DPP (prosecutor/appellant) v McCrea

• Jurisdiction: Ireland
• Judge: Mr. Justice Hardiman
• Judgment Date: 09 December 2010
• Neutral Citation: [2010] IESC 60
• Court: Supreme Court
• Date: 09 December 2010

[2010] IESC 60

THE SUPREME COURT

Murray C.J.

Hardiman J.

Fennelly J.

Macken J.

Finnegan J.

82/09

DPP (Lavelle) v McCrea

IN THE MATTER OF SECTION 2 OF THE SUMMARY JURISDICTION ACT, 1857, AS EXTENDED BY SECTION 51 OF THE COURTS (SUPPLEMENTAL PROVISIONS) ACT, 1961

Between:

THE DIRECTOR OF PUBLIC PROSECUTIONS AT THE SUIT OF GARDA BRIAN LAVELLE

Prosecutor/Appellant

and

PAUL McCREA

Defendant/Respondent

SUMMARY JURISDICTION ACT 1857 S2

COURTS (SUPPLEMENTAL PROVISIONS) ACT 1961 S51

ROAD TRAFFIC ACT 1961 S49(8)

ROAD TRAFFIC ACT 1994 S13(1)(A)

ROAD TRAFFIC ACT 1994 S13(2)

ROAD TRAFFIC ACT 2002 S23

WALSH v O BUACHALLA 1991 1 IR 56

ROAD TRAFFIC ACT 1964 S49

ROAD TRAFFIC ACT 1994 S13

CRIMINAL JUSTICE ACT 1984 (TREATMENT OF PERSONS IN CUSTODY IN GARDA SIOCHANA STATIONS) REGS SI 119/1987 S8(1)A

CRIMINAL JUSTICE ACT 1984 (TREATMENT OF PERSONS IN CUSTODY IN GARDA SIOCHANA STATIONS) REGS SI 119/1987 S8(1)B

CRIMINAL JUSTICE ACT 1984 (TREATMENT OF PERSONS IN CUSTODY IN GARDA SIOCHANA STATIONS) REGS SI 119/1987 S11(1)

DPP v BUCK 2002 2 IR 268

DPP v MADDEN 1977 IR 336

DPP v KENNY 1990 2 IR 110

ROAD TRAFFIC ACT 1961 S51

Abstract:

Criminal law - Case stated - Appeal - Right of access to Solicitor - Refusal to provide breath specimen - Road Traffic Act, 1994, s. 13 - Summary Jurisdiction Act, 1857 as amended by Courts (Supplemental Provisions) Act, 1961 - Whether the learned District Judge was entitled to find, as she did, that the respondent had been deprived of his right of reasonable access to a solicitor and that breach of that right prejudiced him.

Facts The prosecutor brought an appeal from the judgment of the High Court on a Case stated by way of appeal from the judgment of the District Court (District Judge Watkin) wherein the Judge dismissed the charge brought against the respondent. The respondent had been charged with failing to provide forthwith two specimens of his breath contrary to s. 13 of the Road Traffic Act 1994 as amended. That charge was dismissed in the District Court on the grounds that the respondent had been denied a right of reasonable access to a solicitor and that the refusal by the respondent to provide two breath specimens may have occurred as a consequence of the breach of that right. The facts established that the respondent was arrested and detained and was given his notice of rights and the form C72 was read out to him. Immediately subsequent to the making of the requirement to provide two breath specimens, the respondent requested to speak to his solicitor. That request was refused by the intoxilyser Garda on the mistaken belief that if the s. 13 procedure was aborted midway through she would be precluded from making any further requests under s. 13(1)(A).

Held by Supreme Court; Hardiman J.: (Murray CJ, Fennelly, Macken, Finnegan JJ) in dismissing the appeal: That the right of a person in custody to consult with a solicitor was a right of a constitutional nature. In this case the respondent was informed by the gardai not only of his right to consult a solicitor when he arrived in the Garda Station, but of his right to do so at any time while he was in custody there, on the basis of a statutory regulation. This case could be determined having regard to its own particular facts and the failure to observe the regulatory procedure. Having considered the grounds of the learned District Judge's decision, it was open to her, on the specific facts she found in this case, to dismiss the charge.

Reporter: L.O'S.

1 JUDGMENT of Mr. Justice Hardiman delivered the 9th day of December, 2010.

2 Judgment delivered by Hardiman J. [nem diss]

3 This is an appeal by the prosecutor, the Director of Public Prosecutions, from the judgment and order of the High Court (Edwards J.) delivered on the 28 ^th January, 2009, on a Case Stated by way of appeal from the judgment of the District Court (District Judge Watkin) whereby she dismissed the charge brought against the defendant, Mr. McCrea.

Background.

4 The charge against Mr. McCrea which was dismissed on the 23 ^rd January, 2008, was as follows:

"On the 09/06/2007 at Blanchardstown Garda Station in the said District, Court area of Dublin Metropolitan District, being a person arrested under s.49(8) of the Road Traffic Act 1961, having been required by Garda Gillian Synnott, a member of An Garda Síochána, at Blanchardstown Garda Station, pursuant to s.13(1)(A) of the Road Traffic Act, 1994 to provide two specimens of your breath, did REFUSE to comply forthwith with the said requirement.

Contrary to s.13(2) of the Road Traffic Act, 1994 as amended by s.23 of the Road Traffic Act, 2002."

5 At the trial at the District Court both parties were professionally represented.

The nub of the case.

6 As appears from the charge set out above, the substance of the charge against the defendant was that he refused forthwith to provide breath specimens in the garda station. These specimens, which are inputted into a special analysis machine, are known as evidential breath specimens and may be accepted by a court as evidence of driving with excess alcohol. It was essential to the making of a valid demand to produce these specimens that the defendant, the person on whom the demand was made, should, at the time the demand was made, have been a person who had been arrested pursuant to the relevant power and brought to a garda station. There are other requirements as well but, except as set out below, they are not relevant here.

7 In the case as it developed before District Judge Watkin, there was evidence of an arrest and evidence that the defendant was brought, in custody, to the garda station. This happened at 2.18am on the 9 ^th June, 2007. According to the Case Stated by the learned District Judge what happened next was as follows:

"At 2.21am the accused was given his Notice of Rights and Form C72 was read over and explained to him by Garda William Murray, attached to Blanchardstown Garda Station. The accused refused to sign for his Notice of Rights. Garda Lavelle testified that the accused had not requested to speak to a solicitor at this stage despite the fact that it was put to the garda that the evidence of the accused would be that he had made such a request at that stage."

8 It appears that there was then some delay because there was no garda in the station trained to operate the intoxilyser machine. Eventually a Garda Synnott, who had been so trained arrived and was introduced to the accused at 2.50am. According to the Case Stated:

"She noted the temperature and humidity levels in the intoxilyser room were within required perimeters. Garda Synnott entered her details into the intoxilyser machine and made a requirement of the accused under s.13(1)(A) of the Road Traffic Act, 1994 at 2.54am. Garda Synnott explained to the accused the penalties for refusing to give a sample of his breath as required under s.13(1)(A). Garda Synnott stated that the accused replied that he wanted to speak to a solicitor. Garda Synnott stated that she informed the accused that he could speak to a solicitor as soon as he had complied with her requirement. Garda Synnott testified that she reminded the accused that he was obliged by law to provide a sample of his breath and that he would be able to talk to his solicitor afterwards. Garda Synnott testified that she explained to the accused in ordinary language that he was required to provide a breath sample under the law and that his solicitor would tell him the same thing…

Under cross-examination and in response to questions from me, Garda Synnott explained that the reason she did not accede to the request of the accused for access to a solicitor was that she believed she could only make one request pursuant to s.13(1)(A) of the Road Traffic Act, 1994, and that if she aborted the process midway through in order to provide the accused with an opportunity to speak to his solicitor, she would be precluded from making any further request under s.13(1)(A)."

9 The Case Stated then recorded that the defendant's lawyer "sought a direction on the basis that the accused had been denied a right of reasonable access to a solicitor and that this had, in consequences, produced the evidence relied on by the State in prosecuting the case".

10 At para. 17 of the Case Stated the learned District Judge recorded a concession by the representative of the State that Garda Synnott had been in error in the view she had acted on and that there was nothing to suggest that a garda could only make a request of a suspect on one occasion. Both in the District Court, and on the hearing of this appeal, it was the position of the State, and of the respondent, that Garda Synnott had indeed been in error in this regard and that it would have been open to her to make a further requirement for a specimen of breath after the interval required to permit the defendant to consult (presumably telephonically) with his solicitor.

District Court decision.

11 The learned trial judge recorded her decision at paras. 20 - 24 of the Case Stated as follows:

12 2 "20. I found that a request to provide a breath sample had been made of the accused and that he had made an immediate request to consult a solicitor. I found that Sgt. Synnott declined this request due to a mistaken belief that she would not be legally entitled to make another request of the accused if she broke the intoxilyser machine's cycle in order to allow him to consult with a solicitor.

13 21. I distinguished the Walsh v. Ó Buachalla decision on the basis that it concerned a charge brought under S.49 of the Road Traffic Act 1964, as amended, rather than a charge brought under S.13 of the Road Traffic Act 1994, as amended.

14 22. I noted that the Custody...