DPP v McConville

• Jurisdiction: Ireland
• Judge: Kearns P.
• Judgment Date: 12 December 2014
• Neutral Citation: [2014] IEHC 616
• Docket Number: [2014 No. 633SS]
• Court: High Court
• Date: 12 December 2014

IN THE MATTER OF SECTION 52 OF THE COURTS (SUPPLEMENTAL PROVISIONS) ACT 1961

BETWEEN

THE DIRECTOR OF PUBLIC PROSECUTIONS (AT THE SUIT OF GARDA PATRICK DUNNE)

PROSECUTOR

AND

FRANCES McCONVILLE

DEFENDANT

[2014] IEHC 616

[2014 No. 633SS]

THE HIGH COURT

Courts (Supplemental Provisions) Act 1961 – Driving Offences – Practice and Procedure – Fixed Penalty Notice – Failure to Produce Driving Licence – Drunk Driving

Facts: The proceedings under review concerned a consultative case stated for the High Court by District Judge Hamill pursuant to s 52(1) of the Courts (Supplemental Provisions) Act 1961. The defendant was arrested on suspicion of drunk driving and at the point of arrest a request was made under s 40 of the Road Traffic Act 1961 for production of a driving licence within 10 days at a Garda station to be nominated by the defendant. The defendant failed to produce a driving licence. The defendant was subsequently prosecuted by way of summonses. A fixed charge notice did not issue in relation to the alleged offence. On November 20th 2013 a driving licence and insurance documentation were handed over in court to the prosecuting Gardaí.

Held by Justice Kearns after consideration of the submissions presented and the applicable legislation and case-law that he was satisfied that the accused was a specified driver under s 3(1) of the Road Traffic Act 2010 (as amended) on the date of the alleged offence. It was reasoned that the defendant had failed to produce her driving licence and there was therefore a presumption under s 8(1) of the 2010 Act (as amended) that she did not hold such a licence. Thus, it was determined that the Gardaí were required to proceed with the prosecution on that basis. That the accused eventually produced a valid licence on the day of the hearing did not entitle her to receive a fixed penalty notice at that stage and she could be convicted under s 4(4)(a) of the 2010 Act. Justice Kearns was further satisfied that there was no obligation on the Gardaí to inform the defendant of the consequences of her failure to produce her driving licence when demanded under s 40 of the 1961 Act.

Kearns P.

JUDGMENT of Kearns P. delivered on the 12th day of December, 2014

1 This is a consultative case stated for the High Court by District Judge Hamill pursuant to Section 52(1) of the Courts (Supplemental Provisions) Act 1961. The case stated is dated 8th April, 2014.

2 THE CASE STATED

3 The background facts are set out in detail in the consultative case stated by Judge Hamill which it is necessary to reproduce in full:

4 1. ‘The defendant was summoned to answer allegations that she committed various offences contrary to the Road Traffic Acts on May 10th 2012 at the suit of the prosecutor the subject of case number 2012/227110 at Dublin Road, Dundalk, Co. Louth. Among the charges is in allegation of an offence contrary to s. 4(4)(b) and (5) of the Road Traffic Act 2010 as follows:

‘On the 10/05/2012 at Dublin Road, Dundalk Co. Louth in the said District Court area of Dundalk, while being a specified person as provided under Part 2 of the Road Traffic Act 2010, did drive a mechanically propelled vehicle while there was present in your body a quantity of alcohol such that, within 3 hours after so driving, the concentration of alcohol in your breath did exceed a concentration of 9 microgrammes of alcohol per 100 millilitres of breath, to wit 39 microgrammes of alcohol per 100 millilitres of breath.

Contrary to section 4(4)(b) & (5) of the Road Traffic Act 2010.’

5 2. The facts proved or admitted for the purposes of the issue were as follows:

(a) Garda Patrick Dunne stopped Ms McConville in the early hours of May 10th 2012 while she driving a mechanically propelled vehicle on the Dublin Road which then had no lights on. She was stopped by gardaí who observed her speech was slurred, her eyes bloodshot and a smell of alcohol emanating from her breath. A road-side breath test was administered which gave a “fail” result. She was arrested on suspicion of drunken driving and brought to Dundalk Garda Station. There was no garda there qualified to operate the evidential breath test apparatus so she was transferred to Drogheda Garda Station. In Drogheda Garda Station Ms McConville gave breath samples which gave a reading of 39?g per 100 ml of breath.

(b) At the point of arrest, Garda Dunne made a demand under s. 40 of the Road Traffic Act 1961 for production of a driving licence within 10 days at a Garda station to be nominated by the defendant. The defendant nominated Dundalk Garda Station but failed to produce a driving licence there within the ten days.

(c) The defendant was charged that night and released on station bail to appear on Dundalk District Court on May 30th 2012. There was no sitting of Dundalk District Court on May 30th 2012 and so no order was made. The defendant subsequently attended at Dundalk Garda Station and secured the return of her bail money. The defendant was subsequently prosecuted by way of summonses which were applied for on October 26th 2012 and made returnable for March 13th 2013. A fixed charge notice did not issue in relation to the alleged offence.

(d) The case was adjourned from time to time. On November 20th 2013 driving licence and insurance documentation was handed over in court to the prosecuting gardaí. The documentation included a document from the UK Driver and Vehicle Agency which demonstrated that the defendant at the time of the alleged offence held a valid UK driving licence.

6 3. On November 20th 2013 and December 18th 2013 I presided over the court. Mr. Conor MacGuill of MacGuill & Co. Solicitors appeared on behalf of the defendant. On November 20th 2013, Inspector Brendan Cadden appeared for the prosecutor. On December 18th 2013, Inspector Martin Beggy appeared for the prosecutor. Legal submissions were made on both occasions. The trial of the defendant on the charge has not begun but legal argument was made in relation to the propriety of the continued prosecution of the defendant in the foregoing circumstances.

7 4. In summary Mr MacGuill argued that, as the defendant held a valid driving licence at the time of the alleged offence, she was not a specified person within the meaning ascribed by section 3(1) of the Road Traffic Act 2010 (as amended). The reading of the evidential breath test apparatus was between 35 ?g and 44 ?g per 100 ml of breath. Therefore, he argued, under section 29(1) of the Road Traffic Act 2010 (as amended) the prosecution were under a duty to issue a fixed charge notice in respect of the offence and pending that, her prosecution was prohibited by section 35(2) of the Road Traffic Act 2010. Mr. MacGuill argued that this is irrespective of whether she had actually produced her licence. In reply it was argued that the failure to produce meant the prosecution could proceed with the prosecution, as per section (8)(1) and (2), and the matter could be dealt with by way of alternative verdicts provisions under section 8(A) of the Road Traffic Act, 2010.

8 5. By way of further argument Mr MacGuill argued, without prejudice to his previous argument, that when making the requirement to produce the driving licence, fair procedures required Garda Dunne to inform the defendant, when making the requirement to produce the driving licence, to inform her of the consequences of failure to produce the driving licence in that it could mean she could be excluded from availing of the fixed charge procedure if she did not produce her driving licence within ten days. In reply it was argued that a valid demand for production was made under section 40 of the Road Traffic Act 1961 (as amended).

9 6. And whereas, I, the said judge, am of the opinion that questions of law arise in the foregoing case do hereby refer the following questions to the High Court for determination:

(i) Was the defendant a specified driver under s. 3(1) of the Road Traffic Act 2010 (as amended) on the date of the alleged offence?

(ii) If the answer to question (i) is “no”, did s. 29 of the Road Traffic Act 2010 (as amended) require the prosecution serve a fixed charge notice on the defendant?

(iii) If the answer to question (ii) is “yes”, what are the consequences for her prosecution of their failure to do so?

(iv) If the answer to question (ii) is “no”, were the gardaí under an obligation to inform the defendant of the consequences of her failure to produce her driving licence when demanded under s. 40 of the Road Traffic Act 1961 (as amended)?’

10 RELEVANT LEGISLATION

11 The provisions of the Road Traffic Act 2010 provide that when the concentration of alcohol in a drunk driving case is within a certain range, then the driver will be served with a fixed charge notice which, if paid, will obviate the need for a court prosecution. However, the relevant legislation also imposes more stringent requirements in respect of certain ‘specified persons’ who shall not benefit from the fixed charge notice system.

12 Section 3 of the Road Traffic Act 2010 as amended and inserted by section 9 of the Road Traffic (No.2) Act 2011 provides –

‘9.— The Act of 2010 is amended—

(a) in subsection (1) of section 3, by substituting for the definition of ‘specified person’ the following:

‘“specified person” means a person who at the time of an alleged offence under section 4 or 5—

(a) is the holder of a learner permit permitting the holder to drive a vehicle of the category concerned,

(b) is the holder of a first driving licence licensing the holder to drive a vehicle of the category concerned within a period of 2 years from the date of its issue,

(c) is the holder of a driving licence licensing the holder to drive a vehicle in the category C, C1, D, D1, EB, EC, EC1, ED, ED1 or W while driving, attempting to drive or being in charge of such a vehicle,

(d) is the holder...