Supporting Documents:

THE SUPREME COURT

DETERMINATION

RESULT: The Court does not grant leave to the applicant to appeal to this Court from the Court of Appeal.

REASONS GIVEN:

1. Jurisdiction

This determination relates to an application by Eamon Murphy (the Applicant) who was the appellant in the underlying appeal to the Court of Appeal, for leave to appeal under Article 34.5.3° of the Constitution from the judgment of the Court of Appeal (Birmingham J., Mahon J. and Edwards J.) being a judgment delivered by Mahon J. on the 13th October, 2016 and the order made on foot of the said judgment on the 13th October, 2016 (and perfected on 9th November, 2016) following the dismissal of the Applicant's appeal against sentence on the 16th January, 2017.

As is clear from the terms of the Constitution and from the many determinations made by this Court since the enactment of the Thirty Third Amendment, it is necessary, in order for this Court to grant leave, that it be established that the decision sought to be appealed against either involves a matter of general public importance, or that it is otherwise in the interests of justice necessary that there be an appeal to this Court.

The Court considers it desirable to point out that a determination of the Court on an application for leave, while it is final and conclusive so far as the parties are concerned, is a decision in relation to that application only. The issue is whether the questions raised and the facts underpinning them meet the constitutional criteria for leave. It will not, save in the rarest of circumstances, be appropriate to rely on a refusal of leave as having a precedential value in relation to the substantive issues in the context of a different case. Where leave is granted, the issue or issues in respect of which leave to appeal have been granted will in due course be disposed of in the substantive decision of the Court.

2. The proceedings

Information about the decision of the Court of Appeal is set out in the Applicant's application for leave and the respondent does not dispute the summary of the Court of Appeal's decision given by the Applicant. The application for leave is published on the Courts Service website together with the respondent's notice along with this determination.

The following is a summary of the background to this matter leading to the decision of the Court of Appeal which it is sought to appeal:

(a) The Applicant was convicted by a jury at Longford Circuit Criminal Court on the 19th February, 2015 of one count of aggravated burglary, contrary to s. 13(1) and (3) of the Criminal Justice (Theft and Fraud Offences) Act 2001, and one count of unlawfully using a mechanically propelled vehicle contrary to s. 112 of the Road Traffic Act 1961 (as amended by s. 65 of the Road Traffic Act 1968 and as amended by s. 18 of the Road Traffic Act 2006). On the 23rd October, 2015, the Applicant was sentenced to ten year imprisonment, with the final three years of that sentence suspended on conditions, in relation to his conviction for aggravated burglary, and a one year sentence of imprisonment in respect of the unlawful taking of the vehicle. The sentences were ordered to be served concurrently. The Applicant appealed against the convictions.

(b) The Court of Appeal noted that the appeal was essentially concerned with the retention of a DNA sample taken from the Applicant on the 22nd November, 2011 "beyond the statutorily allowed period". The Court of Appeal ultimately held that the retention of the sample amounted to a breach of the Applicant's legal rights, as opposed to his constitutional rights, and therefore that the decision to admit the evidence in the Circuit Court trial was within the discretion of the trial judge. Accordingly the Court of Appeal refused the Applicant's appeal against conviction.

The order appealed against is the order dated the 16th January, 2017, perfected on the 9th day of March, 2017, in which the Court of Appeal dismissed the appeal of the Applicant against conviction.

4. The judgment of the Court of Appeal

The Applicant was arrested on the 22nd November, 2011 and a DNA sample was taken from him for forensic purposes using a DNA kit. The sample was received by the Forensic Science Laboratory on the 23rd November, 2011 and the DNA kit was returned to the Gardaí on the 23rd January, 2012. On the 30th October, 2012, the DPP issued the direction to charge the appellant. The appellant was arrested and charged on the 8th January, 2013 with the offences of which he was later found guilty. Thus, the proceedings against the Applicant did not commence until the 8th January, 2013, some fourteen months after the taking of the DNA sample. This was outside the twelve month period from the date when the sample is taken, such period being stipulated in s. 4 of the Criminal Justice (Forensic Evidence) Act 1990, as amended. Mahon J. in the course of his judgment noted that:

"It was accepted at the trial that the sample and any record relating thereto ought to have been destroyed prior to the commencement of these proceedings on 8th January 2013, in the absence of any order having been made permitting their retention."

"I am satisfied that the jurisprudence indicates that I have a discretion as to whether or not I should allow the evidence to be introduced. Taken (sic) this case as a whole, I am satisfied that the breach here was a breach of legal rights and I am also satisfied that the interests of justice dictate that the samples should be admitted in evidence and the result of the DNA profile should be admitted in evidence.”

"The learned trial judge had earlier concluded that if the matter was simply a breach of a legal right, he, as the trial judge, had a discretion in relation to the admissibility of the forensic evidence. On the other hand, he stated that he would not have had any such discretion if satisfied that it was a breach of the plaintiff’s constitutional rights, save in exceptional circumstances, and would, in those circumstances, have had to rule the evidence inadmissible."

"The sample was taken from the [Applicant] in entirely appropriate circumstances and in accordance with law. What was unlawful was the manner in which it was retained beyond a certain date, and in the absence of any court order permitting its retention beyond that date.

The use of the sample in the way described does not render the taking of the sample to have been undertaken in circumstances which amounted to a breach of the [Applicant's] constitutional rights. . . . the sample was taken at a time when it was perfectly lawful to take it and when there was no breach of constitutional rights in its taking involved. The fact that sometime later the destruction of that sample was not effected as provided for by legislation, does not retrospectively create a breach of the [Applicant's] constitutional rights. The legislation does permit the retention of a sample/record of a sample for an extended period in particular circumstances, or a court application to extend the time for retention could have been made, but was not. What occurred was a breach of the [Applicant's] legal rights, in that the sample/record of the sample was not destroyed as required by statute."

"In this case the sample was taken lawfully and was initially lawfully retained. During the period in which it was lawfully retained a 'match' was identified, and there followed a direction from the respondent to prosecute on indictment. Thereafter the legal authority to retain the sample expired, and its continued retention became unlawful. As such, it was a matter within the discretion of the learned trial judge as to whether or not the evidence in controversy should be admitted. Her (sic) decision to admit the evidence, in the circumstances of this case, was not an error of principle."

The principal issue said to arise is the impact of the taking of DNA samples and the retention and non-destruction of same and related data contrary to statutory requirements, on the constitutional rights of privacy and/or bodily integrity of the party from whom the sample is taken, and consideration of the accepted fact that the statutory safeguards in relation to the application to the District Court to extend retention and the statutory mandated destruction of the samples and data were being wholly ignored by the State in all cases not just the case of the Applicant.

It was submitted that the decision will have implications for both State powers and accused persons in cases involving DNA evidence in the future. It was submitted that this was a case which involved the admissibility of evidence taken in circumstances which constituted a breach of the accused's constitutional rights and reliance was placed on the fact that the taking and/or retention of the DNA sample became unconstitutional following a failure to comply with the strict statutory provisions relating to the destruction of the sample and was thus a breach of the Applicant's constitutional rights. Reference was made to the decision in DPP v. JC [2015] IESC 31 in relation to the admissibility of evidence taken in circumstances which constituted a breach of an accused person's constitutional rights. It was submitted that what occurred in the Applicant's case was not excused or remedied by the tests set forth in the JC case referred to or alternatively that there was a serious issue as to how that case law should be applied in circumstances where there is "a wholesale ignoring of statutory mandated provisions in relation to the destruction of samples and/or related data".

It was noted that the position of the State Forensic Laboratory was that the Gardaí may have destroyed the physical samples in this case but that they had not a system in place to permit the removal or destruction of the data retained despite the statutory requirement to destroy such data. On that basis it was submitted that in circumstances where there was a wholesale ignoring of the provisions relating to destruction of the sample and/or the related data, that there was a de facto position equivalent to the position in S. and Marper v. U.K. (Appeal No. 30562/04 and 30566/04) where the European Court of Human Rights criticised the U.K. for its indefinite retention of DNA profiles and cellular samples as "blanket and indiscriminate" retention which constituted a disproportionate interference with the Applicant's right to privacy. It was therefore contended that the State is in breach of the European Convention on Human Rights due to the accepted non-operation by the State of the destruction safeguards actually set out in the 1990 legislation as amended.

It was also submitted on behalf of the Applicant that it was in the interests of justice to grant leave to appeal on the basis that the Court of Appeal's alternative view that if there was a breach of the Applicant's constitutional rights that there was no "deliberate and conscious" breach of his rights is not supported by the fact that there was a wholesale inability by the State body holding the data relating to the sample to comply with the statutory requirements to destroy the data. It was contended that such a view was contrary to the decision of this Court in JC. Finally it was contended that in circumstances where the Court of Appeal had expressed its concern as to the evidence given by Dr. Doak concerning "the absence, at a time material to this case, of any system for the routine destructions of DNA analysis which were required by the legislation then in force to be destroyed" were wrong to then invoke a test that they were not satisfied there was a "calculated and cynical disregard for the policy of the legislature".

6. Reasons advanced by the respondent for opposing leave to appeal

The respondent has submitted that the forensic sample was taken from the Applicant in compliance with the Criminal Justice (Forensic Evidence) Act 1990 and was, therefore, taken lawfully, following his arrest for questioning on 22nd November, 2011 in connection with his suspected involvement in an aggravated burglary and unlawful taking of a motor vehicle. The sample was analysed while in the lawful custody of Forensic Science Ireland (then, the Forensic Science Laboratory). There was no infringement of constitutional rights to bodily integrity or privacy arising from the manner in which the sample was obtained, analysed or preserved.

Subsequent failure to destroy the sample and record by the 21st November, 2012 (one year after it was obtained), notwithstanding failure to charge the Applicant with involvement in said offences or alternatively, to procure an extension of time from the District Court within which to retain the sample, was an infringement of his statutory rights under the 1990 Act only, such that the learned Circuit Court judge had a discretion to admit DNA evidence gleaned from the sample which matched DNA which had been extracted from a sample of blood recovered from the crime scene.

Accordingly the Court of Appeal's decision to uphold the learned Circuit Court judge's ruling and to dismiss the appeal involved the application of well settled legal principles to the facts of the case.

In these circumstances, the Court of Appeal did not find it necessary to apply legal principles identified by the Supreme Court in DPP v. JC [2015] IESC 31.

Accordingly the respondent contends that there are no grounds for asserting that the appeal involves a matter of general public importance or that the interests of justice require that there be a further appeal to the Supreme Court.

7. Discussion

As is clear from a range of determinations made by this Court since the Thirty Third Amendment of the Constitution came into force, the constitutional function of this Court is no longer that of an appeal court designed to correct alleged errors by the trial court. Where it is said that the High Court, or another court from which the Court of Appeal has appellate jurisdiction prescribed by law, has simply been in error in some material respect, the constitutional regime now in place confers jurisdiction to correct any such error as may be established on the Court of Appeal. Rather the text of the Constitution now in place makes it clear that an appeal to this Court, whether directly from the High Court under Article 34.5.4° or from the Court of Appeal under Article 34.5.3°, requires that it be established that the decision sought to be appealed against involves a matter of general public importance or that it otherwise is in the interests of justice necessary to allow an appeal to this Court. It will rarely be necessary in the interests of justice to permit an appeal to this Court simply because it is said that the lower court was in error. An appeal to the Court of Appeal provides the appropriate remedy for any error made by the High Court. Likewise, a party which has had the opportunity to have the decision of the High Court reviewed by the Court of Appeal will have had the benefit of having been able to put its case both at trial and on appeal. Without more, the interests of justice will not require a further review on appeal to this Court.

It is against that background that it is necessary to consider the basis on which it is said that the constitutional threshold is met in this case.

As was stated in the judgment of the Court of Appeal, the sample in this case was taken from the Applicant in accordance with law. There was no breach of any constitutional right of privacy on the part of the Applicant and/or his bodily integrity in the taking of the sample. The sample was received by the Forensic Science Laboratory on the 23rd November, 2011 and the DNA kit involved was returned to the Gardaí on the 23rd January, 2012. Having been analysed by the Forensic Science Laboratory it was clear that the sample taken from the Applicant matched a blood stain found at the crime scene on the 25th July, 2011. Thus the sample was taken and analysed and the results of the analysis made known to the Gardaí within twelve months from the date of taking the sample. As was pointed out by the Court of Appeal the sample taken from the Applicant was not used for any other purpose. The only illegality that occurred was the retention of the sample and the data from the sample beyond the twelve month period specified in the legislation in the absence of any court order permitting its retention beyond that date. As such, it is undoubtedly the case that the failure to destroy the sample and record was an infringement of the statutory rights of the Applicant under the 1990 Act. In those circumstances the decision of the learned Circuit Court judge to admit the evidence and the decision of the Court of Appeal in upholding that decision was in accordance with well settled legal principles relating to the admissibility of evidence. This case does not give rise to any consideration of the decision of this Court in JC referred to above given that what is at issue does not concern a sample taken in breach of the Applicant's constitutional rights.

8. Conclusion

The Court, therefore, refuses leave to appeal under Article 34.5.3° of the Constitution.

AND IT IS HEREBY SO ORDERED ACCORDINGLY.