Ashley McGonnell, Oliver Quinlan and John Purcell v Attorney General and DPP

• Jurisdiction: Ireland
• Judge: Murray C.J.
• Judgment Date: 28 November 2006
• Neutral Citation: [2006] IESC 64
• Date: 28 November 2006
• Court: Supreme Court
• Docket Number: [S.C. Nos. 462,

McGonnell v Attorney General

BETWEEN

ASHLEY McGONNELL, OLIVER QUINLAN AND JOHN PURCELL

PLAINTIFF/APPELLANTS

-v-

ATTORNEY GENERAL AND THE DIRECTOR OF PUBLIC PROSECUTIONS

DEFENDANTS/RESPONDENTS

[2006] IESC 64

Murray C.J.

Denham J.

Hardiman J.

Fennelly J.

Kearns J.

462/04

463/04

469/04

THE SUPREME COURT

CONSTITUTION

Statute

Validity -Fair procedures - Right to maintain effective defence - Provisions providing for breath testing on suspicion of drunken driving - Absence of opportunity of independent testing - Whether disproportionate interference with fair procedures - Heaney v Ireland [1994] 3 IR 593 followed; DK v Crowley [2002] 2 IR 744 distinguished - Road Traffic Act 1994 (No 7), ss 13(1), 17 and 21(1) - Constitution of Ireland 1937, Articles 38.1 and 40.3 - Plaintiffs' appeal dismissed (462, 463 & 469/2004 - SC - 28/11/2006) [2006] IESC 64

McGonnell v Attorney General

ROAD TRAFFIC ACT 1961 S49(8)

ROAD TRAFFIC ACT 1994 S17(1)

ROAD TRAFFIC ACT 1994 S17(2)

ROAD TRAFFIC ACT 1968 S28

ROAD TRAFFIC ACT 1994 S13(1)

ROAD TRAFFIC ACT 1994 S13

ROAD TRAFFIC ACT 1994 S17

ROAD TRAFFIC ACT 2002 S23(1)

ROAD TRAFFIC ACT 1994 S18

ROAD TRAFFIC ACT 1994 S21

ROAD TRAFFIC ACT 1994 S13(1)(a)

ROAD TRAFFIC ACT 1994 S13(1)(b)

ROAD TRAFFIC ACT 1994 S18(1)

ROAD TRAFFIC ACT 1994 S18(2)

ROAD TRAFFIC ACT 1988 S8 (UK)

ROAD TRAFFIC ACT 1988 S7(4) (UK)

RICHARDSON v DPP 2003 EWHC 359 (ADMIN)

WALSHE, STATE v MURPHY 1981 IR 275

ROAD TRAFFIC (AMDT) ACT 1978 S22(3)

CRACKNELL v WILLIS 1988 AC 450

WHELAN v KIRBY 2005 2 IR 30 2004 IESC 17 2004 IESC 66

ROAD TRAFFIC ACT 1961 S49(4)

EMPLOYMENT EQUALITY BILL 1966, RE 1997 2 IR 321 1998 18 6758

HEANEY v IRELAND 1994 3 IR 593 1994 2 ILRM 421

DK v CROWLEY 2002 2 IR 744 2001 15 4309

MURPHY v DPP 1989 ILRM 71

DUNNE AND DPP 2002 2 IR 305

BRADDISH v DPP 2001 3 IR 127 2002 1 ILRM 151 2001 2 351

BOWES AND DPP 2003 2 IR 25 2003 6 1129

MCFARLANE v DPP & SPECIAL CRIMINAL COURT 2006 IESC 11

CALIFORNIA v TROMBETTA 1984 467 US

1 JUDGMENT of the Court delivered the 28th day of November, 2006 by Murray C.J.

2 The three plaintiffs in these proceedings are all facing prosecutions which are currently pending in the District Court under s. 49 of the Road Traffic Act, 1961( "the Act of 1961") (as amended) for offences alleging that they drove a motor vehicle in a public place while over the legal breath / alcohol limit. Following their respective arrests under s. 49(8) of the Act of 1961, each of the plaintiffs was brought to a Garda Station where they were required to exhale into an apparatus designed for measuring breath alcohol.

3 The first two plaintiffs were required under statutory compulsion to exhale twice into an apparatus known as the Lion Intoxilyzer 6000. The third plaintiff was required to exhale into an apparatus known as the Intoximeter EC/IR. All three plaintiffs were furnished with printed read-outs of what purport to be statements of breath alcohol. By virtue of s. 17(1) of the Road Traffic Act 1994( "the Act of 1994"), the higher of the two readings was disregarded and it was the lower reading which was "taken into account" for the purposes of s. 49 of the Act of 1961. That figure was itself reduced by 17.5% - an administrative adjustment which provides a generous margin for any possible error in the reading although not mandated by statute - and the subsequent figure was contained in the statutory s. 17(2) statement. In this connection it is appropriate to mention that, while s.28 of the Road Traffic Act, 1968provided for the obligation to provide a preliminary specimen of breath, evidential breath testing was not introduced until 1999.

4 The Act of 1994 set out the procedures for evidential breath testing. It also provided for a system of tiered penalties, the thresholds of significance for which are 35ug, 44ug and 66ug. Thus, while a driver with a result of 35ug has committed no offence, a driver with results of higher than 35ug but less than 45ug is subject to a lesser range of penalties than a driver who is over 44ug and so forth.

5 The plaintiffs now challenge the constitutionality of these procedures as provided for in the Act of 1994. The gist of the plaintiffs" case is that they have been denied the opportunity of an independent breath sample or other sample whereby the same can be independently tested and the test results independently verified, as a result of which they contend they are denied the possibility of an effective defence. It is contended on the plaintiffs" behalf that the effect of these statutory procedures is such that for all practical purposes the plaintiffs are liable to be convicted on the say so of a printout. Further, it is argued that the procedures are a disproportionate interference with their rights because they fail to incorporate any provision which would allow an accused person to request that a blood or urine sample be taken in addition to a breath test. This would permit an independent test to be carried out.

6 These arguments were rejected by McKechnie J. in a reserved judgment delivered on 15 September, 2004. The action had been at hearing for five days and in the course of that hearing the court heard evidence from a number of expert witnesses.

The factual circumstances of the individual plaintiffs

7 By virtue of a notice to agree facts, certain facts have been agreed between the parties so far as the three individual cases are concerned.

8 Ashley McGonnell was arrested at Hill St., Monaghan on 17th September 2000. He was then brought to Monaghan Garda Station where he was required pursuant to s. 13(1) of the Act of 1994 to exhale into a Lion Intoxilyzer. The first reading was 45ug and the second reading was 44ug. The s. 17(2) certificate gave a reading of 36ug, i.e., which is one unit over the statutory limit of 35ug.

9 Oliver Quinlan was arrested on April 25, 2000 and brought to Pearse St. Garda Station in Dublin. He was required to exhale into a Lion intoxilyser. He duly complied with this statutory demand, resulting in a first reading of 89ug and a second reading of 83ug. The first reading was then disregarded and the reading for the purposes of the s. 17(2) certificate was 68ug.

10 John Purcell was arrested pursuant to s. 49(8) of the Act of 1961 on February 26, 2001 and brought to Tallaght Garda Station where he was required to exhale into an intoximeter. His first reading was 73ug and 70ug in the case of the second reading. His statutory s. 17(2) reading was 57ug.

The relevant provisions of the 1994 Act

11 Section 13 of the Road Traffic Act 1994(as amended) provides:

12 2 "(1) Where a person is arrested under Section 49 (8) or 50 (10) of the Principal Act or Section 12 (4), or where a person is arrested under Section 53 (6), 106 (3A) or 112 (6) of the Principal Act and a member of the Garda Síochána is of opinion that the person has consumed an intoxicant, a member of the Garda Síochána may, at a Garda Síochána station, at his discretion, do either or both of the following:-

13 (a) require the person to provide, by exhaling into an apparatus for determining the concentration of alcohol in the breath, 2 specimens of his breath and may indicate the manner in which he is to comply with the requirement,

14 (b) require the person either—

15 (i) to permit a designated doctor to take from the person a specimen of his blood, or

16 (ii) at the option of the person, to provide for the designated doctor a specimen of his urine,

17 and if the doctor states in writing that he is unwilling, on medical grounds, to take from the person or be provided by him with the specimen to which the requirement in either of the foregoing subparagraphs related, the member may make a requirement of the person under this paragraph in relation to the specimen other than that to which the first requirement related

18 (2) and (3) omitted

19 (4) In a prosecution for an offence under this Part or under section 49 or 50 of the Principal Act it shall be presumed, until the contrary is shown, that an apparatus provided by a member of the Garda Síochána for the purpose of enabling a person to provide 2 specimens of breath pursuant to this section is an apparatus for determining the concentration of alcohol in the breath".

20 Section 17, as amended by section 23(1) of the Road Traffic Act, 2002, provides that

21 2 "(1) Where, consequent on a requirement under section 13 (1) (a) of him, a person provides two specimens of his breath and the apparatus referred to in that section determines the concentration of alcohol in each specimen —

22 (a) in case the apparatus determines that each specimen has the same concentration of alcohol, either specimen, and

23 (b) in case the apparatus determines that each specimen has a different concentration of alcohol, the specimen with the lower concentration of alcohol, shall be taken into account for the purposes of sections 49 (4) and 50 (4) of the Principal Act and the other specimen shall be disregarded.

24 (2) Where the apparatus referred to in Section 13 (1) determines that in respect of the specimen of breath to be taken into account as aforesaid the person may have contravened Section 49 (4) or 50 (4) of the Principal Act, he shall be supplied forthwith by a member of the Garda Síochána with 2 identical statements, automatically produced by the said apparatus in the prescribed form and duly completed by the member in the prescribed manner, stating the concentration of alcohol in the said specimen determined by the said apparatus.

25 (3) On receipt of the statements aforesaid, the person shall on being requested so to do by the member aforesaid —

26 (a) forthwith acknowledge such receipt by placing his signature on each statement, and

27 (b) thereupon return...