Dowling and Others v Judge Flann Brennan

• Jurisdiction: Ireland
• Judge: Mr. Justice O'Keeffe
• Judgment Date: 11 November 2010
• Neutral Citation: [2010] IEHC 522
• Judgment citation (vLex): [2010] 11 JIC 1104
• Court: High Court
• Date: 11 November 2010

[2010] IEHC 522

THE HIGH COURT

[No. 973 J.R./2007]

Dowling & Ors v Judge Brennan & DPP

BETWEEN

PATRICK DOWLING, PATRICK HILLIARD, MICHAEL HALTON AND BRONAGH CRONIN

APPLICANTS

AND

JUDGE FLANN BRENNAN AND DIRECTOR OF PUBLIC PROSECUTIONS

RESPONDENTS

ROAD TRAFFIC ACT 1961 S49(4)

ROAD TRAFFIC ACT 1961 S49(6)(A)

ROAD TRAFFIC ACT 1994 S10

ROAD TRAFFIC ACT 2002 S23

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 6

ROAD TRAFFIC ACT 1994 S17

ROAD TRAFFIC ACT 1994 (SECTION 17) REGS 1999 SI 326/1999

ROAD TRAFFIC ACT 1994 S13(1)

MCGONNELL & ORS v AG & DPP UNREP MCKECHNIE 16.9.2004 2004/34/7903 2004 IEHC 312

ROAD TRAFFIC ACT 1994 S13

ROAD TRAFFIC ACT 1961 S49

ROAD TRAFFIC ACT 1994 S17(2)

ROAD TRAFFIC ACT 1994 S21(1)

ROAD TRAFFIC ACT 1968 S38(3)(D)

ROAD TRAFFIC ACT 1994 S6

DPP v KELLY 2006 3 IR 115 2006 2 ILRM 321 2006/19/3876 2006 IESC 20

DPP v SPECIAL CRIMINAL COURT 1999 1 IR 60

WHELAN v JUDGE KIRBY & DPP 2005 2 IR 30

HOLLAND, STATE v KENNEDY 1977 IR 193

SWEENEY v DISTRICT JUSTICE BROPHY & DPP 1993 2 IR 202

O'CALLAGHAN v JUDGES OF DUBLIN METROPOLITAN DISTRICT COURT & DPP 2004 2 IR 442 2004/37/8581 2004 IEHC 187

DPP v MCCARTHY & ORS 2008 3 IR 1 2007/19/3965 2007 IECCA 64

LENNON v DISTRICT JUDGE CLIFFORD & DPP 1992 1 IR 382 1993 ILRM 77 1992/7/2217

DPP v DOYLE 1994 2 IR 286

KENNY v JUDGE COUGHLAN & DPP UNREP O'NEILL 8.2.2008 2008/33/7191 2008 IEHC 28

DPP v SWEENEY 2001 4 IR 102 2002 1 ILRM 532 2001/8/2166

H (D) v JUDGE GROARKE & DPP 2002 3 IR 522 2002/12/2955

ROAD TRAFFIC ACT 1994 S21

MCGONNELL & ORS v AG & DPP 2007 1 IR 400 2006/35/7507 2006 IESC 64

ART 26 OF THE CONSTITUTION & EMPLOYMENT EQUALITY BILL 1996, IN RE 1997 2 IR 321 1998/18/6758

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 6(3)

C (D) v DPP 2005 4 IR 281 2006 1 ILRM 348 2005/8/1599 2005 IESC 77

CRIMINAL LAW

Road traffic offence

Intoxilyser - Documents relating to software - Non-disclosure - Medical Bureau of Road Safety - Screening of mouth alcohol - Disclosure order made - Manufacturer stated no documents in relation to detection of mouth alcohol - Software code intellectual property of manufacturer - Bureau obligation to test machine - Bureau obligation not to disclose software - Whether software covered by categories of disclosure - Section 17 certificate rebuttable presumption of guilt - No evidence of malfunction - Whether access to software necessary for fair trial - Whether inequality of arms as result in difference between prosecution and accused's ability to test and analyse working effectiveness of fail-safe procedures of intoxilyser - Onus of proof - Whether evidential foundation for hypothesis - Whether error within jurisdiction - Whether conviction defective - C(D) v DPP [2005] 4 I.R. 281, McGonnell v Attorney General [2006] IESC 64 [2007] IR 400 applied; People (DPP) v Kelly [2006] IESC 20 [2006] 3 IR 115, DPP v Special Criminal Court [1999] 1 IR 60, Whelan v Judge Kirby [2005] 2 IR 30, The State (Holland) v Kennedy [1977] IR 193, Sweeney v Judge Brophy [1993] 2 IR 202, O'Callaghan v Judges of Dublin Metropolitan District Court [2004] IEHC 187 [2004] 2 IR 442, DPP v McCarthy [2007] IECCA 64 (Unrep, Kearns J, 25/7/2007), Lennon v District Judge Clifford [1992] 1 IR 382, DPP v Doyle [1994] 2 IR 286, Kenny v Judge Coughlan [2008] IEHC 28 (Unrep, Ó Néill J, 8/2/2008), The People (DPP) v Sweeney [2001] 4 IR 102, H(D) v Judge Groarke [2002] 3 IR 522 and Re Employment Equality Bill 1996 [1997] 2 IR 321 considered - European Convention on Human Rights, art 6 - Road Traffic Act 1961 (No 24), ss 49(4) and 49(6)(a) - Road Traffic Act 1994 (No 7), ss 13 and 17(2) - Relief refused (2007/973JR - O'Keeffe J - 11/11/2010) [2010] IEHC 522

Dowling v Judge Brennan

Facts: The proceedings arose by way of judicial review seeking inter alia an order of certiorari quashing the Order of the respondent convicting the applicant of an offence pursuant to the Road Traffic Act 1961, as amended and an Order of Prohibition restraining further prosecution of the second, third and fourth named applicants. The applicants alleged that the non-disclosure of documents relation to the Intoxilyser machine had breached their constitutional rights. The respondents alleged that the trial judge had acted within jurisdiction in refusing to order disclosure of the software.

Held by O' Keefe J. the Court was not satisfied that the second, third and fourth named applicants had established a real or serious risk of an unfair trial. The non-availability of the software documentation was not a denial of constitutional justice or fair procedures. There were safeguards in the design and operation of the machine to protect accused persons from not having the opportunity to have a fair trial. Their application would be dismissed.

Reporter: E.F.

1 Judgment of Mr. Justice O'Keeffe delivered on the 11th day of November, 2010

2 1. This is an application for judicial review in which the following relief is sought:-

3 (i) In respect of the first named applicant, an order of certiorari quashing the Order made by the first named respondent on 25 ^th June, 2007, convicting the applicant of an offence contrary to s. 49(4) and (6)(a) of the Road Traffic Act 1961, as inserted by s. 10 of the Road Traffic Act 1994, as amended, by s. 23 of the Road Traffic Act 2002.

4 (ii) In respect of the second, third and fourth named applicants, an Order of Prohibition by way of application for judicial review restraining the second named respondent from further prosecution of the second, third and fourth named applicants.

5 2. In the grounds upon which relief is sought, it is contended:-

6 (i) The first named respondent erred in law in failing to dismiss the prosecution in defence of the first named applicant's constitutional rights to be tried in accordance with natural and constitutional justice and in due course of law and in particular his rights to fair procedures and trial and his rights as guaranteed by Article 6 of the European Convention on. Human Rights as applicable in Ireland having regard to the non-disclosure of documents relating to the purported ability of the Lion Intoxilyser IRL 6000 ("the Intoxilyser") to detect mouth alcohol and ambient alcohol and in particular the manufacturer's failure to disclose any documents including test data or calibration documents or any software or hard copy of software in relation to detection of mount alcohol and ambient alcohol including the test criteria, test Standard Operating Procedures (SOP) and results of tests carried out by Lion Manufacturing ("Lion") that showed that the machine is capable of detecting all mouth alcohol that could affect a s. 17 printout and Lion/QSL standard operating procedures relating to the measurement of ambient environment for contaminants and how this is checked during services or any document which made reference to 0.49 micrograms or 0.5 micrograms in relation to tolerance, calibration, specification or otherwise in relation to ambient fail.

7 (ii) The first named respondent erred in law in failing to dismiss the prosecution in defence of the first named applicant's constitutional right to be tried in due course of law and in particular his rights to fair procedures and trial having regard to the failure by the prosecution or Lion to disclosure software to the defence.

8 (iii) That by proceeding to convict the first named applicant herein the first named respondent did, in all the circumstances, act in breach and violation of the first named applicant's rights to fair procedures and/or natural and constitutional justice and the applicant's rights as guaranteed by Article 6 of the European Convention on Human Rights as applicable in Ireland under the terms of the European Convention on Human Rights Act 2003.

9 (iv) Without prejudice to the generality of the above claims that in arriving at the said decision to convict the applicant, the first named respondent erred in law and acted in breach and violation of the constitutional rights of the applicant and the rights as guaranteed under the terms of the European Convention on Human Rights in:-

10 (a) Convicting the applicant in circumstances where the first named applicant was, contrary to law, afforded no reasonable or effective right or opportunity to assail the case made against him.

11 (b) Failing to provide any or any adequate reasons as to why, in the circumstances of the evidence before him and arguments offered, the first named respondent did determine that the evidence before the first named respondent was sufficient upon which to found a satisfaction beyond reasonable doubt that the applicant was, in fact, guilty of the offence charged.

12 (v) The first named respondent erred in law and/or irrationally and/or without proper legal basis in convicting the applicant since no reasonable trier of fact could conclude that the statement purported to have been supplied under s. 17 of the Road Traffic Act 1994 was sufficient evidence in the proceedings under the Road Traffic Acts 1961 - 1994 of the facts stated therein (the contrary having been shown) and in particular having regard to:-

13 (a) The evidence heard by the first named respondent from Christopher Cuffe, Engineer and David Blyth, Head of Calibration at Lion, the manufacturer.

14 (b) Garda O'Donoghue's evidence of compliance with his statutory obligations did not include any evidence of compliance with S.I. No. 326 of 1999 and in particular that the garda input information into the apparatus referred to in s. 13(1) of the Act of 1994, namely the name and address of the person providing the specimens, the section of the Road Traffic Act 1961, which it was alleged the person contravened and his or her name and number. (This ground was not proceeded with.)

...