The Supreme Court held that the Criminal Justice (Forensic Evidence) Act 1990 did not remove the Garda Síochána’s common-law power to take forensic samples from a detained person who freely and voluntarily consents.
The conclusion appears in a judgment delivered by Mr Justice Finnegan on 18 November 2008 in the appeal of Michael Boyce against the Director of Public Prosecutions. Finnegan J. said he agreed with Denham J.’s judgment on the certified question and on the first three appeal grounds relating to it. He also agreed with Denham J. and Fennelly J. on grounds five and six. He confined his own reasons to the interpretation of section 2 of the 1990 Act and did not restate the case facts, which were set out in the other judgments.
The certified question was whether the 1990 Act deprived the Garda of the facility that existed at common law to take forensic samples with consent. Finnegan J. said it had been open before the Act for a person detained under section 4 of the Criminal Justice Act 1984 to consent to samples, as it had been to fingerprints. The judgment records that it was not contended at trial that the sample in this case was given other than voluntarily.
Section 2 of the 1990 Act sets out procedures for taking specified samples, including bodily swabs and saliva, for forensic testing. It includes authorisation and consent requirements for certain samples. Subsection 11 says the powers conferred by the section are “without prejudice to any other powers exercisable” by a Garda member.
Finnegan J. read that provision in the context of the section and the Act as a whole. He concluded that the Act’s reference to powers included taking samples on consent, and that the reference to other powers preserved common-law powers that existed before the legislation. He said the statutory language did not indicate an intention to exclude those powers.
The judgment addresses the certified question and related grounds of appeal. It does not set out the final disposition of the appeal as a whole. Finnegan J. concluded that the Garda may take forensic samples at common law where a detained person gives free and voluntary consent.