Mc Ginley -v- Judge Michael Reilly & Ors, [2006] IEHC 357 (2006)

Docket Number:2006 373 JR
Party Name:Mc Ginley, Judge Michael Reilly & Ors
Judge:Peart J.
 
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Neutral Citation Number [2006] IEHC 357THE HIGH COURT JUDICIAL REVIEW Record Number: 2006 No. 373 JR

Between:

Brian McGinley

ApplicantAnd

Judge Michael Reilly and The Director of Public Prosecutions

Respondents

Judgment of Mr Justice Michael Peart delivered on the 15th day of November 2006:

Factual background:

The applicant's grounding affidavit sworn on the 24th March 2006 averred that the applicant had been arrested on the 18th July 2005 in connection with an aggravated burglary on the 13th February 2005, that he was detained under s. 4 of the Criminal Justice Act 1984 when a sample of head hair was taken, and a cigarette butt was taken, each for forensic examination and DNA comparison with a blood sample found at the scene of the crime. He goes on to state that he was on that occasion released without charge.

He avers that thereafter an application was made to the first named respondent on the 17th January 2006, by the Superintendent in charge of the case, for an order pursuant to s. 4(5) of the Criminal Justice (Forensic Evidence) Act 1990 extending the period permitted for the retention of the sample, since the forensic report in respect of the samples had not yet been completed. He avers also that no information was provided as to the nature of the outstanding matters in the investigation nor to whom the delay was attributable. There are further averments as to the evidence given on that application as to the delay in obtaining a forensic report. It appears that the first named respondent on that occasion made an order extending the period by two months to expire on the 17th March 2006. The forensic report sees to have been completed by the 20th January 2006 and was received by the Gardai on the 23rd January 2006.

On the 3rd February 2006 the applicant was re-arrested and detained for a number hours. He states that during that time he was informed by a Detective Sergeant that a forensic report had been obtained and that he "would be charged shortly as the Superintendent was on the phone to the DPP obtaining directions". However no such charges were laid and he was released without charge. Sgt. Delaney on affidavit has denied that he said this to the applicant.

A further notice of an intended application to extend time for retention was served on his solicitor on the 3rd March 2006, who responded by stating that she required that the forensic scientist should be available in court for cross-examination on that application. The Superintendent replied on the 13th March 2006 to the effect that the forensic scientist would not be present in court and the view was expressed that "this issue [is] a matter for any trial judge and premature at this juncture". That application came before the first named respondent on the 14th March 2006 when the Superintendent informed the court that a file had been sent to the DPP on the 7th March 2006 and that directions were imminent. Supt. Glacken has sworn an affidavit in which he has stated that on this occasion he informed the first named respondent that while he expected the directions from the DPP to issue in about two weeks from that date he could not anticipate what those directions might be or whether the DPP would raise further queries in those directions, and that it was for this reason that he requested a two month extension for the retention of the samples. Supt. Glacken was cross-examined about delay and what the applicant may have been told during his detention following the re-arrest already referred to, and other matters. The applicant himself also gave evidence of what he had been told during this detention, and the Superintendent had informed the judge also that he expected to receive directions from the DPP within one week. The District Judge granted only twenty eight days.

The directions duly issued in oral form on the 11th April 2006, followed a day later by a written direction to prosecute the applicant for aggravated burglary. The applicant was arrested on that day the 12th April 2006, and charged in the District Court on the 13th April 2006, by which time these judicial review proceedings were already in being since the 24th March 2006.

I should state at this juncture that one of the grounds on which relief is sought is the allegation that on this occasion the applicant's solicitor was precluded by the first named respondent from pursuing a line of cross-examination in relation to the delay in charging the applicant when he was detained on the 3rd February 2006. It is averred in this regard by the applicant's solicitor that during cross-examination of Supt. Glacken on the 14th March 2006, he stated that he was not prepared to answer questions regarding the applicant's detention on that occasion, and that when she attempted to pursue the matter she was prevented from so doing. This is submitted to have amounted to a denial of fair procedures.

The District Judge made an order authorising the further retention of the samples for a period of twenty eight days from the 17th March 2006.

By order dated 27th March 2006 I granted leave to seek an Order of Certiorari to quash the said order of the first named respondent made on the 14th March 2006 whereby the further retention of the samples was authorised for a further twenty eight days from the 17th March 2006, as well as an Order of Mandamus compelling the second named respondent to destroy the samples, and the other reliefs as set out in my said order granting leave. It is unnecessary to set them out in detail.

The question at issue in the case is simply whether the first named respondent had on the 14th March 2006 any proper or lawful basis for concluding, as he is required to have, that there was "good reason" to authorise the further retention of the samples for that further period. Mr Colman Fitzgerald SC for the applicant submits that the requirement that there be "good reason" does not mean that the District Judge is at large as to what he considers to be good reason, but that it must be a "good reason" in the context of the purpose and objectives of the Act itself. In particular he submits that simply because the Gardai were still awaiting directions from the second named respondent could not of itself be "good reason for the purpose of the section, since in that case an application on that ground could always be granted no matter how often it was applied for. The question of how wide is the discretion of the District Judge in an application under s. 4(5) of the Criminal Justice (Forensic Evidence) Act, 1990 as to what may constitute "good reason" is at the heart of this application, and a decision as to that will decide the question of whether the applicant is entitled to some or all of the reliefs sought.

The legislative background:

The relevant sections of the Criminal Justice (Forensic Evidence) Act, 1990, for the purpose of this application are the following:

"2.-(1) Subject to the provisions of subsections (4) to (8) of this section, where a person is in custody under the provisions of section 30 of the Offences against the State Act, 1939, or section 4 of the Criminal Justice Act, 1984, a member of the Garda Síochána may take, or cause to be taken, from that person for the purpose of forensic testing all or any of the following samples, namely-

( a ) a sample of-

(i) blood,

(ii) pubic hair,

(iii) urine,.

(iv) saliva,

(v) hair other than pubic hair,

(vi) a nail,

(vii) any material found under a nail,

( b ) a swab from any part of the body other than a body orifice or a genital region,

( c ) a swab from a body orifice or a genital region,

( d ) a dental impression,

( e ) a footprint or similar impression of any part of the person's body other than a part of his hand or mouth.

(2) ………

(3) ………

(4) A sample may be taken under this section only if-

(a) a member of the Garda Síochána not below the rank of superintendent authorises it to be taken, and

( b ) in the case of a sample mentioned in subparagraph (i), (ii), (iii) or (iv) of paragraph (a) of subsection (1) of this section, or in paragraph (c) or (d) of the said subsection (1), the appropriate consent has been given in writing.

(5) An authorisation to take a sample under this...

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