Gaeilge

Title:	Director of Public Prosecutions -v- Boyce
Neutral Citation:	[2008] IESC 62
Supreme Court Record Number:	292/07
Court of Criminal Appeal Record Number:	56/2001
Date of Delivery:	11/18/2008
Court:	Supreme Court
Composition of Court:	Denham J., Geoghegan J., Fennelly J., Macken J., Finnegan J.
Judgment by:	Finnegan J.
Status:	Approved
Result:	Dismiss
Judgments by Link to Judgment Concurring Denham J. Link Macken J. Fennelly J. Link Geoghegan J. Finnegan J. Link Macken J.

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Denham J.
Geoghegan J.
Fennelly J.
Macken J.
Finnegan J.

BetweenJudgment of Mr Justice Finnegan delivered on the 18th day of November 2008

I have had the benefit of reading the judgments delivered by Denham J. and Fennelly J. I agree with those judgments in relation to grounds 5 and 6 in the notice of appeal herein. In relation to the certified ground I agree with the judgment of Denham J. for the reasons briefly hereinafter set out. I do not propose reciting facts of the case as the same are fully set out in the said judgments. I propose confining my remarks to the construction of the Criminal Justice (Forensic Evidence) Act 1990 and in particular section 2 thereof.
The following matters are not in dispute:-
1. Prior to the passing of the Act of 1990 it was open to a person detained pursuant to the provisions of section 4 of the Criminal Justice Act 1984 to consent to the taking of any or all of the

samples referred in s. 2(1) of the Act. The position at common law for such samples is no different from that in relation to fingerprints.

2. The consent must be freely and voluntarily given. The consent must not be obtained by trickery or unfairly or oppressively. While a discretion remains to admit evidence obtained from a detained person where he is misled or tricked such evidence, whether it be an inculpatory statement or the provision of fingerprints or DNA material, is likely to infringe the rule against self incrimination. It was never contended at the trial that the sample in issue here was given other than voluntarily.

In R (on the application of S) v. Chief Constable of South Yorkshire; R (on the application of Marper) v. Same (2004) 4 All ER 193 Lord Steyn remarked on the value of forensic evidence at p. 197:-

“My Lords, it is of paramount importance that law enforcement agencies should take full advantage of the available techniques of modern technology and forensic science. Such real evidence has the inestimable value of cogency and objectivity. It is in large measure not affected by the subjective defects of other testimony. It enables the guilty to be detected and the innocent to be rapidly eliminated from inquiries”.

The Criminal Justice (Forensic Evidence) Act of 1990 provides in its long title as follows:-

“An Act to amend and extend the law to authorise the taking of bodily samples for forensic testing from persons suspected of certain criminal offences”.

The clear legislative intention is to enable advantage to be taken of modern technology and forensic science. Few would argue with Lord Steyn’s proposition. It seems much more likely that the intention of the legislature in enacting the Act of 1990 was to enhance rather than restrict the availability of such evidence. This intention clearly appears from section 2(11). This being so in construing the Act regard should be had to the existing state of the law and the object and intent of the Act.
The Issue
The issue is this: is the effect of the 1990 Act to deprive the Garda Siochana of the facility at common law of taking forensic samples on consent. Central to this issue is the meaning to be given to powers in section 2(11) of the Act.
The Act
The Act in Section 2 provides as follows:

“2(1) Subject to the provisions of subsection (4) to (8) of this section, where a person is in custody under the provisions of … section 4 of the Criminal Justice Act, 1984, a member of the Garda Siochana 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) Subject to the provisions of subsections (3) to (8) of this section, where a person is in prison, a member of the Garda Siochana may take, or cause to be taken, than that person for the purpose of forensic testing all or any of the samples specified in subsection (1) of this section.
(3) The power conferred by subsection (2) of this section shall only be exercisable –
(a) where the sample to be taken is required in connection with an offence other than the offence in respect of which the person is in prison or an offence of which he could be convicted on an indictment alleging that offence, and
(b) where the sample to be taken is required in connection with an investigation in respect of the commission of under the offences against the State Act, 1939, or an offence which is for the time being a scheduled offence for the purposes of Part V of that Act or an offence to which section 4 of the Criminal Justice Act, 1984, applies.
(4) A sample may be taken under this section only if –
(a) a member of the Garda Siochana 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 (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 section shall not be given unless the member of the Garda Siochana giving it has reasonable grounds –
(a) for suspecting the involvement of the person from whom the sample is to be taken –
(1) in a case where the person is in custody, in the offence in respect of which he is in custody
and
(b) for believing that the sample will tend to confirm or disprove the involvement of the person from whom the sample is to be taken in the said offence.

(6) Before a member of the Garda Siochana takes, or causes to be taken, a sample under subsection (1) of this section or seeks the consent of the person from whom the sample is required to the taking of such a sample, the member shall inform the person –

(a) of the nature of the offence in which it is suspected that that person has been involved
(b) that an authorisation has been given under subsection (4)(a) of this section and of the grounds on which it has been given, and
(c) that the results of any tests on the sample may be given in evidence in any proceedings.
(7) An authorisation under subs. (4)(a) of this section may be given orally but, if it is given orally, it shall be confirmed in writing as soon as is practicable.
(8) A sample of a kind specified in sub paragraph (i) or (ii) of paragraph (a) of subsection (1) of this section or in paragraph (c) of the said subsection (1) may be taken only by a registered medical practitioner and a dental impression may be taken only by a registered dentist or a registered medical practitioner.

(9) A person who obstructs or attempts to obstruct any member of the Garda Siochana or any other person acting under the powers conferred by subsection (1) of this section shall be guilty of an offence and shall be liable on summary conviction to a fine not exceeding £1,000 or to imprisonment for a term not exceeding 12 months or to both.

(10) In this Act “appropriate consent” means –
(a) in the case of a person who has attained the age of 17 years the consent of that person
(b) in the case of a person who has not attained the age of 17 years but has attained the age of 14 years, the consent of that person and of a parent of guardian of that person and
(c) in the case of a person who has not attained the age of 14 years, the consent of a parent or guardian of that person.
(11) The powers conferred by this section are without prejudice to any other powers exercisable by a member of the Garda Siochana.”

Section 3 of the Act provides that where a consent required under section 2 of the Act is refused without good cause then in any proceedings against a person for an offence the court may draw inferences from that refusal and the refusal, on the basis of such inferences, may be treated or as being capable of amounting to corroboration of any evidence in relation to which the refusal is material: a person shall not be convicted of an offence solely on an inference drawn from such refusal. Section 3 however shall not have effect unless the person has been told in ordinary language by a member of the Garda Siochana when seeking his consent that the sample was required for the purpose of forensic testing, that his consent was necessary and the effect of not consenting.
Section 4 of the Act provides for the destruction of records and samples where proceedings are not instituted within 6 months from the taking of the sample or proceedings having been instituted the person is acquitted or discharged or the proceedings discontinued.
Construction of Section 2(11) of the Act
Section 2 subsection (11) provides as follows:-

“The powers conferred by this section are without prejudice to any other powers exercisable by a member of the Garda Siochana”.

The marginal note to section 2 reads:-

“Power to take bodily samples”.

However the Interpretation Act 2005 s. 18 provides that a marginal note shall not be taken to be part of the enactment or be construed or judicially noticed in relation to the construction or interpretation of an enactment. Section 2 subsection (1) provides that a member of the Garda Siochana “may take or cause to be taken” any of the samples listed in the subsection. Can this be said to confer upon the Garda Siochana “a power” to take such samples as may only be taken on consent? Subsection (3) expressly refers to subsection (2) as conferring a power and does not distinguish between the taking of samples with or without consent. Subsection (9) refers to subsection (1) as conferring powers: while the circumstances envisaged in this subsection are more likely to arise where consent is withheld circumstances can be envisaged in which it would have application where consent is forthcoming. Where samples may be taken without consent this clearly vests a power in the Garda Siochana: where consent is required this is less clearly the case. Neither subsection (3) nor subsection (9) distinguish between these different situations, each, it seems to me, being regarded as a power.
It is, in my view, in accordance with ordinary English usage to treat section 2(1) as conferring a power to take samples on consent. A power may be conferred by statute, by common law or by consent. By way of illustration there is no doubt that the Garda Siochana may carry out a search of premises on foot of a consent: thus once consent is obtained it is in accordance with ordinary English usage to say that the Garda Siochana have power to conduct the search notwithstanding the absence of a search warrant.
Section 2(11) must be considered in the context of section 2 as a whole and the Act as a whole. “Powers conferred by the Act” in the absence of some indication to the contrary will include the power conferred by the Act to take samples on consent. In the clause “other powers exercisable by a member of the Garda Siochana” powers should be given a consonant meaning. There is no indication that “powers” should be confined to statutory powers and so it includes powers at common law where there existed prior to the Act a power to take samples on consent. I can find nothing in section 2 (11), in section 2 as a whole or the Act as a whole to suggest a construction which would exclude the preservation of common law powers. The benefit to be derived from forensic evidence in the investigation and prosecution of crime, in enabling the guilty to be detected and the innocent to be vindicated and the object of the statute strongly support a contention which preserves existing powers. In short, the effect of section 2 is to define “power” for the purposes of the Act as including the power to take samples on consent. I do not believe that this approach leads to any manifest absurdity or repugnance which would require the meaning of the language used to be modified or varied. The construction which gives to a word the same meaning throughout a section or throughout an Act is to be preferred: powers should have the same meaning ascribed in subsection (3)(9) and (11). Accepting that the Act is penal I am satisfied that section 2(11) does not admit of two reasonable constructions so that the more lenient should be preferred. Rather one would expect if the legislature had intended to restrict the Garda Siochana in obtaining forensic samples they would have done so in clear words. As Lord Reid said in Black-Clawson International Limited v. Papierwerke Waldhof-Ashaffenburg (1975) 1 All ER 810 at p. 814:-

“There is a presumption which can be stated in various ways. One is that in the absence of any clear indication to the contrary parliament can be presumed not to have altered the common law farther than was necessary to remedy the ‘mischief’.”

Conclusion
On the certified question and the first three grounds of appeal which relate to the certified question I agree with the judgment delivered by Denham J. The Garda Siochana have power at common law to take samples for forensic testing where this is done on the basis of a free and voluntary consent of the person detained.