Use of Fingerprints
The use of fingerprints to identify persons who have committed crimes developed in the 19th century. The patterns on fingers are for all practical purposes unique. A fingerprint impression may be made which is later extracted. In modern times, IT-based systems can digitally compare fingerprints to databases and records. Further examination of comparison can create a match.
Other types of impression marks may be left at a crime scene, such as footprints, car tyres and other objects. DNA identification may be made from personal bodily items such as hair, fibres and fluids, which may be the subject of forensic identification.
The use of fingerprints is not an exact science. It is not always possible to obtain a complete print . An impression may be transmitted to another medium imperfectly. Questions may arise as to the techniques used for matching fingerprints.
The procedures for examination and verification of matches in fingerprints may be flawed. Fingerprint evidence has declined due to the emergence of DNA. DNA may be detected in a much wider range of circumstances. Analysis of DNA is more scientific and sophisticated. It is more precise and objective than a fingerprint comparison.
Taking Fingerprints & Rights
Fingerprint evidence obtained in breach of Constitutional rights would generally be inadmissible. Fingerprint evidence taking compulsorily without statutory authority may be inadmissible as being in breach of the right toof bodily integrity.
There is no general rights to take fingerprints without consent or statutory authority. It is not clear is some cases whether taking fingerprints ecessarily constitute an interference with bodily integrity. However, if the fingerprints are taken by force, there is likely to be an interference with the Constitutional right to bodily integrity in the absence of statutory authority.
The UK practice law of retaining suspects fingerprints indefinitely was found to be in breach of the European Convention on Human Right’s right to privacy. Similar principles apply to the taking and retention of other bodily samples and certain classes of photographs. It was also held to be a breach of the Convention to retain personal information on databases indefinitely.
At common law, there was a power to take fingerprints incidental to an arrest for a felony where the person was reasonably believed to have committed the suspected offence. The common law position was modified by a number of landmark Supreme Court cases holding that evidence must be gathered in accordance with legal and constitutional rights.
In particular, evidence procured in deliberate and conscious breach of the accused’s constitutional rights would be excluded absent extraordinary excusatory circumstance or inadvertence. Insofar as the evidence is obtained unlawfully but not in breach of constitutional rights, the trial judge has the discretion to exclude it.
Later Supreme Court cases indicated that a caution was not necessary for the taking of fingerprints. A minority view in the Supreme Court equated the forceable taking of fingerprints to an involuntary confession.
The Criminal Justice Act 1984 provides a statutory framework for the lawful taking of fingerprints. A person who has been arrested on suspicion of having committed an arrestable offence may be detained for up to 24 hours.
Under the Custody Regulations, Gardai may photograph, search and fingerprint an arrested person. They may take fingerprints and palm prints.
As with the power to detain for questioning, the incidental rights to take fingerprints et cetera are applicable where the offence the subject of detention and enquiry, carries a term for imprisonment for five years or more.The power also applies to the provisions for detention in respect of serious drug related offences, and so-called “gangland” type offences.
The Criminal Justice Act 2007 provides for the electronic retention of fingerprints and palm prints. Fingerprints may be taken of persons after the conclusion of court proceedings where they have been convicted or are the subject of a probation order.
If the person is not in custody the Gardai may require him to attend within seven days of the conviction or probation order to have his photographs taken. Consent is not required to the taking of fingerprints under the above legislation. No caution is required. There is no right to withhold consent.
Fingerprinting requires an authorisation by a member from Garda Siochana of the rank of inspector or above. No particular suspicion is required. It is an offence to frustrate or refuse the taking of fingerprints. It is subject on summary conviction to a fine up to €3,000 or imprisonment up to 12 months.
Where a person refuses to give fingerprints or a palm print, a member of an Garda Siochana may use reasonable force to take the prints concerned. The taking of the prints must be video recorded and a member of an Garda Siochana of the rank of inspector or above must be present.
Where fingerprints, et cetera are voluntarily given, they are to be accompanied by a written consent which is recorded in the custody record. Failure to do so does not invalidate the lawfulness of detention.
Broadly speaking, appeal courts have taken the view that noncompliance with the procedures will not generally cause the evidence to be excluded. The statutory provisions exist side by side with the pre-existing common law position whereby fingerprints could be kept and retained by consent.
Fingerprints taken under the statutory provisions may be retained under the Criminal Justice Act 2007. This replaced earlier law which provided that they should be destroyed unless specifically authorised to be retained for certain persons and in certain cases with a District Court order.
Where proceedings are not instituted or where the person has been acquitted or the charge is dismissed, the person concerned may request an Garda Siochana to have the records destroyed. He must give the reason for the request. The Commissioner must decide whether to grant or reject the request.
A refusal may be appealed to the District Court, and the District Court make such order as it sees fit in relation to retention or retention for a period Its decision may be appealed to the Circuit Court.
The above-mentioned judgment of the European Court on Human Rights in relation to the UK legislation suggests that the default regime of indefinite retention may be invalid at least under the Convention.
The 2014 Act repeals the common law powers to take fingerprints and substitutes a statutory position for voluntary and involuntary taking.
Updated Power to take fingerprints and palm prints
Where a person is arrested for the purpose of being charged with a arrestable offence, a member of the Garda Síochána may take, or cause to be taken, the fingerprints and palm prints of the person in a Garda Síochána station before he or she is charged with the arrestable offence concerned. The power shall not be exercised unless a member of the Garda Síochána not below the rank of sergeant authorises it.
A member of the Garda Síochána and the member or members of the Garda Síochána assisting that member may, where—
- a person is detained under the Custody regulations
- he or she fails or refuses to allow his or her photograph or fingerprints and palm prints to be taken
use such force as is reasonably considered necessary—
- to take the photograph or fingerprints and palm prints, or
- to prevent them from being lost, damaged or otherwise being made imperfect,or both.”,
Where it is intended to exercise this power, one of the members of the Garda Síochána concerned shall inform the person. A member of the Garda Síochána not below the rank of inspector and that member shall determine the number of members of the Garda Síochána that is reasonably necessary for the purposes
Destruction of fingerprints, palm prints and photographs
A fingerprint, palm print or photograph of a person referred to above, shall, if not previously destroyed, be destroyed in any of the following circumstances not later than the expiration of the period of 3 months from the date on which such circumstances first apply to the person:
- where proceedings for an arrestable offence are not instituted against the person within the period of 12 months from the date of the taking of the fingerprint, palm print or photograph concerned, and the failure to institute such proceedings within that period is not due to the fact that he or she has absconded or cannot be found, or have been instituted and the person is acquitted of the offence, the charge against the person in respect of the offence is dismissed or the proceedings for the offence are discontinued;
- where the person is the subject of a probation order in respect of the offence concerned in connection with which the fingerprint, palm print or photograph concerned was taken and he or she has not been convicted of an arrestable offence during the period of 3 years from the making of the order under that Act;
- the person is the subject of a probation order in respect of the offence concerned in connection with which the fingerprint, palm print or photograph concerned was taken and he or she has not been convicted of an arrestable offence during the period of 3 years from the making of the order under that Act;
- the person’s conviction for the offence concerned in connection with which the fingerprint, palm print or photograph concerned was taken is quashed;
- the person’s conviction for the offence concerned in connection with which the fingerprint, palm print or photograph concerned was taken is declared to be a miscarriage of justice .
The ‘retention period’, in relation to a fingerprint, palm print or photograph, means the period from the taking of the fingerprint, palm print or photograph, as the case may be, from a person to the latest date for the destruction of that fingerprint, palm print or photograph.
Extension of retention period
A fingerprint, palm print or photograph taken from or of a person shall not be destroyed in any case in which the Commissioner determines that any of the following circumstances apply:
- a decision has not been taken whether or not to institute proceedings against the person for the offence concerned in connection with which the fingerprint, palm print or photograph concerned was taken;
- the investigation of that offence has not been concluded;
- the fingerprint, palm print or photograph concerned, and the results of any examination or analysis of it, are likely to be required for the prosecution of an offence connected with the event, incident or circumstances the subject of the offence concerned—
· for use as evidence in such proceedings,
· for disclosure to, or use by, a defendant in such proceedings, or
· to support the admissibility of any evidence on which the prosecution may seek to rely in such proceedings;
- having regard to the matters specified, the Commissioner believes it is necessary to retain the fingerprint, palm print or photograph concerned in connection with the investigation of the offence concerned taking account of all the circumstances of the case and the reasons why—
- proceedings for that offence have not been instituted against the person, or
- if such proceedings have been instituted against the person, they were determined without he or she being convicted of the offence concerned or he or she being the subject of a probation order
- there are reasonable grounds for believing that the fingerprint, palm print or photograph of the person may be required in connection with the investigation of an arrestable offence , other than the offence in connection with which the fingerprint, palm print or photograph was taken, which the person is suspected of having committed.
Factors for Auhtorisation
The matters to which the Commissioner shall have regard are the following:
- whether the person concerned has any previous conviction for an offence similar in nature or gravity to the offence concerned in connection with which the fingerprint, palm print or photograph concerned was taken from or of him or her;
- the nature and seriousness of that offence;
- whether any alleged victim, or any intended victim, of that offence was— a child, a vulnerable person, or associated with the person, at the time of the commission, or alleged commission, of that offence; and
- any other matter that the Commissioner considers appropriate for the purposes of the determination.
If, in relation to a fingerprint, palm print or photograph taken from or of a person, the Commissioner determines that one of the above applies, then, he or she may, during the retention period, give an authorisation to extend that period by a period of 12 months.
The Commissioner may, while an authorisation, as may be appropriate, is still in force, give an authorisation to extend the retention period on a second or further occasion for a period of 12 months commencing on the expiration of the period of 12 months to which the authorisation previously given relates if he or she determines that one of the above provisions applies.
Whenever the Commissioner gives an authorisation he or she shall, in relation to a fingerprint, palm print or photograph taken from or of a person that is the subject of the authorisation, cause the person to be informed by notice in writing that the authorisation has been given as may be appropriate, the date on which that authorisation was given and of the right of appeal.
The person to whom the authorisation concerned relates may, within the period of 3 months from the date of the notice, appeal to the District Court against that authorisation.
If, on an appeal the District Court—
- confirms the authorisation concerned, or
- allows the appeal,
the Commissioner shall give effect to the decision of the Court.
Destruction in exceptional circumstances
If the Commissioner is satisfied that exceptional circumstances exist that justify the destruction of a fingerprint, palm print or photograph of a person, the fingerprint, palm print or photograph concerned shall be destroyed as soon as practicable after the application of those circumstances in relation to that fingerprint, palm print or photograph becomes known.
The exceptional circumstances are the following:
- it is established, at any time after the detention of the person concerned under section 4 for the purposes of the investigation of an arrestable offence during which the fingerprint, palm print or photograph concerned was taken, that no such offence was committed;
- it is established that the detention of the person concerned under section 4 for the purposes of the investigation of an offence to which that section applies during which the fingerprint, palm print or photograph concerned was taken was on the basis of the mistaken identity of the person concerned as the perpetrator of that offence; or
- it is determined by a court that the detention of the person concerned under section 4 for the purposes of the investigation of an offence to which that section applies during which the fingerprint, palm print or photograph concerned was taken was unlawful.
Circumstances in which person to be informed of destruction of fingerprint, palm print or photograph
If, in relation to a fingerprint, palm print or photograph taken from or of a person, the retention period is extended on one or more occasions, the Commissioner shall, upon the expiration of that period (as so extended), cause the person from or of whom the fingerprint, palm print or photograph was taken to be informed by notice in writing as soon as may be after the fingerprint, palm print or photograph has been destroyed of its destruction.
A person who is required to destroy, or cause to be destroyed, a fingerprint, palm print or photograph shall ensure that the fingerprint, palm print or photograph, every copy thereof and every record relating to the fingerprint, palm print or photograph insofar as it identifies the person from or of whom the fingerprint, palm print or photograph has been taken, are destroyed.