The Court of Criminal Appeal has certified one question for possible appeal to the Supreme Court: whether DNA evidence from cigarette butts discarded by a person in Garda custody is admissible at trial in the circumstances described in the case.
In a judgment delivered on 22 January 2016, the court granted the application by Keith Wilson under section 29 of the Courts of Justice Act 1924 on that issue alone. It rejected his application on two other proposed questions: whether a person can be convicted solely on DNA evidence, and whether a jury must always receive a special warning when DNA evidence is the only evidence against an accused.
The decision concerns the next procedural step after the Court of Criminal Appeal had dismissed Mr Wilson’s conviction appeal on 27 November 2014. The certificate allows the cigarette-butt question to be put forward for a Supreme Court appeal. The judgment does not decide that appeal or change the convictions.
Mr Wilson was convicted by a jury in November 2011 of murder and possession of a firearm with intent to endanger life. He received a mandatory life sentence for murder and an eight-year sentence for the firearms offence, to run concurrently.
At trial, the prosecution relied on DNA profiles from a gun, a cap, a hoodie and a cotton glove recovered in connection with the murder. Mr Wilson challenged the admission of DNA obtained from cigarette butts he had used and discarded while detained, arguing that Gardaí had obtained them through deception after he refused to provide a sample. The prosecution argued that the butts could be seized and retained under statutory and common-law powers.
In the earlier conviction appeal, the Court of Criminal Appeal held that the trial judge had correctly admitted the cigarette-butt DNA evidence. It also rejected Mr Wilson’s challenges to the arrest, the decision to leave the case with the jury, the handling of expert testimony about his brothers, and the jury directions on DNA evidence.
In considering certification, the court said the cigarette-butt issue raised serious questions about Garda activity and the possible involvement of constitutional rights, particularly because Mr Wilson was incarcerated when the butts were retrieved. It also noted there was no Supreme Court authority on the matter. Those considerations met the section 29 threshold for that question.
The court did not certify the broader questions about DNA-only convictions or a mandatory jury warning. It said the assessment of DNA evidence depends on the evidence in each case, and that whether to give a warning remains for the trial judge to decide in the circumstances.