BOYCE v. IRELAND
Inadmissible
Aleš Pejchal;André Potocki;Angelika Nußberger;Ann Power-Forde;Helena Jäderblom;Mark Villiger;Paul Lemmens
1. The applicant, Mr Michael Boyce, is an Irish national, who was born in 1944 and lives in Mullingar, Ireland. He was represented before the Court by Mr P.J. Groarke, a lawyer practising in County Longford, Ireland. 3. On 10 July 1996 the applicant was arrested under section 4 of the Criminal Justice Act 1984 on suspicion of rape of the complainant at her home in 1989. A police officer (an officer of An Garda Síochána) cautioned him to the effect that he was not obliged to speak but anything he might say might be given in evidence. He was taken to a police station where he was informed by the police that they had information that he had been involved in other sexual offences against the same complainant. The applicant denied any involvement in the alleged offences. 4. A police officer asked the applicant whether he would provide a sample of his blood and the applicant agreed. The sample was taken in the police station by a medical doctor with the consent of the applicant. The applicant was released from custody. He was then charged with nine sexual offences contrary to, inter alia, the Criminal Law (Rape) Act 1981 against the complainant. Those offences took place over a period of over 10 years (1983 to 1994) while the complainant was 55-66 years of age. The applicant did not dispute during his trial (see below) that he had provided the sample voluntarily but he argued that he had not been cautioned about the use that could be made of the sample. The trial judge found that he had been given the appropriate caution (that he was not obliged to give any sample but that any tests carried out on the blood sample might be admitted in evidence against him) and that he had fully understood it. It was not disputed that the sample had been taken under the common law and not pursuant to the Criminal Justice (Forensic Evidence) Act, 1990 (“the 1990 Act”). 5. In October 1997 he was re-arrested and returned for trial before the Central Criminal Court (“CCC”). His trial began on 16 October 2000. 6. The trial judge tried, as a preliminary issue in the absence of the jury, the admissibility of the DNA evidence drawn from the blood sample. The applicant had argued that he had not been properly cautioned and that the sample had been unlawfully taken because the common law power, on which the police relied, had been ousted by the 1990 Act. The trial judge heard oral evidence from relevant police officers, the applicant and the relevant doctor: the trial judge found that the applicant had been cautioned by the police (that he was not required to provide a sample but that, if he did so, the sample could be analysed and the results admitted against him at trial) and that he had understood the caution. The trial judge noted that, having given a sample, the applicant had then signed a statement, after he had consulted his solicitor, in which he accepted that he had volunteered the sample after such a caution. The trial judge concluded that he had been properly cautioned prior to giving the sample. He also found that the common law power to obtain a blood sample remained and co-existed alongside that of the 1990 Act so that the common law was a valid legal basis for the taking of the voluntary blood sample. The trial judge, in his ruling admitting the evidence, did so principally on the basis of section 2(11) of the 1990 Act: it stated that the powers conferred on the police under the Act were without prejudice to other powers exercised by them which meant that the power of the police to invite persons to voluntarily provide a blood sample applied in this case and was unaffected by the provisions of the 1990 Act. 7. The complainant did not identify the applicant in her evidence but stated that the offences had been committed by the same man since, inter alia, the perpetrator referred to earlier incidents when later assaulting her. The DNA evidence was key: the prosecution’s case was that the DNA evidence linked the applicant to two of the offences (1989 and 1991) and, if the jury were to find that the DNA evidence established his guilt for those two offences, it was also entitled to conclude that the same person committed all or any one of the other offences. The trial ended on 17 November 2000 when the applicant was convicted by jury on six counts of rape, attempted rape, indecent assault or sexual assault from 1983-1994. In March 2001 he was sentenced to concurrent terms of 8 years’ imprisonment. 8. On 9 March 2001 the applicant applied for leave to appeal to the CCA mainly contesting the lawfulness of the blood sample arguing that the only lawful basis for it being obtained, retained and used was the 1990 Act. Of the 21 grounds of appeal, the first and last referred to the applicant’s constitutional rights: that the trial judge had erred in finding that the sample had been lawfully taken under the common law and thus failed to vindicate his constitutional right to bodily integrity; and that the police had failed to inform the applicant that his sample would be used to investigate offences other than that relating to 1989 contrary to his rights to bodily integrity, to privacy, not to incriminate himself and to fair procedures. 9. His appeal to the CCA was heard on 23 and 24 June 2003. Further submissions were requested and filed in October 2003. On 17 February 2005 he was released from prison. 10. By judgment of 21 December 2005 the CCA rejected his appeal. It reviewed in some detail and confirmed the trial court’s factual findings as regards, inter alia, the caution given to the applicant prior to giving the sample. It also underlined the legality under the common law of collecting forensic evidence on a voluntary basis from person in custody: “While the conduct of criminal investigations by the [police] must be carried out within the ambit of the law and in accordance with the law, many of the procedures which they adopt may not require the exercise of powers expressly conferred by statute. The interviewing and taking of statements from witnesses to a crime, the entry upon the scene of a crime, its examination and taking away of forensic evidence are just some examples of investigation methods which are carried out on the basis of the consent and cooperation of the citizens concerned. ... An example would be where a householder permits a [police officer] to enter or enter and search premises without the need for a search warrant. Cooperating citizens may willingly provide the [police] with forensic evidence such as fingerprints, clothing or blood samples to assist them in their inquiries. A rape victim may willingly provide a sample of pubic hair so that the [police] may determine whether it matches a pubic hair discovered in the course of their investigations in circumstances which, if matched, may implicate a suspect. Of course the gathering of such evidence and its use at a criminal trial from persons, who at the trial have the status of witnesses rather than that of an accused, is rarely a source of controversy. ... Inevitably, ... the obtaining of forensic evidence from persons in custody may often be a source of legal controversy at a trial and subject to particular scrutiny as to its lawfulness and its voluntary nature. ... It has long been the case that the prosecution are entitled to introduce such forensic evidence obtained from a person in custody at a trial provided that it was obtained voluntarily and with the full consent of the person in custody. Provided consent is fully and voluntarily given and the person in custody is of full age and not otherwise suffering from any legal or other incapacity, they may give a forensic sample, including in response to a [police] Garda request, and the [police] may take it or receive it. That is an essential part of the evidence gathering aspect of a criminal investigation provided it is done within the ambit of the law but it has not always been and is not necessarily dependent, as such, on the existence of express statutory powers to collect such voluntarily provided forensic evidence. In short, it is not unlawful to take voluntarily provided forensic samples from persons in custody. ... It would indeed be extraordinary if [parliament] contemplated that any forensic sample freely and voluntarily provided by a person in custody and then forensically examined by the [police] which was lawful before the passing of the Act should be considered unlawful after the passing of the Act without any express provision to that effect, even though it was provided without any element of coercion and when the consequences of the refusal were nil from the point of view of an accused.” 11. The CCA went on to find that the 1990 Act created a statutory regime distinct from the common law and, further, that that regime did not have the effect of abolishing the existing common law power. Both legal bases, statutory and common law, subsisted. The 1990 Act extended existing law; it did not abrogate it. The DNA evidence, drawn from the sample taken under the common law, was admissible. Finally, the CCA did not consider tenable the factual presumption underlying the 21st ground of appeal because the applicant had never disputed that he had given the sample voluntarily and it was the uncontested evidence of the prosecution that the police had informed him that they were investigating, not only a sexual offence committed against the complainant in 1989, but also his involment in other sexual offences against her. 12. By perfected order (not submitted) of the CCA of 22 October 2007, the CCA gave leave to appeal pursuant to section 29 of the Courts of Justice Act 1924 on a point of law of general public importance desirable in the public interest to be examined by the Supreme Court. The Supreme Court judgments recorded the text of the question certified by the CCA as follows: “Is it lawful for a member of An Garda Siochana, when taking a sample of blood from a person in custody who voluntarily agrees to provide that sample for the purpose of forensic analysis, to do so without having invoked the provisions of Section 2 of the Criminal Justice (Evidence) Act, 1990?” 13. By Notice of Motion dated 28 May 2008 (grounded upon an affidavit of the same date and a Notice of Appeal dated 24 October 2007), the applicant requested, pursuant to section 59 of the Criminal Justice (Amendment) Act 2007, leave to add 7 grounds of appeal for the Supreme Court’s consideration. The first two and last grounds read as follows: “1. That the Court of Criminal Appeal erred in law or erred on a question of mixed fact and law in holding that Section 2 of the [1990 Act] did not preclude [the police] from taking a voluntary forensic sample from a person in custody without invoking the provisions of the said Act and that the said section of the 1990 Act was designed to enable [the police] to obtain such forensic samples which might otherwise be refused and to provide for admissibility of such evidence arising from the refusal, and that the neglect, failure or refusal by the [police] to take the said sample under the aegis of the said Act was ultra vires, contrary to Article 15.2.1 and Article 40.3.1 and 2 of the Constitution. 2. That the learned trial judge erred in law and on the facts in ruling that the blood sample from the Accused for the purpose of DNA testing was admissible in evidence, that it was lawfully taken and/or did not require to be taken pursuant to the Criminal Justice (Forensic Evidence) Act 1990, and thereby failed to vindicate the Accused’s Constitutional Rights to his bodily integrity. ... 14. On 18 November 2008 the Supreme Court rejected (by a majority) the appeal. All judges agreed that it had been long accepted that the police could, under the common law, obtain information and samples from a person so long as that person’s consent was given voluntarily. Indeed, even the judge who dissented on the question of the effect of the 1990 Act noted that the applicant had accepted that there had been a power to take samples by consent under the common law, he referred to the CCA judgment on the issue cited at paragraph 10 above and he added: “22. Neither the inviolability of the dwelling nor the right to bodily integrity of the human individual, though these are personal rights which enjoy constitutional protection, prevents individuals from agreeing to provide access to the one and samples from the other. Most citizens will perceive it as their duty to assist in the investigation of crime. Many will wish to eliminate themselves from suspicion; many others will wish to assist in finding the perpetrator of a crime. Where evidence is thus freely and voluntarily provided by a person at liberty, no principle of the criminal law prevents material thus gained in the course of police investigation from becoming the subject-matter of evidence at a criminal trial against the provider.” 15. The Supreme Court found that the 1990 Act did not deprive the police of their ability to take samples under the common law since both the statutory and common law schemes for taking samples co-existed. It was satisfied that the matter in issue was not the application of a policy of the Director of Public Prosecutions (“DPP”), (whereby he had advised that, after the coming into force of the Act, the police could still take samples that were provided voluntarily and on consent) or whether that policy was appropriate or not. Rather, the matter in issue was a question of law. The advice of the DPP was an interpretation of the 1990 Act. The issue was whether that interpretation was correct. The Supreme Court conducted a detailed construction of the 1990 Act in order to ascertain the intention of the legislature. It noted that the common law approach to obtaining information by consent was well established. It was a fundamental aspect of the approach to investigating crime. It was a practical approach. Any alteration to such a fundamental aspect of criminal investigation would require a clear expression of an intention to change. No such approach was apparent from the words of the Act. It further noted that section 2(11) of the 1990 Act expressly stated that the powers conferred by that section were without prejudice to any other powers exercisable by a member of the Garda Síochána: it thereby expressly retained powers of the Garda Síochána. The Supreme Court went on to note the detrimental consequences to a ‘person’ under the 1990 Act and it gave, as an example, the ‘inference’ which might be raised at the trial, and upon which a jury might rely for corroboration. There was also the possibility of the offence of obstruction under section 2(9) of the 1990 Act. No such detrimental consequences arose under the common law. Therefore it considered that to apply the statutory scheme in the absence of a clear mandatory requirement under statute would be a step too far. The Supreme Court was satisfied that the Oireachtas did not intend to exclude the common law when it passed the 1990 Act and that the common law might also be applied to a person detained or in prison as referred to in section 2 of that Act. Finally, the Supreme Court noted two other grounds of appeal (Nos. 5 and 6) which the applicant’s counsel had highlighted in his oral submissions and which it rejected. 16. One judge dissented on the effect of the 1990 Act and considered that, when a person was in custody, it would be absurd, “inconsistent and potentially unfair” to ignore the statutory regime which he considered the Government to have intended would apply in such circumstances. He regarded the first three grounds of the applicant’s appeal as concerning the question of the “admissibility of the evidence”. He found that the failure to apply the 1990 Act was not an interference with the constitutional rights of the applicant since he had freely agreed to provide a sample of his blood. He also considered that this failure to follow the statutory regime did not impact on the admissibility of the DNA evidence: while the blood sample had been obtained unlawfully, it had led to the production of objective material evidence linking the applicant to the offences so that “no breach of a constitutional right was involved”. 1. The Constitution 17. Article 15 concerns the constitution and powers of Parliament (the Oireachtas) and, in so far as relevant, provides as follows: “2.1 The sole and exclusive power of making laws for the State is hereby vested in the Oireachtas: no other legislative authority has power to make laws for the State.” 18. Article 40 is entitled “Personal Rights” and, in so far as relevant, reads as follows: “40.3.1 The State guarantees in its laws to respect, and, as far as practicable, by its laws to defend and vindicate the personal rights of the citizen. 40.3.2 The State shall, in particular, by its laws protect as best it may from unjust attack and, in the case of injustice done, vindicate the life, person, good name, and property rights of every citizen.” 19. Section 4(2) of the 1984 Act provides as follows: “Where a member of the Garda Síochána arrests without warrant a person whom he, with reasonable cause, suspects of having committed an offence to which this section applies, that person may be taken to and detained in a Garda Síochána station for such period as is authorised by this section if the member of the Garda Síochána in charge of the station to which he is taken on arrest has at the time of that person’s arrival at the station reasonable grounds for believing that his detention is necessary for the proper investigation of the offence.” 20. The police may obtain samples on a voluntary basis from persons in custody under the common law. There are no specific rules laid which regulate the taking, use, retention or destruction of such samples. No inferences may be drawn from a refusal to provide a sample. 21. The 1990 Act also permits the taking of samples from persons in custody. It provides for authorisation to request samples on a consent basis, it allows the drawing of inferences in case of a refusal and it governs the use of samples pre-trial and post-trial including destruction. 22. In 1995 a circular of the Director of Public Prosecutions (“DPP”) advised that, after the coming into force of the 1990 Act, the police could still take samples that were provided voluntarily and on consent. If consent was obtained, the sample was taken under common law rules. If the person refused, a written consent was requested. If obtained, the sample was taken under the 1990 Act and, if refused, the provisions of the 1990 Act on negative inferences could come into play. 23. The long title to the 1990 Act states it to be “An Act to amend and extend the law to authorise the taking of bodily samples for forensic testing from persons suspected of certain criminal offences”. It came into force on 5 June 1992 and it applies only to persons in custody under section 30 of the Offences Against the State Act 1937 and under the 1984 Act. 24. Section 2 provides the primary power to take samples: “(1) Subject to the provisions of subsections (4) to (8) ..., where a person is in custody ..., a member of the Garda Síochána may take, or cause to be taken, from that person for the purpose of forensic testing all or any of the following samples, namely - (a) a sample of - (i) blood, ... (4) A sample may be taken under this section only if - (a) a member of the Garda Síochána not below the rank of superintendent authorises it to be taken, and (b) in the case of a sample mentioned in subparagraph (i), ... of paragraph (a) of subsection (1) of this section ... the appropriate consent has been given in writing. ... (6) Before a member of the Garda Síochána takes, or causes to be taken, a sample under subsection (1) of this section, or seeks the consent of the person from whom the sample is required to the taking of such a sample, the member shall inform the person- (a) of the nature of the offence in which it is suspected that that person has been involved, (b) that an authorisation has been given under subsection (4)(a) of this section and of the grounds on which it has been given, and (c) that the results of any tests on the sample may be given in evidence in any proceedings. ... (11) The powers conferred by this section are without prejudice to any other powers exercisable by a member of the Garda Síochána.” 25. According to Section 3, where consent required under section 2 is refused without good cause following an appropriate caution, then a trial court may draw inferences from that refusal and the refusal with such inferences can amount to corroboration of any evidence in relation to which the refusal is material. Section 4 of the Act provides for the destruction of records and samples where proceedings are not instituted within 6 months of taking the sample or where the person is acquitted or discharged or the proceedings are discontinued.