Director of Public Prosecutions v O Flaherty

• Jurisdiction: Ireland
• Judge: Mr. Justice Garrett Simons
• Judgment Date: 15 November 2023
• Neutral Citation: [2023] IEHC 625
• Court: High Court
• Docket Number: 2022 1027 SS

In the Matter of a Consultative Case Stated Pursuant to Section 52 of the Courts (Supplemental Provisions) Act 1961

Between

Director of Public Prosecutions

Prosecutor

and

Jonathan O Flaherty

Defendant

[2023] IEHC 625

2022 1027 SS

THE HIGH COURT

Appearances

Kieran Kelly for the Director of Public Prosecutions instructed by the Chief Prosecution Solicitor

Feichín McDonagh SC and David Perry for the defendant instructed by Michael J. Staines & Company

JUDGMENT of Mr. Justice Garrett Simons delivered on 15 November 2023

INTRODUCTION

1 This matter comes before the High Court by way of a consultative case stated from the District Court. The case stated raises a net question of statutory interpretation in respect of the powers of An Garda Síochána under the Road Traffic Act 2010. More specifically, the issue is whether a member of An Garda Síochána has an implied statutory power to require a driver, who has provided an oral fluid specimen, to remain at a roadside checkpoint until such time as the said specimen has been analysed for the presence of drugs.

2 On the facts, the defendant had been told by a member of An Garda Síochána that he was required to remain at the roadside for a period of up to one hour. The guard accepted, in cross-examination, that he had clearly communicated to the defendant that he was not free to leave the checkpoint until such time as the analysis was completed. The guard went on to state that if the defendant had tried to leave the checkpoint while the analysis of the oral fluid specimen was pending, he would have prevented the defendant from leaving. Under the provisions of Section 10 of the Road Traffic Act 2010, it is a criminal offence to fail to comply with a “ requirement” made by a member of An Garda Síochána. It follows that, on the Director of Public Prosecution's interpretation, the defendant was required to remain at the roadside under pain of criminal prosecution if he failed to do so.

3 In the event, the lapse of time between the provision of the specimen and the result of the analysis was eighteen minutes. On the basis of the result, the guard formed the opinion that the defendant was under the influence of an intoxicant to such an extent as to be incapable of having proper control of the vehicle and that he had committed an offence under Section 4(1A) of the Road Traffic Act 2010. The guard then arrested the defendant under Section 4(8) of the Road Traffic Act 2010. The defendant was conveyed to a Garda Station and required to permit a designated doctor to take a blood specimen at the station.

NOMENCLATURE

4 For ease of exposition, this judgment will refer to the substantive offences created under Section 4(1) and Section 4(1A) of the Road Traffic Act 2010 by the shorthand “ driving under the influence of drugs”. It should be noted, however, that the statutory definition of the offences is more nuanced, and, in respect of the latter offence, is defined by reference to the concentration of a specified drug in a person's blood within three hours after driving or attempting to drive.

LEGISLATIVE SCHEME

5 The Road Traffic Act 2010 (“ RTA 2010”) has been amended, with effect from 13 April 2017, so as to allow for the imposition of a requirement upon a driver to provide a specimen of oral fluid in certain circumstances. Relevantly, Section 10(4) of the RTA 2010 now reads as follows:

“(4) A member of the Garda Síochána, who is on duty at a checkpoint, may stop any vehicle at the checkpoint and, without prejudice to any other powers (including the functions under section 9) conferred on him or her by statute or at common law, may require a person in charge of the vehicle to do one or more of the following:

• (a) to provide a specimen of his or her breath (by exhaling into an apparatus for indicating the presence of alcohol in the breath) in the manner indicated by the member;

• (b) to provide a specimen of his or her oral fluid (by collecting a specimen of oral fluid from his or her mouth using an apparatus for indicating the presence of drugs in oral fluid) in the manner indicated by the member;

• (c) to accompany him or her or another member of the Garda Síochána to a place (including a vehicle) at or in the vicinity of the checkpoint and there to provide a specimen of his or her breath, as specified in paragraph (a), a specimen of his or her oral fluid, as specified in paragraph (b), or both, in the manner indicated by him or her or that other member;

• (d) to—

  (i) leave the vehicle at the place where it has been stopped, or

  (ii) move it to a place in the vicinity of the checkpoint,

  and to keep or leave it there until the person has complied with a requirement made of him or her under any of paragraphs (a), (b) and (c).”

6 Section 10(5) provides that a member of the Garda Síochána, for the purposes of making a requirement of a person under subsection (4), may indicate the manner in which the person must comply with the requirement.

7 Section 10(7) provides that a member of the Garda Síochána may arrest without warrant a person who, in the member's opinion, is committing or has committed an offence under Section 10.

8 The following aspects of the statutory scheme are pertinent to the issues arising on the case stated.

9 First, the legislation does not appear to envisage that there would be any time lag between the “ provision” of a specimen of oral fluid and the “ indication” of whether drugs are present in the oral fluid or not. The legislation does not, for example, refer to an “ analysis” of the specimen, still less to the awaiting of the result of any such analysis. Rather, the legislation seems to contemplate an instantaneous indication of the presence of drugs. Certainly, the legislation does not envisage the two-stage process employed in the present case, where the specimen of oral fluid was taken and then transferred into a separate machine for analysis. The only express reference to the “ analysis” of a specimen occurs in the context of a specimen of breath, blood or urine: see Section 3 and Section 17.

10 Secondly, the legislation does not expressly stipulate what is to happen in the event that the test is positive, i.e. the presence of drugs in the specimen of oral fluid is indicated. Indeed, the legislation does not expressly refer to the result of the test at all. Crucially, it does not say that a positive test result may be relied upon as giving reasonable cause to arrest that person on suspicion of having committed an offence. The only explicit reference to reliance upon a preliminary oral fluid test is to be found under Section 13B. That section allows for the taking of a specimen of blood from an arrested person in circumstances, inter alia, where a member of the Garda Síochána, having carried out a preliminary oral fluid test is of the opinion that the person has committed an offence of driving under the influence of drugs.

11 Thirdly, there is no express power conferred upon a member of An Garda Síochána to detain a person, at the place where he or she has been stopped, to await “ indication” of whether drugs are present in the oral fluid or not. The only contingency in which a person may be required to remain at the place where he or she has been stopped is where the member of An Garda Síochána does not have “ apparatus” with him or her. In such a contingency, the person may be required to remain in place until the apparatus becomes available. Importantly, this power of detention is subject to an outer time-limit of one hour. See Section 9(2A)(c) of the RTA 2010 as follows:

“(2A) A member of the Garda Síochána may require a person referred to in subsection (1)—

[…]

(c) where the member does not have such an apparatus with him or her, to remain at that place in his or her presence or in the presence of another member of the Garda Síochána (for a period that does not exceed one hour) until such an apparatus becomes available to him or her and then to provide a specimen of oral fluid from his or her mouth, using an apparatus for indicating the presence of drugs in oral fluid, in the manner indicated by him or her or that other member.”

12 Fourthly, the statutory power to impose a requirement upon a person to provide a specimen of his or her oral fluid is not subject to a qualifying threshold. The requirement can be imposed even in the absence of there being any reasonable suspicion that that person may have been driving under the influence of drugs. This is to be contrasted with the exercise of the powers prescribed under Section 9 of the RTA 2010 which are subject to the following criteria:

“(1) This section applies to a person in charge of a mechanically propelled vehicle in a public place who, in the opinion of a member of the Garda Síochána—

• (a) has consumed an intoxicant,

• (b) is committing or has committed an offence under the Road Traffic Acts 1961 to 2011,

• (c) is or has been, with the vehicle, involved in a collision, or

• (d) is or has been, with the vehicle, involved in an event in which death occurs or injury appears or is claimed to have been caused to a person of such nature as to require medical assistance for the person at the scene of the event or that the person be brought to a hospital for medical assistance.”

13 Finally, no offence is committed where a person holds a “ medical exemption certificate” as defined under the RTA 2010. Such a certificate indicates that a person has been lawfully prescribed cannabis for medicinal purposes. There is some suggestion in the written legal submissions filed on behalf of the DPP that a member of An Garda Síochána is only entitled to inquire whether a driver holds such a certificate, and, if so, to request the production of same, in circumstances where a preliminary oral fluid test has yielded a positive result. This is incorrect. As appears from the wording of Section 10(8), there is no reference to...