taken or kept”. It will be noted that it also arose from the evidence heard before the learned District Court Judge that the prosecutor, Detective Garda Walsh, first claimed privilege in relation to the information on the basis of which he had arrested the appellant. He also stated that “he did not know whether the finger print with which the prints found in “St. Martin’s” had been matched had themselves been lawfully taken and lawfully kept by the gardaí.” Another prosecution witness, Detective Garda Maguire, took the appellant’s finger prints and photograph while the latter was in custody under s.4 of the 1984 Act. He said he did so on the basis of a consent of the appellant and his parents. He could not say where his power to take prints by consent derived from. He said he was aware of the provisions of s.6 of the Criminal Justice Act, 1984 but he was “simply following orders”. Another feature of the facts to emerge from the case stated is that set out at paragraph 9 thereof and is relied upon by the appellant. It appears that Detective Garda Walsh was asked the reason “why the consent procedure, rather than the procedure under s.6 of the Criminal Justice Act, 1984, is used by gardaí, and was used in this case. In the words of the case stated:
It will be noted that there is no information in the case stated, and there was no evidence before the District Court, in relation to certain material matters. None of the gardaí involved in the “St. Martin’s” investigation were involved in the chain of events apparently leading to the taking of the appellant’s finger prints in March, 2002. The appellant did not himself give evidence, or call any evidence, on that question. The prosecution did not call any gardai who had been involved in the events of March, 2002 and neither did either side produce any custody record (if indeed the appellant had been in custody) which covered the circumstances in which the first set of finger prints were taken. Moreover, there was no evidence other than what has been quoted above relating to the circumstances in which a second set of finger prints was taken. From the evidence quoted above it appears that they were taken while the appellant was in custody. This evidence, which appears to have been uncontradicted, establishes that a Sergeant Burke asked the accused and his mother to sign a written consent to the providing of his photograph and finger prints. The Sergeant said that he informed the accused that if he did not wish to give his consent to have his finger prints taken, that permission would be sought from a Superintendent. Subsequently the accused was asked, in the presence of his mother, if he would consent to having his finger prints taken and he consented. He then signed the consent form in the presence of his mother. Statutory provisions. Section 6 of the Criminal Justice Act, 1984, provides insofar as is relevant: “(6)(i) Where a person is detained pursuant to s.4, a member of the Garda Síochána may -
(b) - (c) photograph him or cause him to be photographed; (d) take or cause to cause to be taken his finger prints and palm prints, (e) - (f) - (2) The powers conferred by subsection (1)(c) and (d) shall not be exercised except on the authority of a member of An Garda Síochána not below the rank of Superintendent. Section 8 of the same Act provides in so far as relevant: (2) Where proceedings for an offence to which s.4 applies are not instituted against the person within the period of six months from the date of the taking of the full graph or print and the failure to institute such proceedings within that period is not due to the fact that he has absconded or cannot be found, the destruction can be carried out on the expiration of that period.” In DPP v. Boyce, (unreported) Court of Criminal Appeal, 21st December, 2005, Murray C.J., giving the judgment of the Court, considered a situation in which a blood sample had been taken from an accused with his consent, though without utilising the procedures laid down in the Criminal Justice (Forensic) Act, 1990. Murray C.J. said:
Questions raised. At the end of the case stated the learned District Justice raises the following questions:
(i) Whether, in circumstances where the basis of a Garda investigation is a record of the accused’s fingerprints, retained by Gardai which, on being so challenged by the Defence, the Gardai are not in a position to “stand over whether they were lawfully taken or kept”, the evidence obtained during that investigation can form the legitimate basis for an arrest and subsequent detention pursuant to section 4 of the Criminal Justice Act, 1984? (ii) If the answer to the above question is No, must any evidence obtained during and consequential upon the said section 4 detention be excluded? (iii) whether the Gardai, following the entry into force of section 6 of the Criminal Justice Act, 1984 have a power to take fingerprints from a person who is in section 4 Garda detention, other than pursuant to the said section 6, in circumstances where a person has signed a written consent? (iv) If such a power does exist, is it lawfully exercised where a Garda witness has given evidence on oath that the ‘consent’ procedure’, rather than the procedure under section 6, is preferable so as to avoid the requirements of section 8 of the Criminal Justice Act pertaining to the keeping and destruction of fingerprints? (v) If such an exercise of power is not lawful, is any evidence obtained as a result inadmissible? (vi) If a Garda has the power to take a fingerprint from a detainee who has given signed consent to the taking of the print, is it open, as a matter of law, for me to find that he consented voluntarily n the circumstances where a garda witness agreed with the assertion of Counsel for the Accused that it was his intention that the fingerprints would be obtained from the accused one way or another’ and it was conveyed to the accused that if he did not wish to give consent to have his fingerprints taken that permission would be sought from a Superintendent?’ (vii) If the answer to the previous question is No, is the consequential evidence admissible?” It appears to me that the evidence in this case, as recorded in the case stated, does not go far enough to permit or require the court to determine any of the questions raised. The prosecution case was presented on the basis that the investigating members obtained information from the Garda Technical Bureau and that this led them to seek a “match” between the appellant’s finger prints taken by them and finger prints previously “lifted” from “St. Martin’s”. There is a complete absence of evidence as to the circumstances of the taking of the earlier, 2002, set of finger prints. Specifically, it is not known whether the appellant was in custody when they were taken; whether he was attended by a solicitor, a parent, or any other person; whether a statutory power was used to take those finger prints or whether he consented to their being taken. Because of the absence of evidence on this last point, it is unknown to the court whether or not provisions regarding destruction of finger prints contained in s.8 of the Act of 1984 applied to this first set of finger prints or not. It will be noted that the obligations to destroy applies only to prints taken under the powers conferred by s.6 of the same Act and would not appear to apply if the prints were taken by consent. The learned District Judge is entitled to consider, as noted above, that the appellant has not seen fit to call evidence, his own or anyone else’s, and the circumstances in which the first set of finger prints was taken and neither has he apparently sought production of any record of the circumstances of their taking. The evidence of Detective Garda Walsh to the effect that consent to the procedure is preferred because it avoids the necessity to destroy finger prints after a specified time may be interesting and suggestive but it has no direct application to the present case because of the absence of evidence as to whether this procedure was in fact employed and, if so, the circumstances in which that happened. Accordingly, questions such as the propriety of using the consent procedure for that purpose and of what, if anything, must be explained to a child suspect before that can be done must await determination in another case. The learned District Judge is, of course, entitled and obliged to have regard to the decision in DPP v. Boyce and this will provide useful guidance. In the prosecution in the District Court, the State’s evidence was limited to a comparison of the finger prints “lifted” from “St. Martin’s” with the appellant’s fingerprints taken after his arrest and s.4 detention, in 2003. The finger print bearing the date 31st March, 2002, plays no evidential role at all in the prosecution case. Its existence and its role in leading to the arrest of the appellant under s.4 was however brought out in the course of cross-examination by the defence during the District Court hearing, and in the face of resistance by the prosecution. The defence did not however establish the circumstances of the taking of the earlier set of prints. If those finger prints had formed part of the prosecution case, the State would have had to establish their admissibility in the ordinary way. But they were not part of the prosecution case. Their role in the case was brought out by the defence, but in a very incomplete way. It is not even known who took the 2002 finger prints or (apart from the appellant himself) who was present when they were taken. Since the 2002 finger prints are not part of the prosecution case, it appears to me to be for the defence to establish, with a proper degree of precision, all facts concerning them which are necessary to any submission which the defence wishes to make. This onus is no more than an evidential burden, but it does not appear to me to have been discharged. The questions posed by the learned District Judge accordingly lack a sufficient evidential basis and are to that degree moot and thus inappropriate to be answered. Equally, the lengthy disquisition on the general topic of a legally obtained evidence, which appears in the judgment of the learned trial judge, must be regarded as obiter and of no binding effect. The Court will accordingly remit this matter to the District Court to proceed in accordance with law. Since I do not consider the questions posed to contain a sufficient evidential basis to establish their relevance, or to require or permit this court to answer them, it will be for the learned District Judge to consider if she is satisfied that a prima facie case has been established on the basis of the evidence she has heard. If she considers that there is a prima facie case, the defence must be given the opportunity to go into evidence. In reaching this conclusion, I am not ignorant of the significance of the issues raised on both sides of this case. However, the evidential material is not available to answer the questions raised by the learned District Judge and, accordingly, it is unnecessary to proceed to consider the prosecution’s submission that the case of DPP v. Kenny [1990] 2 IR 110 should be reviewed. | ||||||||||||||||||
