A man charged with burglary has claimed a DNA profile of him created before a new DNA database law was introduced cannot be used in a prosecution against him for a crime allegedly committed after the database law was passed.
The man's blood was found in a bedroom of a house that had been burgled in 2010 and a swab taken. He was arrested and charged in 2016 with another burglary and a sample taken then was cross-matched with the 2010 sample - on which a DNA profile had been created before the enactment of a 2014 law on the DNA database.
When the 2016 charge was heard before the District Court, the judge sent a consultative case stated to the High Court to determine as a matter of law the issue of use of a pre-legislation created DNA profile.
Mr Justice Charles Meenan was told on Friday that in advance of the enactment of the 2014 Criminal Justice (Forensic Evidence and DNA Database System) Act, the State body responsible for the database, Forensic Science Ireland (FSI), created a number of profiles based on samples taken from crime scenes.
This was done in anticipation of the fact that there would be "a flood" of work once the Act was passed in 2014 and thereby allow the FSI to manage the workload, the man's lawyer said.
Under the new law, crime scene DNA profiles can be cross matched with personal samples taken from suspects in cases.
However, the man's lawyer argued, there was no provision in the 2014 for FSI to use a profile created prior to 2014 and cross match it with a sample acquired after the enactment of the law.
It was the man's case before the High Court that the creation of that profile of the 2010 sample was unlawful.
The court was urged to find that the District Judge could only interpret the 2014 law that it was not lawful to create the profile when there was no legislation in place at the time to do so.
It is also not lawful to include that profile from the 2010 sample on the database, it was claimed.
The DPP argued if samples taken before 2014 could not be used for the database created by the 2014 law, that would have be expressly stated in the legislation but it was not.
The DPP urged the court to find it was lawful for the District Court to find the DNA evidence created before 2014 admissible.
Mr Justice Meenan reserved his decision.