A man convicted 12 years ago of sexual and indecent assault has brought a High Court challenge over a decision to prosecute him for failing to provide a DNA sample for the purpose of adding it to a State database.
The man, who cannot be named by order of the court, says the sample should have been taken while he was serving a prison sentence for the offences and he cannot be prosecuted now for failing to provide the sample.
Mr Justice Seamus Noonan granted lawyers for the man leave on Monday to bring judicial review proceedings against the Director of Public Prosecutions aimed at having the prosecution quashed.
The judge was told the man was convicted of sexual and indecent assault offences in 2006, sentenced to four years, and released from prison in 2008. He was also placed on the sex offenders’ register.
He was told to come into his local garda station for a DNA sample to be taken but did not attend for the appointment.
His counsel said it was their position that there was no requirement to attend and his solicitor wrote to the gardai saying so. He was later prosecuted for failing to provide the sample.
His counsel argued, under Section 31 of the Criminal Justice (Forensic Evidence an DNA Database System) Act 2014, a sample may only be taken while the offender is serving a prison sentence, on temporary release or where the sentence is otherwise still in force.
There are alternative provisions in law which allow a sample to be taken, counsel said. The man was due before his local court this Thursday and wanted a stay on that hearing pending determination of these proceedings.
Mr Justice Noonan granted permission for judicial review and placed a stay on the prosecution pending the outcome of that review.
The application was made on a one-side only represented basis and returns before the High Court in October.