DPP (Stratford) v Fagan

• Jurisdiction: Ireland
• Judgment Date: 12 February 1993
• Date: 12 February 1993
• Docket Number: [1992 No. 1208 S.S.]
• Court: High Court

High Court

[1992 No. 1208 S.S.]

Director of Public Prosecutions v. Fagan

The Director of Public Prosecutions (at the suit of Garda John W. Stratford) Complainant

and

Patrick Fagan

Defendant

Cases mentioned in this report:—

Director of Public Prosecutions v. Kenny [1990] 2 I.R. 110; [1990] I.L.R.M. 569.

Rice v. Connolly [1966] 2 Q.B. 414; [1966] 3 W.L.R 17; [1966] 2 All E.R. 649; 130 J.P. 322; 110 S.J. 371.

Steel v. Goacher [1983] R.T.R. 98; (1983) J.P. 83; [1982] Crim. L.R. 689.

Criminal law - Garda Síochána - Powers - Road block - Vehicle stopped by garda - No suspicion of involvement in criminal office - Whether driver unlawfully detained - Road Traffic Act, 1961 (No. 24), s. 109, sub-s. 1 - Road Traffic (Amendment) Act, 1978 (No. 19), s. 10.

Case Stated.

The facts are set out in the judgment of Carney J., post.

On the 14th May, 1992, the defendant was convicted in the District Court of driving a mechanically propelled vehicle in a public place while there was present in his body a quantity of alcohol such that, within three hours after so driving, there was a concentration of alcohol in his blood in excess of a specified concentration contrary to s. 49, sub-s. 2 of the Road Traffic Act, 1961, as amended by s. 10 of the Road Traffic (Amendment) Act, 1978.

On the application of counsel on behalf of the defendant, Judge Roche, a judge of the District Court, stated a case for the opinion of the High Court pursuant to s. 52, sub-s. 1 of the Courts (Supplemental Provisions) Act, 1961. The questions for the determination of the High Court were:—

"1. Is a garda who has no suspicion in relation to any offence entitled to stop the defendant?

2. If the answer to the above is in the affirmative is the evidence obtained admissible at a subsequent trial?"

The case stated was signed by Judge Roche on the 15th December, 1992, and came on for hearing before the High Court (Carney J.) on the 29th January, 1993.

Section 109, sub-s. 1 of the Road Traffic Act, 1961, as amended by the schedule to the Road Traffic Act, 1968, provides:—

"A person driving a vehicle in a public place shall stop the vehicle on being so required by a member of the Garda Síochána and shall keep it stationary for such period as is reasonably necessary in order to enable such member to discharge his duties."

A member of an Garda Síochána has both an implied statutory power under s. 109, sub-s. 1 of the Road Traffic Act, 1961, and a power at common law to operate random road traffic checks involving the stopping of vehicles in circumstances where such garda does not suspect the drivers of the vehicles so detained of any criminal offence.

So held by Carney J.

Steel v. Goacher [1983] R.T.R. 98 considered.

Cur. adv. vult.

Carney J.

This is a case stated by Judge Maura Roche of the District Court for the determination of a question of law pursuant to the provisions of s. 52, sub-s. 1 of the Courts (Supplemental Provisions) Act, 1961.

The case stated arises from a drunken driving prosecution and the following factual matters in the case stated are material to what I have to determine:—

• (1) Garda John Stratford, a member of An Garda Síochána stationed at Store Street garda station, gave evidence that on the morning of the 14th November, 1991, at about 12.30 a.m. he was on...