Taking of forensic samples by consent was valid despite legislative regime not being followed

Charleton J (nem diss): Criminal law - taking of forensic samples by consent - whether consent valid notwithstanding procedures in legislation - Criminal Justice (Forensic Evidence) Act 1990, Regulations 1992, s 2 - conviction of murder - perpetrator being a man dressed in woman's clothes - clothes recovered by Gardai - arrest of accused - written consent to taking of samples - powers in legislation stated to be 'without prejudice to any other powers exercisable by a member of An Garda Siochana' - determination in Central Criminal Court that Gardai did not need to rely on act where accused had consented.

"In the area of the club, eyewitnesses encountered an individual, who appeared to be a woman. That individual was described by witnesses as wearing a long black wig and women’s sunglasses and a cut was noticed over the person’s right eye. In so far as the getup was designed to deceive, it was not successful. Witnesses in the neighbourhood testified to having encountered a man in women’s clothing who was carrying a handbag. This person asked them for directions to the club; apparently innocently. That individual, however, had a firearm concealed in the handbag draped over their arm. Shortly afterwards, the victim drove up near to the club and parked his car. As he alighted having secured the vehicle, the person dressed as a woman pulled a submachine gun from the handbag, aimed the weapon and opened fire on the victim, killing him."

"A distinction may validly be drawn as between what emanates from the mind of a person in custody and physical samples from that suspect’s clothing or body. That does not mean that forensic sampling is not subject to the requirements of fairness. But, the application of fairness does not mean that a person in custody has more extensive right to privacy than would a person in the public street. While the substantive content of a right does not alter because a person is in custody, the fact of custody will evoke a close scrutiny of how the right is affected."

"The 1990 Act did not abolish the common law. Nor did it, purposely or otherwise, usher in the application by investigating authorities of unfair practices. There is no rule of law which prevents a person burdened in conscience by a crime from arriving at a garda station and seeking to confess. Nor is a person required by law to not let investigating officers enter the family home. It is also possible for a person to waive the right to legal advice upon arrest and detention by gardaí. But, of course, the courts must scrutinise the reality of any such exercise of apparent free choice. While there is freedom from coercion in admission, and while investigating authorities are neither required to reveal their hand nor to eschew stealth, there remains an entitlement not to be the subject of fundamental unfairness in extracting consent. "

Hogan J (concurring): Whether presence or absence of solicitor affected the fundamental fairness of taking a sample.

"At the time of the appellant’s arrest in June 2015 the relevant provisions of s. 2 of the Criminal Justice (Criminal Evidence) Act 1990 (as amended) allowed the Gardai to take a swab from a detained suspect, irrespective of that person’s consent. So what is incontestable is that the Gardai could – and would – have lawfully taken such a swab irrespective of the appellant’s consent. In these particular circumstances the issue of whether the appellant either did have or was entitled to have a solicitor present during the course of his detention is of no materiality. In expressing this view, I am deliberately refraining from expressing any view on what might be termed the broader question of whether (and, if so, to what extent) a suspect is entitled to have a solicitor present during the course of such investigation."