DPP v Clyne
| Jurisdiction | Ireland |
| Judge | Ms Justice Ní Raifeartaigh |
| Judgment Date | 30 September 2020 |
| Neutral Citation | [2020] IECA 263 |
| Court | Court of Appeal (Ireland) |
| Docket Number | Appeal Record No.: 2019/469 |
| Date | 30 September 2020 |
IN THE MATTER OF AN APPLICATION PURSUANT TO SECTION 16 OF THE COURTS OF JUSTICE ACT 1947
ON A CONSULTATIVE CASE STATED
[2020] IECA 263
Birmingham P.
Edwards J.
Ní Raifeartaigh J.
Appeal Record No.: 2019/469
THE COURT OF APPEAL
Case stated – Conviction – Driving while under the influence of an intoxicant – Circuit Court Judge stating a question for the Court of Appeal on a consultative case stated –In order for a member of the Garda Síochána lawfully to require an arrested person to permit a registered doctor or a registered nurse to take a specimen of the person’s blood under s. 13B(1) of the Road Traffic Act 2010 is it sufficient for the member to have carried out any one of the tests specified in paragraphs (a), (b) and (c) of the said section?
Facts: The accused, Mr Clyne, was convicted at Longford District Court on 5th March 2019 of the offence of driving while under the influence of an intoxicant contrary to s. 4(1)A of the Road Traffic Act 2010 as inserted by s. 8(a) of the Road Traffic Act 2016, and s. 4(5) of the Road Traffic Act 2010. He was fined €250 with three months’ imprisonment/five days in default of payment. He was also disqualified from driving from one year and his driving licence was endorsed. In the course of an appeal against that conviction on 1st May 2019 at Longford Circuit Court, counsel for the accused submitted that the arresting Garda had failed to apply the law properly before requiring the accused to provide a specimen of his blood at the Garda Station. The Circuit Court Judge stated the following question for the Court of Appeal on a consultative case stated: “In order for a member of the Garda Síochána lawfully to require an arrested person to permit a registered doctor or a registered nurse to take a specimen of the person’s blood under section 13B(1) of the Road Traffic Act 2010, as inserted by section 13 of the Road Traffic Act 2016, is it sufficient for the member to have carried out any one of the tests specified in paragraphs (a), (b) and (c) of the said section 13B(1)?”
Held by the Court that, having applied The People (At the Suit of the Director of Public Prosecutions) v T.N. [2020] IESC 26, it was not necessary or appropriate to call in aid the principle of strict construction of penal statutes in this case because the intention of the Oireachtas is clearly ascertainable by applying the ordinary English rules of syntax and punctuation routinely used in legislation; this yields the unambiguous interpretation that subparagraphs (a), (b) and (c) are to be read disjunctively on the plain, ordinary or literal view of the statute. The Court held that this was fatal to the remainder of the accused’s submissions.
The Court held that the answer is “Yes”.
Case stated.
This judgment arises out of a case stated by Judge Keenan Johnson of the Circuit Court in connection with a prosecution for the offence commonly and colloquially known as “drug driving” i.e. driving while there was present in the motorist's blood a level of cocaine above the legally specified limit. The case stated concerns the proper interpretation of s.13B (1) of the Road Traffic Act 2010 as inserted by s.13 of the Road Traffic Act 2016. This section deals with the conditions to be fulfilled before a person arrested on suspicion of such an offence may lawfully be required to provide a specimen of his or her blood to a designated doctor or designated nurse.
The evidence before Judge Johnson, who was hearing an appeal against a District Court conviction, was as follows.
On the evening of 29 th January 2018, Garda Keane and Garda Lynch were carrying out a checkpoint at Market Street, Granard, County Longford. At approximately 7:38 pm a white Ford Transit van approached the checkpoint. As it did so, the driver appeared to brake suddenly and then approach the checkpoint slowly. Garda Keane approached the driver who identified himself as Patrick Clyne (the accused) and gave his address. He produced his driving licence. He said the van belonged to his employer and that he was using it for work purposes. However, no trade plates were displayed, and he said he did not have any in the van. Garda Keane thought that the accused seemed nervous, and that his pupils were dilated. He appeared to be chewing something although he said that he was not. The accused had no certificate of insurance with him nor insurance disc displayed on the vehicle. Having regard to all of the circumstances. Garda Keane decided to make a requirement of the accused to provide a specimen of oral fluid (in accordance with the terms of s.9(2)(A) of the Road Traffic Act 2010 As amended by s.7 of the Road Traffic Act 2011). He also informed the accused that the specimen would be analysed by a machine which was located in the patrol car (a Drager Drug Test 5000 machine). The accused took the test and complied with the Garda instructions in that regard. The specimen tested positive for the presence of cocaine.
Garda Keane then arrested the accused at 7:57pm, cautioned him and conveyed him to Longford Garda Station. His details were entered on the custody record by the member in charge. Arrangements were made for the attendance at the Garda Station of a registered medical practitioner and at 9:03pm a Dr. Azam arrived at the Garda Station.
Garda Keane then made a requirement of the accused to permit the doctor to take a specimen of his blood and informed him of the penalty for failure or refusal to comply with the requirement. The accused permitted the doctor to take the blood specimen. At 9:20pm he was released from custody pending further investigation of the offence.
The blood specimen was sent to the Medical Bureau of Road Safety with return certificates showing a concentration of 36.9 mg/ml cocaine and 515.2 nig/ml Benzoylecgonine (cocaine) in the blood (but no alcohol).
The accused was convicted at Longford District Court on 5 th March 2019 of the offence of driving while under the influence of an intoxicant contrary to s.4(1)A of the Road Traffic Act 2010 as inserted by s.8(a) of the Road Traffic Act 2016, and s.4(5) of the Road Traffic Act 2010. He was fined €250 with three months' imprisonment /five days in default of payment. He was also disqualified from driving from one year and his driving licence was endorsed.
In the course of an appeal against that conviction on 1 st May 2019 at Longford Circuit Court, counsel for the accused submitted that the arresting Garda had failed to apply the law properly before requiring the accused to provide a specimen of his blood at the Garda Station.
The relevant section is s.13 B(1) which authorises the Garda to make the requirement in respect of a blood sample if any one of the three preliminary steps listed in paragraphs (a), (b) and (c) of that Section have been taken. The section reads: -
“Where a person is arrested under section 4(8), 5(10), 9(4), 10( 7) or 11(5) of this Act or section 52(3), 53(5). 106(3A) or 112(6) of the Principal Act and a member of the Garda Síochána. having carried out—
(a) A preliminary oral fluid test under s.9(2A) or s.10(4),
(b) Impairment test under s.11, or
(c) An oral fluid test under S.13A.
is of the opinion that the person has committed an offence under section 4 consisting of a contravention of subsection (1A) of that section or an offence under section 5(1A) the member may. at a Garda Síochána station or hospital, require the person to permit a designated doctor or designated nurse to take from the person a specimen of his or her blood.”
The argument made on behalf of the accused before the Circuit Court was that the absence of the word “or” after the comma at the end of sub-para. (a) implies that the section should be read as if the word “and” appeared after the comma at the end of sub-para. (a). Therefore, it was argued, before the motorist could be lawfully required to provide a blood sample, an impairment test or an oral fluid test under s.13A had to be carried out in addition to the preliminary oral fluid test and that it was not sufficient to conduct only one of the tests set out in (a), (b), and (c).
Judge Johnson stated the following question for the Court on a consultative case stated: “In order for a member of the Garda Síochána lawfully to require an arrested person to permit a registered doctor or a registered nurse to take a specimen of the person's blood under section 13B(1) of the Road Traffic Act 2010, as inserted by section 13 of the Road Traffic Act 2016, is it sufficient for the member to have carried out any one of the tests specified in paragraphs (a), (b) and (c) of the said section 13B(1)?”
Counsel on behalf of the prosecutor, Mr. Tom O'Malley B.L., submitted that the interpretation suggested on behalf of the motorist is erroneous for a number of reasons. First, in grammatical and syntactical terms, the use of language in the section is a standard example of enumeration such that when a number of items are listed, the presence of a comma after each item, except the penultimate one, means they are being listed disjunctively where the word “or” appears after the penultimate item. In contrast, they may be regarded as having been listed conjunctively when the word “and” appears after the penultimate item. Counsel cites Fowlers Modern English Usage 2 nd Edition 1977 in this regard. Counsel went on to provide the example of the following sentence:-
“An applicant for this post must be fluent in French, German, Italian or Spanish.” This clearly requires fluency in one of the four languages described and not in three out of four languages.
The prosecutor submits that there are countless examples of such enumeration in statutes and...
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