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Posts Tagged ‘Law of Evidence’

Arrest for the purpose of DNA sampling

November 24, 2009 Leave a comment

A report published today by the Human Genetics Commission (HGC) in the United Kingdom, which advises the government in that jurisdiction in relation to genetic issues, contains a claim that police officers deliberately arrest people in order to get DNA samples from them to add to the DNA database. The claim, put forward by an unnamed retired police superintendent, is contained in a report entitled “Nothing to Hide, Nothing to Fear?”.

Obviously, it is difficult to investigate the truth of the claim that persons are being arrested solely for the purpose of obtaining DNA samples where they would not be arrested in other circumstances, and indeed, such a claim has been denied by the Association of Chief Police Officers. However, the Chairman of the HGC, Professor Jonathan Montgomery, has admitted that there is some evidence to substantiate the allegation. Professor Montgomery has also suggested that the DNA database in the UK has suffered from “function creep” since its introduction in 1995, evolving from a database of offenders into a database of suspects. Liberty‘s director of policy Isabella Sankey has also observed the extent of the use currently being made of DNA databases and the manner in which policing decisions can be influenced:

Not only are we stockpiling the most sensitive information of innocents who have never been charged, let alone convicted, we are also creating a perverse incentive for officers to arrest the innocent.

The UK DNA database is the largest of its kind in the world and this is not the first time that it has been the subject of controversy and debate, although Professor Montgomery suggests that there has not been enough public or parliamentary debate on the issue.

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The Exclusionary Rule soon to be before the Supreme Court

October 29, 2009 2 comments

Supreme CourtThe case of DPP v Cash is listed for hearing in the Supreme Court on Monday November 16th 2009. This case may have major implications for the criminal justice process, policing in Ireland and the protection of suspect rights. The case is likely to allow for an exploration of the Irish exclusionary rule in relation to improperly obtained evidence. This rule, first established in People (AG) v O’Brien [1965] I.R. 142 and later modified in People (DPP) v Kenny [1990] 2 I.R. 110; [1990] I.L.R.M. 569, has come in for much criticism in recent times and many see the Cash case as the perfect opportunity for the Supreme Court to address the strict manner in which the rule operates in the context of unconstitutionally obtained evidence.

In O’Brien, a dichotomy was established between evidence obtained in breach of legal rights only and evidence obtained in breach of constitutional rights. In relation to the former, a trial judge holds a discretion to admit or exclude the evidence based on an assessment of the totality of the circumstances, including the nature and extent of the illegality, whether it was based on an ad hoc decision or settled policy, whether it was intentional or unintentional and whether the public interest would be best served by the admission or the exclusion of the relevant evidence.

However, the trial judge has no discretion in relation to the exclusion of unconstitutionally obtained evidence. Once it is shown that there has been a breach of constitutional rights, and there is a causal link between such breach and the impugned evidence, the evidence becomes automatically inadmissible. The only circumstances in which unconstitutionally obtained evidence might be admitted is where there are so-called “extraordinary excusing circumstances” in place which justify its admission, such as the need to rescue a victim in peril or to prevent the imminent destruction of vital evidence. Read more…