The Gazette 1988

GAZETTE

APRIL 1 9 88

might be termed outmoded and

inadequate. Several routes to reform

present themselves.

The courts could choose to

modify their definition of what

constitutes corroboration. The

"Baskerville"

formula could be

abandoned in favour of a definition

along the lines of the Supreme

Court of Canada's approach in R. -

v- Murphy*

viz., that a material

particular of the witness' story is

what needs to be corroborated and

once the story has been confirmed

the witness could be believed.

There is no requirement that the

w i t n e s s' comp l e te s t o ry be

corroborated. Thus on the facts of

the case, wh i ch involved an

allegation by a 16-year-old Indian

girl that the t wo defendants had

interfered wi th her and had sexual

intercourse with her while she slept

on the couch in their apartment;

the allegation by one defendant

that her distressed condition could

only corroborate her account if

consent were in issue, and could

not corroborate the case against

him as he denied intercourse al-

together, was unsuccessful.

Under such a modified construction

of the requirement the potential of

evidence such as the DNA finger-

print would be greatly enhanced. A

second possibility would be abolition

of the requirement entirely. However,

the recent Law Reform Commis-

sion Consultation paper on Rape

does not indicate any definite

impetus to abolish the corroboration

requirement in this context. Hence

the importance of genetic finger-

printing in these cases will remain,

its impact varying, on occasion,

with the defence put forward.

Although the Irish courts have

yet to be presented with such

evidence, in England, evidence of

genetic fingerprints have been

presented in cases where proof of

relationship was an issue in the

immigration context.

Further-

more, in

In Re 1 (a minor)

mother was delayed in attempting

to leave the jurisdiction, in order to

facilitate a DNA test to establish

paternity. More recently, a man was

found guilty in the Old Bailey in

London of raping his 11-year-old

step-daughter, resulting in the birth

of a female child. The DNA test

established that the man was

indeed the father of the child.

further case of

R. -v- Pitchfork

illustrates the probative value of the

DNA test, as well as some of the

difficulties inherent in obtaining

same. Pitchfork was convicted of

t wo counts of murder, rape and

indecent assault. He was detected

as a result of genetic fingerprint

evidence; although he initially

evaded t he t es t, and t hus

detection, wi th the help of a

workmate who 'stood in' for him at

the test. The case illustrates the

importance of the introduction of a

comp r ehens i ve

scheme

for

operating and authorising the use

of the test. In the English context,

the Family Law Reform Act 1987

makes adequate provision for the

use of " s c i e n t i f ic t e s t s " to

de t e rmi ne paternity. This is

arguably broad enough to include

a DNA test. In the Irish context,

provision analogous to that for the

taking of traditional fingerprints will

have to be introduced to take

account of this development.

128

Our most recent provision has

been in the context of an arrest

under s.4 Criminal Justice Act

1984, in relation to which regul-

ations

provide that fingerprints,

palm prints or photographs shall

not be taken of, or swabs or

samples taken from, a person in

custody except with his written

consent.(s.18).

In the context of arrests, not

under the Criminal Justice Act

1984, provision is made by the

Regulations as to the Measuring

and Photography of Prisoners,

1955.

This permits an untried

person to have fingerprints taken,

if he has been informed of his right

to object, but does not do so.

Without his consent, he may

nevertheless be fingerprinted with

the Minister's authority

upon

approval of an application of a

Garda not below the rank of Ins-

pector, to a Justice of the District

Court

in Dublin by a Commis-

sioner or Deputy Commissioner.

Authority in relation to those

detained under s.30 Offences

Against the State Act, 1939 is

provided by s.7(1) Criminal Law Act

1976, which allows fingerprinting

and explosive tests (hair and skin

swabs

same) to be carried out.

As current provision then, is

arguably inadequate; provision

should be i n t r oducd for the

authorisation and facilitation of

such DNA tests, in addition to

adequate testing facilities.

The importance of the test, after

all, lies not alone in its ability to

conclusively connect the accused

with the incident, the subject

matter of the alleged crime; but

COMMUNICATING WITH THE LAW SOCIETY

Miss Michelle Nolan has recently been appointed Receptionist with The

Law Society. Michelle joined the Society's Staff in 1985, and in her new

position is responsible for administering the reception area and dealing

with persona! callers and telephone queries from members of the

profession and the public. Facilities at reception include a telex machine

(no. 31219), and a telefax (710704). Law Society publications

and

stationery forms are available for sale at reception and rooms can be

booked by members for consultations and overnight

accommodation.