Michael McDowell (Dublin South East, Progressive Democrats)

I move amendment No. 44:

In page 25, to delete lines 10 to 13, and substitute the following:

"six months",

(ii) by the substitution of the following subsections for subsection (3):

"(3) Where proceedings have been so instituted and—

(a) the person is acquitted,

(b) the charge against the person in respect of the offence concerned is dismissed under section 4E of the Criminal Procedure Act 1967, or

(c) the proceedings are discontinued,

the destruction shall be carried out on the expiration of a period of 21 days after the acquittal, dismissal or discontinuance, as the case may be.

(3A) For the purposes of subsection (3)(b), a charge against the person in respect of the offence concerned shall be regarded as dismissed when—

(a) the time for bringing an appeal against the dismissal has expired,

(b) any such appeal has been withdrawn or abandoned, or

(c) on any such appeal, the dismissal is upheld.",

and

(iii) in subsection (7)—

(I) by the substitution of "for a period not exceeding twelve months" for "for a period not exceeding six months", and

(II) by the substitution of "for the purpose of proceedings or further proceedings" for "for the purpose of further proceedings",".

The purpose of amendments Nos. 44 and 45 is to restate the position with regard to the destruction of photographs, fingerprints, palm prints and forensic samples taken from a detained person in circumstances where the book of evidence is not ready for service and the court strikes out the charge. The necessity for these amendments was brought to my attention by the Office of the Director of Public Prosecutions.

Section 6 of the 1984 Act provides for the power to take photographs, fingerprints and palm prints relating to a detained person. The necessary provisions on destruction are contained in section 8 of that Act. Section 2 of the Criminal Justice (Forensic Evidence) Act 1990 allows for the taking of forensic samples with the necessary provisions on destruction contained in section 4 of that Act. Section 8(3) of the 1984 Act currently provides that the destruction of records taken under that Act shall be carried out in circumstances where proceedings against the person have been instituted and the person acquitted or discharged or the proceedings discontinued. Section 4(3) of the 1990 Act makes similar provision in respect of the destruction of forensic samples under that Act.

A judgment in 2004 demonstrates that things happen which nobody could ever predict, and certainly nobody predicted this would happen in 1984. In a 2004 judgment, the Court of Criminal Appeal, in the case of the people v James Bowes, decided that the word discharge in section 8 of the 1984 Act is to be interpreted as encompassing a situation where the court strikes out the charge because the book of evidence was not necessary. It was argued in the case that the words "acquitted" or "discharged" or "the proceedings are discontinued" were intended to cover situations where the prosecutions effectively come to an end and not the circumstance in which the charge was struck out due to a delay in serving the book of evidence.

Prior to the judgment in this case, such records were not required to be destroyed upon the making of an order striking out charges due to a delay in service of the book of evidence. That was not the practice. Where there was a delay in service of the book of evidence and the charge was struck out, the records were used for the purpose of the subsequent reinstituted proceedings. The striking out of proceedings in circumstances where the book of evidence is not ready is without prejudice to proceedings against the accused person being taken again.

Some uncertainty appears to have been created with the abolition of preliminary examination before a district judge in the Criminal Justice Act in 1999. Prior to the introduction of those provisions, the term "discharge" was interpreted in accordance with the provisions of the Criminal Procedure Act of 1967. It therefore referred to circumstances in which the accused was discharged on the basis that there was not a sufficient basis to return him or her for trial. With the introduction of the 1999 Act, this procedure was replaced with a procedure whereby the court shall dismiss the charge in circumstances where there is not a sufficient case to put the accused on trial. In bringing forward the procedural change in 1999, the terminology changed and this appears to have contributed to the uncertainty created.

The new subsection (3) provides for an insertion into the 1984 and 1990 Acts which will restate the current provisions in these Acts but with reference to the term "discharged" being replaced by the more correct reference to proceedings introduced in the 1990 Act being dismissed under section 4E of the Criminal Procedure Act of 1967. In addition, a timeframe of 21 days for the destruction of samples has been included in the 1984 Act. This will bring the Act into line with the provisions of the Criminal Justice (Forensic Evidence) Act 1990. A timeframe gives greater clarity regarding the duty to destroy records and samples.

A new subsection (3A) is being inserted in both Acts to take account of the prosecution's right to appeal against the dismissal of the charge. This right of appeal is set out in section 4E(7) of the 1967 Act.

Amendment No. 44 paragraphs (iii) (I) and amendment No. 45 paragraph (b)(i) restate an amendment agreed on Committee Stage extending the time period for which a court may authorise the retention of records and samples from six to 12 months. Amendment No. 44 Paragraph (ii) is a drafting amendment clarifying that an application for the retention of records may be made for the purpose of current proceedings or further proceedings relating to an offence.

In 1984 everybody thought the legislation was good but they found out in 2004 that it was not so good. Due to changes in the interpretation of a particular term, the destruction provisions meant that where a district judge said, "I am discharging this accused, you can come again if you want", that did not save the fingerprints, palm prints or samples on which the prosecution was based.

See this speech in context