DPP (Tormley) v Gillespie

• Jurisdiction: Ireland
• Judge: Mr. Justice Hedigan
• Judgment Date: 09 June 2011
• Neutral Citation: [2011] IEHC 236
• Court: High Court
• Date: 09 June 2011

[2011] IEHC 236

THE HIGH COURT

[No. 2365 SS/2010]

DPP (Garda Tormley) v Gillespie

IN THE MATTER OF SECTION 52 OF THE COURTS (SUPPLEMENTAL PROVISIONS) ACT, 1961

IN THE MATTER OF A CONSULTATIVE CASE STATED BY JUDGE GEOFFREY BROWNE A JUDGE OF THE DISTRICT COURT

BETWEEN

THE DIRECTOR OF PUBLIC PROSECUTIONS (AT THE SUIT OF GARDA GEARLDINE TORMLEY)

PROSECUTOR

V.

COLIN GILLESPIE

ACCUSED

1 Judgment of Mr. Justice Hedigan delivered the 9th day of June 2011

2 1. This case stated arises from proceedings dated the 17 ^th June, 2010, wherein Judge Geoffrey Browne, a Judge of the District Court assigned to District No.4 sitting at the District Court in Boyle, Co Roscommon, sought the opinion of the High Court on the following the questions;

3 (a) In circumstances where it has been established that a Prisoner was on a phone call at the time when he was being given information in accordance with Regulation 8(1) of the Criminal Justice Act 1984 (Treatment of Persons in Custody in Garda Síochána Stations) Regulations 1987, is this a breach of the said Regulations?

4 (b) If the answer to the aforesaid question is yes, can I exercise my discretion to exclude evidence contained in the section 17 certificate?

5 2 2.1 This case stated arises from proceedings dated the 17 ^th June, 2010, which took place at the District Court in Boyle, Co Roscommon. The proceedings involved a charge that on the 21 ^st February, 2010, the accused Colin Gillispie drove motor vehicle registration number 07-DL-4954 while intoxicated contrary to section 49(4) and (6) of the Road Traffic Act, 1961. At the hearing of this matter Garda Tormey gave evidence that on the 21 ^st of February, 2010, she observed motor vehicle 07-DL-4954 being driven in an erratic manner at Great Meadow, Boyle, Co Roscommon. On approaching the vehicle she got a strong smell of liquor from the driver and she formed the opinion that he was incapable of maintaining control of the vehicle. She arrested the accused pursuant to s.49 (8) of the Road Traffic Act 1961. The accused was brought to the Garda station and was processed by the member in charge Garda Pauline Doherty, in accordance with the Criminal Justice Act 1984 (Treatment of Persons in Custody Garda Síochána Stations) Regulations 1987 (hereinafter "the 1987 Regulations"). Garda Declan Conway then introduced himself to the accused and administered the intoxilyzer test which gave a reading of 106 microgrammes of alcohol per 100 millilitres of breath. Garda Tormey charged the accused who stated "no problem, I told ya, I knew I was drunk".

6 3 2.2 Counsel on behalf of the accused, cross examined Garda Tormey. It was put to Garda Tormey that the accused would be in a position to establish in evidence that he was in continuous use of his mobile phone at the time and that he had made eleven phone calls between the time of his arrest and his release. Garda Tormey stated that she was not in a position to give an explanation in relation to the accused's use of his mobile phone. Counsel then put this matter to Garda Conway who responded that he did not see the accused physically take out a mobile phone during the course of his dealings with the accused. Garda Conway was asked if he would be in a position to contradict the accused's evidence that he made a total of eleven phone calls while in custody, including the time when he was being processed by the member in charge. Garda Conway said that he would not be in a position to contradict this but that he did not see the accused physically handling a mobile phone. The member in charge, Garda Doherty gave evidence that the accused was given information in accordance with Regulation 8(1) of the 1987 regulations at 4.41 p.m. and was handed the notice of rights at 4.42 p.m. Counsel put it to Garda Doherty that the accused was on a mobile call during the time he was read his notice of rights in accordance with the 1987 Regulations. Garda Doherty stated that she was not in a position to comment on this and said her only recollection was that the accused did use his mobile phone to contact his brother while in custody.

7 4 2.3 At the close of the prosecution's case, Counsel for the accused applied for a Direction from Judge Browne. Counsel relied on three separate grounds; the final ground forms the basis of this Consultative Case Stated. Counsel stated that there was clear non compliance by Garda Doherty, as member in charge, with the provisions of the 1987 Regulations. Counsel called the accused who gave evidence that he made eleven phone calls between 4.20p.m. and 5.14 p.m. Specifically, the accused gave evidence that he did not receive the oral information purportedly read to him by Garda Doherty as he was in the course of a telephone conversation at the time. Phone records confirmed that at 4.39 p.m. the accused was on his mobile for a period of 2 minutes and 35 seconds. Following this evidence Counsel for the accused submitted that there was now clear and un-contradicted evidence that the accused was on a mobile phone at the time that Garda Doherty purportedly read the accused his notice of rights at 4.41 p.m. Counsel submitted that the 1987 Regulations required that certain information be given orally to a prisoner in a meaningful way, and the 1987 Regulations had not been complied with if the member in charge had simply read over the document whilst the accused was on a mobile phone. Counsel argued that because the 1987 Regulations had not been complied with, the Judge should exercise his discretion to exclude the evidence contained in the section 17 intoxilyser certificate.

8 5 2.4 Judge Browne accepted the evidence that the accused had been on a mobile phone at the time his rights were being read to him by Garda Doherty. The Judge then enquired whether this was fatal to the prosecution. Superintendent Sutton for the prosecution stated that there were no regulations prohibiting the use of a phone while persons in custody were being processed. Counsel for the accused maintained there was no meaningful compliance with the provisions of the 1987 Regulations. Judge Browne reserved his decision on the matter pending the determination of the Consultative Case Stated.

Submissions on behalf of the Accused

9 2 3.1 Counsel on behalf of the accused submits that the obligation to inform a person who is arrested of his entitlement to consult a lawyer underpins the protection and vindication of a number of fundamental constitutional and legal rights. This obligation is contained in Article 8(1) of the Criminal Justice Act 1984 (Treatment of Persons in Custody in Garda Síochána Stations) Regulations 1987, which provides as follows:-

10 2 "8(1) The member in charge shall without delay inform an arrested person or cause him to be informed;

11 (a) in the ordinary language of the offence or other matter in respect of which he has been arrested,

12 (b) that he is entitled to consult a solicitor

13 (c) …

14 The information shall be given orally. The member in charge shall also explain or cause to be explained to the arrested person that, if he does not wish to exercise a right specified in subparagraph (b) or (c) (i) immediately, he will not be precluded thereby from doing so later.

15 (2) The member in charge shall without delay give the arrested person or cause him to be given a notice containing the information specified in subparagraph (b) or (c) of paragraph (1) …"

16 Counsel submits that the District Judge is required to consider whether there has been a meaningful communication to the accused, of his rights under the 1987 Regulations. Mere recital of the words in the physical presence of an arrested person may not amount to meaningful communication in circumstances where that person is engaged in a telephone conversation. The obligation to inform is one of substance and not simply a question of form this is clear from the "to explain or cause to be explained" in the regulations. There is also a requirement to use ordinary language to ensure communication is effective. It is open to the District Judge to consider whether the obligation was substantively complied with and if not to then consider the consequences of that failure.

17 3 3.2 The consequences of a breach of the regulations has been the subject of a number of decisions commencing with the decision of Blayney J. in Walsh v. District Judge O'Buachalla [1991] 1 IR 56, in which an applicant sought to have his conviction for drunk driving quashed in reliance on evidence that just before the relevant specimen was taken in the station, he asked to see a solicitor but compliance with his request was deferred until after the specimen had been taken. He had been given notice of his right to consult a solicitor and make a phone call some forty minutes before the arrival of the Doctor but chose not to avail of his right. Blayney J. held as follows at 60:-

"It was submitted on behalf of the applicant that if he had access to a solicitor he could have been advised by him. But what advise could a solicitor have given him? He would certainly not have advised him to commit an offence by refusing to give one or other of the specimens. All he could have done was to confirm that the applicant was required by law to provide a specimen of blood or urine. No advice could have prevented the specimen being obtained, and, accordingly, the applicant's not having had access to a solicitor in no way affected it's being obtained."

18 4 3.3 The effect of a breach of custody regulations in the context of a drunk driving case was again explored in the case of DPP v Spratt [1995] 1IR 585. In that case, the accused argued that because there was no evidence of any kind that he had been informed of his rights in accordance with the 1987 Regulations, that the evidence contained in a certificate from...