The Supreme Court has sent a fingerprint evidence case back to the District Court, saying the evidence before it was not sufficient to answer the legal questions referred by the District Judge.
John Cash, who was below the age of majority at the relevant time, faced a charge of entering a dwellinghouse as a trespasser with intent to commit theft. The charge concerned a break-in at St. Martin’s, on Kylemore Road, Clondalkin, on 21 July 2003. The prosecution case in the District Court was based on a comparison between fingerprints found on broken window glass at the house and prints taken from Cash after his arrest and detention in September 2003.
The arrest was prompted by a Garda Technical Bureau match between the scene prints and another set of prints dated 31 March 2002. The prosecution witnesses could not say how that earlier set had been taken or whether it had been lawfully retained. The defence argued that the arrest and detention were unlawful because they relied on that unexplained match, and challenged whether the later fingerprint evidence could be admitted.
The Supreme Court said the case stated contained no evidence about the circumstances in which the 2002 prints were taken, including whether Cash was in custody, whether a statutory power was used, or whether he consented. The Court noted that the statutory destruction requirements cited in the case applied to prints taken under the relevant statutory powers, while the record did not establish whether those requirements applied to the earlier prints.
The Court also addressed the account that Gardaí preferred obtaining fingerprints by consent because prints taken under the statutory procedure had to be destroyed after a period. It said that point had no direct application without evidence about how the 2002 prints were obtained. Questions about using consent to avoid the statutory retention rules, and what must be explained to a child suspect, would have to await another case with an adequate evidential record.
The Supreme Court did not decide whether the arrest or detention was lawful, whether the fingerprint evidence was admissible, or whether the charge had a case to answer. It held that the defence had not discharged its evidential burden to establish the circumstances of the earlier prints with sufficient precision. It remitted the matter to the District Court to proceed according to law. The District Judge must consider whether the evidence heard establishes a prima facie case; if so, the defence must be given an opportunity to call evidence. The Court said the District Judge’s broader discussion of legally obtained evidence was obiter and had no binding effect.