DPP (Garda Hegarty) v Gregory
| Jurisdiction | Ireland |
| Judge | Mr Justice Max Barrett |
| Judgment Date | 13 November 2015 |
| Neutral Citation | [2015] IEHC 706 |
| Court | High Court |
| Date | 13 November 2015 |
BETWEEN:
- AND -
[2015] IEHC 706
THE HIGH COURT
Crime & Sentencing – Practice & Procedures – S. 52 of the Courts (Supplemental Provisions) Act 1961 – Road Traffic Act 2010 as amended by the Road Traffic Act 2011 – S. 18(a) of the Interpretation Act 2005
Facts: The District Judge sought answers to the two questions by way of case states pursuant tos. 52 of the Courts (Supplemental Provisions) Act 1961: first, whether a written authorization issued under s. 10 of the Road Traffic Act 2010 as amended by s. 9 of the Road Traffic Act, 2011 to establish a checkpoint but which established multiple checkpoints at multiple locations over a 7-day period was a valid authorisation; and second, whether there was a requirement to specify a location under s. 10 (3) of the said Act of 2010 with more specificity than merely saying, for instance, ‘the Putland Road’ while issuing an authorisation under the said section.
Mr. Justice Max Barrett held that a written authorization issued under s. 10 of the said Act of 2010 as amended by s. 9 of the said Act of 2011 to establish a checkpoint but which established multiple checkpoints at multiple locations over a 7-day period was a valid authorisation. The Court, however, held that the answer to the second question would depend upon the interpretation of the term ‘place’ by the District Judge. The Court observed that by applying s. 18 (a) of the Interpretation Act 2005 that a word importing singular should be read as importing plural and vice versa, the terms in the aforesaid s. 10 (3) could be read in plural. The Court held that the rule of the strict interpretation of the penal statute would not apply to the road traffic legislation.
JUDGMENT of Mr Justice Max Barrett delivered on 13th November, 2015
1. This case comes before the court by way of case stated pursuant to the provisions of s.52 of the Courts (Supplemental Provisions) Act 1961 by Judge David Kennedy, sitting at the District Court of Bray. The issues he raises are concerned with the lawful operation by the Gardaí of 'drunk driving' check-points.
2. At a sitting of the District Court held at Bray on 24 th July, 2014, Mr Gregory was presented before Judge Kennedy to answer the charges set out on charge sheet number 14625769 which alleged the following offence:
"On the 27/03/2014 at Putland Road Bray Wicklow a public place in the said District Court Area of Bray, while being a specified person as defined in section 3 of the Road Traffic Act 2010 as amended by section 9 of the Road Traffic (No. 2) Act 2011, did drive a mechanically propelled vehicle registration number [*]… while there was present in your body a quantity of alcohol such that, within 3 hours after so driving, the concentration of alcohol in your breath did exceed a concentration of 9 microgrammes of alcohol per 100 millilitres of breath"
Contrary to section 4(4)(b) & (5) of the Road Traffic Act 2010"
3. The matter proceeded to hearing on the 24 th July, 2014, 6 th and 13 th October, 2014. At hearing, the following facts were admitted or agreed, and so found by Judge Kennedy:
a "(a) Garda Teresa Hegarty is a member of An Garda Síochána and on the 27 th March 2014 conducted an authorised mandatory checkpoint at Putland Road, Bray, County Wicklow on foot of an authorisation issued by Inspector Thomas Finnerty on the 23 rd February 2014 pursuant to section 10 of the Road Traffic Act, 2010, as amended by section 9 of the Road Traffic Act (No. 2) Act, 2011.
(b) The Authorisation (hereinafter referred to as 'M.A.T.') was adduced before me in evidence and was entitled 'Mandatory Alcohol Testing - section 10 of the Road Traffic Act, 2010 as amended by section 9 of the Road Traffic Act (No. 2) Act, 2011 (Authorisation to establish a Checkpoint or Checkpoints)' and purports to authorise checkpoints from Monday 24 th March 2014 to Sunday 30 th March 2014 at 14 different locations at specified 45 minute intervals through that 7 day period specified in the M.A.T. Amongst these locations purportedly authorised is Putland Road, Bray, County Wicklow on the 27 th March 2014 between 10.45pm and 11.30pm....
(c) Putland Road, Bray, County Wicklow is a public place.
(d) On that date and at that location at 11.05pm Garda Hegarty stopped a motor vehicle registration number [*]…driven by the defendant. Garda Hegarty informed the defendant that she was conducting an authorised mandatory alcohol checkpoint and made a demand to the defendant requiring the production of his driving licence. The defendant did not have his driving licence and as a result Garda Hegarty informed the defendant that she was requiring him to provide a specimen of his breath into the Drager Alcomoeter, which is designed to test for the presence of alcohol in breath. Garda Hegarty further informed the defendant of the penalties upon failure to provide such a specimen.
(e) The defendant provided a specimen and the Drager Alcometer registered as 'fail'. As a result of this Garda Hegarty formed an opinion that the defendant had consumed an intoxicant which rendered him incapable of driving a mechanically propelled vehicle in a public place.
(f) Garda Hegarty informed the defendant of her opinion and subsequently arrested the defendant at 11.10pm on Putland Road, Bray, County Wicklow pursuant to section 4(8) of the Road Traffic Act, 2010. Garda Hegarty explained to the defendant in simple language the reason for his arrest and cautioned him.
(g) The defendant was conveyed to Bray Garda Station arriving at 11.20pm, whereupon the defendant was introduced to the member in charge. Garda McLoughlin. Following a 20 minute observation of the defendant to ensure he had consumed, nil by mouth, the defendant provided two specimens of breath to Garda Gleeson indicating a concentration of 52 micrograms of alcohol per 100 millilitres of breath.
(h) Following evidence Mr O'Hara [the defendant's solicitor] made an application before me for the dismissal of the prosecution on the basis that the M.A.T. issued by Inspector Thomas Finnerty on the 23 rd February 2014 pursuant to section 10 of the Road Traffic Act, 2010 as amended by section 9 of the Road Traffic Act (No. 2) Act, 2011 purported to establish multiple authorisations over a period of 7 days at multiple locations and times and as such amounted to an impermissible delegation insofar as it contained multiple locations and times,covered a period of 7 days and listed roads that do not amount to a specific public place.
(i) Section 10(2) - (3) of the Road Traffic Act, 2010 as amended by section 9 of the Road Traffic Act (No. 2) Act, 2011 provides as follows:
2 "…( 2) A member of the Garda Síochána, not below the rank of inspector, may, for the purposes of section 4 authorise the establishment of a checkpoint or checkpoints in a public place or places at which members of the Garda Síochána may exercise the powers under subsection (4).
3 ( 3) An authorisation shall be in writing and shall specify -
a ( a) the date on which, and the public place in which, the checkpoint is to be established, and
b ( b) the hours at any time between which it may be operated."
4. Having regard to the above facts, Judge Kennedy raises the following issues by way of case stated:
i "i) Does a written authorisation purportedly issued under Section 10 of the Road Traffic Act 2010 as amended by Section 9 of the Road Traffic (No. 2) Act, 2011 to establish a checkpoint but which purportedly establishes multiple authorisations over a 7 day period at multiple locations in a particular area constitute a valid authorisation for the purposes of Section 10 of the Road Traffic Act 2010 as amended?
ii) When an authorisation issues under Section 10 of the Road Traffic Act 2010 as amended by Section 9 of the Road Traffic (No. 2) Act, 2011 to establish a checkpoint, is it a requirement for the said authorisation to specify a location...
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