DPP v Kenny

• Jurisdiction: Ireland
• Court: High Court
• Judgment Date: 01 January 1992
• Date: 01 January 1992
• Docket Number: [1989] No. 464 SS]

Director of Public Prosecutions v. Kenny

The Director of Public Prosecutions

Complainant

and

Richard Kenny

Defendant

[1989] No. 464 SS]

High Court

Constitution - Right to privacy - Evidence - Whether person in lawful custody has right to privacy - Whether such right violated by observation of the detained person by other persons - Whether evidence of such observation admissible - Constitution of Ireland, 1937, Article 40, s. 3.

Road traffic - Alcohol test - Whether person attending detained person for the purpose of taking blood or urine sample entitled to observe detained person - Whether evidence arising from observation admissible - Road Traffic (Amendment) Act, 1978 (No. 19).

A person in custody has a right to privacy but such right is not breached by observation by persons who are lawfully required to deal with him while in custody.

So Held by Barron J., in answering a case stated arising out of an attempt to put in evidence against the accused the results of such observation.

Cases mentioned in this report:—

Kennedy v. Ireland [1987] I.R. 587; [1988] I.L.R.M. 472.

McGee v. Attorney General [1974] I.R. 284; [1973] I.L.R.M. 109.

Sullivan v. Robinson [1954] I.R. 161.

Consultative Case Stated.

By a consultative case stated pursuant to s. 52, sub-s. 1 of the Courts (Supplemental Provisions) Act, 1961, dated the 10th July, 1989, the following questions were referred for determination to the High Court:—

• 1. To what extent, if any, does an accused person arrested under section 49 of the Road Traffic Act and brought to a garda station for the purpose of taking from him a sample of blood or the provision of a sample of urine to a designated registered medical practitioner have a right to privacy?

• 2. If the accused has any such right of privacy does the same extend to a right not to be submitted (unknown to the accused) to observation by a medical practitioner or any other person for the purpose of obtaining evidence against him and without being cautioned in that regard and consenting thereto?

The facts are fully set out in the judgment of Barron J., infra.

The case was heard by the High Court (Barron J.) on the 1st December, 1990.

Cur. adv. vult.

Barron J.

In this case the accused was arrested under the provisions of s. 49, sub-s. 6 of the Road Traffic Act, 1961. On the arrival at the garda station he consented to a designated registered medical practitioner taking from him a sample of his blood. No analysis...