Monday 26 September 2016

Man found guilty of aggravated burglary wants conviction quashed as DNA sample held too long

Ruaidhrí Giblin

Published 09/05/2016 | 16:28

A DNA technician at work in a Forensic Science Ireland lab Photo: doug.ie
A DNA technician at work in a Forensic Science Ireland lab Photo: doug.ie

A man jailed for an aggravated burglary has moved to appeal his conviction on grounds that retention of his DNA sample beyond a 12 month deadline - and before he was charged - amounted to a breach of his Constitutional right to privacy.

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Eamon Murphy(48), of Attracta Road, Cabra, Dublin 7, had pleaded not guilty at Longford Circuit Criminal Court to aggravated burglary at An Draigheann, Ballymahon, Co Longford on July 3, 2011.

He was found guilty and sentenced to 10 years imprisonment with the final three suspended on October 25, 2015.

The Garda investigation into the burglary established that entry into the dwelling was gained through a rear patio door. A blood stain had been left on the door from which swabs were taken.

On November 21, 2011, Murphy was arrested and a forensic sample was taken from him by way of a buccal swab, otherwise known as a mouth swab.

He was not charged until January 9, 2013 and no application was made to the District Court to retain the sample within the requisite 12 months, the Court of Appeal heard.

Opening an appeal against conviction in March, his barrister, Ciarán O'Loughlin SC, submitted that the retention beyond the allowed period breached Murphy's constitutional right to privacy.

He said section 4 of the Criminal Justice (Forensic Evidence) Act 1990, used painstaking language to make it clear that every record of the sample, and thus the very fact that the sample was taken, was to disappear from the record.

Unless proceedings are instituted within the time limit or unless an application is made to a court to not destroy the sample, then the result is to be as though the sample was never taken, he submitted.

The intention behind the provision stipulating that the sample and record be destroyed after 12 months where criminal proceedings had not been instituted was, presumably, to ensure that forensic samples were not kept in perpetuity, the court was told.

In additional submissions today, Mr O'Loughlin submitted to the court a European Court of Human Rights case known as 'S and Marper versus the UK'.

In replying submissiosn today, counsel for the Director of Public Prosecutions, Dominic McGinn SC, said a DNA profile was a meaningless set of figures and was not private.

If there had been a breach of Murphy's privacy rights, it was at the stage where his sample was taken but that was done in accordance with law, Mr McGinn said.

He said the 'S case' was concerned with the indefinite retention and the potential for “changes in science” to permit the State to mine bodily samples in the future.

If Murphy had never been charged, concerns were understandable, counsel said, but he was charged – although six weeks after the statutory deadline, Mr McGinn said.

It was exactly the kind of inadvertent “non-adherence” with statute that was covered by the Supreme Court case known as 'JC', Mr McGinn submitted.

Mr Justice George Birmingham, who sat with Mr Justice Alan Mahon and Mr Justice John Edwards, said the court would reserve judgment.

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