DPP v Bridget Moorehouse

• Jurisdiction: Ireland
• Judge: Mr Justice Cooke
• Judgment Date: 19 December 2008
• Neutral Citation: [2008] IEHC 419
• Docket Number: 213/04
• Court: High Court
• Date: 19 December 2008

IN THE MATTER OF SECTION 16 OF THE COURTS OF JUSTICE ACT 1947 AND

IN THE MATTER OF SECTION 13 OF THE ROAD TRAFFIC ACT 1994

Between:

The Director of Public Prosecutions

Complainant

AND

Brigid Moorehouse

Defendant

213/04

THE SUPREME COURT

Abstract:

Drunk driving - Section 13 of the Road Traffic Act, 1994 - Whether it was an offence to fail or refuse to comply with a requirement of a Garda to provide two specimens of breath in the manner indicated by that Garda - Whether it was sufficient compliance with s.13 of the 1994 Act to simply exhale into the apparatus?

Facts: The defendant was convicted in the District Court of failure to comply forthwith with a requirement of a member of An Garda Siochana to provide two specimens of breath, in the manner indicated by the said Garda contrary to section 13(2) of the 1994 Act, following her arrest for drunk driving. The defendant appealed her conviction to the Circuit Court and the matter came before this court by way of case stated. This Court was asked to determine firstly whether s. 13(2) of the 1994 made it an offence to refuse or fail to comply with a requirement of a Garda to provide two breath samples in the manner outlined by that Garda. If the answer to that question was no, then secondly, whether it was sufficient compliance with the provisions of s.13(1) to simply exhale into the apparatus designed for determining the concentration of alcohol in an arrested persons breath? In this case the defendant provided at least two specimens of breath by exhaling into the apparatus but those specimens were not sufficient to allow the apparatus to determine the quantity of alcohol, if any, in the specimen.

Held by (McCracken, Kearns JJ, Murray CJ dissenting) in answering the first question in the negative and second question in the affirmative:

1. That the charge in this particular case and the conviction recorded in respect thereof was one which was not provided for by s.13 of the 1994 Act and thus by virtue of the requirement to construe penal statutes strictly, the first question must be answered no.

2. That the specimen of breath provided must be such as to enable the concentration of alcohol in the breath to be measured. Therefore, merely exhaling into the apparatus is not sufficient compliance with the requirement under s.13 unless it enables the concentration of alcohol in the breath to be determined.

Reporter: L.O’S.

1 Judgment of Mr Justice McCracken delivered the 28th day of July

2 2005

3 I have had the opportunity of reading in draft the judgments of my colleagues Murray CJ and Kearns J in this matter. I agree with the reasoning and judgment of Kearns J and I would add a few remarks of my own.

4 The relevant portions of s.13(1) of the Road Traffic Act 1994 reads as follows:-

5 “Where a person is arrested under section 49(8) … of the Principal Act … and a member of the Garda Síochána is of opinion that the person has consumed an intoxicant, a member of the Garda Síochána may, at a Garda Síochána station, at his discretion, do either or both of the following:

• (a) require the person to provide, by exhaling into an apparatus for determining the concentration of alcohol in the breath, 2 specimens of his breath and may indicate the manner in which he is to comply with the requirement,

• (b) require the person either:-

  • (i) to permit a designated doctor to take from the person a specimen of his blood, or

  • (ii) at the option of the person, to provide for the designated doctor a specimen of his urine…”

6 Section 13(2), under which the Defendant is charged in the present case, reads:

7 “(2) … a person who refuses or fails to comply forthwith with a requirement under subsection (1)( a ) shall be guilty of an offence and shall be liable on summary conviction to a fine not exceeding £1,000 or to imprisonment for a term not exceeding 6 months or to both.”

8 In my view the meaning of these two sections is quite clear and unambiguous. Where a member of the Garda Síochána is of opinion that a person has consumed an intoxicant he may at his discretion require the person, as in this case, to exhale into an apparatus or he may require the person to give a specimen of blood or a specimen of urine. The offence provided for in subsection (2) is refusing or failing to comply forthwith with “a requirement under subsection (1)(a)”. The only requirement in subsection (1)(a) is to provide two specimens of breath. If the subsection had intended that the manner of compliance was also a requirement, it surely would have done so by some such wording as “and may require such person to exhale into the said apparatus in a manner indicated by such member”. In such circumstances, the person concerned would clearly be refusing or failing to comply with a requirement under the subsection if the person did not comply with the manner indicated by the member. The offence created is failure to comply with the “requirement”, and that is the only offence created.

9 This is to be contrasted with the provisions in s.12 of the Act, which relate to an apparatus for indicating the presence of alcohol in the breath rather than the concentration of alcohol in the breath. Subsection (1)(a) of that section also contains a provision that the member concerned “may indicate the manner in which he is to comply with the requirement”, and in subsection (2) there are two offences set out, firstly the failure to comply with the requirement under the section and secondly the failure to comply with a requirement in a manner indicated by a member of An Garda Síochána. There is no such distinction in the section under which the Defendant is charged in the present case.

10 Furthermore, in s.13 itself, if the person is required to provide a specimen of blood or a specimen of urine, under subsection (3) it is an offence either to refuse or fail to comply with the requirement, and there is a separate specific offence if the person refuses or fails to comply

11 with the requirement of a designated doctor in relation to the taking of a specimen of blood or urine. There are similar provisions in s.14(5) and s.15(2) of the Act. In all these cases the draftsman of the Act is very careful to distinguish between separate offences which may occur in relation to the same basic provision.

12 This is a penal statute, providing for a term of imprisonment in the event of the commission of an offence. In such circumstances, if an offence is to be created by the statute, that offence must be clearly specified and defined. It is not something to be implied from the wording of the statute. In the present case, the statute is quite clear that the offence is failure to comply with “a requirement”, and I can see no justification for any construction of the section which would extend the offence beyond that stated.

13 Account must also be taken of the purpose of the section which is to enable the garda concerned to determine the concentration of alcohol in the person’s breath. If the construction as put forward by the Complainant is accepted, then if the person concerned does supply the specimens of breath sufficient to determine the concentration of alcohol, but does so in some manner other than that indicated by the garda who makes the requirement, in the absence of some very specific provision I find it difficult to see how that could possibly be construed as an offence. Equally, if the member of the Garda Síochána indicated a manner of compliance with the requirement which was very difficult, surely the person cannot be penalised for giving the specimens of breath in some much simpler manner. I would therefore answer the first question in the case stated as “No”.

14 With regard to the second question, the purpose of the requirement is to enable the Gardaí to determine the concentration of alcohol in a person’s breath. This is the purpose for which the two specimens of breath are required. If a person exhales into the apparatus in a manner which does not allow the concentration of alcohol to be determined, presumably because not a sufficient quantity of the person’s breath enters the apparatus, then I do not think the person can be said to have provided the two specimens of breath. Indeed, it is presumably to prevent this occurring that the provision is included enabling the member concerned to indicate the manner in which the person is to comply with the requirement.

15 I would, therefore, answer the first question “No” and answer the second question “It is not sufficient compliance under the section unless the concentration of alcohol in the breath can be determined as a result of the person so exhaling”.

16 THE SUPREME COURT

17 Murray C.J.

18 McCracken J.

19 Kearns J.

20 213/04

21 In the matter of A CASE STATED

22 PURSUANT TO S. 16 OF THE COURTS OF JUSTICE ACT, 1947

23 BETWEEN

24 THE DIRECTOR OF PUBLIC PROSECUTIONS

25 COMPLAINANT

26 AND

27 BRIDGET MOOREHOUSE

28 DEFENDANT

29 JUDGMENT delivered the 28th day of July 2005, by Murray C.J.

30 This is a case stated by a Judge of the Circuit Court pursuant to s. 16 of the Courts of Justice Act, 1947 in which two questions are asked of this Court concerning the interpretation of s. 13(1)(a) and 13(2) of the Road Traffic Act, 1974. The complainant had been erected pursuant to s. 49 of the Road Traffic Act, 1961 and, having been brought to a Garda Station and required to provide two specimens of her breath pursuant to s. 13(1)(a) was subsequently charged and convicted in the District Court for an offence pursuant to s. 23 of the Act of 1994 for failing to comply with the requirement under the aforesaid subsection. She appealed this conviction to the Circuit Court which has given rise to this case stated.

31 The Case Stated

32 The charge before the Circuit Court is that the defendant...