Monday 26 September 2016

Man jailed for aggravated burglary to appeal conviction on grounds of 'breach of his Constitutional right to privacy'

Ruaidhrí Giblin

Published 15/03/2016 | 19:12

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A man jailed for an aggravated burglary has moved to appeal his conviction on grounds that a retention of his DNA sample beyond 12 months 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.

Murphy moved to appeal his conviction today in the Court of Appeal.

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 heard.

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.

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

Mr Justice Birmingham said it may be that issues of some complexity would be raised by this case. He put the matter in for mention on Friday April 15, to ascertain whether the parties wished to make additional oral submissions on the legal rights, constitutional rights and related matters.

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