DPP v Cullen
| Jurisdiction | Ireland |
| Judge | Mr. Justice Garrett Simons |
| Judgment Date | 18 March 2021 |
| Neutral Citation | [2021] IEHC 135 |
| Docket Number | 2020 No. 536 SS |
| Year | 2021 |
| Court | High Court |
IN THE MATTER OF SECTION 2 OF THE SUMMARY JURISDICTION ACT 1857 (AS EXTENDED BY SECTION 51 OF THE COURTS (SUPPLEMENTAL PROVISIONS) ACT 1961)
[2021] IEHC 135
Garrett Simons
2020 No. 536 SS
THE HIGH COURT
This appeal comes before the High Court by way of a case stated from the District Court. The appellant has been convicted of a drunk driving offence. The case stated presents a short question of statutory interpretation concerning the procedure governing the taking of a specimen of blood from a person who has been admitted to hospital following a road traffic incident. The question of statutory interpretation centres on the meaning of the phrase “ a doctor treating the person” as used under section 14 of the Road Traffic Act 2010 (as amended).
Section 14 of the Road Traffic Act 2010 (as amended) (“ the RTA 2010”) allows for the taking of a specimen of blood or urine from a person who has been injured in consequence of a road traffic incident and has been admitted to, or is attending at, a hospital. The section only applies in circumstances where the person has not been arrested. (The taking of a specimen in a hospital setting from an arrested person is governed separately under section 12 of the RTA 2010).
Section 14 of the RTA 2010 makes contingency both for circumstances where a person is capable of complying with a requirement to provide a specimen, and those where a person is incapacitated, e.g. where the injured person is unconscious. The case stated is concerned with the former contingency.
In each instance, there is a statutory requirement imposed upon An Garda Síochána to consult with “ a doctor treating the person”. This is provided for under section 14(4) of the RTA 2010 as follows.
“(4) Before making a requirement of a person under subsection (1) or a direction under subsection (3A) the member of the Garda Síochána concerned shall consult with a doctor treating the person, and if a doctor treating the person advises the member that such a requirement or direction would be prejudicial to the health of the person the member shall not make such requirement or direction.”
There is no statutory definition of the phrase “ a doctor treating the person”.
Separately, a doctor or nurse may refuse, on medical grounds, to permit the taking or provision of a specimen from a patient under their care. See section 14(3) as follows.
“(3) Notwithstanding subsection (2), it is not an offence for a person to refuse or fail to comply with a requirement under subsection (1) where, following his or her admission to, or attendance at, a hospital, the person comes under the care of a doctor or nurse and the doctor or nurse refuses, on medical grounds, to permit the taking or provision of the specimen concerned.”
For completeness, it should be explained that there is no equivalent statutory requirement to consult with a treating doctor prior to the taking of a specimen from a person in a hospital setting in circumstances where that person is under arrest. (See section 12 of the RTA 2010).
The appellant (“ the accused”) had been convicted in the District Court of an offence of drunk driving on the basis of the analysis of a specimen of blood taken from him while he had been attending hospital following a road traffic incident. The accused had not been under arrest at the time. The accused complied with a requirement made by a garda pursuant to section 14(1) of the RTA 2010 to permit a specimen to be taken, and opted to permit the designated doctor to take a specimen of blood (as opposed to urine).
The District Court judge explains in the case stated that whereas the member of An Garda Síochána had sought and obtained permission from a named doctor for the taking of a specimen, it had not been proved in evidence that “ the doctor had any responsibility whatsoever with the treatment of the appellant”.
The District Court judge nevertheless took the following pragmatic approach to the interpretation of the statutory requirement to consult (see paragraph 10 of the case stated).
“Having considered the submissions of the parties and the relevant case law, I ruled that notwithstanding the wording of Section 14(4) I was satisfied it was sufficient compliance with Section 14(4) that a doctor in charge (albeit it had not [been] established what the doctor was in charge of) had been consulted even though it was not proved that the doctor had any responsibility whatsoever with the treatment of the appellant. I held that it was an unreasonable expectation to expect that a member of An Garda Siochana would have to seek out a doctor treating an arrested person* (in this case the appellant) in a busy emergency department and I queried with Counsel as to whether he was aware of exactly how busy an emergency department in a large hospital could be.”
*It is common case that the accused had not, in fact, been under arrest.
This approach seems to have been informed by a submission made on behalf of the presenting Garda Inspector to the effect that it was sufficient that the relevant garda had consulted with a doctor “ in charge of something involving the running of a hospital”, and that it was “ not feasible” to expect the member to have consulted with “ a treating doctor”. (See paragraph 9 of the case stated).
The following two questions of law have been stated for the opinion of the High Court.
(a). Was I correct to find that Section 14 (4) of the Road Traffic Act, 2010 was complied with, absent evidence that [the doctor consulted] was a treating doctor as required by the legislation?
(b). Was I correct in law to convict the appellant?
The case stated came on for hearing before me on 11 March 2021, and I reserved judgment to today's date. Both parties had prepared excellent written legal submissions in advance of the hearing for which I am very grateful. These were elaborated upon by oral submission.
The appellant / The accused
Counsel on behalf of the accused submits that, in the absence of a statutory definition, the phrase “ a doctor treating the person” should be given its ordinary and natural meaning. The phrase would include a doctor providing treatment, by, for example, examining, diagnosing or operating upon a patient. It is accepted that a multi-disciplinary team of doctors might be employed in the treatment of any given patient. This team might involve junior doctors and senior consultants, and no issue could be taken in relation to the rank or experience of the doctor consulted under the section. However, it is submitted that there must be some nexus vis-à-vis treatment between the doctor and the patient.
Counsel refutes any suggestion that the phrase should be given a broader meaning based on the supposed purpose of the legislation. Counsel emphasises that section 14 of the RTA 2010 creates a criminal offence, and that its provisions must therefore be interpreted strictly, citing, by analogy, Director of Public Prosecutions v. Freeman [2009] IEHC 179, [39]; Director of Public Prosecutions v. Moorehouse [2005] IESC 52; [2006] 1 I.R. 421, [44]; and O'Keeffe v. District Judge Mangan [2015] IECA 31, [13].
The judgment in People (DPP) v. Greeley [1985] I.L.R.M. 320 is cited in support of the proposition that failure to comply with a statutory precondition for the taking of a specimen renders the certificate of the analysis of the specimen inadmissible.
Director of Public Prosecutions
Counsel on behalf of the Director of Public Prosecutions (“ the Director”) drew attention to the use of the indefinite article in the phrase “ a doctor treating the person” under section 14(4) of the RTA 2010. It was submitted that the use of the indefinite article indicates that a garda has “ leeway in respect of which doctor to consult with”. It is further submitted that when a person enters an accident and emergency environment, it is likely that a number of doctors will be engaged in treating that person. As there is no statutory definition of “ treating”, it is submitted that a garda can consult with any doctor who is familiar with the medical condition of the patient, and thus able to determine whether the taking of a specimen would be detrimental to their health.
It is said that the narrower interpretation put forward on behalf of the accused would have the potential to lead to absurdity. The Director's argument is formulated as follows in the written legal submissions (at paragraph 16 thereof).
“It is submitted that, applying the interpretation the Appellant urged the District Judge to accept, has the potential to lead to absurdity and negate the intention of the Oireachtas. The Gardai have a finite period of time to take a sample from a defendant, namely three hours from the time of driving. It is submitted that there are numerous examples, in an emergency room situation, where a particular doctor might not be available to consult within that timeframe. If the prosecuting member was limited to getting the requisite permission from a specific doctor, as opposed to any doctor who has provided treatment or engaged in an evaluation of a defendant's medical condition, one could see how prosecutions could be frustrated due to the inability of the prosecuting member to get the requisite permission within the defined time limit.”
Counsel submits that the purpose of the legislation is to ensure that the health of an incapacitated or injured person is not detrimentally affected by the taking of a sample of blood. It is suggested that this purpose “ is not of the same legal order” as making a requirement to provide a...
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