Irish Court of Criminal Appeal

Judgment Title: D.P.P.-v- Derek Wade

Neutral Citation: [2010] IECCA 114


Court of Criminal Appeal Record Number: 53/07

Date of Delivery: 10/28/2010

Court: Court of Criminal Appeal

Macken, J. [No. CCA 53/07]
Budd, J.
Herbert, J.

Between/

Judgment of the Court delivered on the 28th day of October, 2010 by Macken, J.

This is an application for leave to appeal in respect of a conviction for murder and attempted robbery. The murder charge related to the death of a Mr. Zhi Song. The attempted robbery was of Miss Xiau Wen Zhou, both of them residing in the same premises in Dublin. The trial took place over seven days from the 26th February, 2007. The applicant was found guilty of murder on the 7th March, 2007 and sentenced on the 12th March, 2007 to the mandatory term of life imprisonment in respect of the murder, and to a term of five years imprisonment in respect of the attempted robbery. This application is for leave to appeal against those convictions. Five grounds of appeal were listed in the Notice of Leave to Appeal.

A Brief Factual Background
The applicant was charged with having murdered Zhi Song on the 29th June, 2005 at premises at 1 Reuben Avenue, South Circular Road in the City of Dublin. It was admitted at the trial that he made his way in through the front window of the house and into the kitchen area and from there made his way upstairs, entering the bedroom of Xiau Wen Zhou. While in that room he took possession of a biscuit tin which contained various items, including jewellery. During this event she woke up and words were exchanged between her and the applicant. Zhi Song was awoken at the same time and he made his way towards the room in which Xiau Wen Zhou had been sleeping. While going along a small landing or hallway at the top of the stairs he encountered the applicant. In the course of some physical exchange between the applicant and Zhi Song, he sustained a knife wound and died.

According to the written submissions of the respondent, which accord with the transcript of the trial, the following relevant evidence, inter alia, was adduced during the trial:

(1) The deceased’s girlfriend, Xiau Wen Zhou, who lived in the same premises as the deceased, gave evidence of the applicant coming into her bedroom carrying a large carving knife and a meat cleaver, and that he threatened her. This was at about 4.50 a.m. on the morning of the 29th June, 2005 and she gave evidence that she had a clear and unobstructed view of the applicant. According to her evidence he then left her bedroom and she then heard a noise coming from the hallway. The deceased occupied the bedroom next door. She walked to the doorway of her own bedroom where she saw the deceased lying on the floor bleeding, and immediately called for help.

(2) The Deputy State Pathologist gave evidence that the cause of death of the deceased was that he had been stabbed in the chest and the stab wound had injured his heart and lung which led to his death.

(3) The applicant was subsequently arrested, having left the house.

(4) Following the arrest of the applicant, an identification parade was conducted during which the deceased’s girlfriend, Xiau Wen Zhou, picked out the applicant from among others in the parade as the person who had entered her bedroom on the early morning in question.

(5) The fingerprints of the applicant, which were taken from him in the course of his detention on the murder charge (referred to in this judgment as “the trial fingerprints”), matched prints lifted from the front downstairs window of the premises where the victim was killed. No objection or issue was taken to any of those prints being adduced during the course of the trial.

(6) The applicant himself gave evidence during the trial and in his examination in chief admitted that he had entered the premises in question at about 4 a.m. on the 26th June, 2005, and that the print recovered by the gardaí from the front downstairs window in the house was his, and that this was where he had entered the house.

(7) The applicant accepted in the course of the trial that he went upstairs armed with a knife and a meat cleaver which he had taken from the kitchen in the premises. He admitted that he went into the room of the deceased’s girlfriend and spoke to her after she woke up, and that he left her room with a biscuit tin. He said that having left the room he heard some noise and that he bumped into someone on a small landing area outside the girlfriend’s room. He dropped everything, he said, including the two knives, and ran out of the house. He said he had never intended to stab anyone, including the deceased.

(8) Testimony from the applicant’s girlfriend, a Ms. Campbell, at trial, also implicated the applicant in the offence.

The prosecution’s case was that Zhi Song was stabbed either intentionally or recklessly, whereas the applicant, at trial, said that he accidentally ran into the deceased and stabbed him with a knife which caused fatal injuries.

2. The court erred in deeming fingerprint evidence, which was obtained from the prison authorities, lawful, and in failing to find that the retention of the fingerprints and their subsequent use by An Garda Síochána was in breach of the constitutional and/or lawful rights of the applicant.

4. The court erred in refusing the requisitions sought on behalf of the applicant, and as to those it acceded to, the manner in which the learned trial judge recharged the jury was unfair and prejudicial.

5. The court erred in law in failing to direct the jury to return a verdict of not guilty in respect of the offence of murder with which the applicant was charged.

1.(a) The applicant retained an abridged constitutional right to privacy and a full constitutional right to bodily integrity when he was a prisoner, prior to the events upon which this appeal is based.

(b) The prison authorities, during such incarceration, took the applicant’s fingerprints pursuant to statutory instruments that are ultra vires their “Parent Act(s)”, and retained and disseminated the fingerprints in a manner not provided for by the applicable statutory instruments.

(c) An Garda Síochána are not empowered by any statutory regulation to receive fingerprints taken and/or retained by prison authorities.

(d) The actions of the prison authorities constituted breaches of the applicant’s constitutional rights (i) when they breached his abridged constitutional right to privacy by illegally taking the fingerprints; and (ii) when they breached his full constitutional right to privacy in illegally retaining the fingerprints and then disseminating them to An Garda Síochána.

(e) The actions of the prison authorities constituted a breach of the applicant’s constitutional right and his right to bodily integrity when they forced the applicant to have his fingerprints taken, while having no legal right to do so.

(f) The fingerprint evidence acquired by An Garda Síochána was thereby unconstitutionally obtained.

(g) The arrest warrant obtained by An Garda Síochána for the applicant’s arrest by the use of such fingerprints was illegally obtained and the applicant’s arrest and detention were unconstitutional.

(h) The statements made by the applicant in custody pursuant to the warrant were, in consequence, unconstitutionally obtained and this evidence ought to have been ruled inadmissible by the learned trial judge.

(i) The fingerprint evidence per se ought to have been ruled inadmissible by the learned trial judge.

The applicant was arrested for the offences, the subject of this application, while he was on remand in Cloverhill Prison, Dublin in relation to another alleged, but unrelated, offence of attempted robbery. According to the transcript, his fingerprints had, however, been taken while he was previously in prison serving a sentence in respect of an earlier conviction imposed for manslaughter in 1999.

Late in the evening on the date of the killing of Zhi Song on the 29th June, 2005, according to the evidence, a Detective Superintendent Browne received confidential information from a person he claimed had been reliable in the past. He and a detective inspector met with this person, who quickly nominated the applicant as the person responsible for the killing. Detective Superintendent Browne and the detective inspector went to garda headquarters and met with a garda from the fingerprint section there, because fingerprint marks had been found at the scene of the killing. Detective Garda Kane, an expert in the fingerprint section at Garda Headquarters, was asked to compare the fingerprints lifted at the scene, with any prints of the applicant already on file. According to the transcript, he matched the fingerprints previously taken from the applicant with those found at 1 Reuben Avenue.

Subsequently, on the 1st July, 2005, Detective Superintendent Browne swore an Information before a District judge seeking a warrant for the arrest of the applicant who was at that time still on remand in Cloverhill on the separate but unrelated attempted robbery charge. The detective superintendent, in swearing the Information, relied on: (a) the confidential information he had earlier received, referred to above; and (b) an analysis of fingerprints taken from 1 Reuben Avenue and the match made of them with the applicant’s fingerprints previously taken. The transcript discloses that the detective superintendent also indicated to Judge McCarthy in the District Court, upon inquiry, that the fingerprints in question were taken while the applicant was in prison as a convicted person. The evidence that the fingerprints were taken while the applicant was previously in prison as a convicted person was not challenged, or otherwise put in issue, in the trial.

The warrant for arrest was issued by the District Court and executed by another detective, Detective Sergeant Crowe, who was part of the investigating team. The same detective sergeant, after the applicant’s arrest, took him to Kilmainham garda station, and requested that he be detained there pursuant to s.4 of the Criminal Justice Act 1984 (“the Act of 1984”), the reasons outlined being, inter alia, that the investigating members of An Garda Síochána were in receipt of certain confidential information, and that the fingerprint taken from 1 Reuben Avenue matched the fingerprints of the applicant previously taken by the prison authorities while he was a convicted prisoner. Reliance may also have been placed on a description of the applicant from the victim’s girlfriend, as mentioned above. Sergeant Boyle at Kilmainham garda station detained the applicant pursuant to the provisions of the Act of 1984. While the applicant was in detention, the taking of the applicant’s fingerprints (mentioned above as the trial prints), palm prints and his photograph, pursuant to statute, was authorised by a superintendent of An Garda Síochána.

On the first day of the trial, on the 26th February, 2007, and prior to the opening of the case to the jury, the validity of the applicant’s arrest and detention, and the admissibility of any statements made by him while in detention, were the subject of an application to the learned trial judge, which application was heard over several days. The learned trial judge rejected the defence contention that the warrant was unlawfully obtained, and held that the evidence obtained on foot of it was admissible, and the trial proceeded. He subsequently gave reasons for this ruling, in advance of sentence, on the 12th March, 2007. It is not necessary at this point to consider these reasons.

The Argument of the Applicant
Counsel for the applicant stressed, as is mentioned above, that his main contention concerned the taking and use of the applicant’s fingerprints. The applicant’s case can be put on the following basis. First, his fingerprints were taken illegally and unconstitutionally in the following senses: they were obtained illegally in breach of the provisions of the applicable statutory framework, because these did not empower the taking or retention of any fingerprints by the prison authorities, while the applicant was in prison serving a sentence following upon an earlier conviction. The prints were taken unconstitutionally because, having been procured illegally, that is, without any such statutory basis, it was thereby an invasion of the applicant’s right to bodily integrity and other rights, such as privacy, guaranteed by the Constitution. Secondly, it is argued that the prison authorities have no statutory authority either to take fingerprints at all, or to disseminate to any other State agency, including An Garda Síochána, any fingerprints taken from prisoners under the prison authorities’ control, whether taken lawfully or not. Thirdly, these fingerprints, obtained and retained illegally and unconstitutionally in the above senses, were wrongfully or unlawfully transmitted to An Garda Síochána, such transmissions also not being authorised by statute. An Garda Síochána have no statutory or other power vested in them to retain or to use such fingerprints, if they come into possession of them. Fourthly, they were in consequence unlawfully used, when utilised for the purposes of securing a warrant for the applicant’s arrest and detention. It is therefore submitted that both the applicant’s arrest and detention, as well as all matters flowing from them, such as any statements made by him while in detention, were tainted with the foregoing unconstitutionality and illegality.

Counsel’s contention is that the learned trial judge erred in law in ruling that the fingerprint evidence obtained from the prison authorities had been acquired lawfully, and that the learned trial judge had wrongly failed to hold that the retention and use of the fingerprints by the gardaí was in breach of the applicant’s aforesaid legal and constitutional rights. Moreover, having regard to the fact that the fingerprint evidence was used, among other evidence, to support an application for a warrant for the applicant’s arrest, the learned trial judge had also erred in law in ruling that the warrant, based, inter alia, on that fingerprint evidence, was lawfully obtained. Counsel further submitted that the learned trial judge had also erred in his ruling that both the subsequent arrest and detention of the applicant were lawful, and that, in consequence, the evidence secured in the aforesaid circumstances was admissible.

Finally, it is further contended that the alleged forced taking and retention of the fingerprints of the applicant while he was in prison serving a prior sentence, in the absence of any statutory power to do so, was not only in breach of his constitutional right to bodily integrity and to privacy, but was also an infringement of his rights pursuant to the European Convention on Human Rights and Fundamental Freedoms (“the Convention”). These rulings and admissions, it is argued, inevitably resulted in an unfair trial and an unsafe verdict.

As regards the statutory scheme in question, counsel submits, in particular, that the correct interpretation of rule 12 of the S.R. No. 320 of 1947, Rules for the Government of Prisons 1947 (“the Prison Rules 1947”), as originally drafted and adopted under, inter alia, the Penal Servitude Act 1891 and other Acts, including the Prisons (Ireland) Acts 1826 – 1907, must be that they do not include any entitlement to take fingerprints. The taking of fingerprints and other biometric data is expressly provided for under regulation 3 of regulations adopted in 1955, pursuant to the above Act of 1891, being the Regulations as to the Measuring and Photographing of Prisoners (S.I. No. 114 of 1955) (“the Regulations of 1955”). According to counsel’s argument, there is no mention of fingerprints in the parent statute of 1891, and no mention of any biometric material other than “measurement”. A fingerprint is not a “measurement”, and was clearly not ever envisaged to be so by the parent legislation. The statutory instruments refer to “measured and photographed”, on the one hand, and “finger and palm prints” being taken, on the other hand, and it is submitted that, by the use of those separate phrases, the drafters of the statutory instruments themselves appreciated the distinction between “measuring”, which was permitted by the parent statute, and the taking of “finger and palm prints” which was not. In the circumstances, the word “measurement” cannot be considered to include the taking of fingerprints or any other biometric data. The statutory instruments of 1947 and 1955 which purport to vest a power in the prison authorities to take fingerprints are therefore ultra vires the parent statutes, and of no legal effect.

In the alternative, counsel for the applicant argues that even if the above statutory instruments, which wrongly purport to provide for the taking of fingerprints, are considered by this Court to be intra vires the Act of 1891 or other Parent Acts, there is no power whatsoever, statutory or otherwise, to retain such fingerprints after a prisoner has been released from his or her imprisonment, and no power to disseminate those fingerprints to third parties, including any State agencies, more specifically, to An Garda Síochána, unless such third party is “officially authorised to receive it”. If it were otherwise, it is contended that there would be an express power provided for in the legislation. Counsel argues that there is no statutory power appointing An Garda Síochána as such a third party. An Garda Síochána may only take fingerprints pursuant to express statutory powers conferred upon them, which powers are confined to the following statutory provisions:

The Criminal Law Act 1976 (s.7) (as amended);

The Criminal Justice Act 1984 (s.6 and s.28); and

The Criminal Justice (Drug Trafficking) Act 1996 (s.5).

The Argument of the Respondent
Deirdre Murphy, senior counsel for the respondent, argues that the prison authorities do have power to take fingerprints under the above two statutory instruments, that is, the Prison Rules 1947 and the Regulations of 1955. The taking is both lawful and constitutional. It is said that the power of the prison authorities to take such prints is found in regulations 3 and 4 of the Regulations of 1955. The Prison Rules 1947 were made pursuant to the powers conferred on the Minister for Justice by the Prisons (Ireland) Acts 1826-1907, the Penal Servitude Act 1891, the Prisons Act 1898 and the Criminal Justice Administration Act 1914. The Regulations of 1955 were made in exercise of powers conferred by the Act of 1891. In consequence, counsel submits that neither the Prison Rules 1947 nor the Regulations of 1955 is ultra vires any Parent Acts.

In support of the respondent’s contention that the provisions, inter alia, of s.8 of the Penal Servitude Act 1891 are sufficiently broad in scope to cover the taking of fingerprints, the respondent invokes the judgments in Mandarim Records Ltd. v. Mechanical Copyright Protection Society (Ireland) Ltd. [1999] 1 ILRM 154 and Keane v. An Bord Pleanála [1997] 1 I.R. 184. These cases held that where terminology in legislation is wide enough to capture a subsequent invention, there is no reason to exclude that invention from the ambit of the legislation. Therefore, it is argued that the fact that “fingerprinting” was invented after the enactment of the Act of 1891 does not have as its consequence that s.8 of the Act is not wide enough to capture fingerprints within its ambit. On the contrary, in giving an updated construction to the general scheme of the legislation, namely the Act of 1891 and subsequent, or related, legislation, to include fingerprints within the ambit of s.8, does not involve altering the meaning of words used in the legislation, but rather legitimately capturing subsequent scientific inventions.

The respondent further argues that, contrary to the submission made by the applicant in his written submissions, The People (Attorney General) v. O’Brien and McGrath [1965] 99 I.L.T.R. 59 did not hold that prison authorities have no power to take fingerprints, but in fact dealt with the case on the basis that the prints were illegally taken, and did not determine whether or not the Regulations of 1955 were ultra vires the “Parent Act”, being the Act of 1891.

Moreover, it is submitted that the provisions of s.19(8) of the Criminal Justice (Miscellaneous Provisions) Act 1997 (“the Act of 1997”) put the issue beyond any doubt. It is clear, the respondent argues, that neither party at trial was alert to the provisions of that Act, which were not brought to the attention of the trial judge, but which alter and clarify the position. According to the respondent, the Act of 1997 authorises the making of a statutory instrument permitting prison authorities to take the fingerprints of a convicted person while detained in prison. The respondent submits that the provisions of s.19(8) specifically provide for, and deal with, the position under the rules in force immediately prior to the coming into effect of the Act of 1997 by deeming the earlier rules and regulations to have been made pursuant to the Act of 1997. It is therefore argued that, whatever the position may have been in relation to rules 3 and 4 of the Regulations of 1955 and/or rule 12 of the 1947 Prison Rules prior to 1997, s.19(8) resolves any question mark over the lawfulness of such rules. The fingerprints of the applicant were taken after the Act of 1997 had come into force, and were therefore lawfully taken by virtue of the provisions of s.19(3)(g) of the Act of 1997.

As to the dissemination of fingerprints to An Garda Síochána, the respondent first invokes the decision in Desmond v. Glackin (No. 2) [1993] 3 I.R. 67 and argues that where such dissemination consists of the transfer of fingerprints from the Prison Service to An Garda Síochána, both of whom operate under the aegis of the Minister for Justice, to assist in the investigation of crime, there can be no illegal dissemination of the fingerprints. There is therefore no basis to support the applicant’s contention that there was anything unlawful in one section of the Minister’s sphere of responsibility passing this information to another part of the Minister’s sphere of responsibility, and any suggestion to the contrary would fly in the face of common sense. Further, the Act of 1997 also envisages the transfer of fingerprints to An Garda Síochána, by the provisions of s.19(4), which, it is argued, disposes of any uncertainty attaching to any previous legislation. Next, the respondent argues that these provisions of the Act of 1997, permitting the transfer to An Garda Síochána of fingerprints taken of a person while in prison after conviction, are not disproportionate and are therefore valid and constitutional. It is perfectly proper for investigating gardaí to know that a person has been convicted, and further, quite apart from the organisation of the prison service, to permit information concerning the same to be used subsequently by An Garda Síochána for the detection of crime. It is a fundamental misconception on the part of the applicant to contend that there is any impropriety in the use of such fingerprints as part of information being gathered and utilised for the purposes of securing an arrest warrant, and any objection to such use is based on an erroneous view.

Further, it is submitted that the only circumstances in which the applicant could succeed in his argument is if the law were to the effect that rules concerning the admissibility of evidence during trial, extended further to and applied also in the investigating stage of a crime by An Garda Síochána. This is not so. Rules relating to evidence and to the admissibility of the same during the course of the trial are well established. Equally, material used in the course of investigation, including material used for the purposes of securing a warrant, might well consist of material or information which would not be admissible in evidence during the course of a trial, including, for example, hearsay evidence or evidence procured other than viva voce, or even of information not lawfully obtained. On the other hand, certain types of evidence procured unlawfully might not be admissible in evidence, although even in such a case such evidence is not ipso facto inadmissible at trial. The contention that rules of evidence are now to be imposed on the investigative stage of criminal activities is not justified in law.

The exercise of procuring a warrant is carried out in relation to the information actually given to the District judge, which supports, or not, the contention that the garda seeking the arrest warrant has “reasonable grounds” for suspecting that the person sought to be arrested is required for the purposes of the proper investigation of a crime. The test, being an objective test, is to establish whether there are grounds for a reasonable suspicion, and must be accepted on that basis pursuant to the case law. The test is an objective one, but also, according to Walsh, J. in DPP v. Mulligan (Unreported, Court of Criminal Appeal, 17th May, 2004) the standard is a lower standard than that of a prima facie case. The test is not whether the material would be admissible in evidence at trial, or whether it has been obtained lawfully or unlawfully, and there is no requirement in law that a warrant can only be procured on information which consists of legally admissible evidence. No authority was invoked by the applicant upon which his contrary contention could be based. The provisions of s.42 of the Criminal Justice Act 1999 provide that a warrant is required in respect of the arrest of a person in prison, as occurred here, unlike the position arising under s.4 of the Criminal Justice Act 1984. The test itself does not change, however.

Finally, it is argued that if this Court were to conclude that the fingerprints in question had been taken and/or retained without lawful authority, which the respondent contends is not the case, and that this was relevant to the lawfulness of the arrest of the applicant, then such would amount to an illegality, and not to a breach of any constitutional right of the applicant. There is no authority in support of the applicant’s contention that the taking of such fingerprints, or the dissemination of them to An Garda Síochána, is a breach of any of his constitutional rights, nor of those specifically invoked on his behalf, such as bodily integrity or privacy.

Conclusions
The legal issues which arise for consideration on this first and major ground for leave to appeal concern the following: (a) the right to take and retain fingerprints and the restrictions or limitations, if any, as to their retention and transfer; (b) the subsequent use by An Garda Síochána of fingerprints so taken as part of a later criminal investigation, including for the purposes of securing a warrant of arrest; and (c) the entitlement, if any, and/or if so, in what circumstances, to adduce or admit, in the course of a trial, evidence secured pursuant to an arrest on foot of such a warrant granted, inter alia, on information which included fingerprint evidence procured as above. These issues depend to a considerable extent on the correct interpretation and application of legislation stretching over a lengthy period, and on any other rights which may affect the issue.

It is important to recall, as mentioned at the commencement of this judgment, that in the instant case, the fingerprints of the applicant, which had been taken whilst he was previously in prison as a convicted person, were not those relied upon during the trial itself. The fingerprint match in question was among the materials used in forming a “reasonable suspicion” for the purpose of information laid to ground the application to the District Court judge for an arrest warrant. Fingerprints were taken after his arrest, pursuant to statute, which were used during the trial (the “trial fingerprints”) to which no exception was taken. Nor, contrary to what appears to be contended for before this Court, did the applicant argue during his trial that the taking of these latter prints was merely “a sham”, and there is no evidence upon which this Court could conclude that it was.

The Legislation on the Recording and Transmission of Fingerprints of Prisoners
The statutory framework governing the recording and transmission of fingerprints, which applies in this case, is found in statutes enacted more than one century apart, and in Statutory Rules and Orders dating from the middle of the 20th Century. In exercise of powers under the Prisons (Ireland) Act 1826–1907 and others, the Prison Rules 1947 (Rules for the Government of Prisons 1947 (S.R.&O. No. 320 of 1947) were adopted, which provide, at rule 12:

“12. The name, age, height, weight, features, particular marks, general appearance, and such other measurements and particulars as may be required in regard to a prisoner shall, upon his admission, and from time to time, be recorded in such manner as may be directed.” (emphasis added)

“8. The Secretary of State may make regulations as to the measuring and photographing of all prisoners who may for the time being be confined in any prison …”

Regulation 3 provides:

“3. A convicted prisoner may be photographed and measured and his finger and palm prints may be taken at any time during his imprisonment.” (emphasis added)

“4. (1) Subject to paragraph (3), an untried prisoner shall not, while in prison, be measured or photographed nor shall his finger or palm prints be taken except with the authority of the Minister for Justice or upon the application in writing of a member of the Garda Síochána of not lower rank than Inspector approved by a Justice of the District Court, or, in the Dublin Metropolitan District, by the Commissioner or a Deputy Commissioner of the Garda Síochána. (emphasis added)

(2) The application shall set forth that from the character of the offence with which the prisoner is charged or for other specified reasons there are grounds for suspecting that he has been previously convicted or has been engaged in crime or that for other specified reasons the particulars are required for the purposes of justice.

(3) If the prisoner, on being informed of his right to object, does not do so, his height may be measured, and his photograph, finger and palm prints taken, on the application in writing of a member of the Garda Síochána of not lower rank than Inspector.

…”

“5. Where, in the case of an untried prisoner not previously convicted of any crime, photographs, prints or measurements have been taken under these regulations, all such photographs (both negatives and copies), print impressions and records of measurements so taken shall, upon his discharge or acquittal, be forthwith destroyed or handed over to him.” (emphasis added)

One other statutory instrument also adopted in 1955 is relevant. The Rules for the Government of Prisons (S.I. No. 127 of 1955) substituted a new rule 13 into the 1947 Prison Rules. This reads as follows:

“Prisoners, on reception and subsequently, may, in accordance with regulations, be measured and photographed and finger and palm prints may be taken but no copy of any such photograph or print shall be given to any person unless he is officially authorised to receive it.” (emphasis added)

In relation to the above Statutory Rules and Orders, counsel for the applicant argues that there is authority for the view that the 1947 Rules and the Regulations of 1955 are ultra vires the enabling Act of 1891. Counsel for the respondent, on the other hand, submits to the contrary, and maintains that the judgment in The People (AG) v. O’Brien and McGrath [1965] 99 I.L.T.R. 59, upon which the applicant relies, did not so decide. A review of the judgments of both Davitt P. and McLoughlin J. (with both of whom Murnaghan J. agreed), makes it clear that the High Court did not so find. The fingerprints in question in that judgment, unlike in the present case, were taken while the accused was on remand in custody prior to a District Court hearing, and had been unlawfully taken in the sense that they were not taken in accordance with the existing legislative scheme in respect of the same. The district justice had struck out the charge against the accused, on the basis that the accused’s fingerprints were not admissible in evidence, in holding that a prison officer should not take fingerprints from an accused person “on remand in custody for the purpose of the subsequent incrimination of the person on the offences charged”. On a case stated, at the request of the prosecution, and contrary to the position propounded on behalf of the applicant’s counsel, the High Court did not find that the Regulations of 1955 were ultra vires the Penal Servitude Act 1891. On the contrary Davitt P., in his judgment stated that this aspect of the matter was “not explored in argument”, and since he proposed to deal ultimately with the question at issue on the assumption that the fingerprints were illegally taken, “it is, for the purposes of this judgment, immaterial whether the Regulations of 1955 were or were not ultra vires.” It was clear he took the view that he did on the illegality of the prints in question based on the provisions of rule 4 of the Regulations of 1955, dealing with an untried prisoner, which he turned to, having first referred to the fact that regulation 3 “provides that a convicted prisoner may be photographed and measured and his finger and palm prints taken at any time during his imprisonment”, upon the vires of which he passed no judgment. What the learned President said in his judgment is the following:

“There is no statute which expressly empowers anyone to make regulations as to taking fingerprint impressions from prisoners or anyone else; and the question arises whether the Regulations of 1955, in so far as they deal with fingerprints, are ultra vires the powers of the Minister. The Penal Servitude Act, 1891, by Section 8, gives power to make regulations as to the measuring and photographing of prisoners; and the Regulations of 1955 purport to be made in exercise of the power so conferred. The process of taking fingerprint impressions is hardly the same thing as measuring or photographing, and it is clearly arguable that the 1955 Regulations are ultra vires the Minister’s powers in so far as they derive from the Act of 1891. It may be that the powers which the Minister possesses by virtue of the Prisons Act are sufficient to enable him to make regulations as to fingerprinting, and Rule 12 in Part 1 of the Prison Rules of 1947 (S.I. No. 320), made in exercise of such powers, would appear, prima facie, to be comprehensive enough to cover the matter. This aspect was, however, not explored in argument. As I propose to deal ultimately with the question at issue on the assumption that the fingerprints in this case were illegally taken it is, for the purposes of this judgment, immaterial whether the Regulations of 1955 were or were not ultra vires.”

Of additional interest, perhaps, is his finding that the learned district judge had viewed the problem “from the wrong angle”, since while the rules or regulations may regulate the manner in which fingerprints, for example, are taken, it is no part of his function to govern the reception or rejection in the courts of evidence as to such particulars. Davitt P. stated:

“It is not a matter of looking for authority to extend the use of fingerprints to production as evidence, but to see whether there is any authority for excluding fingerprint evidence if it is relevant to the facts in issue. There can be no doubt as to its relevance in this case; and the only question is whether, although relevant, it should, on the ground of principle or authority, be excluded. The district justice seems to have taken the view that if fingerprints are taken ostensible for one purpose they cannot be used for another; that if they are, as he considered, taken for the purpose of prison administration or of tracing the prisoner’s previous record (if any) they cannot be used in evidence. I cannot agree that the purpose of taking a prisoner’s prints is confined in the way suggested, since it is clear from paragraph 4(2) of the 1955 Regulations that they may be taken, if required, for the purposes of justice. Assuming, however, that the purpose is so confined I know of no legal principle which prevents evidence being given of facts which have been ascertained for some purpose other than that of giving them in evidence. …The first reason for the District Justice’s ruling does not appear to me to be sound.”

The next relevant legislative provision after the Regulations of 1955 is s.19 of the Criminal Justice (Miscellaneous Provisions) Act 1997 (“the Act of 1997”), passed more than 100 years after the Act of 1891. The provisions of the Act of 1997 were, through oversight, not drawn to the attention of the learned trial judge in this case by either party. Much of the difficulty surrounding the issues arising on this application stems from this fact, and its disclosure undoubtedly would have made the learned trial judge’s task easier. This Act provides, at s.19(1), that the Minister for Justice may make rules for the regulation and good government of prisons. Section 19(3)(g) provides that rules made under that section may provide for the photographing and measuring of persons detained in a prison and “the taking of fingerprints and palmprints from such persons during their detention in a prison”. The attention of this Court has not been drawn to any rules made under this section up to the date of the warrant being issued.

If rule 12 of the Prison Rules 1947, by referring to “particular marks” and, to “such other particulars as may be required”, is sufficient to permit the taking of fingerprints, as regulation 3 of the Regulations of 1955 clearly is, the question which arises is whether they are void as going beyond the powers conferred by the above enabling Acts, expressly or by implication. If this Court considered, however, that the Prison Rules 1947 and the Regulations of 1955 were, for any reason, of doubtful legal effect, then the proper interpretation of the intention of the Oireachtas in enacting s.19(8) of the Act of 1997, is crucial. If the answer is in the affirmative, it seems that the only thing that can save them from certiorari is the passing of a confirmatory Act of 1997 by the Oireachtas. Section 19(8) of the Act of 1997 provides:

“Rules made under section 12 of the General Prisons (Ireland) Act, 1877, and the Prisons (Ireland) Act, 1907, and regulations made under section 8 of the Penal Servitude (Ireland) Act, 1891, that were in force immediately before the commencement of this Act, shall continue in force as if made under this section and may be amended or revoked accordingly.” (emphasis added)

“19. (1) The Minister for Justice may make rules for the regulation and good government of prisons.

…

(3) Without prejudice to the generality of the foregoing, rules under this section may provide for-

…

(g) the photographing and measuring of persons detained in a prison and the taking of fingerprints and palmprints from such persons during their detention in a prison.”

Section 19(8) of the Act of 1997 provides that both the Prison Rules 1947 and the Regulations of 1955, as made under the relevant Acts, and “that were in force immediately before the commencement of this Act, shall continue in force as if made under this section and may be amended or revoked accordingly”.

Are the words “that were in force”, as employed in s.19(8) of the Act of 1997, intended by the Oireachtas as a simple acknowledgement of that fact, or as an assertion that the Prison Rules 1947 and the Regulations of 1955 were in fact valid? There was no evidence put before this Court that the Oireachtas had reason to doubt that they were of any questionable validity. As a matter of principle it seems clear that, as was stated in Hoffman-La Roche v. Secretary of State for Trade and Industry [1975] A.C. 295 by Lord Diplock:-

“Unless there has been a challenge to the validity of the Statutory Instrument, and, if there is, until it this has been upheld by a judgment of the Court, the validity of the statutory instrument and the legality of acts done pursuant to the law declared by it are presumed.

… the presumption that subordinate legislation is intra vires prevails in the absence of rebuttal, and … it cannot be rebutted except by a party to legal proceedings in a court of competent jurisdiction who has locus standi to challenge the validity of the subordinate legislation in question.

There was no decision opened to this Court which held that the Prison Rules 1947 and/or the Regulations of 1955 were invalid and the Court knows of no such case. The case of the People (Attorney General) v. McGrath, supra., did not so decide. The ratio of that decision was that the fingerprints were illegally taken. The remarks by Davitt P., regarding the enabling Acts and the subordinate legislation must therefore be regarded as obiter and, in any event, that learned judge made no finding of ultra vires.

It seems to this Court that the reference in the subsection to the express previously made rules and regulations, “which are in force at the commencement of this Act”, embraced the rules and regulations which were de facto in force, whether validly made or not. The effect of s.19(8) is to declare that the previous rules and regulations are recognised as being in force and that they shall continue in force and shall have effect as if made under the Act of 1997 until revoked or altered. The language is quite general in its reference to “the rules” and describes and identifies those which are to continue in force and effect, and so cannot have been regarded by the legislator as made in breach of any legislation. The Oireachtas must be clearly taken, by the phrase quoted above, to have intended a reference to the Prison Rules 1947 and the Regulations of 1955, part of the existing body of statutory rules and orders long accepted and established, as effectively “in force”.

In the instant case, this Court was not referred to any decisions of the superior courts in this jurisdiction “enforcing” the taking of fingerprints under regulation 3 of the Regulations of 1955 or rule 12 of the Prison Rules 1947. Neither, was the Court referred to any case where it was decided that these rules and regulations were ultra vires the enabling Acts. As already pointed out People (Attorney General) v. McGrath, supra., was not such a case. It cannot, therefore, be supposed that the Oireachtas, when enacting s.19(8) of the Act of 1997, was contemplating that some of the rules or regulations which were then current were invalid or were of doubtful validity; for if any suspicion had been established on the subject, the legislature would presumably have revoked such of the doubtful rules as it disapproved of and expressly validated the others, rather than leaving it to the courts on some future occasion to decide which of the rules or regulations previously adopted were ultra vires and which were not.

This Court is cognisant of several English cases such as Minister of Health v. The King (ex parte Yaffe) [1931] AC 494, and Hoffman-La Roche v. The Secretary of State for Trade and Industry, supra., but as these were not opened in argument before it, the Court does not consider it appropriate to consider them further.

It seems to the Court, in these circumstances, that the respondent is correct in contending that the position obtaining prior to 1997 was regularised fully by the provisions of the Act of 1997, in particular s.19(8), in deeming, inter alia, the taking of fingerprints, pursuant to the above rules and regulations - if done after the passing of the Act of 1997 - to be done pursuant to that Act, and therefore to have a proper legal basis. In consequence, that disposes of the issue relating to the taking of fingerprints pursuant to statutory instruments allegedly ultra vires. The fingerprints were lawfully made and taken while the applicant was a convicted prisoner some years previously.

Counsel for the applicant also contends, however, that not only was there no power in the prison authorities to take any fingerprints, which this Court finds is incorrect in law, but that, in addition, the prison authorities have no right to retain the fingerprints. This is a matter that can be disposed of readily. The provisions of the Regulations of 1955, set out above, draw a clear distinction between the right to take, inter alia, fingerprints, as between persons convicted (under regulation 3 of the Regulations of 1955) and persons who are untried (under regulation 4 of the same). In the case of a convicted prisoner, he may be photographed, measured and his finger and palm prints taken at any time during imprisonment, but, on the other hand, an untried prisoner can only have his measurements or finger or palm prints taken or can only be photographed, subject to certain authority, and with his consent.

Regulation 5 is also important for drawing the correct inferences from the series of regulations applicable to different categories of persons in prison, because this Regulation provides that in the case of an untried prisoner, who has not previously been convicted of any crime, photographs, prints or measurements of such a prisoner, even if taken while in prison on consent, and with proper authority, must be destroyed or handed over to the prisoner upon discharge or acquittal. That is the only provision relating to the restriction on the retention of, in the present case, fingerprints. It is clear that the Regulations of 1955, properly deemed to be passed pursuant to the provisions of the Act of 1997, draw a clear distinction between the obligation to destroy or hand over, and therefore not retain, fingerprints in the case of an untried prisoner, not previously convicted “of any crime”. It may clearly be inferred from the terms of the Regulations of 1955 that no such limitation applies to a person who, as in the case of the applicant, has been convicted of a crime and whose fingerprints are then taken in prison. In this case, there is no doubt but that the applicant was a convicted prisoner at the time his fingerprints were taken in prison. This is clear from the evidence at trial which was not challenged. Which specific provision of the Regulations of 1955 applied depended on whether the applicant was a convicted prisoner or not. Here regulation 3 permits the taking of fingerprints of the applicant, as a convicted person, and there is no prohibition on their retention.

As to the passing on of fingerprints, counsel for the applicant does not make any argument as to what precisely is meant by the phrase “officially authorised to receive it”, referred to in rule 13 of the Prison Rules 1947, or as to why Gardaí Síochána should not be considered to be “officially authorised to receive it”, but relies on the provisions of certain Acts, cited above, as the only mechanism which confers express statutory power on An Garda Síochána to take fingerprints. On a proper reading of this rule, however, it does not require separate regulations, or a statute, to be passed in that regard, but requires only that a fingerprint, itself made pursuant to regulations, may not be passed on to a person unless that person is “officially authorised to receive it”. As long ago as the Act of 1871, it was envisaged that photographs could be passed to others. If it was intended that An Garda Síochána could only be “authorised” in the sense used in the rule, it would have been perfectly possible so to provide by using the phrase “officially authorised by statute or by rules to receive it” (emphasis added). There is, however, no reason in law to so restrict the meaning of the phrase “officially authorised to receive it”.

Moreover, s.19(4) of the Act of 1997 provides that the governor of a prison or an officer of that prison acting on his or her behalf “may furnish the Garda Síochána with copies of photographs, measurements, fingerprints or palmprints obtained in accordance with rules made under this section”. There is no limitation on that provision of the type contended for by the applicant. The phrase “obtained in accordance with rules made under this section” qualifies fingerprints made pursuant to such rules, as here. No rules, however, are required to be made under this section regulating the furnishing of fingerprints to gardaí. The section vests the power in the governor, without more, and reflects the provisions of rule 13 of the Prison Rules 1947 mentioned above, and indeed the position in law going back at least as far as the Act of 1871 in respect of photographs. The above s.19(4) states that the Prison Governor or a prison officer acting on his or her behalf “may furnish” copies of fingerprints to An Garda Síochána. This is not qualified in any way. It is a principle of statutory interpretation that the legislature does not intend to enact a nullity or an absurdity. Since the legislature expressly authorised the indicated prison authorities to furnish these fingerprints to An Garda Síochána, the clear intention of the legislature, as to which this Court is satisfied there can be no reasonable doubt, in enacting this provision must have been thereby to authorise An Garda Síochána to receive, to hold and to use these fingerprints. It would be wholly unreasonable to consider that the legislature intended to authorise the furnishing of fingerprints to An Garda Síochána who had no legal authority to receive, hold or to use them. By necessary implication the granting of power to one party to give, carries a reciprocal right in the other party to receive, hold and use the item given. In these circumstances it is not necessary to say anything further in relation to the retention by An Garda Síochána of the fingerprints, in this case, for use in the course of the application for an arrest warrant.

Section 19(4) of the Act of 1997 provides a lawful basis for the handing over of, inter alia, copies of fingerprints which are themselves obtained in accordance with rules made under s.19, which by the application of s.19(8) must include those made in accordance with regulation 3 of the Regulations of 1955. This has as its consequence that the fingerprints of the applicant, made pursuant to regulation 3, were lawfully transferred and lawfully retained by them for use, consequent upon the provisions of the Act of 1997, to An Garda Síochána.

The arguments made on behalf of the applicant on this main ground cannot succeed, when based on the allegation that the Prison Rules 1947 and/or the Regulations of 1955 are ultra vires the Parent Acts.

Although not applicable to this finding, because of the dates in question, the Court notes that a new statutory framework is now applicable. Section 19 of the Criminal Justice (Miscellaneous Provisions) Act 1997 was repealed by s.42(c) of the Prisons Act 2007, with effect from 1st May, 2007, (Prison Act 2007 (Commencement) Order 2007 (S.I. No. 180 of 2007)). However, in language similar to s.19 of the Act of 1997, s.35(5) of the Prisons Act 2007 continues the operation of these earlier statutory provisions until the enactment, under s.35(1) of the Act of 2007, of any new prison rules. Further, s.35(3) of the same Act permits An Garda Síochána to receive such prints, again without a requirement to make any rules in respect of such receipt. New prison rules replacing the previous rules concerning the administration of prisons, including the recording of fingerprints of prisoners, were subsequently enacted and brought into operation on 1st October, 2007 (Prison Rules 2007 (S.I. No. 252 of 2007).

It is true the trial judge, in his reasoning, given on the day of sentence, appears to have proceeded on the basis, without actually deciding the issue, that the prints should be considered by him to have been taken unlawfully. He then, applying case law to the unlawful taking of such prints, exercised his discretion so as to reject the arguments of the defence as to the lawfulness of the arrest warrant and the admissibility of evidence taken thereafter. The belief of the learned trial judge that they were taken unlawfully appears to stem from the fact that the provisions of the Act of 1997 were not opened to him during the trial, and he therefore did not have the benefit of considering the fingerprints from the perspective of the provisions of s.19(1), (4) or (8) of that Act. Rather, the entire of the argument before him on this issue dealt with the law pre-1997. No criticism whatsoever can therefore be made of his decision, correct on the legal argument before him, to decide the issue of the lawfulness of the fingerprints on the basis most favourable to the applicant.

Having regard to the above legislative history, it is evident that the fingerprints used were taken lawfully and were lawfully furnished to An Garda Síochána. They were obtained lawfully in the prison, in the sense that they were taken pursuant to rule 3 of the Regulations of 1955, as if those were made pursuant to the Act of 1997, and lawfully detained both by the prison authorities and by An Garda Síochána. No suggestion is made on behalf of the applicant that the legislature did not have the power to adopt the deeming provisions in respect of the Prison Rules 1947 and the Regulations of 1955, pursuant to the mechanism used in the Act of 1997, and for the reasons set out above, no reason in law exists, on the basis of any argument tendered to the Court, to undermine the provisions of s.19 of that Act.

It was not sought to put the fingerprints in this case into evidence, as mentioned above. Rather they were used, exclusively and solely, as part of the material presented to the District Court judge for the purposes of securing an arrest warrant for the arrest of the applicant. It was part of the armoury upon which the garda based his grounds of “reasonable suspicion”. The question which arises therefore is whether there was a permissible basis for doing so. This Court has found that the fingerprints were taken lawfully on the occasion in question, and were retained lawfully and transferred lawfully. They may be lawfully used as the basis for forming a “reasonable suspicion”, and thus ground a lawful arrest.

Since the entire of the applicant’s application for leave to appeal on this ground is based on the alleged illegality of the taking, retention, transfer and use of the fingerprints, in the absence of any legislative entitlement to do so, as is clear from the summary of the applicant’s arguments set out in the written submissions and as recited earlier in this judgment, this Court’s findings on the lawfulness of the taking, retention and use of the fingerprints disposes of this claim that the warrant was unlawfully procured, and the contested evidence was admissible and properly admitted.

The delivery of this judgment was, however, deferred having regard to the fact that an issue of a somewhat similar nature was to be heard before the Supreme Court in the case of D.P.P. v. Cash [2010] IESC 1, (Unreported, the Supreme Court, 18th January, 2010). That case was, in turn, adjourned from time to time but eventually came on for hearing and judgment was delivered on the above date. This was a case stated from the District Court, originally to the High Court, and on appeal to the Supreme Court, and concerned issues arising in relation to the taking and use of fingerprints, which were the subject of several questions. The reason for postponing delivery of the judgment in the present case was because of the possibility that the appeal, which concerned matters not entirely dissimilar to those in this application for leave to appeal, might be determined in a manner which would favour the applicant’s case in this application for leave to appeal. There is one underlying distinction between the two cases, in that in the present case this Court has found that the fingerprints, which were taken pursuant to regulation 3 of the Regulations of 1955, were taken lawfully, whereas in the Cash case either no question mark existed as to whether or not they were lawfully taken, or it was not necessary in the context of answering the question posed in the case stated, to decide that issue.

One of the key questions which arose for consideration in that case, however, was whether or not, as was contended for by counsel on behalf of the applicant here, such fingerprints ought to be excluded on the basis of what has become known as “the absolute protection rule of exclusion” as enunciated in The People (Attorney General) v. O’Brien [1965] I.R. 142. It is not necessary for the purposes of this judgment to cite extracts from the judgment in that case. In D.P.P. v. Cash, supra., the appellants were contending that the exclusion rule should be extended in two respects: firstly, to include matters providing the basis for the formation of a reasonable suspicion for the purposes of procuring a warrant, even though the material is not offered, and is not intended to be offered, in evidence; and secondly, to apply the rule to material already in existence, but which was not obtained for the purposes of the particular criminal investigation. In the High Court in the D.P.P. v. Cash, it was held that it had never been the case in law that what would found a “reasonable suspicion” requires to be based on the kind of evidence that would be admissible under the rules of evidence during the hearing of a criminal trial. The appellant before the Supreme Court again sought to extend the rules applicable to the admission of evidence at a criminal trial to material grounding a suspicion which influenced the mind of the arresting garda, on the basis that if the material could not be admitted in evidence, it could not justify a “reasonable suspicion” that an offence had been committed for the purpose of arrest.

In the course of his judgment, Fennelly J., having cited several cases, including Dunne v. Clinton [1930] I.R. 366, referred to DPP v. Shaw [1992] 1 IR 1. In the latter judgment Walsh, J. expressed himself (at p.29) as follows:

“No person may be arrested (with or without a warrant) save for the purpose of bringing that person before a court at the earliest reasonable opportunity. Arrest is simply a process of ensuring the attendance at court of the person so arrested.”

“The lawfulness of an arrest and the admissibility of evidence at trial are different matters which will normally be considered in distinct contexts. Infringement of any of the basic rules regarding the first may give rise to a challenge to the lawfulness of the detention extending potentially to the jurisdiction of the court of trial. Normally, such matters require to be asserted in advance of trial. These issues emerge from the decisions of this Court in O’Brien v Special Criminal Court {2008] 4 IR 514, and Brennan and others v Governor of Portlaoise Prison [2008] IESC 12. Geoghegan J discusses, in the latter case, the extent to which it is necessary to advance a challenge to jurisdiction before or at trial.

I conclude that the appellant has not established that an onus rests on the prosecution to establish the lawful provenance of material relied upon by a member of the Garda Síochána or that such material was obtained without breach of a constitutional right to form reasonable cause justifying an arrest.”

The judgment of Hardiman J. in D.P.P. v. Cash, is based on an absence of evidence adduced on the part of the defence as to the unlawfulness of the taking of the fingerprints, but otherwise does not take the issue in a different direction.

The European Convention on Human Rights Point
Prior to considering the case made on behalf of the applicant in relation to the European Convention on Human Rights & Fundamental Freedoms (“the Convention”) it is important to note the position concerning the Convention in Irish law. The obligation on Irish courts to consider the case law and the rulings of the European Court of Human Rights is clearly set out in legislation. Pursuant to s.2 of the European Convention on Human Rights Act 2003 (“the Act of 2003”), the courts are obliged to interpret and apply any statutory provision or rule of law, insofar as is possible, and subject to the rules of law relating to such interpretation and application, in a manner compatible with the State’s obligations under the provisions of the Convention. Section 4(1)(a) of the Act requires the courts to take judicial notice of the judgments of the European Court of Human Rights. The courts will therefore interpret provisions of national law concerning rights arising under the Constitution, such as rights of privacy or of bodily integrity, in light of the corresponding provisions of the Convention and having regard to relevant judgments of the European Court of Human Rights. This principle is subject only to the proviso that any such interpretation must not be inconsistent with the Constitution.

It is clear, from both the written and oral submissions made on behalf of the applicant, that the invocation of the Convention, which follows the same line as the applicant’s argument centred on the constitutional rights he invokes, is based on his contention that the fingerprints in question were not taken “in accordance with the law”, by reason of the matters hereinbefore referred to, but rather were taken unlawfully. It is argued on behalf of the applicant in written submissions, as supplemented briefly by oral argument, as follows. The applicant’s rights under Article 8 of the Convention were breached by the prison authorities and by An Garda Síochána by the unlawful taking, retention and dissemination of his fingerprints. Article 8 provides:

“1 Everyone has the right to respect for his private and family life, his home and his correspondence.

2 There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.” (emphasis added)

The applicant accepts, however, that Article 8(2) of the Convention permits derogations from the general right enunciated in Article 8(1) provided that the derogation meets a key precondition, namely, that the restriction imposed is “in accordance with the law”. For the reasons set out earlier in this judgment on behalf of the applicant, it is submitted on his behalf that the legislative defects in the purported power of the prison authorities to take and maintain the applicant’s fingerprints and to pass these on to An Garda Síochána were not “in accordance with the law”, and as such constitute a breach of the applicant’s Convention rights. It is further contended that the interference with his Convention rights, which has taken place in the present case, is not the minimum which is necessary to meet a particular need among those envisaged by the Article 8(2) derogation. In essence, the applicant contends that the consequences of the actions of the prison authorities in breaching the applicant’s Convention rights are twofold, namely:

(a) While not compelling the learned trial judge to rule the fingerprints and the fruits of the subsequent illegal arrest inadmissible, per se, the wrongful or unlawful actions of the prison authorities ought to have militated in favour of exclusion of both the fingerprints and of the fruits of the unlawful arrest; and

(b) They support the interpretative view of the statutory instruments and rules in question propounded by the applicant, especially having regard to s.2 of the Act of 2003.

Ground 4: The Recharge Ground
The applicant contends that the learned trial judge erred in refusing a number of requisitions made on his behalf and, as regards to those to which he acceded, that the manner in which he recharged the jury was unfair and prejudicial.

In evidence Dr. Curtis gave evidence relating to specific facts, and said he could not exclude the possibility of a collision having occurred between the applicant and the deceased, though he was sceptical, however, about the possibility of a collision. It was pointed out to the learned trial judge, by counsel for the defence, that Dr. Curtis was in actual fact expressing scepticism in general terms, and not as to the particulars of this case.

The learned trial judge recharged the jury on this requisition in the following terms:

“Dr. Curtis expressed scepticism in general terms … about the question of persons running onto knives. That is a matter for you … and it is for you to be satisfied beyond reasonable doubt that this was not a question of running onto a knife purely accidentally. You have to consider … the aspect of criminal negligence, doing something that nobody … no reasonable person would not realise was dangerous”.

The respondent in answer to this criticism argues that the complaint in relation to the requisitions is misconceived. In the course of his charge to the jury, the learned trial judge had inter alia stated the following in relation to the cross-examination of Dr. Curtis:-

“He was cross-examined, ladies and gentlemen, by Mr. O’Higgins, and Mr. O’Higgins asked him in particular about the question of two persons colliding, so to speak, of it being occasioned in circumstances where the deceased had run onto the knife. And he told you that he could not exclude that having happened, but he told you that he himself personally is sceptical about that occurrence.”

According to the transcript, the proposition of the deceased having been accidentally stabbed in the course of a collision was raised by the defence in cross-examination, and thereafter was addressed by the prosecution in re-examination. In the course of re-examination Dr. Crutis stated as follows in relation to this proposition:-

“A. I personally always have an element of scepticism about people running onto knives. It’s a scenario which is not infrequently put to me

Q. Well in the ordinary-

A. Sorry. In the context of a single stab wound to the front of the chest in a roughly horizontal plane without evidence of defensive type injuries. In the light of current medical literature, the possibility of someone running onto a knife, which is held horizontally like that (gesturing) cannot be firmly excluded. I think there is an awful lot more research needs to be done on this in terms of biomechanics and bioengineering. I entertain a degree of scepticism but I concede it is a possibility.”

Conclusion
The Court is satisfied that this ground for leave to appeal has no basis. The evidence of Dr. Curtis was directed towards his scepticism, both as to the general position, and also as to the particular case in relation to “running onto knives”. His evidence was directed also to the specific features of the injuries sustained by the deceased. The learned trial judge’s recharge was not prejudicial by reason of the three lines complained of. They reflect an acceptable comment on the application of the definition of murder and the presumption raised by s.4(2) of the Criminal Justice Act 1964.

This ground is refused.

Ground 5: Failure to Grant a Direction
The applicant argues that the learned trial judge erred in failing to direct the jury to return a verdict of not guilty in respect of the offence of murder for which the applicant was charged.

Section 4(1) of the Criminal Justice Act of 1964 defines murder as follows:-

“Where a person kills another unlawfully the killing shall not be murder unless the accused person intended to kill, or cause serious injury to, some person, whether the person actually killed or not.”

“The accused person shall be presumed to have intended the natural and probable consequences of his conduct; but this presumption may be rebutted.”

As to this ground, the respondent submits that the learned trial judge correctly dismissed the application for a direction on the above grounds at the conclusion of the prosecution case. It is argued further by the respondent that to have withdrawn the case from the jury, in light of all the evidence, would have been perverse. There was clearly evidence upon which a properly directed jury could have reached the conclusion that there had been an unlawful killing and that the accused had the necessary intention for murder. The mere fact that the accused claimed that what occurred was an accident did not, as appears to be suggested by the applicant, necessarily deprive the jury of their right to reach a different verdict, including one of murder, on all of the evidence.

In any event, the learned trial judge could as a matter of law have determined that, on the proven and admitted facts in the case, there was an unlawful killing. The trial judge could have ruled that the killing of the deceased in the course of the burglary of his home by the applicant must at minimum have been an offence of manslaughter, in regard to which the prosecution invoke the judgment of this Court in D.P.P. v Anthony Barnes [2006] 1 E.C.C.A. 165 (Unreported Court of Criminal Appeal, 21st December, 2006).

Conclusion
On the application of the defence for a direction at the close of the prosecution case, the learned trial judge ruled in the following terms:

“I am satisfied, taking the prosecution case at its highest, that the accused man has a case to answer. Each case depends on its own particular facts and in the present instance there is evidence before the jury that the accused man was the person who was in the home of the deceased, that he entered the house as a trespasser, that having entered the house, he armed himself with at least two lethal weapons, and possibly a third, that he had effectively demanded money with menaces from the girlfriend of the deceased, although the accused man himself expressed the view that he didn’t want to hurt her, that he only wanted her purse, quite clearly a person expressing such a view in circumstances where he had two knives in his hand is demanding money with menaces.

The jury are entitled to take into consideration the fact that the stab wound sustained by the deceased on the evidence of Dr. Curtis is a wound that is on the horizontal plane, that the knife itself was in a vertical position and that the wound was sustained at a height of some 4 foot 2 inches above ground level, and it seems to me that the jury are entitled to apply their own experience of the world and their own common sense to the evidence they have heard, and that matters are quintessentially for a jury rather than a judge, and as Mr. Birmingham has said, it may well be that one of more members of this jury share Dr. Curtis scepticism in relation to accident. The jury will be fully advised on the law in relation to the benefit of the doubt and it will be a matter for the jury in this instance to determine whether or not there was an unlawful killing and if there was an unlawful killing what were the circumstances in which that killing occurred.”

In light of the foregoing, the application for leave to appeal is refused.