The Supreme Court has ruled that gardaí may rely on common law to obtain a forensic sample voluntarily given by a person in custody, even where the statutory procedure under the Criminal Justice (Forensic Evidence) Act 1990 was not used.
In a judgment delivered on 18 November 2008, Denham J answered in the affirmative a question certified by the Court of Criminal Appeal: whether a garda could take a blood sample from a person in custody who agreed to provide it without invoking the 1990 Act. The court held that the Act created an additional statutory scheme and did not displace the common law. The ruling addressed the legal basis for obtaining a voluntarily provided sample; it did not authorise taking samples without consent.
The case arose from Michael Boyce’s appeal against the Court of Criminal Appeal’s refusal to grant leave to appeal his Central Criminal Court convictions. The convictions followed a trial on nine counts concerning sexual offences against one complainant, at her home, between 1983 and 1994. The jury found Boyce guilty of indecent assault, rape and sexual assault, and returned alternative verdicts of attempted rape on three counts. It returned no verdict on three other counts. He received prison sentences ranging from three to eight years.
The prosecution had relied on DNA evidence from a blood sample obtained while Boyce was detained at a garda station in July 1996. The trial judge found that he had voluntarily provided the sample after being told he was not obliged to do so and that test results could be used in evidence. The DNA evidence was admitted. The Supreme Court said the question before it concerned the effect of the 1990 Act on common law, not whether consent had been given in this case.
The court noted that the Act sets out a detailed process, including authorisation, consent requirements and information to be given to the person. It also provides for possible inferences from refusal and an offence of obstruction. Denham J concluded that the legislation did not expressly make its procedure mandatory in every case or expressly abolish the common law. The two systems could operate alongside one another, and gardaí were entitled to use common law in the circumstances described.
The court also rejected the other appeal grounds raised. It upheld the Court of Criminal Appeal’s approach to the trial judge’s directions on corroboration and found no basis to overturn the ruling concerning expert evidence about DNA databases. The court therefore answered the certified question in the affirmative and did not allow the appeal.