D.P.P. -v- Finn, [2003] IESC 11 (2003)

Docket Number:252/02
Party Name:D.P.P., Finn
Judge:Murray J. / Hardiman J.

JUDGMENT BY: Murray J.THE SUPREME COURTRecord No. 252/02Murray, J.McGuinness, J.Hardiman, J. Geoghegan J.Fennelly, J.BetweenDIRECTOR OF PUBLIC PROSECUTIONS Prosecutor/RespondentandMICHAEL FINNDefendant/AppellantJudgment of Murray, J. delivered on the 19th day of February, 2003.This is a case stated by His Honour Judge Brian McMahon of the Circuit Court, Dublin, pursuant to the provisions S.16 of the Courts of Justice Act 1947. The learned Circuit Court Judge poses two questions of law, which I recite below, and which arise in the following circumstances as set out in the case stated.The Defendant was arrested at 11.25pm on the 9th June, 2000 pursuant to section 49 (8) of the Road Traffic Acts 1961 to 1994. This permits a member of the Garda Síochána to arrest without warrant a person who in the member's opinion is committing or has committed an offence under that section, which concerns offences of driving or attempting to drive a mechanically propelled vehicle under the influence of alcohol. Where a person is arrested under that section, section 13(1)(a) provides that a member of the Garda Síochána may, at a garda station, inter alia, require the person concerned to provide, by exhaling into the apparatus for determining the concentration of alcohol in the breath, two specimens of his breath, and may indicate the manner in which he is to comply with the requirement.After his arrest, the Defendant was conveyed to Dun Laoghaire garda station where he arrived at 11.40pm. The member in charge recorded his arrival and other relevant details, gave him a notice of his rights and explained them to him. The Defendant was then brought to an interview room by Garda Darren Coogan at 11.44pm. He remained with him in the interview room for a period of twenty minutes and Garda Coogan's evidence was that during the twenty minute period he kept him under observation. It would appear from the garda's evidence as recorded in the case stated, that during this period he verified that the Defendant consumed nothing orally. He observed the Defendant until 12.04am and at 12.07am he made a requirement of the Defendant pursuant to Section 13(1)(a) of the 1994 Act that he provide two specimens of his breath. At 12.08am, the Defendant, according to Garda Coogan, refused to comply with his direction to give a breath specimen. The Defendant was charged with an offence arising from that refusal.According to the case stated by the learned Circuit Court Judge some twenty seven minutes elapsed between the arrival of the Defendant in the garda station and the making of the requirement of him pursuant to Section 13(1)(a) and twenty minutes of this was concerned with the Defendant waiting in the interview room while he was under the observation of Garda Coogan.It appears from paragraph 4 of the case stated that Garda Coogan stated that the reason for the period of observation was that guidelines given to An Garda Síochána indicated that an arrested person should be observed for a period of twenty minutes prior to requiring a sample of breath to be given and this was done in order to ensure that the Accused did not consume any food.I understand by this that the Garda Síochána verified that no food had been taken since on the case stated nothing intrusive happened and all that essentially occurred was passive observation by a garda member.Questions and arguments of the parties:In these circumstances the learned Circuit Court Judge posed two questions in the following terms:(i) In the circumstances before me, where the evidence given was that the gardaí waited some twenty seven minutes (twenty minutes being the minimum period of observation stipulated by the Garda Síochána guidelines) following the arrival of the Accused at the garda station before any requirement was made pursuant to Section 13(1)(a) of the Road Traffic Act 1994 and that nothing prevented the gardaí from making the requirement at the time of the Accused's arrival at the station, was the Accused in lawful detention at the time the requirement was made at 12.07am?(ii) If the answer to the above question is "No" does that render inadmissible the evidence subsequently obtained?It is not in dispute that when the Defendant arrived in the garda station his detention there was lawful for the purpose of enabling a member of the Garda Síochána to require of him to provide either specimens of his breath or alternatively other specimens to a designated doctor as required by the member pursuant to Section 13(1).The question is whether what occurred in the garda station infringed the defendant's legal or constitutional rights so as to render that detention at some point unlawful.In the course of his submissions, Counsel for the Defendant relied on the decision of Hanna, J. in Dunne -v- Clinton [1930] I.R. 85 concerning the duties of the Garda Síochána concerning the exercise of their powers of arrest generally on a criminal charge and which has been described on many occasions by this court as a definitive statement of law in this area, although allowance has to be made for legislative changes since that decision which permit the arrest and detention of persons for purposes other than being brought before a court such as questioning in certain circumstances or, as in this case, in order to obtain a specimen of the person's breath.These legislative changes do not alter the essential principles decided in the Dunne case in situations where there are no express time limits or time frames (such as 'immediately') provided for by statute. Where a statute expressly lays down time limits concerning the detention of a person in custody they must, of course, be strictly complied with.Counsel for the D.P.P. submitted, inter alia, that the period of time involved was such that the requirement was made of the Accused within a reasonable time. In some cases a considerably greater period of time might have to elapse before a requirement could be made, depending on the circumstances. Such a time should not invalidate the lawfulness of the persons detention. So far as the submission of the D.P.P. founded on the power of the gardaí to arrest a suspected person within three hours after driving or attempting to drive is concerned, I agree with Hardiman, J. that this argument is wholly unfounded.DelayThe decision in Dunne -v- Clinton concerns, inter alia, the duty of arresting gardaí towards a person whom they have arrested on suspicion of a felony. As regards the duty of the arresting gardaí Hanna J had this to say:-"It is, in my opinion, clearly the law that, once a person is detained by the guards or, in other words, in custody of the guards, on suspicion of having committed the felony, it is the duty of the police officer arresting him to take him with reasonable expedition before a Peace Commissioner. He can be detained in custody only during such time as is reasonable for that purpose." Later Hanna, J. went on to say "Now, what is a reasonable time after arrest? No hard and fast rule can be laid down to cover every case. It must depend on many circumstances, such as the time and place of the arrest, the number of the Accused, whether a Peace Commissioner is easily available, and such other matters as may be relevant."… "The Plaintiff in this case could have been brought before a Peace Commissioner...

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