DPP v Mark O'Sullivan
|Mr. Justice Hanna
|18 December 2008
| IEHC 442
|18 December 2008
 IEHC 442
THE HIGH COURT
ROAD TRAFFIC ACT 1994 S13(3)
ROAD TRAFFIC ACT 1961 S50(10)
ROAD TRAFFIC ACT 1994 S13(1)(B)
DUNNE v CLINTON
DPP, PEOPLE v WALSH
DPP v FINN 2003/15/3386
WHELTON v DISTRICT JUDGE O'LEARY UNREP BIRMINGHAM 19.12.2007 2007/60/12903 2007 IEHC 460
CRIMINAL JUSTICE (THEFT & FRAUD OFFENCES) ACT 2001 S4
CRIMINAL JUSTICE ACT 1984 S10
CRIMINAL JUSTICE ACT 1984 S10(2)
DPP v CLEIN
DPP (MCTIERNAN) v BRADLEY 1999/6/1506
Road traffic offence
Failure to provide urine specimen - Detention of accused pending computer generated charge sheet - Failure of computer - Delay - Whether lawful to deprive person of liberty to facilitate charge sheet procedure - Availability of summons procedure - Whether accused in unlawful detention - Whether detention deliberate and conscious violation of constitutional rights - Whether period of time taken to effect charge unreasonable - Onus of establishing reasonableness of period of time on prosecution - Real world test - Dunne v Clinton  IEHC 460 (Unrep, Birmingham J, 19/12/2007), DPP v Clein , DPP (McTiernan) v Bradley and O'Neill v Judge McCartan  IEHC 83 (Unrep, Charleton J, 15/3/2007) considered - Road Traffic Act 1994 (No 7), s 13 - Questions answered (2008/550SS - Hanna J - 18/12/2008)  IEHC 442, People v Walsh , DPP v Finn , Whelton v Judge O'Leary
DPP (O'Dwyer) v O'Sullivan
JUDGMENT delivered by Mr. Justice Hanna on the 18th day of December 2008
This case comes before me as a consultative case stated from District Court Judge Michael Pattwell. It concerns issues arising from the arrest, detention and subsequent prosecution of the above named accused for failure to provide to a designated doctor, a specimen of urine contrary to s. 13(3) of the Road Traffic Act 1994.
The consultative case stated sets out the material facts. They are as follows:-
"The Accused is before Cobh District Court on foot of a charge sheet record number 577826, which charges him that on the 8 th day of January, 2007, at Cobh Garda Station, Cobh, Co. Cork, he being a person arrested under s. 50(10) of the Road Traffic Act, 1961, having been required by Gda Enda O'Dwyer a member of An Garda Síochána, pursuant to s. 13(1)(b) of the Road Traffic Act, 1994 to permit a designated doctor to take from him a specimen of blood or at his option to provide for the designated doctor a specimen of urine, did fail to comply with the said requirement, contrary to Section 13(3) of the Road Traffic Act 1994."
The said charge sheet came on for hearing before me on the 28 th day February, 2007.
The facts of the case have been agreed between the parties as follows. The Accused was arrested by the Prosecutor, Garda O'Dwyer, on the 7 th of January, 2007. The time of arrest was 10.30 pm. The Accused was brought to Cobh Garda Station and arrived there at 10.55 pm. He was subsequently processed under the normal procedures with regard to persons arrested for suspected drink driving and ultimately the designated doctor arrived at the Garda Station at 11.45 p.m. A requirement was made of the Accused by Garda O'Dwyer at 11.48 p.m. under Section 13(1)(b) of the Road Traffic Act 1994. This requirement was not complied with by the Accused and at 12.01 a.m. on the 8 th of January 2007 Garda O'Dwyer gave evidence that the Accused refused to provide a sample to the designated doctor.
Garda O'Dywer's evidence is that the Accused was then placed in a cell and that at 1.25 a.m. he was charged by Garda O'Dwyer as set out on Charge Sheet no. 577826 of Glanmire Garda Station. The Accused was released on station bail to appear at Cobh District Court on the 10 th of January 2007 at which Court the Accused did appear and the case came on for hearing.
Garda O'Dwyer accepted that the Accused was detained between 12.01 a.m. and 1.25 a.m., a period of 1 hour and 24 minutes for the purposes of charging him. The evidence Garda O'Dwyer gave as to why there was such a delay in charging the Accused was that there was a problem with the computer which had broken down. Garda O'Dwyer was cross examined by Ms. Veronica Kelleher, solicitor on behalf of the Accused and asked why he did not write out the necessary charge sheet by longhand. He replied that that was not Garda policy. Garda O'Dwyer accepted on cross-examination that he was satisfied as to the name and details of the Accused. When asked why he therefore did not deal with the Accused by way of a Summons Garda O'Dwyer gave evidence that there was a directive from Garda Headquarters that in relation to drink driving offences they should proceed by way of a Charge Sheet only.
There are several prosecutions for breach of the same Statute before all of my Courts in my District, and, as far as I know, all Districts, which are initiated by way of Summons.
The Accused was before the Court on foot of the charge sheet preferred against him at 1.24 a.m. on the 7 th January, 2007."
The learned judge then proceeds to pose the following questions.
"Arising from the above facts, the following questions arise regarding which the opinion of the High Court is sought:"
1. Being mindful of the right of a citizen to his liberty unless it is absolutely necessary to deprive him of it in accordance with Law. Is it lawful to deprive a person who is to be charged with any offence of his or her liberty to facilitate the use of the charge sheet procedure when there is no reason to believe that person would not answer to a summons in the normal way?
2. Was the Accused in unlawful detention at the time he was charged in Cobh Garda Station on the 8 th January, 2007?
3. If the answer to the above question is 'yes', is the Accused lawfully before Cobh District Court?
4. If the Accused is not lawfully before Cobh District Court, should the prosecution against him be struck out?"
During the course of the hearing before me both parties were conscious of the fact that no apparent findings of fact were identified on the part of the learned District Judge. The evidence, such as it was, was stated to have been agreed between the parties and neither party raised any doubt as to the veracity and completeness of the facts as set out in the case stated. Further, no determination appears to have been made, on the face of the case stated, on issues such as "reasonableness", "practicality" or "necessity" in terms of the accused's detention and the purpose and duration of that detention. Notwithstanding this, the parties seemed quite happy for me to deal with the matter.
My personal instinct is to send the matter back to the District Court. It is unsatisfactory to attempt to answer questions in what amounts to something of factual vacuum. However, contrary to that instinct, given the views of the parties and the fact that the learned District Judge was of the view that an important question arose as to the lawfulness of the accused's detention pending the reproduction of a charge sheet, I will endeavour to assist as best I can. The observation by the learned District Judge that similar charges were dealt with by way of summons in other parts of his district seems to challenge the evidence of the prosecuting guard that he was acting in obedience to a directive from his superiors. There is no evidence, however, nor was it suggested when this application was moved before me, that the prosecuting guard's evidence was other than truthful. I will, therefore, treat the learned District Judge's observations as being purely anecdotal. I will also proceed on the assumption (albeit a rather obvious one) that, in the circumstances which presented themselves to the prosecution garda on the occasion in question he had available to him, in addition to the temporarily malfunctioning computer, the facility to proceed by way of handwritten charge sheet (or typewritten if such esteemed machines are still to be found in garda stations) or by way of summons, the latter being open due to the fact that there was no question as to the identify or address of the accused person.
For Mr. O'Sullivan, Mr. Cross S.C. argued that the detention of the accused between 12.01 am and 1.25 am, a period of 1 hour and 24 minutes, while awaiting the production of the computer generated charge sheet, constituted a deliberate and conscious violation of the accused man's constitutional rights albeit a violation of which the principal actor, namely the prosecuting guard, was probably personally unaware. It was conceded by Mr. Cross that were I not satisfied that a conscious and deliberate violation had taken place, then the accused man faced some serious difficulty in securing answers to the questions posed which were favourable to him.
No issue arose as to the lawfulness of the accused's detention up to the point where he had allegedly refused to provide a urine sample to the designated doctor. It is at that point (12.01am) that the accused was placed in a cell awaiting charges. Initially, it was quite conceivable that the detention was lawful since the guard is entitled to a reasonable opportunity to prepare the charge against the accused. However, detention which is lawful could become unlawful if the purpose for which the accused man was in custody was not carried out as soon as reasonably possible. Again, it was conceded that the prosecuting authorities are entitled to a reasonable time within...
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