The Gazette 1982

g a z e t t e

april

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