DPP v Brehon

• Jurisdiction: Ireland
• Judge: Ms. Justice Murphy
• Judgment Date: 08 February 2019
• Neutral Citation: [2019] IEHC 63
• Docket Number: [2018 No. 736SS]
• Court: High Court
• Date: 08 February 2019

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

BETWEEN

DIRECTOR OF PUBLIC PROSECUTIONS

Prosecutor

AND

ANTOIN BREHON

Accused

[2019] IEHC 63

Murphy Deirdre J.

[2018 No. 736SS]

THE HIGH COURT

CONSULTATIVE CASE STATED

Case stated – Detention – Delay – District Judge seeking the opinion of the High Court relating to the lawfulness of the detention of the accused – Whether the accused was in lawful detention at the time he was required to produce a specimen of urine

Facts: The District Judge, by way of case stated pursuant to the provisions of s. 52 of the Courts (Supplemental Provisions) Act 1961, sought the opinion of the High Court relating to the lawfulness of the detention of the accused, Mr Brehon, at the time he provided a urine specimen in Westport Garda Station on 27th September, 2015. The question to be answered was: in the circumstances of this case, was the accused in lawful detention at the time he was required to produce a specimen of urine? The District Judge was concerned about the absence of objective justification for the delay involved which resulted in the deprivation of the accused’s liberty for a period in excess of two hours. This was especially so, where it was acknowledged that the Garda failed to pursue alternatives which were available.

Held by the Court that the detention of the accused was lawful at the time the sample was given. The Court noted that the accused was detained in accordance with law for the sole purpose of being required to provide a sample and his detention was in compliance with the principle set out in Dunne v Clinton [1930] IR 366, as restated in The People v Walsh [1980] IR 294 and as further endorsed in DPP v Finn [2003] IR 372; the process for the taking of the sample was commenced immediately following his being taken into custody in Westport Garda Station and he was at no point detained for an ulterior, impermissible purpose, nor was the initiation of the process of obtaining a sample delayed for an unjustified period. The Court held that the delay in the arrival of the doctor must be measured against the standard of ‘reasonableness’. The Court noted that the delay had been explained as being due to the fact that the doctor on call was attending an emergency at the time he received the call. The Court noted that further inquiry was made by the arresting garda at 1.05 p.m. and an assurance received that the doctor would be in attendance between 1.10 p.m. and 1.15 p.m.; in fact he did not arrive until 1.30 p.m. Thus on the evidence the delay had been explained and the Court considered in all the circumstances of the case that the delay was reasonable.

The Court held that it would answer the question in the affirmative.

Case stated.

JUDGMENT of Ms. Justice Murphy delivered on the 8th day of February. 2019

1 This matter comes before the High Court by way of case stated by District Judge Mary Devins pursuant to the provisions of s. 52 of the Courts (Supplemental Provisions) Act 1961. The question upon which the District Judge seeks the opinion of the court relates to the lawfulness of the detention of the accused at the time he provided a urine specimen in Westport Garda Station on 27th September, 2015. Following discussion with counsel the question to be answered was reformulated to reflect the actual issue of concern to the District Judge which was the lawfulness of the detention of the accused in the particular circumstances of this case. The question to be answered is;

In the circumstances of this case, was the accused in lawful detention at the time he was required to produce a specimen of urine?

The facts and the evidence before the District Judge are agreed.

2 The accused is charged before Westport District Court with an offence of drunken driving. It is alleged that on 27th September, 2015 at Mill Street, Westport, Mayo, he did drive a mechanically propelled vehicle while there was present in his body a quantity of alcohol such that, within three hours after so driving, the concentration of alcohol in his urine exceeded the legal limit. The events giving rise to that prosecution are set out below.

3 On Sunday morning, 27th September, 2015 Garda Darren Conlon of Westport Garda Station received information that there was a suspected drunk driver in the area of the Texaco garage at Sheenaune on the Castlebar Road, outside Westport. On arrival at the Texaco garage, Garda Conlon observed the accused's vehicle pulling out of the garage and continuing in the direction of Westport. Garda Conlon followed the vehicle and at 11.25 a.m. having observed his driving he pulled the accused's car over at the Mill Times Hotel. After speaking to and observing the accused, Garda Conlon formed the view that he was under the influence of an intoxicant to such an extent as to be incapable of having proper control of a mechanically propelled vehicle in a public place. At approximately 11.30 a.m. Garda Conlon made a requirement under s. 9 of the Road Traffic Act 2010 for a preliminary breath specimen. The alcometer registered a reading of “fail” and Garda Conlon at 11.31 a.m. arrested the accused for drunk driving under s. 4(8) of the Road Traffic Act. The accused was brought to Westport Garda Station, arriving there at 11.35 a.m. The accused was introduced to the member in charge who entered his details into the custody record and handed him a copy of his notice of rights. She also explained to the accused that he had been arrested for drunk driving. At 11.38 a.m. Garda Conlon contacted Westdoc and requested the attendance of a doctor to process the prisoner for drunk driving. Seven minutes later at 11.45 a.m. Westdoc contacted the station and notified them that the doctor was tending to an emergency call and would be at the station as soon as possible. At 11.48 a.m. the accused acknowledged receipt of his rights. At 11.50 a.m. the accused was searched with his consent.

4 Once Garda Conlon had concluded processing the accused, the accused remained seated in the public office. At 1.05 p.m., an hour and twenty minutes after Westdoc had been in contact with the station, Garda Conlon contacted Westdoc again and was told that the doctor would be at the station at approximately 1.10 p.m. - 1.15 p.m. The doctor, Dr. Brian Lennon, eventually arrived at Westport Garda Station at 1.30 p.m. Garda Conlon having introduced Dr. Lennon to the accused as the designated doctor, and having complied with the relevant statutory provisions, required the accused to give either a specimen of his blood or a specimen of his urine pursuant to s. 12(1)(b) of the Act. At 1.32 p.m. the accused opted for a urine specimen and the doctor took the sample at 1.35 p.m. At the time the specimen was supplied the accused had been in the garda station for precisely two hours. Immediately thereafter the accused was released without charge pending the results of the analysis of his specimen.

5 Having processed the specimen, on 7th October, 2015 Garda Conlon received a s. 15 certificate from the Medical Bureau of Road Safety which noted a concentration of alcohol in the urine of 155/100ml. This level of concentration is more than twice the legal limit. The accused was subsequently charged with the offence of drunken driving and came before Judge Devins in the District Court on 7th April, 2016.

District Court hearing

6 At the hearing, the accused's solicitor, Ms. McDarby, challenged the lawfulness of the detention of the accused in the garda station. Garda Conlon was invited to justify the reasons for the delay in the arrival of the doctor. Garda Conlon was not in a position to state precisely why the doctor had taken the length of time that he did to arrive, other than to indicate that he had been informed that the doctor was dealing with a medical emergency. Garda Conlon was cross-examined as to why no interim contact was made with Westdoc service between 11.45 a.m. and 1.05 p.m., given that the gardaí were notified that there might be a delay. Garda Conlon responded that he consciously did not contact Westdoc as he did not want to cause any upset or aggravation to the doctor and that he did not want to interfere with the care being provided. Garda Conlon accepted that if he had called Westdoc he would have spoken to a triage nurse and not the doctor himself. The system apparently is that the call for service goes to a central location and it is the person at that location who dispatches the doctor. Garda Conlon was further cross-examined as to whether – given the delay – he had contacted other medical practitioners who might have been able to take evidential specimens as an alternative to Westdoc. Garda Conlon stated that he had not done so but accepted that there were other practitioners available to the gardaí. He agreed that he had not sought to contact any other medical practitioner and accepted that alternatives would have been available in Castlebar, which is approximately fifteen minutes away from Westport. Garda Conlon gave evidence that the instruction and procedure for summoning doctors out of hours, was through Westdoc and that that was the arrangement in place in the station. Garda Conlon suggested that it could have proven difficult to get a doctor outside of Westdoc, but he accepted that no efforts were made in that regard. Garda Conlon was also cross-examined about the possibility of transporting the accused to Castlebar Garda Station where an evidential breath test was available. Garda Conlon stated that he had not considered that as he was expecting the doctor to arrive in Westport. Garda Conlon stated that he had been told that the doctor would arrive as soon as possible. Questioned by Ms. McDarby as to whether he could offer any explanation as to why there was such a delay for the accused awaiting the arrival of the doctor, Garda Conlon did not respond.

7 At the conclusion of the prosecution...