DPP v Lynch
| Jurisdiction | Ireland |
| Judge | Ms. Justice Ní Raifeartaigh |
| Judgment Date | 21 November 2016 |
| Neutral Citation | [2016] IEHC 723 |
| Docket Number | RECORD NO: 2016/361 SS |
| Court | High Court |
| Date | 21 November 2016 |
[2016] IEHC 723
THE HIGH COURT
Ní Raifeartaigh J.
RECORD NO: 2016/361 SS
IN THE MATTER OF SECTION 52 OF THE COURTS (SUPPLEMENTAL PROVISIONS) ACT 1961
Practice & Procedures – S. 52 of the Courts (Supplemental Provisions) Act 1961 – Drunk driving – Unlawful detention – Delay in pre-test observation period – Breath alcohol test – Consultative case stated
Facts: The present case is related to the pre-test observation period in the context of the administration of a breath alcohol test by the Gardai. The case came by way of a case stated by the District Judge to seek the opinion of the High Court. The key issue in the present case was whether the detention of the accused was rendered unlawful by reason of the lapse of a period of time during which the pre-test observation of the accused was not commenced. The defendant/accused contended that there was no objective justification for the delay in the commencement of the observation period. The defendant/accused stated that his detention became unlawful on the basis of the decision rendered in DPP v. Finn [2003] 1 I.R. 372. The plaintiff submitted that a Garda Siochana had a discretion with respect to the pre-test observation as well as the test and that discretion extended to matters such as who would carry out the test as well as where it would be carried out.
Ms. Justice Ní Raifeartaigh ordered that there was no unlawful detention in the present case as the person awaited was a trained Garda who carried out the pre-test observations. The Court answered both questions posed by the District Judge in negative; namely, that the accused was not deprived of his liberty for a period of time longer than was reasonable in the circumstances and that the District Judge was not correct in his view that the charge against the accused should be dismissed. The Court held that the present case did not fall within the type of policy identified in DPP v. Finn [2003] 1 I.R. 372. The Court observed that the delay in the present case was not of such an order which would normally bring a period of detention into the area of illegality.
This case is the latest in a series of cases relating to the pre-test observation period in the context of the administration of a breath alcohol test by the Gardai, who use specialised equipment for that purpose. It comes before the Court by way of a consultative case stated from the District Court for the area of Kilrush. The net issue is whether the detention of the accused was rendered unlawful by reason of the lapse of a period of time during which the pre-test observation of the accused was not commenced at Kilrush Garda station pending the arrival of a Garda from Ennis station.
The accused was charged with the offence informally referred as to “drunk driving”. The evidence before the District Judge was that the accused was stopped at an authorised checkpoint, failed a breath test and was arrested at 11pm. He was conveyed to Kilrush Garda station, with a time of arrival of 11.25pm. He was processed in the normal way, following which, a request was made to Ennis Garda station, some 43 km away, to send a Garda to Kilrush for the purpose of operating the Evidenzer breath testing machine. This request was made at 11.40pm. This Garda arrived at 11.56pm and commenced a period of 20 minutes observation, concluding at 12.19am. He then administered the test.
The case stated indicates that the following evidence was given:
‘In cross-examination, the arresting Garda was asked why the period of observation had not commenced until the arrival of the Garda from Ennis. He replied that this was procedure. He confirmed the assertion in his statement that following the conclusion of the 20 minutes' observation period by the specialist Garda, he (the arresting Garda) had continued the observation of the accused while the specialist Garda prepared the machine. He further stated that it was procedure of the member conducting the Evidenzer machine to conduct the twenty minute observation period. On re-examination he stated that he was not at that time trained in the use of the Evidenzer machine, though he has since been trained. Under cross-examination, the custody Garda stated that she could not recall if the arresting Garda had telephoned ahead to advise of the arrest. Under cross-examination, the specialist Garda did not accept that the arresting Garda had continued with observation of the accused following the 20 minute period while he (the specialist Garda) was preparing the machine. He said that the observation period had ended and both Gardaí were present.’ (emphasis added)
It was argued on behalf of the accused that there was no objective justification for the delay in the commencement of the observation period until 11.59pm, almost an hour after his arrest. It was argued in particular that he was in the Garda station for 34 minutes before the observation period was commenced. It was argued that the arresting Garda could have carried out the observation in the Garda station in the circumstances, or that Ennis Garda station could have been notified at any time after 11pm of the need for the presence of a specialist Garda. The solicitor for the accused referred the District Judge to the cases of DPP v. Finn [2003] 1 I.R. 372 and DPP v. McNiece [2003] 2 I.R. 614. The prosecuting Superintendent argued that the Garda action was objectively justified and that the Garda operating the machine had to be satisfied in respect of the observation period.
The case stated records that the District Judge took the following view:
‘Having considered the above evidence and submissions, I am satisfied that the issue for decision is whether the delay of 29 minutes between 11.30p.m. and 11.59p.m during which nothing happened pending the arrival of the Garda from Ennis is justified or not. I formed the view that the delay was not justified the only explanation being offered for the delay in the commencement of the observation was that it was ‘procedure’ and one person must deal with all stages of the procedure. I disagree with this position. The arresting Garda could have carried out or at least commenced the observation. The statement that the reason this was not done was because of procedure does not assist the Court.
In light of the aforementioned authorities and the emphasis therein on the need to justify delay objectively, especially when it is challenged, I therefore formed the view that the deprivation of the accused's liberty, which was for the specific and sole purpose of carrying out a particular procedure, had been unduly prolonged, that the accused was in unlawful custody before the observation period began and that evidence generated from the said procedure was therefore inadmissible
I am therefore minded to dismiss the case against the accused.’(emphasis added)
The District Judge stated the following questions by way of consultative case stated:
‘(a) Was the accused deprived of his liberty for a period of time longer than was reasonable in the circumstances?
(b) Accordingly, am I correct in my view that the charge against the accused should be dismissed?’
Previous cases involving the 20 minute observation period have not directly addressed the precise point in the present case as identified above, which essentially concerns the awaiting of a trained Garda who would not merely administer the test, but also carry out the pre-test observation. Previous cases have addressed the following issues:
• The justifiability or reasonableness of the general policy of having a 20 minute pre-test observation period; this was the issue in DPP v. Finn [2003] 1 I.R. 372, DPP v. McNiece [2003] 2 I.R. 614, and DPP v. Stack [2016] IECH 159.
• The justifiability or reasonableness of a decision by An Garda Síochana not to commence the period of 20 minutes formal observation in the patrol car or while otherwise in transit with the accused person, but rather to await the arrival at the Garda Station where there is a more controlled environment for conducting the observations; DPP v. McNiece [2003] 2 I.R. 614, DPP v. O'Sullivan [2015] IEHC 693.
• Whether an unexplained period of 7 minutes in addition to a 20 minute period of observation rendered a detention unlawful; DPP v. Fox [2008] 4 I.R. 811.
• The justifiability or reasonableness of an extra period of detention of 20 minutes which resulted from the fact that the Garda conducting the observation (a) had been momentarily distracted from the task in hand, and (b) became aware that the testing equipment was not yet available because it was in use, and decided that he should start the observation period again; DPP v. Dardis [2015] IECA 284.
• Whether it is acceptable for an untrained Garda to carry out the pre-test observation period: DPP v O'Sullivan [2015] IEHC 693.
There was some degree of argument between the parties as to what the District Judge had actually found as the reason for the delay, namely whether it was: (a) to ensure that one Garda would carry out both the observation and the test; or (b) to ensure that a trained Garda would carry out both the observation and the...
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