Brian McGinley (applicant) v. Judge Michael Reilly and The Director of Public Prosecutions (respondents)
Judicial review - Application for certiorari - Application for mandamus - Applicant arrested in connection with aggravated burglary - Hair sample taken to compare with blood found at crime scene - Order made for extension of period for retention of sample - Further order made - Whether there was "good reason" to authorise the further retention of samples - Whether breach of fair procedures - Criminal Justice (Forensic Evidence) Act 1990 s. 2, s.4(5)
The High Court (Mr Justice Peart); judgment delivered November 15th, 2006.
The words "good reason" in s. 4 of the 1990 Act conferred a wide discretion upon a District Court judge without specified limitations but nevertheless it was not an absolute discretion to be exercised as he or she wished. In interpreting the phrase "good reason", the court was entitled and even obliged to consider the whole Act in order to discern the intention of the Oireachtas. The purpose of testing the sample was so that relevant forensic evidence might be available for any trial of the person which might take place in the future. It had to follow therefore that the District Court judge is entitled to have regard to the overall picture, even if by the time the application came before him, the applicant had not been charged with any offence.
The High Court so held in refusing the reliefs sought.
Colman Fitzgerald, SC, Laurence Masterson, BL, for the applicant; Shane Murphy, SC, Paul Anthony McDermott, BL, for the respondents.
Mr Justice Peart summarised the facts of the case and stated that the applicant had been arrested on July 18th, 2005, in connection with an aggravated burglary on February 13th, 2005, and that he was detained under s. 4 of the Criminal Justice Act 1984 when a sample of head hair was taken, and a cigarette butt was taken, each for forensic examination and DNA comparison with a blood sample found at the scene of the crime. He was released without charge. Thereafter an application was made to the first named respondent on January 17th, 2006, by the superintendent in charge of the case, for an order pursuant to s. 4(5) of the 1990 Act extending the period permitted for the retention of the sample, since the forensic report in respect of the samples had not yet been completed. No information was provided as to the nature of the outstanding matters in the investigation nor to whom the delay was attributable.
It appeared that the first named respondent on that occasion made an order extending the period by two months to expire on March 17th, 2006. The forensic report seems to have been completed by January 20th, 2006 and was received by the gardaí on January 23rd, 2006 .
On February 3rd, 2006, the applicant was rearrested and detained for a number of hours. He stated that during that time he was informed by a detective sergeant that a forensic report had been obtained and that he "would be charged shortly as the superintendent was on the phone to the DPP obtaining directions".
However, no such charges were laid and he was released without charge. Sgt Delaney on affidavit denied that he said this to the applicant. A further notice of an intended application to extend time for retention was served on his solicitor on March 3rd, 2006, who responded by stating that she required that the forensic scientist should be available in court for cross-examination on that application. The superintendent replied on March 13th, 2006, to the effect that the forensic scientist would not be present in court and the view was expressed that "this issue [ is] a matter for any trial judge and premature at this juncture".
That application came before the first named respondent on March 14th, 2006, when the superintendent informed the court that a file had been sent to the Director of Public Prosecutions on March 7th, 2006, and that directions were imminent. Supt Glacken swore an affidavit in which he stated that on this occasion he informed the first named respondent that while he expected the directions from the Director of Public Prosecutions to issue in about two weeks from that date he could not anticipate what those directions might be or whether the director would raise further queries in those directions, and that it was for this reason that he requested a two-month extension for the retention of the samples.
Supt Glacken was cross-examined about the delay and what the applicant may have been told during his detention following the rearrest already referred to, and other matters. The applicant himself also gave evidence of what he had been told during this detention, and the superintendent had informed the judge also that he expected to receive directions from the director within one week. The district judge granted only 28 days.
The directions duly issued in oral form on April 11th, 2006, followed a day later by a written direction to prosecute the applicant for aggravated burglary. The applicant was arrested on that day April 12th, 2006, and charged in the District Court on April 13th, 2006, by which time the judicial review proceedings were already in being since March 24th, 2006. It was averred by the applicant's solicitor that during cross-examination of Supt Glacken on March 14th, 2006, he stated that he was not prepared to answer questions regarding the applicant's detention on that occasion, and that when she attempted to pursue the matter she was prevented from so doing.
This was submitted to have amounted to a denial of fair procedures. The district judge made an order authorising the further retention of the samples for a period of 28 days from March 17th, 2006.
By order dated March 27th, 2006, the court granted leave to seek an order of certiorari to quash the said order of the first named respondent made on March 14th, 2006, whereby the further retention of the samples was authorised for a further 28 days from March 17th, 2006, as well as an order of mandamus compelling the second named respondent to destroy the samples, and the other reliefs as set out in the order granting leave.
The question at issue in the case was simply whether the first named respondent had on March 14th, 2006, any proper or lawful basis for concluding, as he was required to have, that there was "good reason" to authorise the further retention of the samples for that further period.
Counsel for the applicant submitted that the requirement that there be "good reason" did not mean that the district judge was at large as to what he considered to be good reason, but that it must be a "good reason" in the context of the purpose and objectives of the Act itself. In particular, he submitted that simply because the gardaí were still awaiting directions from the second named respondent could not of itself be "good reason for the purpose of the section, since in that case an application on that ground could always be granted no matter how often it was applied for.
The question of how wide the discretion of the district judge in an application under s. 4(5) of the 1990 Act was as to what might constitute "good reason" was at the heart of the application, and a decision as to that would decide the question of whether the applicant was entitled to some or all of the reliefs sought.
Counsel for the applicant had urged the court to consider the whole of the entirety of the Act, and to confine the ambit of the judge's discretion to within a purpose of the Act. In this regard, he pointed to the fact that the taking of samples from a person constituted a breach of their right to bodily integrity and their right to privacy, but that these are not absolute rights, since the legislature may in the interests of the common good limit those rights in certain circumstances. The further balancing provision to the invasion of the applicant's constitutional rights was, counsel submitted, the requirement that such samples as are taken must be destroyed, along with all records identifying the person from whom the samples were taken, if proceedings against that person had not been instituted within six months from the taking of the samples in question.
Counsel submitted that given that the legislature had chosen to regard the matter so seriously as to provide these safeguards so as to make the invasion of rights a proportionate measure in this way, the district judge, to whom application for further retention was being made, had to ensure that these protections were not diluted or set at nought by allowing an extension of the period for a reason other than a good reason, such as a reason unconnected with the purpose of allowing the samples to be taken in the first place under s. 2 thereof, namely for the purpose of forensic testing where there exist reasonable grounds for suspecting the involvement of the person in the offence for which he is in custody and for believing that the sample would tend to confirm or disprove the involvement of the person in that offence.
Important to that submission was the fact that when the first named respondent made his order on March 14th, 2006, it was known by him that the forensic scientist to whom the samples had been sent for analysis had issued the report on January 20th, 2006, being only three days after the first extension of time was granted up to March 17th, 2006.
Counsel submitted therefore that the extension was not required for the purpose of forensic testing since that had already been carried out by January 20th, 2006. The reason for the first application under s. 4(5) of the Act on January 17th, 2006, was that this report was still awaited at that time. But that reason had disappeared by March 14th, 2006, since the report then existed and the forensic testing had been carried out. On the latter date, the reason given was that the file was still with the director, and that the gardaí were awaiting his directions. Counsel submitted that no reason or explanation was given to the judge as to why it was taking so long for those directions to be given, and that in the absence of any such explanation, an extension of the period was not for any "good reason" since none was offered to the court, and it amounted to an extension being given "at will" and that as such it was impermissible and ultra vires.
Counsel for the applicant submitted also that the court when interpreting such legislation had to do so in a way which was the least restrictive of the rights in question. The court was referred to the judgment of Finlay Geoghegan J. in Enright v. Ireland 2 IR. 321 stating the need to construe the constitutionality of a statute by reference to a proportionality test. Counsel referred to the judgment of Hamilton P. (as he then was) in Byrne v. Grey IR. 31. Byrne v. Grey was a case in which a peace commissioner had issued a warrant to search a house, based on an information sworn by a member of an Garda Síochána in which it was sworn that there were "reasonable grounds" for suspecting the offence involved. Even though the relief sought was refused, the learned president (as he then was) found that the person issuing the warrant, namely the peace commissioner or District Justice had to himself be satisfied that there were reasonable grounds for so doing, and could not simply issue same on the basis that the garda has formed the view that there are reasonable grounds for suspicion. The applicant highlighted the fact that if the awaiting of the directions of the Director of Public Prosecutions was to be found to be a "good reason", there would have to have been evidence adduced as to the cause of the delay, and not the mere fact of delay, since otherwise the application would be granted in every case of delay, whether the cause of the delay was excusable or not.
Counsel on behalf of the respondents urged the court not to confine itself to s. 2 of the Act in order to glean its purpose, as invited to do by counsel for the applicant, and submitted that s. 4 was very relevant in view of the provisions which touch upon the destruction of the samples.
He emphasised that the application did not concern any complaint about the taking of the samples as authorised under s. 2 but was all about the destruction of the samples as provided for in s. 4. Counsel also referred to the evidence of Supt Glacken that an extension of two months was sought, whereas the district judge granted a shorter time namely 28 days, and he suggested that this was indicative of the fact that he applied his mind to the question of exercising his discretion and that this was sufficient to uphold the exercise of what was a wide discretion according to the wording of the section. He suggested that it could not be said that there was no material before the judge on foot of which such a decision could be made and that it could not be regarded as irrational. In relation to the matter canvassed by counsel for the applicant as to the court not exercising its discretion to refuse relief by way of judicial review on the basis that there was no abuse of process in this case, counsel submitted that while it was correct to say that there was no right of appeal which the applicant could have pursued, the applicant would be entitled to ventilate his complaints regarding the retention of the samples at his trial before the trial judge. In that way, there was an alternative remedy open to the applicant and counsel suggested that the applicant's real motive in this application had nothing to do with the vindication of his right to bodily integrity or privacy as submitted by him, but rather was designed to achieve a pre-emptive strike at an important piece of evidence against him, namely some blood found at the scene of the aggravated burglary. Counsel submitted that no fundamental unfairness has resulted to the point where the entire proceeding was vitiated.
Mr Justice Peart said that while it was an undoubted fact that the proceedings were commenced some two and a half weeks before the applicant was charged with any offence to which the samples might be relevant, the court had no doubt about the reality of the applicant's state of mind and objective at that time. It was fanciful to expect the court to accept that by March 26th, 2006, the applicant was intent upon seeking the destruction of the samples and all records relating thereto, simply to uphold and vindicate in vacuo his right to bodily integrity and privacy. It was perfectly clear that he knew that there was every possibility that he might soon be charged with the offence with which he was eventually charged, and that in anticipation of that, this pre-emptive strike at the blood evidence was launched. It was, however, not of itself determinative of the question raised, namely whether the district judge was acting within jurisdiction by regarding as a "good reason" for extending the retention period the fact that the file was with the director and that his directions were still awaited. That file had been completed by March 7th, 2006, and was sent to the director on the same day. When the application came before the district judge on March 14th, 2006, the file had therefore been with the director's office for seven days only. It had to be recalled that the reason given to the district judge for the need to extend the time was not the unavailability of the forensic report. That was the reason offered on the previous application on January 16th, 2006, when the period was extended for two months. What the district judge was dealing with on March 14th, 2006, was a request for a further extension of the period on the sole basis that the file was with the director and his directions were awaited. Seven days was a short time for the file to have been in the director's offices, and certainly not one capable of amounting to culpable delay.
Mr Justice Peart accepted completely the submission made on behalf of the applicant that the taking of bodily samples would, if not done in accordance with a law so authorising, constitute tort against the person concerned, and that in legislating in a way which permits an invasion of that right to bodily integrity, the Oireachtas must do so in a proportionate manner. The safeguards built into the statutory scheme, such as the requirement for an application under s. 4(5) of the Act could be seen as a legislative recognition of that principle, and it followed that this proportionality must not be set at nought if an extension of the time for retention was permitted outside what can be encompassed by the phrase "good reason". The district judge had to act judicially.
The words "good reason" conferred a wide discretion without specified limitations, but nevertheless it was not an absolute discretion to be exercised as he or she wished. In interpreting the phrase "good reason", the court was entitled and even obliged to consider the whole Act in order to discern the intention of the Oireachtas.
But it was another matter entirely to ignore the overall purpose of testing the samples forensically after they are taken in accordance with the provisions of s. 2 of the Act. To accept the applicant's submissions in this regard would have been to render impotent in many cases the power to gather evidence for use in a subsequent trial. It had to follow therefore that the district judge was entitled to have regard to the overall picture, even if by the time the application came before him, the applicant had not been charged with any offence.
An important consideration, which had been overlooked in this application, was that an authorisation under s. 2(5) of the Act to take a sample was not to be given unless, inter alia, there was reason to believe that it would tend to confirm or disprove the involvement of the person from whom it was taken. There would be cases no doubt where the testing would tend to disprove the involvement, and it had therefore to be open to the district judge to extend the period of retention so that in any trial of the person from whom the sample was taken for the offence involved, that evidence might be available to the defence even if not required by the prosecution.
In the present case, the district judge was informed that the file was with the Director of Public Prosecutions for the previous seven days and that his directions were awaited. The good reason was quite clearly in order to afford a reasonable opportunity to the director to consider the file before giving his directions. A reasonable margin of appreciation had to be given as far as time for considering such a file was concerned, and it was manifest from the fact that the district judge granted only 28 days rather than the two months requested, that he applied his mind to the application and that he acted judicially in the exercise of his discretion.
Mr Justice Peart said that the reason given came clearly within the overall purpose of the Act. One does not have to contort the meaning of any words in order to see the intention of the Oireachtas. The purpose of testing the sample was so that relevant forensic evidence might be available for any trial of the person which might take place in the future. The applicant's rights to bodily integrity and his other undoubted right, including fair procedures, had to be balanced fairly with society rights.
In the present case there could have been no real prejudice to the applicant by having the time extended for retention of the samples which could outweigh the entitlement of the people to have the offence prosecuted, and therefrom to have available at any trial any relevant and necessary forensic evidence, provided that such evidence has been obtained in accordance with the statutory scheme in place to obtain and preserve it. The decision of the District Justice did no violence to the applicant's constitutional rights and did not set at nought the constitutional protection of proportionality built into s.4(5) of the Act. It was important that available evidence, within the bounds of constitutional fairness, be retained and preserved until the conclusion of any trial in which it was required. Any issue as to its admissibility as evidence could of course be ventilated in the usual way before the trial judge in the absence of the jury.
Mr Justice Peart concluded that the applicant's rights to fair procedures were not infringed in any way by the manner in which the district judge conducted the hearing of the application before him on March 14th, 2006. The court refused the application for the reliefs sought.
Solicitors: Elizabeth Ferris (Dublin) for the applicant; Chief Prosecution Solicitor for the respondent.
Elaine Fahey,barrister