DPP v McCrea

• Jurisdiction: Ireland
• Judge: Mr. Justice John Edwards
• Judgment Date: 28 January 2009
• Neutral Citation: [2009] IEHC 39
• Judgment citation (vLex): [2009] 1 JIC 2803
• Court: High Court
• Date: 28 January 2009

[2009] IEHC 39

THE HIGH COURT

[No. 1031 SS/2008]

DPP (Garda Lavelle) v McCrea

IN THE MATTER OF SECTION 2 OF THE SUMMARY JURISDICTION

ACT, 1857, AS EXTENDED BY SECTION 51 OF THE COURTS

(SUPPLEMENTAL PROVISIONS) ACT, 1961

BETWEEN

THE DIRECTOR OF PUBLIC PROSECUTIONS (AT THE SUIT OF GARDA BRIAN LAVELLE)

PROSECUTOR/APPELLANT

AND

PAUL McCREA

RESPONDENT/ACCUSED

SUMMARY JURISDICTION ACT 1857 S2 (UK)

COURTS (SUPPLEMENTAL PROVISIONS) ACT 1961 S51

ROAD TRAFFIC ACT 1994 S12

ROAD TRAFFIC ACT 2002 S10

ROAD TRAFFIC ACT 2003 S2

ROAD TRAFFIC ACT 1961 S49(8)

ROAD TRAFFIC ACT 1994 S13(1)(A)

ROAD TRAFFIC ACT 1994 S13(2)

ROAD TRAFFIC ACT 2002 S23

DE BLACAM DRUNKEN DRIVING & THE LAW 3ED 2003

DPP v BYRNE (DISTRICT COURT) MEATH CHRONICLE 1.6.1991

ROAD TRAFFIC ACT 1994 S13

WALSH v O BUACHALLA 1991 IR 56

ROAD TRAFFIC ACT 1961 S49

DPP v MCDONAGH UNREP SUPREME 16.10.2008 2008 IESC 57

DPP v COLLINS 1981 ILRM 447 1981/9/1553

DPP v SPRATT 1995 1 IR 585 1995 2 ILRM 117 1995/2/619

DPP v CLARK UNREP JOHNSON 31.5.2001 2001/7/1667

CRIMINAL JUSTICE ACT 1984 (TREATMENT OF PERSONS IN CUSTODY IN GARDA SIOCHANA STATIONS) REGS 1987 SI 119/1987 REG 8

CRIMINAL JUSTICE ACT 1984 S7(3)

DPP, PEOPLE v MADDEN 1977 IR 336 1977 111 ILTR 117

DPP, PEOPLE v HEALY 1990 2 IR 73 1990 ILRM 313 1989/5/1277

AG, PEOPLE v O'BRIEN 1965 IR 142

DPP, PEOPLE v KENNY 1990 2 IR 110 1990/2/417

DPP, PEOPLE v SHAW 1982 IR 1

DPP, PEOPLE v O'BRIEN 2005 2 IR 206 2005 IESC 29

DPP v BUCK 2002 2 IR 268 2002 2 ILRM 454 2002/8/1841

ROAD TRAFFIC ACT 1961 S26

ROAD TRAFFIC ACT 2006 S6

DPP (WALSH) v CASH UNREP CHARLETON 28.3.2007 2007/17/3461 2007 IEHC 108

QUINN, STATE v RYAN 1965 IR 70

TRIMBOLE, STATE v GOVERNOR OF MOUNTJOY PRISON 1985 IR 550 1985 ILRM 465

UNITED STATES v LEON 1984 468 US 897

BUTLER, ONG BREACH OF THE CONSTITUTIONAL RIGHT OF ACCESS TO A LAWYER & THE EXCLUSION OF EVIDENCE - THE CAUSATIVE LINK 1995 5 ICLJ 156

CRIMINAL LAW

Road traffic offence

Refusal to provide specimen of breath - Evidence - Request to provide breath sample - Request for solicitor - Refusal of access to solicitor - Timing out of intoxilyser machine - Charge dismissed - Whether accused should have been provided with access to solicitor before breath test procedure - Whether trial judge correct in dismissing charge - Whether denial of right of reasonable access to solicitor - Whether statutory limitation regarding number of requests - Whether exclusionary rule applicable - Whether causal link between violation of right and gathering of evidence - Constitutional right of access to solicitor - Whether deliberate and conscious breach of right - Whether extraordinary excusing circumstances - Unlawful detention - Application of strict exclusionary rule - Walsh v O'Buachalla [1991] IR 56, DPP v McDonagh [2008] IESC 57 (Unrep, SC, 16/10/2008), People (DPP) v Collins [1981] ILRM 447, People (DPP) v Spratt [1995] 1 IR 585, People (DPP) v Madden [1977] IR 336, People (DPP) v Healy [1990] 2 IR 73, People (DPP) v O'Brien [1965] IR 142, People (DPP) v Kenny [1990] 2 IR 110, People (DPP) v O'Brien [2005] IR 206, People (DPP) v Buck [2002] 2 IR 268, DPP v Cash [2007] IEHC 108 (Unrep, Charleton J, 28/3/2007), State (Quinn) v Ryan [1965] IR 70, Trimbole v Governor of Mountjoy Prison [1985] IR 550 and United States v Leon (1983) 468 US 897 considered - Summary Jurisdiction Act 1857 (20 & 21 Vic, c 43), s 2 - Courts (Supplemental Provisions) Act 1961 (No 39), s 51 - Road Traffic Act 1994 (No 7), ss 13 and 23 - Case answered in affirmative (2008/1031SS - Edwards J - 28/1/2009) [2009] IEHC 39

DPP (Lavelle) v McCrea

Facts: On appeal by way of case stated, the accused had been charged with drink driving offences pursuant to the Road Traffic Act, 1994 as amended and requested to speak with his solicitor prior to providing a sample of his breath into an intoxilyser machine. The Garda operating the machine had asserted that the accused was obliged by law to provide the sample and would be able to talk to his solicitor afterwards. The District Judge had dismissed the charge, holding that the Garda had mistakenly concluded that she would not be entitled to make another request of the accused if she broke the operating cycle of the intoxilyser machine and permitted the accused to consult a solicitor. The question stated to the High Court was as follows: “Should the accused have been provided with access to a solicitor before the breath test procedure under s. 13 Road Traffic Act, as amended was completed?; (ii) If the answer to question 1 is “yes”, was I correct in dismissing the prosecution on that basis?”.

Held by Edwards J. that once his detention became unlawful that he was entitled to be released and to leave the Garda Station forthwith. It was not necessary that a causative link should exist between the breach of rights and the evidence required. There was a need to reconsider the strict exclusionary rule in existence. It had not been established on the facts. The appropriate question was not whether a lawyer would have made a difference but rather whether a lawyer could have made a difference. The District Judge had adopted the correct approach. Both of the questions posed in the case stated would be answered in the affirmative.

Reporter: E.F.

1 JUDGMENT of Mr. Justice John Edwardsdelivered the 28th day of January, 2009.

Introduction

2 The proceedings herein take the form of an appeal by way of Case Stated pursuant to s. 2 of the Summary Jurisdiction Act, 1857 as extended by s. 51 of the Courts (Supplemental Provisions) Act, 1961. For ease of reference the prosecutor/appellant and the respondent/accused respectively will hereinafter be referred to simply as "the prosecutor" and "the accused" respectively.

3 Section 2 of the 1857 Act provides:-

"After the hearing and determination by a Justice or Justices of the Peace of any information or complaint which he or they have power to determine in a summary way, by any law now in force or hereafter to be made, either party to the proceedings before the said Justice or Justices may, if dissatisfied with thesaid determination as being erroneous in point of law, apply in writing within three days after the same to the said Justice or Justices to state and sign a case setting forth the facts and the grounds of such determination, for the opinion thereon of one of the Superior Courts of Law to be named by the party applying".

4 Section 51 of the Courts (Supplemental Provisions) Act, 1961, provides:-

5 2 "(1) Section 2 of the Summary Jurisdiction Act, 1857, is hereby extended so as to enable any party to any proceedings whatsoever heard and determined by a Justice of the District Court (other than proceedings relating to an indictable offence which was not dealt with summarily by the court). If dissatisfied with such determination as being erroneous on a point of law, to apply in writing within fourteen days after such determination to the said Justice to state and sign a case setting forth the facts and the grounds of such determination for the opinion thereon of the High Court."

The Case Stated

6 On the 8 ^th July, 2008 Judge Anne Watkin, a Judge of the District Court, assigned to the Dublin Metropolitan District, pursuant to a request from the prosecutor, stated a case for the opinion of the High Court in the following terms.

7 2 "(1) On 23 ^rd January, 2008, the above named case was listed for hearing before me in the District Court, Richmond Courts Complex, North Brunswick Street, Dublin 7. The accused faced the following charge, as contained in Charge Street No. 632056:

"On the 9 ^th June, 2007 at Blanchardstown Garda Station in the said District Court Area of Dublin Metropolitan District, being a person arrested under s. 49(8) of the Road Traffic Act, 1961, having being required by Garda Gillian Synnott, a member of the Garda Síochána, at Blanchardstown Garda Station pursuant to s. 13(1)(a) of the Road Traffic Act, 1994 to provide two specimens of your breath, did refuse to comply forthwith with the said requirement. Contrary to s. 13(2) of the Road Traffic Act, 1994, as amended by s. 23 of the Road Traffic Act, 2002".

8 A copy of charge sheet No. 632056 is appended to this Case Stated at Appendix A.

9 (2) The case came before me on 23 ^rd January, 2008 and was prosecuted by Mr. Ronan Cleary, Solicitor of the office of the Chief Prosecution Solicitor. The accused was represented by Mark Byrne, B.L., instructed by Terence Lyons and Company, Solicitors.

Evidence proved or admitted before me

10 (3) The first prosecution witness to give evidence was Garda Brian Lavelle. He testified that, on the morning of 9 ^th June, 2007, the accused had been pulled over for driving erratically, swerving left to right on the road. Garda Lavelle testified that he spoke to the accused, who had been driving the vehicle, and detected a strong smell of intoxicating liquor from his breath. The accused's speech was slurred and his eyes were glazed.

11 (4) The accused stated to Garda Lavelle that it had been one hour since his last drink. Garda Lavelle made a requirement of the accused, pursuant to s. 12 of the Road Traffic Act, 1994 (as amended by s. 10 of the Road Traffic Act, 2002 and s. 2 of Road Traffic Act, 2003) to provide aspecimen of his breath, and explained to the accused the penalties for failure to provide same. The accused provided a specimen of his breath and it was a "fail" reading. Garda Lavelle formed the opinion that the accused was intoxicated to such an extent as to be incapable of controlling a mechanically propelled vehicle in a public place and he was arrested at 2.10 a.m. on 9 ^th June, 2007 under s. 49(8) of the Road Traffic Act, 1961.

12 (5) Garda Lavelle explained the reason for his arrest to the accused, both in terms of the relevant legislation as well as in ordinary language. The accused was given the...