DPP v McCormack

• Jurisdiction: Ireland
• Judge: Mrs. Justice McGuinness
• Judgment Date: 01 January 2000
• Neutral Citation: [1999] IEHC 13
• Court: High Court
• Docket Number: [1999 No. 656 SS]
• Date: 01 January 2000

DPP v. MCCORMACK

IN THE MATTER OF AN APPEAL BY WAY OF CASE STATED PURSUANT TO

SECTION 2 OF THE SUMMARY JURISDICTION ACT 1857

BETWEEN

THE DIRECTOR OF PUBLIC PROSECUTIONS

PROSECUTOR/APPELLANT

AND

MICHAEL MCCORMACK

ACCUSED/RESPONDENT

[1999] IEHC 13

No. 656 SS/1999

THE HIGH COURT

Synopsis

Criminal Law

Criminal; practice and procedure; drink driving; arrest; case stated; accused gave valid breath specimen and was taken into custody; evidence established that the accused was not informed at the time of his arrest of the fact that he was being arrested, nor under what provision he was being arrested; whether the district judge was correct in dismissing the charge where the accused had not been informed under what provision he was being arrested; whether the district judge was correct in dismissing the charge where the accused had not been informed that he was being arrested.

Held: The District Judge was correct in dismissing the charge against the accused, since the accused was not validly arrested, as he was not informed that he was being arrested.

D.P.P. v. McCormack - High Court: McGuinness J. - 08/07/1999 - [1999] 4 IR 158 - [2000] 1 ILRM 241

When it is abundantly clear to a person why they are being arrested it is not necessary for the arresting Garda to quote the relevant section under which the person is being arrested and therefore the specific question asked in the case stated will be answered "No". However, as the District Judge also found that the arresting Garda had not informed the accused that he was being arrested at all then the arrest was invalid and what followed was vitiated. The High Court so held in saying that the District Judge was correct to dismiss the charge.

Citations:

SUMMARY JURISDICTION ACT 1857 S2

ROAD TRAFFIC ACT 1961 S49(2)

ROAD TRAFFIC ACT 1994 S10

ROAD TRAFFIC ACTS 1961–1995 S12

ROAD TRAFFIC ACT 1961 S49(8)

ROAD TRAFFIC ACT 1961 S49(3)

DPP V MOONEY 1992 1 IR 548

BRENNAN V DPP UNREP SUPREME 1.11.1995 1995/15/4001

DPP V CONNELL UNREP CCA 16.10.1997 1998/4/834

CHRISTIE V LEACHINSKY 1947 AC 573

DPP, PEOPLE V WALSH 1980 IR 294

DPP V MCCREESH 1992 2 IR 239

ALDERSON V BOOTH 1969 2 QB 216

MADIGAN V DEVALLY & DPP 1999 2 ILRM 141

DE BLACAM DRUNKEN DRIVING & THE LAW 2ED 33 & 36

1 JUDGMENT of Mrs. Justice McGuinness delivered the 8th day of July 1999

2 This is a Case Stated pursuant to Section 2 of the Summary Jurisdiction Act 1857 for the opinion of this Court by Judge William Harnett of the District Court. The case is stated at the request of the Director of Public Prosecutions and arose from a prosecution in the District Court at Callan, County Kilkenny, heard on the 10th day of December 1997 and the 14th day of January 1998. The accused, Michael McCormack, was charged with an offence under Section 49(2) of the Road Traffic Act 1961as inserted by Section 10 of the Road Traffic Act 1994that he did on the 1st day of September 1997 at Clashacollaire, Callan, a public place in Court area and District aforesaid drive a mechanically propelled vehicle registered no 89 KK 1276 in a public place 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 milligrams of alcohol per 100 millilitres of blood.

3 The learned judge of the District Court sets out the relevant factors of the Case Stated as follows:

"At the hearing the following facts were approved or admitted before me:-"

(I) Garda Helen Nugent of Callan Garda Station, a member of An Garda Siochana, was on duty on the morning of the 1st of September at approximately 12.45 a.m. at Clashacollaire, Callan, County Kilkenny. She stopped motor vehicle registration 89 KK 1276 and on speaking to the driver she noticed his speech was slurred and there was a strong smell of alcohol from his breath. The driver gave is name as Michael McCormack, Minnauns, Callan.

(II) Garda Nugent informed Mr McCormack that she was of the opinion that he had consumed intoxicating liquor and that she required him to provide a specimen of his breath pursuant to Section 12 of the Road Traffic Act, 1961/ 1995and she informed him that a failure or a refusal to comply with such a required (requirement?) was an offence punishable on conviction by six months imprisonment and/or a £1,000 fine.

(III) The driver, who was the accused, agreed to provide a specimen of his breath and the test proved positive.

(IV) Garda Nugent formed the opinion that the accused was under the influence of an intoxicant to such an extent as to be incapable of having proper control of a mechanically propelled vehicle.

(V) Garda Nugent arrested the accused. In her evidence she told the Court that the arrest was affected pursuant to Section 49(8) of the Road Traffic Act, 1961for an offence contrary to Section 49( 2) or (3) of that Act.

(VI) I found as a fact that Garda Nugent did not inform the accused that he was being arrested pursuant to Section 49(8) of the Road Traffic Act 1961, nor did she inform the accused that he was being arrested pursuant to any particular statutory provision, nor did she inform him whether in layman's language or otherwise of the fact that he was being arrested for an offence pursuant to the legislation concerning the consumption of the intoxicants, nor did she inform him that he was being arrested.

(VII) The arrest took place at 12.50 a.m. on the 1st September 1997. The accused was then brought by Garda Nugent and Sergeant Treacy to Kilkenny Garda Station arriving there at 1.10 a.m.

(VIII) Garda Michael Phelan was the member of the charge of the station and the accused was provided with a notice of his rights which were explained to him and the copy of Form C72 was given to him. Garda Phelan was available to give evidence but his evidence was not required by the Solicitor for the accused."

4 The learned judge of the District Court then sets out the procedure carried out at the Garda Station in regard to the giving of a sample of blood by the accused. All the proper procedures in this regard were fully followed. The sample was correctly forwarded to the Medical Bureau of Road Safety and it transpired that there was a concentration of 235 milligrams of alcohol per 100 millilitres of blood in the sample. The learned Judge continues the Case Stated as follows:-

"At the conclusion of the prosecution case Mr O'Sullivan's Solicitor, on behalf of the accused submitted that on the foregoing facts the charge against his client should be dismissed. He sought a dismissal of the charge on the grounds that the arrest of his client had not been stated and explained to the accused at the time of his arrest nor had there been evidence that the Garda had expressly invoked this specific section during the arrest. He referred to the decision of the High court in DPP v. Mooney [1992] 1 IR 548 and also the decision in Brennan v DPP (unreported Supreme Court 1st November 1995). He submitted that the reason for the arrest must be made clear to the arrested person. He pointed out that Garda Nugent in her evidence had not stated that she had expressly informed the accused of her opinion that he was under the influence of an intoxicant to such an extent as to be incapable of having proper control of a vehicle nor that she was arresting him under Section 49(8) of the Act as a consequence."

5 In response to these submissions Superintendent Duffe pointed out that Garda Nugent had told the accused of her opinion that he had consumed liquor and also that she had given him a breath test which had proved positive and that as a result of both of these matters being brought to the attention of the accused he must have been well aware of why he was being arrested. The case was adjourned to Callan District Court on 14th January 1998 to allow relevant case law to be considered and consulted. On that date Mr O'Sullivan, Solicitor summarised his arguments and provided me with a copy of the decision of the Supreme Court in DPP v Brennan (referred to above). He relied in particular on that Court's comment in relation the question of validity of an arrest. Superintendent Duffe addressed me once more in relation to Garda Nugent's evidence and relied upon the fact that Garda Nugent had told the accused of her opinion that he had proved positive. He submitted that the prosecution had adduced sufficient evidence in regard in the circumstances (sic). Superintendent Duffe referred me to the case DPP v Mooney, cited above and to the judgment of the High Court in DPP v Francis Connelly, a decision of Mr Justice Geoghegan of 16th of October 1997 and also to the House of Lords Case of Christie v Mooney (recte Leachinsky) to the effect that the requirements that a person arrested should be informed of the reason for the arrest naturally did not exist if the...