Dpp [At Suit of Detective Garda Barry Walsh] -v- Cash,  IEHC 108 (2007)
|Docket Number:||2005 1088 SS|
|Party Name:||Dpp [At Suit of Detective Garda Barry Walsh], Cash|
THE HIGH COURT [2005 No. 1088 S.S.]IN THE MATTER OF SECTION 52 OF THE COURTS (SUPPLEMENTAL) PROVISIONS ACT, 1961
BETWEENTHE DIRECTOR OF PUBLIC PROSECUTIONS (AT THE SUIT
OF DETECTIVE GARDA BARRY WALSH)PROSECUTORAND
JOHN CASHACCUSEDJUDGMENT of Mr. Justice Charleton delivered the 28th March, 2007
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. 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. 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. 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. 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. Section 8 of the Criminal Justice Act, 1984 provides:-"(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. 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 not know whether prints 1 were taken by consent, in which case there is no statutory requirement ever to destroy them, or under s. 6, in which case there is. They could not definitely "stand over" the fact that these prints were held legally when they were challenged on this point.
8. The accused asserts that there is a burden of proof on the State to show the lawful history of any piece of evidence proposed to be put before a criminal court. In addition, it is asserted on behalf of the accused that the State must show that any administrative step in the criminal process, including arrest, was taken on foot only of material which must be proved by the State to have been lawfully obtained.
The Case Stated
9. The learned district judge indicated that she was of the opinion that she could admit the match between prints 3, taken in the Garda station, and prints 2, taken at the scene of the burglary. She was uncertain in that determination and therefore stated the following case for the opinion of the High Court:-"Whether I was correct in determining, on foot of the evidence before me, that the prosecution evidence be admitted and that the accused had a case to answer, in reaching this decision:-(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?
(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 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 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 his 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?
10. The basic rules for arresting people on suspicion of criminal offences is now set out in s. 4 of the Criminal Law Act, 1997. These mirror the old common law rules. An arrestable offence is one which carries a potential maximum term of at least five years imprisonment. A citizen may arrest without warrant anyone who, with reasonable cause he or she suspects to be in the act of committing an arrestable offence. Where an arrestable offence has, as a matter of fact, been committed, a citizen may arrest any one whom they reasonably suspect to have committed that offence. The powers of the gardaí exceed that. A member of An Garda Síochána may, with reasonable cause, arrest anyone whom they suspect of having committed an arrestable offence; provided they reasonably suspect that such offence has been committed. Section 6 of the Act allows for entry by a garda into a dwelling or other premises, for the purposes of the garda effecting an arrest. Section 30 of the Offences Against the State Act, 1939, as amended, allows a member of An Garda Síochána to arrest persons who are suspected to have committed, or to be committing, or to be about to commit, an offence scheduled under that Act, or who are suspected to have information on such an offence. This schedule includes a wide range of explosive and firearms offences as well as the offences created by the Act itself, as amended. A s. 30 arrest can lead to a detention of twenty-four hours, often extended to a forty-eight hour period of detention; or, exceptionally, that can be...
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