The High Court upheld Kenneth Finn’s District Court conviction for obstructing the taking of a forensic sample, finding that his deliberate refusal, combined with keeping his head down and arms folded, made it more difficult for Gardaí to take the swab.
The judgment, delivered by Ms Justice O’Regan on 18 April 2016, arose from a case stated appeal. The District Court had convicted Finn on 11 November 2014 of an offence under section 2(9) of the Criminal Justice (Forensic Evidence) Act 1990.
The District Court found that Finn was lawfully detained, that there was valid authorisation for a buccal swab, and that Detective Garda O’Leary demanded that he allow it to be taken. Finn had been cautioned that obstruction was a criminal offence and had access to independent legal advice. The District Court’s account of the video described him seated with his head down and arms crossed, politely and non-violently refusing the requests. The detective accepted that no force was attempted.
Finn argued that Gardaí had to exhaust the option of using reasonable force before an obstruction offence could be established. He also said his conduct was non-cooperation rather than obstruction. The prosecutor argued that Finn was obliged to provide the sample and that force was not a prerequisite to conviction.
The High Court rejected both the claim that the absence of an attempt to use reasonable force prevented a conviction and the contention that Finn’s lack of choice meant he was legally obliged to provide the sample. It stressed that mere refusal to assist does not itself amount to obstruction, and that obstruction must be distinguished from non-cooperation. Finn’s polite and non-violent refusal, on its own, was insufficient.
But the court considered the full conduct: Finn’s deliberate refusal to allow the swab, together with his head-down, arms-folded posture. It concluded that this combination made it more difficult for Gardaí to carry out their duties and frustrated the effort to take the sample.
The High Court answered “No” to whether a detainee could obstruct the taking of a buccal sample in the circumstances posed where Gardaí had not attempted to use reasonable force, and “Yes” to whether the District Court was correct to convict Finn. The appeal was therefore unsuccessful and the conviction remained in place.