DPP (at the suit of Garda Cheryl Kelly) v Robin Fox

JudgeMurray C.J.
Judgment Date22 July 2008
Neutral Citation[2008] IESC 45
Docket Number[S.C. No. 328 of 2005]
CourtSupreme Court
Date22 July 2008
DPP (Garda Kelly) v Fox





[2008] IESC 45




Road Traffic Offences

Drunk in charge - Alcohol test - Intoxilyzer - Detention for observation in excess of 20 minutes - Whether delay of 7 minutes in excess of minimum period required objective justification - Whether delay unreasonable - Whether detention lawful in absence of evidence justifying delay - Whether evidence obtained during detention admissible - DPP v Finn [2003] 1 IR 372, DPP v McNiece [2003] 2 IR 614, Dunne v Clinton [1930] IR 366 and The People v Walsh [1980] IR 294 considered - Road Traffic Act 1961 (No 24), s 50(4) and (6)(a) - Road Traffic Act 1994 (No 7), s 11 - Prosecutor's appeal allowed (328/2005 - SC - 22/7/2008) [2008] IESC 45

DPP (Kelly) v Fox

Facts: The appellant appealed against the decision of the High Court, wherein it was held, on appeal by way of case stated, that the District Court Judge was correct in law in dismissing the charge pursuant to s. 50(4) and (6) (a) of the Road Traffic Act, 1961, as inserted by s. 11 of the Road Traffic Act, 1994 as amended by the Road Traffic Act, 1995 against the defendant, by reason of the fact that the defendant had been deliberately detained by the Gardai for observation for a period of 27 minutes in circumstances where no evidence was given to explain or justify a period of observation of 7 minutes during the detention, resulting in the detention being unlawful and the evidence relating to the intoxilyzer inadmissible.

Held by the Supreme Court: Murray C.J., (Denham, Hardiman JJ concurring) in allowing the appeal and answering the question in the negative: That what happened in this case was that instead of the respondent being brought as quickly as possible to have his breath tested there was a delay of 7 minutes beyond the accepted 20 minute period of observation. That delay of 7 minutes was not so unreasonable as to render the otherwise lawful detention of the defendant unlawful.

Reporter: L.O'S.




ROAD TRAFFIC ACT 1961 S50(6)(a)





DPP v FINN 2003 1 IR 372 2003 2 ILRM 47

PEOPLE v WALSH 1980 IR 294


DPP v MCNIECE 2003 2 IR 614 2003/19/4187


JUDGMENT of Murray C.J.delivered on the 22nd day of July 2008


This is an appeal by the D.P.P. by way of Case Stated pursuant to s. 2 of the Summary Jurisdiction Act 1857 as extended by s. 51 of the Courts (Supplemental Provisions) Act 1951 against a decision of the District Court to dismiss the prosecution brought by way of summons against the defendant in that Court for the offence of being in charge of a vehicle when the concentration of alcohol in his breath exceeded the statutory limit 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 as amended by the Road Traffic Act 1995.

Facts of the Case

The facts established by the evidence tendered on behalf of the prosecutor in the District Court are set out in the case stated. These facts are not in issue. They are set out in the following terms in the case stated:

"The accused first appeared in the District Court on 14 th June 2002. It was next listed for the 13 th January 2003. The case was ultimately heard on the 1 st September 2003.

Garda Cheryl Kelly gave evidence that at 2.30 a.m. on 4 th June 2002 she was on patrol with Garda Francis Gormley. As they drove down Burlington Road, Dublin 4 she observed a silver Mercedes convertible, registration 00D 56339, parked up on the footpath. As she drove by sheobserved the driver of the vehicle slumped over the wheel. On approaching the car she noticed that the engine was running. She gave evidence that having spoken to the driver, who gave his name as Robbie Fox, 12 Eagle Valley, Powerscourt, Co. Wicklow, she got a strong smell of intoxicating liquor and his speech was slurred. At 2.35 a.m. Garda Kelly arrested the accused for an offence under s. 50(1), (2), ( 3) or (4) of the Road Traffic Act 1961/ 1994. She explained to the accused in simple English that she was arresting him for being drunk in charge. The accused was cautioned and conveyed to Pearse Street Garda Station arriving there at 2.40 a.m. He was introduced to the member in charge, Garda McTague, and the custody record was completed and the accused was handed a copy of form C72. In the presence of Garda Kelly, Garda McTague explained the accused's rights to him and the accused acknowledged receipt of form C72 by signing for it. Garda Kelly introduced the accused to Garda Hardiman at 2.50 a.m. and accompanied them to the breath analysis testing room at 3.15 a.m. Garda Kelly was present when the accused provided two samples of his breath to Garda Hardiman. At 3.35 a.m. he returned to the foyer with the accused who was put into a cell. At 4 a.m. the accused was brought back to the foyer area. At 4.45 a.m. the accused was charged by Sgt. Finbar Murphy in Garda Kelly's presence.

Garda Ger Hardiman gave evidence that at 2.50 a.m. he was introduced to the accused by Garda Kelly as a person having been arrested under s. 50(10) of the Road Traffic Act 1994. He formed the opinion that the accused had been drinking as there was a smell of alcohol from him and he was slurring his words. He then gave evidence he had been trained in the use of the Lion Intoxilyzer and provided with a manual and that it was necessary to observe the accused for a period of 20 minutes as per the recommendations in order to ensure that the accused took nil by mouth and he said he did so observe the accused who took nil by mouth. He gave evidence that at 3.17 a.m. he brought the accused to the doctor's room accompanied by Garda Kelly and made the lawful requirement of the accused to provide two specimens of breath. The accused indicated that heunderstood. Garda Hardiman then gave evidence in relation to the intoxiliser procedure performed on the accused at Pearse Street Garda Station and gave evidence that the result was 66 microgrammes per 100 millilitres of breath. The two samples were taken at 3.24 a.m. and 3.26 a.m. respectively.

Under cross examination Garda Hardiman conceded that he had actually detained the accused for observation for a period of 27 minutes and gave no evidence as to why he observed him for 27 rather than 20 minutes."

The Issue in the District Court

At the conclusion of the prosecution evidence Counsel for the defendant submitted that the defendant had been observed by Garda Hardiman for a period of 27 minutes and that neither Garda Kelly nor Garda Hardiman offered in evidence any explanation as to why the accused was observed for a period longer than the period of 20 minutes which is the minimum period which must be allowed to pass in order to ensure that a reliable breath test can be taken.


The reason for this 20 minute period was explained in evidence by Garda Hardiman. It was accepted on behalf of the defendant that the detention during the period of 20 minutes was a lawful one. However it was submitted that the additional period of 7 minutes which the defendant had to wait before the breath sample was taken had not been justified by any explanation or excuse as a result of which his detention at the time when his breath sample was taken must be considered to be unlawful.


On this basis, it was submitted, the specimen of breath and the results that flowed from that sample were inadmissible in evidence. On behalf of the prosecutor it is submitted that the period of observation extending beyond the 20 minutes could only serve to the benefit of the accused and was not to his prejudice but, according to the case stated, no explanation as to what benefit would accrue was given. The prosecution also submitted if it were, for example, the case that there was a queue for a number of people waiting to be breathalysed by the intoxilyzer or, if it were a situation where a blood sample was to be given, a period of detention may extend well beyond the established period of 20 minutes. There was no evidence concerning the reason for the 7 minute delay.


The Judge of the District Court concluded that she would have no difficulty accepting that there could be an explanation justifying a periodof detention outside the 20 minutes but in this case there was no evidence explaining the further delay. Although the period of 20 minutes had been justified, in the absence of a justification for the further 7 minutes, the District Court Judge concluded that the detention at the time when the breath sample was taken was unlawful and ruled the evidence of the results of same inadmissible. Accordingly the summons was dismissed.


The prosecutor being dissatisfied with the determination of the District Court in this case the District Court Judge stated a case, by way of appeal, on the following question:

"Was I correct in law in dismissing the charge by reason of the fact the accused had been deliberately detained by the Gardai for observation for a period of 27 minutes and as no evidence was given to explain or justify the 27 minute period of observation during the detention the detention was unlawful, the evidence relating to the intoxilyzer inadmissible."


The appeal by way of case stated was heard by the High Court and in an ex tempore judgment the High Court answered the question posed in the affirmative. It is from that decision that the appellant has appealed to this Court.


First of all I think certain basic parameters concerning this case...

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