THE ARREST of a young man was unlawful because the suspicion on which it was based arose from evidence held unlawfully, the Supreme Court heard yesterday.
Dr Gerard Hogan SC was opening an appeal to the court, which sat with its full complement of seven judges, of a High Court ruling permitting the admission of fingerprint evidence in a trial for robbery arising out of a burglary.
The case concerns a young man, John Cash, who was arrested and accused of burglary in Ballyfermot, Dublin, in 2003.
Fingerprints had been taken at the scene of the burglary where a window had been broken. Gardaí found they matched prints taken in 2002 held in the Garda Technical Bureau, and this formed the basis for his arrest. He was then fingerprinted, and these prints were found to match those taken from the scene of the burglary.
Dr Hogan said that, prior to finding this match with fingerprints, which were held by gardaí outside the permitted time limit, there was no “reasonable suspicion” on which to base the arrest of Mr Cash.
“The Oireachtas provided a procedure for the taking of fingerprints. There is a constitutional right to privacy and to bodily integrity. This set a time-frame within which they can lawfully be held and be used. violated my client’s privacy and right to bodily integrity.”
He said the taking of fingerprints engaged a variety of constitutional rights. The Oireachtas regulated this by providing a mechanism whereby fingerprint evidence could be taken. Fingerprint evidence was only lawfully admissible provided those particular safeguards were satisfied.
“In principle, a guard may not knowingly seek to rely on fingerprint evidence taken outside these regulations.”
The fact the accused was a minor at the time his fingerprints were taken was a factor. Asked if the fingerprints could be retained by consent, he said there was no knowledge of any such consent.
Ms Justice Macken asked if he was saying the State had to act lawfully at each and every step if it wished to use something taken in evidence. “Is the onus on the prosecution to justify each and every step in forming a ‘reasonable suspicion’?” Dr Hogan said it was.
Donal O’Donnell SC, for the DPP, said this contention was remarkable in a number of ways. It would mean every step in a criminal investigation would have to be proved lawful even if it did not feature in the evidence.
“This is a remarkably broad proposition. It is capable of indefinite extension backwards. You could consider whether the person taking the fingerprint was lawfully appointed to the guards. Any antecedent step, however irrelevant, could be examined.”
He said Dr Hogan’s contention also “collapsed” the distinction between the law and the Constitution. “The Constitution says nothing about the admissibility of evidence. He is arguing that the taking of fingerprints in 2003 was unconstitutional because they could not have been shown not to have been taken illegally.”
The Constitution said nothing about evidence; that was a matter for the courts. Nor did it say anything about the circumstances in which fingerprints could be taken and retained.