DPP v Cash

• Jurisdiction: Ireland
• Judge: Mr. Justice Charleton
• Judgment Date: 28 March 2007
• Neutral Citation: [2007] IEHC 108
• Court: High Court
• Date: 28 March 2007

DPP (WALSH) v CASH

IN THE MATTER OF SECTION 52 OF THE COURTS (SUPPLEMENTAL)

PROVISIONS ACT, 1961

BETWEEN

THE DIRECTOR OF PUBLIC PROSECUTIONS (AT THE SUIT OF DETECTIVE GARDA BARRY WALSH)

PROSECUTOR

AND

JOHN CASH

ACCUSED

[2007] IEHC 108

[No. 1088 S.S./2005]

THE HIGH COURT

Abstract:

Constitutional law - Criminal law - Evidence - Case stated - Improperly obtained evidence - Extraordinary excusing circumstances - Fingerprints - Burglary charge - Separation of powers - Whether Court could admit illegally obtained fingerprints - Criminal Justice Act 1984 - Criminal Justice Act 2006 - European Convention on Human Rights

Facts: The fingerprints from the accused were taken illegally from him and not in accordance with the provisions of the Criminal Justice Act 1984 or the Criminal Justice Act 2006. The fingerprints matched those taken at the scene of a burglary. The issue arose inter alia as to whether the improperly obtained evidence could be used in the prosecution or whether it had destroyed the legality of the arrest.

Held by Charleton J. that a system of exclusion of improperly obtained evidence had to be implemented on the basis of a balancing on interests in light of Article 6 ad 8 of the European Convention on Human Rights. The entire rationale for the exclusionary rule had been replaced. Evidence resulting from a detention based upon a suspicion that could not be proved as entirely lawful was not for that reason unlawful. The District Judge had to assess all of the evidence. The decision of the Supreme Court in The People (DPP) v. Kenny [1990] 2 IR 110 was not to be extended.

Reporter: E.F.

COURTS (SUPPLEMENTAL PROVISIONS) ACT 1961 S52

CRIMINAL LAW ACT 1997 S4

CRIMINAL JUSTICE ACT 1984 S6

CRIMINAL JUSTICE ACT 1984 S8

CRIMINAL JUSTICE ACT 2006 S13

CRIMINAL LAW ACT 1997 S6

OFFENCES AGAINST THE STATE ACT 1939 S30

CRIMINAL JUSTICE ACT 1984 S4

CRIMINAL JUSTICE (DRUG TRAFFICKING) ACT 1996 S2

DPP v MCCAFFREY 1986 ILRM 687 3 FREWEN 284

LISTER v PERRYMAN 1870 LR 4 HL 521

DPP v REDDAN & HANNON 1995 3 IR 560

R v DEBOT 1989 2 SCR 1140

SHAABAN BIN HUSSEIN SBH & ORS v CHONK FOOD KAM CFK 1970 C 942

AG v MCGRATH 1965 9 ILTR 59

SULLIVAN v ROBINSON 1954 IR 161

AG v O'BRIEN 1965 IR 142

DPP v CLOSKEY UNREP O'HANLON 6.2.84 1984/4/1155

DPP v MCCREESH 1992 2 IR 239

DPP, PEOPLE v WALSH 1980 IR 294

DPP, PEOPLE v MADDEN 1977 IR 336

DPP v LAWLESS 3 FREWEN 30 1985 7 2010

MISUSE OF DRUGS ACT 1977 S26(1)(a)

DPP, PEOPLE v KENNY 1990 2 IR 110

COURTS OF JUSTICE ACT 1924 S29

DPP v HEALY 1990 ILRM 313 1990 2 IR 73 1989 5 1277

AG v O'BRIEN 1965 IR 142

DPP, PEOPLE v SHAW 1982 IR 1

CURTIN v CLERK OF DAIL EIREANN & ORS 2006 2 ILRM 99 2006 IESC 14

CONSTITUTION ART 40.5

DPP v YAMANOHA 1994 1 IR 565 1999 9 2230

MISUSE OF DRUGS ACT 1984

DPP v DILLON 2002 4 IR 501 2003 1 ILRM 531 2002 9 1993

INTERCEPTION OF POSTAL PACKETS & TELECOMMUNICATIONS MESSAGES (REGULATION) ACT 1993 S2(1)

POSTAL & TELECOMMUNICATIONS SERVICES ACT 1983 S98

DPP v PRINGLE 1981 2 FREWEN 57

LAW REFORM COMMISSION REPORT ON THE ESTABLISHMENT OF A DNA DATABASE LRC 78 2005 PARA 5.39

DPP v COSTIGAN UNREP CCA 28.4.2006 2006 IECCA 57

JUDGES RULES r1

DPP v BOYCE UNREP CCA 21.12.2005 2005 IECCA 143

CRIMINAL JUSTICE ACT 1984 S18

CRIMINAL JUSTICE ACT 1984 (TREATMENT OF PERSONS IN CUSTODY IN GARDA SIOCHANA STATIONS) REGS 1987 SI 119/1987

B v DPP 1997 3 IR 140

DPP, PEOPLE v T (J) 1988 3 FREWEN 141

CONSTITUTION ART 41

CRIMINAL JUSTICE (EVIDENCE) ACT 1924

CONSTITUTION ART 50

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 8

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 2

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 3

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 5

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 6

X & Y v THE NETHERLANDS 1986 8 EHRR 235

EUROPEAN CONVENTION ON HUMAN RIGHTS ACT 2003 S2

EUROPEAN CONVENTION ON HUMAN RIGHTS ACT 2003 S3

SCHENK v SWITZERLAND 1988 13 EHRR 242

R v KHAN 1997 1 AC 558

HUMAN RIGHTS ACT 1998 (UK)

AG'S REF (NO 3 OF 1999) 2001 2 AC 91

R v SHAHEED 2002 NZLR 377

CONSTITUTION OF THE UNITED STATES OF AMERICA FOURTH AMDT

UNITED STATES v LEON ET AL 468 US 897

UNITED STATES v PELTIER 1975 422 US 531

CANADIAN CHARTER OF RIGHTS & FREEDOMS ART 8

CANADIAN CHARTER OF RIGHTS & FREEDOMS ART 24

R v COLLINS 1987 1 SCR 265

DPP v COONEY 1997 3 IR 205 1998 4 846

CONSTITUTION ART 6

CONSTITUTION ART 15.2.1

CONSTITUTION ART 17.2

CONSTITUTION ART 28.2

CONSTITUTION ART 28.4.1

D (T) & ORS v MIN FOR EDUCATION & ORS 2001 4 IR 259 2001 5 1050

AG, PEOPLE v CASEY (NO 2) 1963 IR 33

ART 26 REGULATION OF INFORMATION (SERVICES OUTSIDE THE STATE FOR TERMINATION OF PREGNANCIES) BILL 1995, IN RE 1995 1 IR 1

O'LEARY A PRIVILEGE FOR PSCHOTHERAPY? 12 (1) 2007 BAR REVIEW 33

Facts

1 1. This case concerns three different fingerprints. It brings into focus again the intractable question of improperly obtained evidence. Here, the submission on behalf of the accused is that any piece of information that might lead to a step in the criminal process, including an arrest, must be proved by the prosecution to have been obtained in strict compliance with law.

2 2. Judge Aingeal Ní Chondúin stated the case which raises these problems on the basis of a burglary charge that appeared before her on two dates in 2004.

3 3. On the 21st July, 2003 Roisín Walsh called the gardaí to her home at St. Martin's, Kylemore Road in Dublin. In her absence, a bedroom window had been smashed and property had been stolen from the house. Detective Garda Barry Walsh called in a fingerprint expert from the Scenes of Crime Office who found finger marks on two pieces of smashed glass in the window frame where the thief had gained entry. As these are the second-last of a series of fingerprints, I will call them prints 2. Two months after the burglary, on 23rd September, 2003, Detective Garda Walsh arrested the accused at his home in Ballyfermot, Dublin 10, under the provisions of s. 4 of the Criminal Law Act, 1997 on suspicion that he had committed the burglary on the Kylemore Road. The reason that he arrested the accused was one which, quite properly, he was reluctant to divulge to the trial judge. When the case came on for hearing, counsel for the accused asked him to explain the "evidence grounding the arrest". He replied that it was confidential information and that to disclose it to the court would be prejudicial to the accused. When counsel for the accused insisted on receiving the information, the Detective Garda said he was referring to a match between prints 2 and another set of fingerprints, which I will call prints 1, held in the Garda Technical Bureau.

4 4. When the fingerprints from the scene of the burglary at Kylemore Road had been run against a computer programme which identifies fingerprints stored in the records of an Garda Síochána, a match came up with a set previously taken from the accused, on an earlier arrest, namely prints 1. On arresting the accused on suspicion of the Kylemore Road burglary, the gardaí wished to obtain his prints to see if they matched those at the burglary scene, namely prints 2. This was done by requesting the accused to provide his fingerprints. When he indicated that he was willing, a written consent form was signed by his mother because he was under, I am told, eighteen years of age. This resulted in prints 3, which matched to those of the burglary at Kylemore Road, namely prints 2.

5 5. It is not the function of this court on a case stated to seek to resolve facts: this is a matter for the learned district judge. In the course of his evidence, Sergeant Philip Burke agreed that he had indicated to the accused that it was his intention to take fingerprints from him and that they would be taken "one way or another". He told the court that he had sought fingerprints with the consent of the accused because, as he told the court, it was "the policy of the gardaí to offer the defendant the opportunity to provide prints first, prior to making an application to the superintendent for an order compelling an arrested person to co-operate". He claimed he did this out of courtesy. A superintendent, under the terms of s. 6 of the Criminal Justice Act, 1984, could have required the accused to be fingerprinted or photographed.

6 6. Section 8 of the Criminal Justice Act, 1984 provides:-

2 "(1) Every photograph (including a negative), fingerprint and palm print of a person taken in pursuance of the powers conferred by section 6 and every copy and record thereof shall, if not previously destroyed, be destroyed as this section directs.

(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 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."

7 7. The section has now been amended by s. 13 of the Criminal Justice Act, 2006 which provides for an extension for the relevant six month period to twelve months. If the criminal proceedings end by acquittal, the prints must be destroyed within 21 days after that. A judge may extend the period for preserving a print for up to twelve months. Neither s. 6 of the Criminal Justice Act, 1984, nor s. 8 was used by the gardaí in this instance. Instead, as regards the prints taken on the arrest of the accused for the issue of legal comparison raised here, prints 1 from the earlier arrest, as stored in the Technical Bureau, were taken pursuant to a procedure of which none of the gardaí giving evidence on the Kylemore Road burglary charge were aware. They did...