DPP v Lennon

JurisdictionIreland
JudgeMR JUSTICE FRANCIS D MURPHY,BARRON J.
Judgment Date09 March 1999
Neutral Citation[1999] IESC 34
Docket Number257/98
CourtSupreme Court
Date09 March 1999
DPP v. LENNON
IN THE MATTER OF SECTION 2 OF
THE SUMMARY JURISDICTION ACT, 1957
AND IN THE MATTER OF SECTION 51 OF THE
BETWEEN/
THE DIRECTOR OF PUBLIC PROSECUTIONS
Appellant

and

JENNY LENNON
Respondent

[1999] IESC 34

257/98

THE SUPREME COURT

Synopsis

Road Traffic

Road traffic; driving while intoxicated; respondent required to provide specimen; respondent could choose whether to furnish a blood or urine sample; whether circumstances in which respondent was required to provide urine sample were so deficient as to amount to no real choice at all; s.13, Road Traffic Act, 1994.

Held: Appeal allowed.

D.P.P. v. Lennon Supreme Court: O'Flaherty J., Barrington J., Keane J., Murphy J., Barron J. 09/03/1999 - [1999] 2 IR 402

While the specimen required under section 13 of the Road Traffic Act 1994 and the tests to be applied to it could achieve a degree of scientific accuracy which was highly desirable, there was no doubt that the requirement to provide either specimen was a very serious intrusion on the constitutional right of the citizen. The extraction of a specimen of blood involved a clear breach of the citizen's right to bodily integrity and the provision of a urine sample must involve some intrusion on the right to privacy. However, the court could not accept that the circumstances under which the urine sample was to be provided were so deficient and represented such an excessive and unwarranted intrusion on the respondent's right of privacy that the trial judge would have been justified as a matter of law in treating it as not being an option for the purposes of section 13 of the 1994 Act. The circumstances in which she was required to give a urine sample were far from ideal but not so deficient as to amount to no choice at all. The Supreme Court so held in granting the relief sought.

1

JUDGMENT delivered on the 9th day of March 1999by BARRON J.

2

A basic issue in this case is governed by the judgment of Murphy J. in D.P.P. v. O'Connor just delivered. The defendant exercised her option to provide a sample of urine. As she did not do so, that case has decided that it is immaterial whether she could do so or not. Her obligation to provide a sample of blood revived, and this she did. What is material is whether she had a real option to provide a sample of urine or whether the circumstances in which she was required to provide such sample deprived her of that option.

3

Whether the option is regarded as a right or a privilege, there must be a corresponding obligation to ensure that the person arrested has a real choice whether or not to exercise that option. What is in issue here is whether or not there was such a real choice.

4

In the instant case the defendant says that a woman should not be asked to provide a sample of urine in the circumstances prevailing on thenight in question. The Director of Public Prosecutions said that the facilities offered were not unreasonable.

5

In the course of argument it was submitted that with deprivation of liberty an arrested person must also accept other restrictions on their constitutional rights. This is not the case to give a definitive answer to this question. Essentially, a person's rights remain subject to such statutory restrictions as may follow loss of liberty. Unfortunately, for the person arrested, once their liberty is lost they are no longer in control of their own circumstances.

6

The defendant found herself in an unhappy position. She had just been arrested. When she goes to provide a sample of urine she reacts to the manner in which it is supposed to be done. It is in her eyes a furtherindignity.

7

I accept that in the ordinary course of events the defendant would not go to a like lavatory under the observation of two men as she went in and came out where they could hear what occurred while she was in the lavatory. But that is a subjective reaction. What the Court has to consider is the objective circumstances. An arrested person cannot expect the same conditions as in their own homes. Not only are institutions generally more basic, but in an arrest situation there is also an obligation upon the arresting authority to ensure compliance with the purpose of the arrest.

8

In D.P.P. v. Swan, Blayney J. suggested that a male person might be required to provide his sample of urine in the presence of the doctor. It appeared in argument that this is usual. In my view a female person should have no complaint about being asked to provide a sample in a cubicle where she cannot be seen.

9

As Murphy J. has said the circumstances are embarrassing in any event. Such embarrassment cannot be avoided. It is not significantly aggravated by the instant circumstances. It has been suggested that the presence of a female guard might have made a difference. While I readily accept that it might make a difference in individual cases and perhaps also in the instant case, I would not accept it as a legal proposition.

10

Where should the dividing line be drawn between what is unreasonable and what is not. In my view it would be unreasonable to require the sample to be provided in circumstances which breach the rights of the person arrested over and above such restriction as is predicated by the arrest and its surrounding circumstances, in a word it must not be degrading. That is not the position here.

11

In the circumstances, I would allow the appeal.

12

JB107

13

JUDGMENT OF MR JUSTICE FRANCIS D MURPHYDELIVERED THE 9TH DAY OF MARCH 1999

14

This case concerns the adequacy of facilities provided at Ashbourne Garda Station in relation to the provision of blood or urine samples for the purposes of the Road Traffic Act 1994section 13.

15

The particular question the subject matter of these proceedings arose in this way. On Sunday 15th December 1996 Garda K Traynor stopped a motor car then driven by the above namedRespondent, Jenny Lennon. The Garda detected the smell of intoxicating liquor from the Respondent. He formed the opinion that she had consumed intoxicating liquor. The Respondent admitted that she had taken some drink. The Garda required her to undergo a breath test in accordance with section 12 of the 1994 Act. The test proved positive. The Garda formed the opinion that the Respondent was incapable of having proper control of a mechanically propelled vehicle in a public place due to the consumption of alcohol and so informed the Respondent. The Respondent was arrested, brought to the Ashbourne Garda Station at about 1.25 am. A doctor - Doctor Gujral - was called and arrived at the garda station at 1.30. Garda Traynor introduced the Respondent to Dr Gujral and informed the Respondent that he was requiring her to provide the Doctor with a specimen of blood or, if she so wished, a sample of her urine. The Respondent opted for the urine test but when she was informed by Garda Traynor that she would have to furnish the urine specimen while in a cubicle which was itself in the room where Garda Traynor and Dr Gujral intended to remain she declined to provide the urine sample as she had intended and instead agreed and felt compelled to provide a blood specimen. Ultimately the result showed that she had 122mg of alcohol per 100ml of blood.

16

Subsequently the...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT