DPP (at the suit of Garda Andrea McGovern) v Higgins
| Jurisdiction | Ireland |
| Judge | Mr. Justice Edwards |
| Judgment Date | 02 March 2017 |
| Neutral Citation | [2017] IECA 55 |
| Date | 02 March 2017 |
| Court | Court of Appeal (Ireland) |
| Docket Number | Neutral Citation Number: [2017] IECA 55 Record No: 2015/39 |
[2017] IECA 55
THE COURT OF APPEAL
Edwards J.
Birmingham J.
Sheehan J.
Edwards J.
Neutral Citation Number: [2017] IECA 55
Record No: 2015/39
Conviction – Case stated – Intending to drive while intoxicated – Appellant seeking to state a case – Whether the arresting garda was entitled to effect a valid arrest under s. 50 of the Road Traffic Act 1961
Facts: The appellant, Mr Higgins, was convicted in the District Court of intending to drive while intoxicated contrary to s. 50(4) and (6)(a) of the Road Traffic Act 1961. On appeal before the Circuit Court, the appellant asked the judge to consider stating a case. The Circuit Court judge stated a case seeking the opinion of the Court of Appeal on the following question: whether the arresting garda was entitled to effect a valid arrest under s. 50 of the 1961 Act.
Held by the Court that, having considered Director of Public Prosecutions v O’Suilleabhain [1995] 2 ILRM 617 and Director of Public Prosecutions v O’Connor [1985] ILRM 333, in a situation where the Garda was told by the person in charge that he had pulled in for a rest, which implied that when the rest had been availed of the previous activity of driving would be resumed, there was ample evidence for the court to conclude that the arresting garda was entitled to affect a valid arrest under s. 50 of the 1961 Act.
The Court held that the case stated must be answered in the affirmative.
Answer question in affirmative and remit.
The matter comes before the court on foot of a consultative case stated. The background to this is that Mr. Gerry Higgins (‘the accused’) was convicted in the District Court of the following offence:-
‘On the 13th February, 2011, at Balldyrehid, Sligo, Co. Sligo, in said District Court area of Sligo, was in charge of a mechanically propelled vehicle register number 95 D 65910 in a public place with intent to drive the said vehicle (but not driving or attempting to drive it) when in your body there was present a quantity of alcohol, such that, within three hours of being so in charge of the vehicle, the concentration of alcohol on your breath exceeded a concentration of 35mgms of alcohol per 100mml of breath, contrary to s. 50( 4) and (6)(a) of the Road Traffic Act 1961 as inserted by s. 11 of the Road Traffic Act 1994, and as amended by s. 18 of the Road Traffic Act 2006.’
He appealed and the matter came on for hearing in the Circuit Court before His Honour Judge Tony Hunt, as he then was. The evidence on the appeal hearing which is now of relevance in the context of the case stated was that of Garda Andrea McGovern. Her evidence as recited in the case stated was as follows. On the 13th February, 2011, she had been acting as observer in the official patrol car driven by Garda Paul Connolly. At approximately 4.10 hours, she was patrolling the Ballydrehid area. She observed a car pulled in on the side of the road. The lights were on and there was a person sitting in the driver's seat. Both gardaí got out of the patrol car and approached the vehicle. The keys were in the ignition. The gardaí knocked on the window. There was a male asleep in the driver's seat and initially he did not wake up. When the person in the driver's seat did eventually awake, Garda McGovern asked him why he was parked on the side of the road. The male responded by saying that he had been drinking all day and he had become tired and therefore pulled in for a rest. The male in the vehicle was identified as the accused, Gerry Higgins.
The accused was then cautioned and he was asked again why he was parked on the side of the road and he again informed Garda McGovern that he had been drinking all day. He said that he had been at a christening in Dromore West and was heading home to Letterkenny when he had become tired and so had pulled over for a rest. Garda McGovern gave evidence of having formed the opinion that the accused had consumed an intoxicant to such an extent as to render him incapable of having proper control of a mechanically propelled vehicle. The accused was informed of this and was advised that Garda McGovern was arresting him under s. 50(10) of the Road Traffic Act 1961 – 2006 for an offence under s. 50(1), (2) ( 3) or (4) of the said Act. The accused was cautioned again and was then advised in plain language that he was being arrested for being drunk in charge of a mechanically propelled vehicle. Thereafter the accused was conveyed to Sligo garda station where he was introduced to the member in charge and processed in the ordinary way.
At the close of the prosecution case, counsel on behalf of the accused applied for ‘a direction’. He submitted that the arrest was unlawful in circumstances where Garda McGovern had only formed an opinion that the accused was drunk and in charge of a mechanically propelled vehicle at the relevant time. He submitted that there were three elements to an offence under s. 50 of the Road Traffic Act, as amended. He argued that before an arrest without warrant could be made, a member of An Garda Síochána must satisfy themselves of the following:-
(i) That the person is then in charge of a mechanically propelled vehicle in a public place.
(ii) That such person is under the influence of an intoxicant to such an extent as to be incapable of having proper control of the vehicle and
(iii) That such person is then in charge of the vehicle with the intent to drive or with the intent to attempt to drive the vehicle, but not driving or attempting to drive it.
Counsel submitted that for there to be a valid arrest the garda must have formed an opinion that a person is committing or has committed an offence under this section. He submitted that there was no evidence in relation to intent to drive, or intent to attempt to drive. On the contrary, he said, the conversation between Garda McGovern and the accused related to why the accused was on the hard shoulder of the road. No inquiry was made of the accused as to his future intentions. No attempt was made to ascertain from the accused what he intended to do. The vehicle was positioned on the hard shoulder of the road, the accused was asleep and the engine of the vehicle was off. Garda McGovern, counsel submitted, had given no evidence that she had satisfied herself that the accused intended to drive or intended to attempt to drive. On that basis, it was submitted, that the arresting garda had not satisfied herself that the offence had been or was being committed and in such circumstances she was not entitled to arrest the accused under s. 50(10) of the Act.
Counsel went on to submit that there was no offence known to Irish law of being ‘drunk in charge’ of a vehicle. That was layman's parlance. Counsel submitted there was no basis upon which the garda could have formed the opinion, as to whether or not the accused intended to drive or to attempt to drive and more relevantly there was no evidence whatever, it was said, that the garda had in fact formed any such opinion. Based on these submissions, counsel sought ‘a direction’ contending that as the arrest was unlawful, everything that flowed from it including the obtaining of the alcohol/breath reading was unlawful.
In response, the State solicitor submitted that the opinion formed by Garda McGovern was a valid opinion and that she was entitled to rely upon the presumption in the Act. The State solicitor submitted that the accused was drunk and in charge of a vehicle in the public place and that the arresting garda had satisfied herself of this. Reliance was placed on s....
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