Thursday 18 April 2019

Sex offender challenges prosecution for failure to provide DNA sample

The High Court in Dublin
The High Court in Dublin

Tim Healy

A man convicted 12 years ago of sexual and indecent assault has brought a High Court challenge to his prosecution for failing to provide a DNA sample for the purpose of adding it to the State database system.

The man, who cannot be named by order of the court, says the sample should have been taken while he was serving a prison sentence for the offences and he cannot be prosecuted now for failing to provide the sample.

Mr Justice Seamus Noonan, on Monday, granted lawyers for the man leave to bring judicial review proceedings against the DPP in which he seeks to have the prosecution quashed.

The judge was told the man was convicted of sexual and indecent assault offences in 2006, sentenced to four years, and released from prison in 2008.  He was also placed on the sex offenders' register.

He was told to come into his local garda station for a DNA sample to be taken but did not attend for the appointment.

His counsel said it was their position there was no requirement to attend and his solicitor wrote to the gardai saying so.

He was later prosecuted for failing to provide the sample.

His counsel argued that under Section 31 of the Criminal Justice (Forensic Evidence an DNA Database System) Act 2014, a sample may only be taken while the offender is serving a prison sentence, on temporary release or where the sentence is otherwise still in force.

There are alternative provisions in law which allow a sample to be taken, counsel said.

He was due before his local court this Thursday and he was seeking a stay on that hearing pending determination of these proceedings.

Mr Justice Noonan was satisfied to grant leave and also placed a stay on the prosecution. The application was made on a one-side only represented basis. 

It comes back before the High Court in October.

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