DPP v Maher
| Jurisdiction | Ireland |
| Judge | Ms Justice Baker |
| Judgment Date | 17 July 2019 |
| Neutral Citation | [2019] IECA 196 |
| Date | 17 July 2019 |
| Court | Court of Appeal (Ireland) |
| Docket Number | Neutral Citation Number: [2019] IECA 196 Appeal No. 2019/56 |
[2019] IECA 196
THE COURT OF APPEAL
Baker J.
Birmingham P.
Edwards J.
Baker J.
The President
Neutral Citation Number: [2019] IECA 196
Appeal No. 2019/56
IN THE MATTER OF SECTION 2 OF THE SUMMARY JURISDICTION ACT 1857 AS EXTENDED BY SECTION 51 OF THE COURTS (SUPPLEMENTAL PROVISIONS) ACT 1961
Case stated – Conviction – Road traffic offence – Appellant seeking to appeal from High Court judgment – Whether the Road Traffic Act 2010 (Section 13) (Prescribed Form and Manner of Statements) Regulations 2015 support the argument that there exists in the person providing a breath sample a right to be informed of the fact that the statements may be produced by the breathalyser apparatus in either the Irish or English language
Facts: The appellant, Mr Maher, appealed to the Court of Appeal from the High Court judgment delivered on 22 January 2019, Maher v The Director of Public Prosecutions [2019] IEHC 58, regarding the form of statements to be provided to persons who have provided a breath sample through a breathalyser apparatus. The judgment was given in an appeal by way of case stated by a District Judge, arising out of the prosecution and conviction of the appellant for an offence under ss. 4(4)(a) and 4(5) of the Road Traffic Act 2010, and concerned the proper interpretation of the Road Traffic Act 2010 (Section 13) (Prescribed Form and Manner of Statements) Regulations 2015 (S.I. No. 398/2015), which provide that the prescribed statements may be produced in either the English or Irish language. The question for determination was by whom the choice of language is to be made.
Held by the Court that, on a plain reading of the 2015 Regulations, the statutory instrument contains two separately identified forms in the schedule which expressly and in their literal meaning may be used in the alternative and do not require to be printed together; the schedule contains a Form A and a separate Form B. The Court held that the 2015 Regulations do not contain an express requirement that directs the Garda member to print the forms in Irish or English in any identified circumstances; the 2015 Regulations are enabling in that they permit the automatic production by the breathalyser apparatus in either language and, provided the necessary statutory requirements are met, give evidential value to the statements so produced and signed. The Court held that there is no express statutory requirement that the Garda member should offer a choice of language to the person providing the breath sample, and the relevant Garda member has no duty implicit in the fact that either language version of the statement may be produced to offer a choice; such a duty, if it exists, may derive from an assertion of a constitutional entitlement of a person to conduct business in the Irish language, and in certain circumstances it may also derive from an argument that the relevant Garda member may be precluded from seeking to adduce in evidence a statement printed in either the English or Irish language when he or she knew that the person receiving it had or would have chosen that the statements be produced in the other language. The Court noted that no language right was asserted in the appeal, nor was the accused person arrested in a Gaeltacht area or in circumstances where it might have been expected that he might wish to conduct his business in Irish. The Court held that it was not saying that a duty might exist in the circumstances, but if it did, it could derive only from those principles and not from the literal or strict reading of the 2015 Regulations themselves which do not present any ambiguity and do not impose any obligation on the Garda member to offer a choice.
The Court held that, in the circumstances, the appeal would be dismissed.
Appeal dismissed.
This is an appeal from the judgment delivered by Binchy J. on 22 January 2019, Maher v. The Director of Public Prosecutions [2019] IEHC 58, regarding the form of statements to be provided to persons who have provided a breath sample through a breathalyser apparatus. The judgment of Binchy J. was given in an appeal by way of case stated by Judge Hughes of the District Court, arising out of the prosecution and conviction of the appellant for an offence under ss. 4(4)(a) and 4(5) of the Road Traffic Act 2010 (‘the 2010 Act’), and concerns the proper interpretation of the Road Traffic Act 2010 (Section 13) (Prescribed Form and Manner of Statements) Regulations 2015 ( S.I. No. 398/2015) (‘the 2015 Regulations’), which provide that the prescribed statements may be produced in either the English or Irish language. The question for determination is by whom the choice of language is to be made.
The appeal is the latest in a series of challenges and appeals from the provisions of road traffic legislation generally regarding drunk driving and it would be best to describe the argument of the appellant as technical in nature. Counsel for both parties in the appeal did recognise that, in general, the ‘culture’, or society's approach to the drunk driving offence, no longer shows any tolerance of drunk driving because of the risk of death or injury to an innocent person injured by a driver under the influence of alcohol or drugs.
The legal argument may be technical, but it should not be forgotten that the consequence of a conviction for driving while intoxicated is the suspension of the right to drive and that this may have significant practical restrictions on the day-to-day life of the convicted person. It is to be noted too, that some of the more recent judgments of the Superior Courts in regard to the interpretation of the law regarding drunk driving has reflected a recognition that many of the arguments made on appeal by convicted persons have the appearance of being cynical or, as MacMenamin J. said in The Director of Public Prosecutions v. Freeman [2009] IEHC 179, at para. 22, have a legal character that is ‘wafer thin’.
On 25 October 2015, at 1.10 A.M., the appellant, having been observed driving erratically, was arrested by Garda Stones, who formed the opinion that the appellant was under the influence of an intoxicant to such an extent as being incapable of having proper control of a mechanically propelled vehicle in a public place. The appellant was arrested pursuant to s. 4(a) of the 2010 Act, and brought to Mullingar Garda Station. After an observation period of twenty minutes or more, and in compliance with the procedures required by the 2010 Act, Garda Stones required the appellant to provide two specimens of breath by exhaling into a breathalyser apparatus.
Garda Stones then entered the details required by the 2015 Regulations to be entered into the breathalyser apparatus. Two identical statements in the English language were printed from the apparatus which were handed to the appellant for signature, and Garda Stones duly warned the appellant that failure or refusal to return one of the two signed statements could result in a summary conviction. The appellant did sign and return one of the said statements, and retained the other as he was entitled to do.
All of the exchanges between Garda Stones and the appellant took place in the English language and the two identical statements were printed in English only.
The appellant was prosecuted in the District Court and the signed statement was adduced as evidence of the concentration of alcohol. At the conclusion of the evidence, Garda Stones having accepted in cross-examination that he had not offered the appellant a choice of having the statements produced in the English or Irish language, it was submitted in defence that the provisions of the 2015 Regulations had not been observed and that the statements were not admissible in evidence as the appellant had not been offered the choice of the language in which the statements were printed.
The District Court Judge having heard the evidence and submissions found as a fact that the appellant had not been given an option of choosing whether the statements should be produced in the English or Irish language, nor had he been made aware of the possibility that the apparatus could publish the statements in either language. The District Court Judge refused the application for a direction to dismiss the prosecution and proceeded to convict and fine the appellant, and imposed the consequential disqualification from driving.
The District Court Judge then acceded to the request by the appellant that a case should be stated to the High Court on the following questions of law:
(i) on the facts so found, have the provisions of the 2015 Regulations been complied with?
(ii) on the facts so found, is the certificate automatically produced by the apparatus under s. 13 of the 2010 Act, indicating the concentration of alcohol in the breath of the appellant, admissible in evidence?
In a reasoned and considered judgment, Binchy J. reviewed the law leading to the enactment of the 2015 Regulations and answered both of the questions posed by the District Court Judge in the case stated in the affirmative. He considered that whilst the availability of the statements in either the Irish and English language was for the ‘benefit of the person providing the breath specimens, and not the garda’ (at para. 37), absent an expression of choice by that person, the Garda member is under no obligation to offer a choice to the person providing the breath sample as to the language in which the statements will be printed. He went on to say as follows:
‘However, the 2015 Regulations do not oblige the garda to offer that choice to the person providing the breath specimens. While this may be an omission...
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