Court of Criminal Appeal allows appeal on fingerprint admissibility but dismisses it due to lack of prejudice.

COURT OF CRIMINAL APPEAL

Record No. 222/03

McGuinness J.

Hanna J.

MacMenamin J.

BETWEEN

THE PEOPLE (AT THE SUIT OF THE DIRECTOR OF PUBLIC PROSECUTIONS)

.v.

DANIEL CLEARY

APPLICANT

Judgment of the Court delivered by McGuinness J. on the 3rd day of May 2005

The applicant was charged on two counts, the first possession of a controlled drug, and the second possession of a

controlled drug with intent to supply.

He was tried on indictment in the Circuit Criminal Court (Midlands Circuit) before His Honour Judge Kennedy and a jury

on the 19th and 20th November 2003. He was convicted by the jury on both counts and was sentenced to one year’s

imprisonment on the first count and three years imprisonment on the second count, the sentences to run concurrently.

Leave to appeal the convictions and sentence was refused. The applicant has now applied to this court for leave to appeal.

Grounds of appeal were filed on 3rd December 2003.

On 16th December 2003 the applicant applied to a division of this court (Hardiman J., O’Sullivan J., Herbert J.) for bail

pending the hearing of his application for leave to appeal. Bail was granted on the same conditions as the applicant’s pre-trial

bail.

On that date the court was informed that one of the grounds of appeal was a discrete point of law as required by the dicta in

Director of Public Prosecutions v Corbally.

The offences of which the applicant was convicted were alleged to have occurred on the 15th February 2003. Following a

search by two members of An Garda Siochana of an area at the back of a derelict shop at Durrow, Co. Offaly, a black

holdall was found concealed under some bushes. Inside the bag there was a green first-aid box that contained a number of

sachets of white powder which appeared to be illegal drugs. The holdall was then replaced by the Gardai in the same

position where it had been found. Garda Patrick Cleary then concealed himself behind a tree while the other Garda left the

scene. Garda Cleary gave evidence that some time later a motor cycle arrived. About ten minutes after that a man walked

into the area and pulled out the bag from the undergrowth. The Garda then came out running, took the bag and grabbed the

man. He stated that this man was the applicant. The applicant ran off but returned some time later. He was arrested

pursuant to section 4 of the Criminal Justice Act 1984 and was brought to the Garda Station in Tullamore where he was

interviewed. His interview was electronically recorded. To all questions put to him the applicant answered “no comment”.

The applicant was charged with the offences set out below. Evidence was given that a fingerprint belonging to the applicant

was found on the inside of the lid of the first-aid box.

THE CHARGES

Since the nature of the charges brought against the applicant is relevant to the grounds of appeal, it is convenient to set out

here the actual wording of the two counts:

Count No. 1 Statement of Offence.

Possession of a Controlled Drug contrary to section 3 and section 27 (as amended by section 6 of the Misuse of Drugs Act

1984) of the Misuse of Drugs Act 1977.

Particulars of Offence

Daniel Cleary on the 15th February 2003 at Durrow, Tullamore, in the County of Offaly had unlawfully in his possession a

controlled drug, to wit, cocaine.

Count No. 2 Statement of Offence

Possession of Controlled Drugs for the purpose of selling or otherwise supplying same contrary to section 15 and section 27

(as amended by section 6 of the Misuse of Drugs Act 1984) of the Misuse of Drugs Act 1977 and contrary to Misuse of

Drugs Regulations 1988 and 1993, as made under section 5 of the Misuse of Drugs Act 1977.

Particulars of Offence

Daniel Cleary on the 15th February 2003 at Durrow, Tullamore, in the County of Offaly had in his possession a controlled

drug, to wit, cocaine for the purpose of selling or otherwise supplying it to another.

THE TRIAL

There were a number of unusual features of the trial.

The case against the applicant centred firstly on proving that he possessed the drugs which had been found, and secondly on

proving that he had an intention to sell or supply the drugs. The Garda evidence was that the drugs had been found in a

first-aid box which was contained in a holdall. For some unascertained reason neither the first-aid box nor the holdall were

included in the list of exhibits contained in the Book of Evidence. The only exhibits listed were the certificate of analysis of

part of the drugs found, the custody record of the period spent in custody by the applicant following his arrest, and

photographic enlargements of a fingerprint said to have been found in the first-aid box.

During the course of Garda Cleary’s evidence the prosecution endeavoured to introduce the holdall and first-aid box into

evidence by handing them to the witness. An objection was correctly raised by the defence that these items were not

exhibits as listed in the Book of Evidence. In the absence of the jury, counsel for the prosecution admitted that this was “an

oversight” and conceded that the items could not be produced in evidence. The learned trial judge expressed astonishment

at this situation and indicated that he would have been open to an application by the prosecution for leave to lead this

evidence. Counsel for the prosecution then applied for such leave. Counsel for the defence strenuously objected to such

leave being given and was critical of the trial judge’s intervention which, he submitted, was in aid of the prosecution. In a

subsequent ruling the learned trial judge appears to have left the matter open for a further application by the prosecution, but

in the event the trial proceeded without either the box or the holdall being produced in evidence.

Towards the end of the prosecution case some confusion also arose as to whether one fingerprint or two fingerprints had

been found inside the lid of the first-aid box. This confusion was never resolved.

On the second day of the trial, having presented the evidence against the applicant to the jury, counsel for the prosecution

closed the prosecution case. At Book B page 18 she stated:

“Geraldine O’Neill is the author of the certificate of analysis that you have seen. That, My Lord, is the end of the

prosecution case. Sorry, My Lord, if Your Lordship would bear with me (pause). That is the end of the prosecution case.”

Following the close of the prosecution case, in the absence of the jury, counsel for the applicant sought a direction on the

grounds that the prosecution had failed to prove the Regulations made under the Misuse of Drugs Act which formed part of

the particulars of the offence alleged against the applicant. He also raised a number of additional legal points. Counsel for the

prosecution replied to a number of these points. With regard to the point on the Regulations she stated:-

“Insofar as the Regulations are concerned, My Lord, the prosecution has closed its case without proving the Regulations.

I simply have to concede to that at this point in time, My Lord.”

The learned trial judge asked counsel what flowed from the concession that the Regulations had not been proved and there

was a discussion between the learned trial judge and counsel for the prosecution. Counsel for the prosecution submitted that

it was not fatal to the prosecution to have failed to prove the Regulations as there was already sufficient evidence to go

before the jury. She also applied to the trial judge to re-open the case for the prosecution. However no specific legal

submission was made in relation to the failure to prove the Regulations.

Counsel for the applicant opposed the prosecution application to re-open the case.

The learned trial judge gave a ruling on this point and on a number of other points raised by counsel for the defence (at

Book B page 26-28). As far as the matter of the Regulations was concerned the learned judge stated:

“Every prosecutor is always conscious of the ominous words that is the close of the prosecution case, because

it is the rare exception that thereafter the prosecution is allowed to re-open its case for any purpose. I have no

intention whatever of entertaining such a heel-tapped and belated application.”

Having dealt with a number of other points raised by counsel for the defence the learned judge stated:

“I am holding against Mr Gageby on the proof of the Regulations point, if I am wrong on that, I should be put

right elsewhere.”

He then refused the application for a direction. The applicant did not go into evidence and he was subsequently convicted by

the jury on both counts.

THE NOTICE OF APPEAL

As stated earlier, the applicant’s notice of appeal was filed on 3rd December 2003. A number of grounds of appeal are set

out, but at the hearing before this court senior counsel for the applicant, Mr Gageby, while not abandoning the other grounds

of appeal, relied on two main grounds of appeal which are set out in the grounds of appeal as follows:

“1. The learned trial judge erred in law in refusing to direct the jury to acquit on count 2 of the indictment where

the prosecution had failed to prove the Regulations made pursuant to the Misuse of Drugs Act 1977 and pleaded in

the indictment and especially where counsel for the Director of Public Prosecutions had conceded that the

Regulations had not been proved and had unsuccessfully applied for leave to re-open the case so to prove them.

2. The learned trial judge erred in law and in fact in ruling:

(a) as being admissible in evidence, fingerprints taken from the applicant whilst the applicant was detained pursuant to

section 4 of the Criminal Justice Act 1984 in circumstances where no warning was administered to the applicant that the

said fingerprints could be used in evidence at his trial.

(b) That no such caution was necessary.

(c) That the accused gave an informed consent to the taking of a set of fingerprints from him.

(d) That the provisions of the Criminal Justice Act 1984 were fully or adequately complied with prior to a set of

fingerprints being taken from the accused.”

THE FAILURE TO PROVE THE REGULATIONS

This ground of appeal refers solely to the second count in the indictment, in which specific reference is made to the Misuse

of Drugs Regulations 1988 and 1993, as made under section 5 of the Misuse of Drugs Act 1977. Under this count the

applicant was charged with an offence contrary to section 15 of the Misuse of Drugs Act 1977 (as amended). Section 15 of

the Act of 1997, where relevant, provides:

“15(1) Any person who has in his possession, whether lawfully or not, a controlled drug for the purpose of selling or

otherwise supplying it to another in contravention of Regulations under section 5 of this Act, shall be guilty of an

offence.”

Section 5 of the Act of 1977, where relevant, provides:

“5(1) For the purpose of preventing the misuse of controlled drugs, the Minister may make regulations –

(a) prohibiting absolutely, or permitting subject to such conditions or exceptions as may be specified in the Regulations,

or subject to any licence, permit or other form of authority as may be so specified –

(i) …….

(ii) …….

(iii) the supply, the offering to supply or the distribution of controlled drugs.”

The relevant Regulations of the Misuse of Drugs Regulations 1988 (S.I 328 of 1988) and the Misuse of Drugs

(Amendment) Regulations 1993 (S.I. 342 of 1993). Article 4 of the 1988 Regulations sets out a general prohibition:

“4(1) Subject to the provisions of these Regulations a person shall not –

(a) produce a controlled drug,

(b) supply or offer to supply a controlled drug, or

(c) import or export a controlled drug.”

Mr Gageby S.C., submitted that it was the invariable practice in this jurisdiction that in prosecutions brought under section

15 of the Misuse of Drugs Act 1977 the prosecution proved the Regulations upon which it relied in the proof of its case.

This invariably was done by handing into the court a copy of the Regulations published by the stationery office. While

counsel for the Director made a number of legal submissions asserting that the proving of the Regulations was not necessary

in law, it appears to be conceded that the practice is as asserted by counsel for the applicant.

Mr Gageby submitted that the Regulations made under the Act form an integral part of the statement of the offence charging

the accused person and it was therefore essential in a criminal trial that they be proved. Regulations made by statutory

instrument were not in the same position as statutes. Under section 6(1) of the Interpretation Act 1937 it was provided that

every Act of the Oireachtas should be judicially noticed. This judicial notice did not, however, extent to statutory

instruments, which must be proved. The method of proof of statutory instruments and Regulations was set out in section

4(1) of the Documentary Evidence Act 1925, which provided that such Regulations should be proved by the production of a

copy of the Regulations either in Iris Oifigiúil or as printed by the stationery office. This was the invariable practice and this

the prosecution had notably failed to do, as was, indeed, freely conceded by counsel at the trial.

Following a rather confused discussion with the learned trial judge counsel for the prosecution had applied to re-open the

prosecution case but this application had been firmly rejected by the learned trial judge. On the other hand the learned trial

judge had also rejected the defence submissions regarding the Regulations but without giving any reasons for so doing. Mr

Gageby contended that it was not open to the learned trial judge to make such a ruling without giving any reasons.

Mr Gageby primarily relied on the judgment of this court (delivered by Davitt J.) in The People (At the Suit of the Attorney

General) v Richard Kennedy [1946] I.R. 517. In that case the necessity for formal proof of Emergency Orders made under

the Emergency Powers Act 1939 arose. At the trial in the Special Criminal Court, Stationery Office copies of the relevant

Emergency Orders were produced by the prosecution but were not formally proved. On appeal this court held that the

Emergency Orders were not in the same position as statutes and that therefore they required to be formally proved in

evidence. The court accordingly allowed the appeal and set aside the convictions and sentences. Further reference to this

case will be made later in this judgment. Mr Gageby submitted that this remained the law.

In the later case of The People (Attorney General) v Gerard Griffin [1974] I.R. 416 this court quashed a conviction

against an accused on the ground that there had been a failure on the part of the prosecution to prove formally a statutory

instrument which created the offence charged but the court then directed a retrial of the accused for the offence. The facts

of that case were very similar to those in the instant case, the statutory instrument in question being the then current

Dangerous Drugs (Raw Opium Coca Leaves and Indian Hemp) Regulations 1937. Following the issue of a certificate

pursuant to section 29 of the Courts of Justice Act 1924 the Supreme Court on appeal considered the question as to whether

in those circumstances a retrial could be ordered. The Supreme Court allowed the appeal, holding that where the

prosecution had failed to tender the evidence necessary for a conviction, this court had no power to order a re-trial.

Mr Gageby also referred to a recent judgment of the Supreme Court in Attorney General .v. Martin Parke (Supreme Court

unreported 6th December 2004). This was an extradition case in which the question of the necessity for formal proof of the

Misuse of Drugs Regulations arose. The court held that in the particular circumstances of an extradition case, which was not

a criminal trial, formal proof of the Regulations was not strictly necessary. However, in the judgments both of Murray C.J.

and of Denham J., Mr Gageby submitted, there was a clear implication that formal proof would be necessary in a criminal

trial. On these authorities, Mr Gageby submitted, the applicant’s conviction on the second count should be quashed.

Counsel for the Director, Mr McGinn, submitted that it was not necessary in law to establish in evidence the existence and

content of the Misuse of Drugs Regulations 1988 and 1993 in order to prove an allegation of possession of a controlled drug

for the purposes of supply contrary to section 15 of the Act of 1977. He submitted that counsel for the applicant himself had

not asserted that there was a rule of law which necessitated the proving of such Regulations, and conceded that it was no

more than the “invariable practice”. Mr McGinn submitted that the act of possessing cocaine for the purpose of selling or

otherwise supplying it to another was proscribed by the provisions of the primary legislation without any necessity to have

reference to any statutory instrument. The primary legislation made it clear that there was an absolute prohibition on the

possession of a controlled drug for the purpose of sale or supply.

Mr McGinn relied on the case of The State (Taylor) v Circuit Court Judge of Wicklow and Others [1951] I.R. 311. In

that case, which was one of habeas corpus and certiorari, the prosecutor, Mr Taylor, had been convicted and sentenced to

imprisonment on a drunk driving charge. It was argued that the conviction was bad in that it did not show on its face that

section 30 of the Road Traffic Act 1933 was in force at the time of the alleged offence and that the statutory instrument

bringing the relevant section into force should have been formally proved at the trial. The Supreme Court rejected this

contention, holding that the Circuit Court judge was entitled to make use of his general knowledge as a judge gained in

administering the Act for many years and that he was entitled to take judicial notice of the fact that the Act was in force.

The judgment of the court was delivered by Davitt J. Having considered various aspects of the doctrine of judicial notice

Davitt J. stated (at page 321):

“I prefer, however, not to base any opinion upon these considerations but rather upon those which the learned

Circuit Court judge himself mentioned in giving his decision. He said that he had been administering the

Road Traffic Act since he came upon the Bench and that he was perfectly well aware that it was in force. This

appears to me, of its very essence, to be a sound and reasonable view to take. In Halsbury’s Laws of England

(Hailsham Ed.) Volume 10 the learned author of the section on ‘Customs and Usages’, at page 63 notes three

stages in the process of their establishment as such. The first stage is when the usage must be proved by

evidence with certainty and precision. The second stage is when the court has become to some degree familiar

with the usage and slight evidence is required to establish it. The final stage is when the court takes judicial

notice of the usage and proof is not required. It is easy to envisage such stages with regard to the matter in

question here.”

Mr McGinn submitted that this was analogous to the present case and that the “final stage” had been reached in respect of

the Misuse of Drugs Regulations. Mr McGinn in addition drew attention to the case of Director of Public Prosecutions v

Collins [1981] I.L.R.M. 447 in which it was held by the Supreme Court in a drunk driving case that a judge was entitled to

take judicial notice of the making of Regulations when their making is notorious, well established, embedded in judicial

decisions, and susceptible of uncontroversial proof.

CONCLUSION

In the People (Attorney General) v Kennedy this court gave full consideration to the question of the formal proof of

statutory instruments – in that case of emergency orders. At page 520 to 521 of the report Davitt J. on behalf of the courts

stated:-

“Statutory Orders, such as the emergency orders in question, are not in the same position as statutes, and the courts are

not entitled to take judicial notice of them. They must be proved in evidence. While emergency orders made under the

provisions of the Emergency Powers Act 1939 have, by virtue of section 10, the force and effect of law, a court is not

entitled to give any effect to an instrument which is alleged to be an emergency order unless and until it is satisfied that

the instrument is, in fact, what it is alleged to be; and it can only be so satisfied when it has been proved in evidence that

the instrument in question is an order duly made in exercise of the powers conferred by the Act. Section 4 of the

Documentary Evidence Act 1925 provides two convenient methods of giving prima facie evidence of such fact, and it is

to be regretted that, with such convenient methods of proof readily and immediately available, counsel for the

prosecution did not think fit to adopt one or the other, particularly when the matter had been specifically brought to his

attention by the submission of the defendant’s solicitor when making his application to the court for a direction…

The burden of proof which rests upon the prosecution in a criminal case cannot, however, be eased in this or

any other case. Every fact necessary to establish the guilt of an accused person must be proved clearly and

beyond reasonable doubt. Not merely that, it must be proved in evidence at the trial. It is not sufficient if the

court satisfies itself otherwise than by the evidence submitted at the trial. The proper way to establish the fact

that the orders in question were properly made in exercise of the powers conferred by the Act of 1939 was by

proving that fact by evidence, either by one of the methods provided by section 4 of the Documentary Evidence

Act 1925 or otherwise. That was not done. It is not sufficient to establish, if it could be established, that the

Special Criminal Court itself had knowledge of what ought to have been proved in evidence.

For these reasons this court is of opinion that there was not sufficient evidence before the Special Criminal

Court upon which the applicant could have been properly convicted of the charges contained in the several

counts of the indictment upon which he was convicted. His application for leave to appeal will therefore be

granted.”

It is clear that in this decision the court laid particular emphasis on the burden of proof laid on the prosecution in a criminal

trial and the need for clear and unequivocal evidence in discharging that burden.

In the People (Attorney General) v Griffin (already cited), where the issues were closely analogous to the present case, this

court followed the Kennedy decision. The Supreme Court raised no query as to the correctness of that decision, noting that

counsel for the prosecution had conceded “that the matter was ruled by the decision in Kennedy’s case to the effect that,

in the absence of proof of the making of the relevant statutory instrument, the conviction could not stand” (page 419).

The Supreme Court went further in ruling that in such circumstances this court had no power to order a retrial, Henchy J.

stating (at page 420):

“In my opinion, when a conviction is quashed because the prosecution failed to tender the evidence necessary to sustain

a conviction, the accused should not be subject to the worry of a retrial in which the prosecution could mend its hand,

unless there is clear statutory authority for such course. Section 5 of the Act of 1928 provides no such authority.”

In Taylor v Wicklow Circuit Judge, Davitt J. in the High Court referred in some detail to Kennedy’s case but held that

there was a valid distinction between that case and Taylor’s case. The distinction he made rested upon the cogent reasons

given by the Circuit Court judge in that case as to why he felt justified in taking judicial notice that the relevant section of

the Road Traffic Act was in force. This cannot be compared with the situation in the instant case where the learned trial

judge, in rejecting Mr Gageby’s submissions regarding the Regulations, did not state that he was taking judicial notice of the

Regulations and did not give any reasons whatever for his ruling.

It is also notable that in Attorney General v Martin Parke (unreported Supreme Court 6th December 2004) the most recent

judgment opened to this court, both Murray C.J. and Denham J. in holding that formal proof of the Misuse of Drugs

Regulations was not necessary in an extradition matter, were most careful to distinguish between the situation in an

extradition matter and that which obtains in a criminal trial. At page 11 of his judgment Murray C.J. stated:

“In addressing this issue I think I should first of all state the obvious, namely, that although extradition may entail

serious consequences for a person subjected to it, such as the loss of liberty, extradition proceedings are not a criminal

process and are not in the nature of a criminal trial. The burden of proof of facts which may rest on the applicant in

these proceedings is not that of a criminal trial. I hasten to add that the learned High Court judge did not approach this

matter on such basis and it is just that I consider it appropriate at this point to distinguish between extradition

proceedings and other forms of proceedings, criminal and civil. An extradition proceeding, pursuant to the relevant Acts,

has its own special features which in a certain sense makes it sui generis”.

Denham J. at page 8 of her judgment stated:

“The role of the trial judge in an application for an order of extradition is unique. The hearing is not a criminal trial, in

the adversarial sense where the State must prove the guilt of the accused beyond all reasonable doubt. …it is a unique

procedure where the court holds an inquiry as to whether the criteria set out in the Extradition Act 1965, as amended,

has been met.”

In the event, even in an extradition case, both learned judges held that the relevant Regulations should have been produced

at the High Court and the matter was remitted to the High Court to enable this to be done.

While the decision of the Supreme Court in the case of D.P.P. v Collins appears to take a somewhat different line, even in

that case reference is made to Kennedy’s case and it is acknowledged by Henchy J. in his judgment (at page 450), that

where the piece of delegated legislation has created the offence charged “the courts are likely to hold (as they did in

Kennedy’s case and in Griffin’s case) a conviction to be bad for failure to produce the designated piece of delegated

legislation creating the offence, for without such production the existence or the precise ingredients of the offence may be

in doubt; and, further the court may be deprived of an opportunity of ensuring that the accused will not be convicted (in

breach of article 15 s.5 of the Constitution) for an act which had not been declared to be an infringement of the law at

the date of its commission.”

It appears to this court, therefore, that the weight of authority is in favour of Mr Gageby’s contention on behalf of the

applicant that it is incumbent on the prosecution to prove the relevant Regulations in the manner prescribed by the

Documentary Evidence Act 1925. Even if that were not so in every case, the position in the instant case is that counsel for

the prosecution conceded that the Regulations had not been proved and subsequently applied to re-open the prosecution

case in order to prove them, thus tending to acknowledge that such proof was necessary. The learned trial judge, having

refused that application, went on to reject the submissions of counsel for the defence giving no reasons for his decision. It

appears to this court that the learned trial judge erred in so doing.

This court will treat the hearing of the application of the applicant for leave as the hearing of the appeal and will allow the

appeal against the applicant’s conviction and sentence on the second count in the indictment. In accordance with the

decision of the Supreme Court in Griffin’s case (quoted above) no retrial will be ordered.

THE ADMISSIBILITY OF FINGERPRINT EVIDENCE

Prior to the opening of the prosecution case at the applicant’s trial, in the absence of the jury, counsel for the defence raised

the issue of the admissibility of the evidence in which it was alleged that a fingerprint matching that of the applicant was

found inside the lid of the first-aid box containing the sachets of cocaine. The fingerprints of the applicant had been taken by

a Garda subsequent to his arrest while he was held in custody pursuant to section 4 of the Criminal Justice Act 1984. The

Garda evidence was that these fingerprints had been taken with his consent and that he had signed the relevant consent

form. It does not appear that the form was produced in evidence by the prosecution at the trial.

Counsel for the defence submitted to the learned trial judge that in the taking of the applicant’s fingerprints the Gardai had

not fulfilled the procedure set out under section 6 of the Criminal Justice Act 1984, whereby the authority of a member of

the Garda Siochana not below the rank of Superintendent is required for the taking of a person’s fingerprints. No such

authority had been obtained in the applicant’s case. It seemed to be suggested that such authority was not required because

the applicant consented to the procedure. Mr Gageby disagreed with this interpretation. He submitted that in any event it

appeared that prior to the taking of his fingerprints the applicant was not cautioned or warned that the fingerprints might be

used in evidence against him. The need for a caution applied on the principle of fairness and the taking of fingerprints was a

partial invasion of the applicant’s human right to bodily integrity.

In reply counsel for the prosecution submitted that as there was a consent given for the fingerprinting, the terms of the 1984

Act and of the Regulations made thereunder had been complied with. The applicant had been cautioned at the time of his

arrest a short time before and this was sufficient. There was no provision for a specific caution in the Act or in the

Regulations.

In his ruling on these submissions the learned trial judge stated (Book A page 68):

“As to the taking of the prints. While the Act does say that it should be on the authority of a Superintendent, there is no

evidence that that was so. Now unlike the caution given prior to any oral admissions or written admissions being made,

print of (sic) objective evidence, I do not believe a further caution was necessary before taking the prints and with the

accused consenting, I believe that adequately makes the taking valid and legal.”

In his grounds of appeal as set out above, the applicant alleges that the learned trial judge erred in law in holding that no

caution was needed and that the provisions of the Act of 1984 were fully or adequately complied with.

Counsel for the applicant, in the hearing before this court, stressed that at the time of the trial the prosecution had not

produced the form which it was alleged the applicant had signed before the taking of his fingerprints. There was no evidence

that any caution had been administered. It was also clear that no authority for the taking of fingerprints had been given by a

Garda Superintendent. Garda Lowry, who had taken the applicant’s fingerprints, had stated (Book A page 47):

“I asked Mr Cleary that I intended to take his fingerprints, and asked him would he volunteer to have his

fingerprints taken and photographed, and he said he had no problem that he would.”

He further stated (at page 48)

“He gave me said he had no problem with the consent form (sic), he signed the consent form giving the permission.”

The applicant was not warned that his fingerprints might be used in evidence against him; he therefore had not given an

informed consent. He might well have believed that his fingerprints were being taken merely for the purpose of records.

Counsel for the Director, Mr McGinn, submitted that the purpose of taking fingerprints would be patiently obvious to a

suspect. The only conceivable reason for members of An Garda Siochana, who are investigating a crime to take fingerprints

from a suspect is to exonerate or incriminate that suspect in the crime. In these circumstances it was entirely unnecessary for

the Garda to inform the applicant that his fingerprints might be used in evidence against him. Mr McGinn further argued that

the formal caution merely served to remind suspects of their continuing right to silence and had no relevance to the

admissibility or otherwise of fingerprints. The wording of the caution was simply inappropriate to cater for that situation.

Mr McGinn also submitted that there was no requirement under the relevant legislation to seek the authorisation of a

Superintendent where the suspect’s consent to the taking of his fingerprints had already been obtained. It could not be

intended that both the Superintendent’s authority and the applicant’s consent were needed. The only reasonable and rational

interpretation of the Act and Regulations was that a Superintendent’s authorisation was only necessary where a suspect

refuses to consent to his fingerprints being taken.

CONCLUSION

Section 6 of the Criminal Justice Act 1984, where relevant, provides as follows:

“6(1) Where a person is detained pursuant to section 4, a member of the Garda Siochana may –

(a) …

(d) take, or cause to be taken, his fingerprints and palm prints;…

6(2) The powers conferred by subsection (1)…(d) shall not be exercised except on the authority of a member of

the Garda Siochana not below the rank of superintendent.”

Article 18 of the Criminal Justice Act 1984 (Treatment of Persons in Custody in Garda Siochana Stations) Regulations,

1987 (S.I. No. 119 of 1987) provides:

“18(1)(a) Fingerprints, palm prints, or photographs shall not be taken of, or swabs or samples taken from, a

person in custody (otherwise than pursuant to a power conferred on a member by law) except with his written

consent and, where he is under the age of 17 years, the written consent of an appropriate adult.

(b) A consent shall be signed and be recorded in the custody record or a separate document.”

The Criminal Justice Act 1984, section 4, established the power of a member of the Garda Siochana to detain in a Garda

Station a person suspected of having committed an offence for a certain period for the purpose of the proper investigation of

the offence. Both the Act itself and the Regulations made under section 7 of the Act contained provisions designed to give

certain protections to persons detained under section 4. Thus, Article 18 of the 1987 Regulations quoted above, provides

that finger and palm prints are not to be taken from a detained person without his consent. This is, however, subject to the

exception, contained in parentheses, that such finger and palm prints may be taken without consent “pursuant to a power

conferred on a member (of the Garda Siochana) by law”. Such a power is “conferred by law” under section 6(1)(d) of the

1984 Act itself. The subsection clearly refers to fingerprints taken without consent. This power may not be exercised

without the authority of a member of the Garda Siochana not below the rank of Superintendent. Thus the Garda who

wishes to take the fingerprints of a suspect must either do so by consent (such consent be evidenced in writing) or by means

of the proper authority. In the view of this court counsel for the Director is correct in his submission that both consent and

authority are not simultaneously required.

There remains the question of a specific caution or warning. The normal wording of the caution given on arrest, prior to

interview or prior to the taking of a statement is not precisely appropriate to the situation of the taking of fingerprints, since it

clearly refers to anything the suspect may “say”. It will in general be desirable that a suspect should be informed of the

purpose of taking fingerprints and of the fact that he may refuse in the first instance to undergo that procedure. In the

circumstances of the present case, however, it is hard to believe that the applicant did not realise the purpose for which his

fingerprints were being taken. While Garda Lowry ‘s evidence is that he told the applicant that he “intended” to take his

fingerprints, he then went on to ask him to volunteer to have the prints taken and the applicant said he had “no problem”

with that. While the consent form was not produced at the trial the fact that the applicant signed the form was not

challenged. It should of course, also be borne in mind that even if the applicant had been specifically cautioned and had then

refused his consent it would have been open to Garda Lowry to have sought the proper authority from the Garda

Superintendent to deal with the matter under section 6 of the 1984 Act.

The case for the prosecution at the trial of the applicant, in the view of this court, suffered from a number of weaknesses,

some of which were mentioned by the learned trial judge. Among these weaknesses was the absence in evidence of he form

of consent to the taking of the applicant’s fingerprints. It would also have been better practice to inform the applicant of the

purpose for which his fingerprints were required. However, in the court’s opinion, these factors were not in all the

circumstances of the case sufficient to render inadmissible the fingerprint evidence. The learned trial judge was correct in his

ruling on this issue. This ground of appeal therefore fails and the conviction and sentence of the applicant on the first count

(possession of a controlled drug) will stand.

DPP v Daniel Cleary