DPP v Martin Parker
| Jurisdiction | Ireland |
| Judge | Ms. Justice Donnelly |
| Judgment Date | 17 December 2014 |
| Neutral Citation | [2014] IEHC 652 |
| Court | High Court |
| Date | 17 December 2014 |
[2014] IEHC 652
THE HIGH COURT
AND
ROAD TRAFFIC ACT 1961 S50(2)
ROAD TRAFFIC ACT 1961 S50(6)(A)
ROAD TRAFFIC ACT 1994 S11
ROAD TRAFFIC ACT 2002
ROAD TRAFFIC ACT 1994 S13(1)(B)
CRIMINAL JUSTICE ACT 2006 S12
ROAD TRAFFIC ACT 1961 S50(10)
ROAD TRAFFIC ACT 1994 S13
ROAD TRAFFIC ACT 1994 S13(1)(B)(I)
ROAD TRAFFIC ACT 1994 S13(1)(B)(II)
ROAD TRAFFIC ACT 1994 S13(3)(A)
ROAD TRAFFIC ACT 1994 S13(3)(B)
ROAD TRAFFIC ACT 1994 S23
CRIMINAL JUSTICE ACT 1984 (TREATMENT OF PERSONS IN CUSTODY IN GARDA SÍOCHÁNA STATIONS) REGULATIONS 1987 SI 119/1987 REG 8(1)(A)
CRIMINAL JUSTICE ACT 1984 (TREATMENT OF PERSONS IN CUSTODY IN GARDA SÍOCHÁNA STATIONS) REGULATIONS 1987 SI 119/1987 REG 8(1)(B)
DPP v MADDEN 1977 IR 336 111 ILTR 117
DPP, PEOPLE v HEALY 1990 2 IR 73 1990 ILRM 313 1989/5/1277
DPP v BUCK 2002 2 IR 268 2002 2 ILRM 454 2002/8/1841
DPP v GORMLEY & WHITE UNREP SUPREME 6.3.2014 2014 IESC 17
WALSH v O BUACHALLA 1991 1 IR 56 1991/6/1519
DPP v SPRATT 1995 1 IR 585 1995 2 ILRM 117 1995/2/619
DPP (GARDA TORMLEY) v GILLESPIE UNREP HEDIGAN 9.6.2011 2011 IEHC 236
ROAD TRAFFIC ACT 1994 S17
DPP (GARDA LAVELLE) v MCCREA UNREP SUPREME 9.12.2010 2010/16/3844 2010 IESC 60
KEATING v GOV OF MOUNTJOY PRISON 1991 1 IR 61 1990 ILRM 850 1990/7/1976
CRIMINAL JUSTICE ACT 2006 S12(6)
DPP v BOYCE 2009 2 IR 124 2009 1 ILRM 253 2008/16/3482 2008 IESC 62
CRIMINAL JUSTICE (FORENSIC EVIDENCE) ACT 1990
Criminal Evidence – s.50 (2) and s.50 (6)(a) of the Road Traffic Act 1961 as inserted by s.11 the Road Traffic Act 1994 as amended by the Road Traffic Act 2002 – s. 12 of the Criminal Justice Act 2006 – Drink Driving Offence – Forensic specimens – Identification
Facts: The issue in this case arose from the prosecution of the accused for an offence of drink driving contrary to s.50 (2) and s.50 (6)(a) of the Road Traffic Act 1961 as inserted by s.11 the Road Traffic Act 1994 as amended by the Road Traffic Act 2002. Two questions of law arose. Firstly, did the fact the Gardai failed to contact the accused”s solicitor prior to making a s. 13 (1)(b) of the Road Traffic Act 1994 request for a blood sample render the evidence inadmissible and/or otherwise justify the dismissal of the prosecution? Section 13 provides a mandatory obligation to provide a blood and urine specimen. The Department of Public Prosecutions contended that a person arrested for drink driving should comply with that statutory obligation regardless of whether they have obtained legal advice.
Secondly, did the fact the Gardai took a photograph of the accused while detained, without the required authorisation stated in s. 12 of the Criminal Justice Act 2006, render the evidence inadmissible and/or warrant the prosecution to be dismissed? The photograph had been taken for identification purposes but no authorisation was sought from a member of An Garda Siochana not below the rank of sergeant. Section 12 permits photographs to be taken for a specific purpose i.e. the identification of the accused in connection with proceedings for which the accused is detained.
Held by Donnelly J: The question of the inadmissibility of forensic evidence taken from a person who has not had access to a lawyer must be decided on a case by case basis. The fact the accused”s solicitor was not contacted by the Gardai prior to making a s. 13(1)(b) of the Road Traffic Act 1994 request for a blood specimen did not render the evidence inadmissible or justify the dismissal of the prosecution against the accused. The fact the Gardai took a photograph of the accused while detained did not mean the accused”s detention was unlawful and/or unconstitutional to render the evidence inadmissible nor did it warrant the dismissal of the prosecution against the accused.
JUDGMENT of Ms. Justice Donnelly delivered on the 17th day of December 2014
1. This is a consultative case stated by Judge Mary Devins concerning an issue that arose during the prosecution of Martin Parker ("the accused") for an offence of driving a mechanically propelled vehicle while there was present in his body a quantity of alcohol such that within three hours after so driving, the concentration of alcohol in his blood exceeded a concentration of 80 micrograms of alcohol per 100 millilitres of blood contrary to s.50 (2) and s.50 (6)(a) of the Road Traffic Act 1961 as inserted by s. 11 the Road Traffic Act 1994 as amended by the Road Traffic Act 2002.
2 The opinion of the High Court is sought in relation to the following questions of law:
i I. Does the fact that the nominated solicitor of the accused was not contacted by the Gardaí prior to the making of the request under s. 13 (1)(b) of the Road Traffic Act 1994 as amended and/or before the accused elected to permit the doctor to take a specimen of his blood render the subsequent evidence inadmissible and/or otherwise justify the dismissal of the prosecution against the accused?
ii II. Does the fact that the Gardaí took the photograph of the accused while he was detained, other than with the authority of a member of, or above, the rank of sergeant as required by s.12 of the Criminal Justice Act 2006 make the detention of the accused unlawful and/or unconstitutional such as to render the evidence required thereafter inadmissible in subsequent proceedings and warrant the dismissal of the prosecution against the accused?
3. The case stated records the following findings of fact relevant to the legal issues:-
(i) At 15.17 hours on the 22nd February, 2011, Garda Mary Gallagher, having formed the requisite suspicion, arrested the accused under the provisions of s.50(10) of the Road Traffic Act 1961 to 2006 as amended and conveyed him to Ballinrobe Garda Station where they arrived at 15.20 hours.
(ii) At 15.23 hours Garda Aidan Connaughton, the member in charge of Ballinrobe Garda Station, read over and gave to the accused a copy of his notice of rights (form C72 (s)).
(iii) At 15.23 hours Sergeant Helena Hastings contacted the designated medical practitioner, Dr. Michael Finnerty of Westdoc, and requested him to come to the Garda station to take or obtain a blood or urine specimen from the accused.
(iv) At 15.30 hours the accused requested that his own solicitor and his own GP be contacted on his behalf. The solicitor he requested is recorded in the custody record as "John Dillon" although the accused in evidence stated that he requested John Dillon Leetch, it was put to the Garda witness in cross examination and submitted to me that the accused had actually requested the attendance of "John Dillon Leetch" solicitor. The GP requested by the accused is recorded as Dr. Michael Regan. Dr. Regan could not be contacted.
(v) At 15.45 hours Garda Colin Murrin made a telephone call to "John Dillon's" office and he informed the court that John Dillon was not available. Garda Murrin could not recall how he had acquired the contact number for "John Dillon". In any event, he did not speak to the nominated solicitor and the accused was invited to nominate another solicitor. Garda evidence was that he again nominated "John Dillon" but the accused stated in evidence that he again requested "John Dillon Leetch". There is no solicitor practising under the style of "John Dillon" in the area, no further effort was made to contact a solicitor.
(vi) At 16.10 hours Garda Aidan Connaughton took the accused's photograph, having first obtained his written consent. The taking of the photograph was stated to be for identification purposes although Garda Murrin who had made the telephone calls referred to herein, testified that he knew the identity of the accused. Garda Connaughton did not seek the authorisation of a member of An Garda Síochána not below the rank of sergeant before the taking of the photograph of the accused.
(vii) At 17.03 hours Dr. Finnerty arrived at the Garda Station and after the accused had so elected, at 17.13 hours took from him a specimen of blood. That specimen was subsequently forwarded for analysis to the Medical Bureau of Road Safety whence a certificate of analysis was returned showing a concentration of 252 mg. of alcohol per 100 ml. of blood. The certificate was tendered in evidence.
4. It is immediately apparent that no express finding of fact was made by the learned District Judge as to what solicitor the defendant had in fact requested. Neither is there an express finding of fact as to whether the Garda had in fact contacted John Dillon's office. On the other hand, there is a finding that there is no solicitor practising under the style of John Dillon in the area. This finding in itself leads to the inference that the Garda could not have contacted such an office, although it is possible that such office existed outside the area. Although it is clear from the question in the case stated that the nominated solicitor for the accused was not contacted by the Garda prior to the request made of him under the relevant provisions of s.13 of the Road Traffic Act 1994, there appears not to be a finding as to whether this in itself was a breach of reasonable access.
5. The relevant portions of section 13 of the Road Traffic Act 1994 as amended provide that where a person is arrested under s.50(10) of the Act, a member of the Garda Síochána may at any Garda Síochána station:
2 (1)(b) require the person either -
i i. to permit a designated doctor or designated nurse to take from the person a specimen of his or her blood, or
ii ii. at the option of the person, to provide for the...
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...have legal advice before making any such choice: see para 20 of the judgment of Donnelly J in Director of Public Prosecutions v. Parker [2014] IEHC 652, referring to People ( ( [2014] 2 I.R. 591 Director of Public Prosecutions v. Gormley and White [2014] IESC 17). This right to advice on ch......