The Gazette 1988

APRIL 1 9 88

GAZETTE

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 13 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).

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 9 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. 98 Further- more, in In Re 1 (a minor) 10 a 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. 11 A further case of R. -v- Pitchfork 12 illustrates the probative value of the

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. 14 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 or upon approval of an application of a Garda not below the rank of Ins- pector, to a Justice of the District Court or 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 re 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

I 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.

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