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1982
District, by the Commissioner or a Deputy
Commissioner of the Garda Siochana."
The same Regulation 4 does, however, provide that if a
prisoner "on being informed of his right to object, does not
do so, his height may be measured, and his photograph,
finger and palm prints taken, on the application in writing
of a member of the Garda Siochana of not lower rank than
Inspector."
The "untried prisoner" of course refers to the accused
person who is remanded in custody by the Court.
Given the 1966 decision in
People
v.
Roger
O'Callaghan
11
specifying the limited grounds on which
bail may be refused to an accused awaiting trial, few
accused persons are in fact ever in that position (i.e.
"untried prisoner") to so facilitate the police. Regulation 5
of the same Regulations provides that
"Where, in the case of an untried prisoner not
previously convicted of any crime, photographs,
prints or measurements have been taken under these
regulations, all such photographs (both negatives
and copies), print impressions and records of
measurements so taken shall, upon his discharge or
acquittal, be forthwith destroyed or handed over to
him."
A person not remanded, and therefore not in prison, can
competently consent to fingerprints being taken and this is
so even though he is not informed of his right to refuse
78
but
consent in that context must not be coerced or obtained by
a trick.
79
In England, magistrates have power to order the
taking of fingerprints on the application of an Inspector in
relation to a person in custody or a person summonsed
before them.
80
No such power exists here and in
People v.
O'Brien andMcGrath*\
Davitt
P. doubted that the power
to fingerprint under the 'Regulations as to the Measuring
and Photographing of Prisoners, 1955', existed at all,
pointing out that the Regulations were made under the
Penal Servitude Act 1891, Section 8, which gave the
Minister power to make regulations for the measuring and
photographing of prisoners; that a fingerprint is not a
photograph, nor is it a measurement, and that therefore the
Regulations were, ultra vires the powers provided by the
1891 Act; but in the case the fingerprints so obtained were,
notwithstanding, held to be admissible in evidence.
Nobody has thought fit to give our police any proper
finger-printing power nor has even this defect been
remedied. At common law, in Scotland and America, the
Courts have held that the police have power to
fingerprint on arrest.
83
In Scotland, the analogy with
police powers of search incidental to arrest was taken even
further in
Hay
v.
H.M. Advocate
83
where the Court
asserted a power to forcibly make a dental impression to
aid a murder investigation. No such decision has been
made here. However, such a change would be welcome.
Fingerprints are a vital aid in the detection of crime.
Where records are kept of a convicted prisoners' prints
such procedure may deter crime.
84
Certainly a modern
police force with almost no power to fingerprint is severely
disabled. It would be unsatisfactory to leave it to the
judiciary to follow foreign common law. They would have
no power to regulate what would be done with the
fingerprints of persons who are later found innocent. Nor
would they be able to provide, as an act undoubtedly
would, that a warrant be required and thus place the police
exercise of this power under independent supervision to
require it to be exercised in a responsible manner.
Identification Parades:
Lastly,.in this section dealing with the powers of the
police over arrested persons mention must be made of
identification parades. Apart from the statement in
Dallison
v.
Cajfrey
85
, there is no authority that a prisoner
must undergo an identification parade. In the United
States, such procedures have always been compulsory, as
have been reasonable incidents of them, such as the
wearing particular clothing
86
or speaking particular
words.
87
The only sanction our police have for a prisoner's
refusal to co-operate is that which happened in
People
v.
Martin
88
where an accused refused to enter an
identification parade and later got little judicial sympathy
when he objected to the unsatisfactory nature of the actual
identification.
In conclusion (on this section of the article), it seems to
me that properly considered, there can be little reason for
denying the granting to the police of the powers over
arrested persons proposed above, subject of course to
proper safeguards and judicial review. Once there is an
arrest then the deprivation of liberty of movement should
at least provide for co-operation in ways in which the
police could not be tempted to invent evidence of guilt (as
in the case of verbal admissions). There is the risk that the
tendency may be to arrest and hope to use those proposed
powers to dig up the proper grounds for reasonable
suspicion, but that is surely not as serious a danger as it
would be on giving automatic search powers on arrest. An
adequate safeguard would be a provision that, in each
case, before exercising the power, an application would
have to be made to Court giving good grounds, and making
it a requirement that the police at that time justify the
reasonable nature of their suspicion.
89
Police Questioning
The issue of police questioning was fully dealt with in
the O'Brian Committee Report
90
and it is not proposed to
reconsider the matter here. As all will know the Report's
recommendations have never been acted upon by the
Government, since the Report was presented in April
1978.
Power to Gather Evidence
The final set of police powers that must be considered is
in relation to the gathering of evidence.
Search prior to arrest
There are some powers of search before arresting.
Under the Dublin Metropolitan Police Act 1842, section
29:-
"a constable may stop, search and detain any vessel,
coach, cart or carriage in or upon which there shall
be reason to suspect that anything stolen or
unlawfully obtained may be found, and also any
person who may be reasonably suspected of having
conveyed in any manner any thing stolen or un-
lawfully obtained."
102