DPP v McTigue
| Jurisdiction | Ireland |
| Judge | Mr. Justice McCarthy |
| Judgment Date | 11 December 2018 |
| Neutral Citation | [2018] IECA 390 |
| Docket Number | [C.A. No. 614 of 2017],Neutral Citation Number: [2018] IECA 390 2017 614 |
| Court | Court of Appeal (Ireland) |
| Date | 11 December 2018 |
[2018] IECA 390
THE COURT OF APPEAL
McCarthy J.
Birmingham P.
Edwards J.
McCarthy J.
Neutral Citation Number: [2018] IECA 390
2017 614
IN THE MATTER OF SECTION 52(1) OF THE COURTS (SUPPLEMENTAL PROVISIONS) ACT 1961
Crime & sentencing – Road traffic offences – Failure to provide a sample – Appeal against dismissal of case stated
Facts: The appellant had been charged with an offence of failing to provide a sample of blood or urine as required by a Garda. The District Court had stated a case asking if a finding of an incorrect warning justified the dismissal of the charge, but the High Court had answered in the negative. The matter now came on appeal.
Held, that the appeal would be dismissed. The Court was persuaded that the incorrect information provided by the Garda to the appellant was not sufficient to justify the dismissal of the charge as the statutory requirements for requiring a sample had been made out.
This appeal is against the judgment and order of Faherty J. (respectively dated the 6th October 2017 and the 2nd November following) in proceedings in which the District Court (Judge Devins) had stated a consultative case for the opinion of the High Court, pursuant to s. 52(1) of the Courts (Supplemental Provisions) Act 1961, in the context of a prosecution of the accused/appellant (‘the accused’) for failing or refusing to comply with a requirement made of him by a Garda under s. 12(1)(b) of the Road Traffic Act 2010 (‘the Act of 2010) to permit a designated medical practitioner to take from him a sample of his blood or urine, at the accused's option, contrary to s. 12(3)(a) of the Act of 2010, as amended by s. 9 of the Road Traffic (No 2.) Act, 2011.
The question forwarded in the consultative case stated had asked:
‘Am I correct in law to dismiss the charge on the basis of my finding that an incorrect warning was given to the accused of the consequences of failing or refusing to provide a sample of blood or urine?’
The High Court answered that question in the negative and the accused now appeals to this Court against the High Court's ruling in that regard.
From the facts proved or admitted before her and as set out in the case it seems that the accused was arrested on the 9th November 2014 and thereafter, at Ballinrobe garda station, one Garda Murrin required of him, pursuant to s. 12(1)(b) of the Act of 2010, that he either-
(i) permit a designated doctor or designated nurse to take from his person a specimen of his blood, or
(ii) at the option of the accused to provide for the designated doctor or designated nurse a specimen of his urine.
The accused refused or failed so to do and thereby committed an offence under the section. It will be seen that the factual ingredients are: a valid requirement and a refusal or failure to fulfil it. The accused opted to provide a urine sample but was unable to do so and refused to provide a blood sample, citing a fear of needles. He was warned of the fact that his refusal or failure to fulfil the requirement was an offence and as to the penalties on conviction. Garda Murrin then added that this could also result in ‘a disqualification of up to four years’ whereas, in fact, that was the minimum period. Section 64 of the Act of 2010 provides for a disqualification from driving for the offence in question of ‘not less than four years’ in the case of a first offence (which this was). Effectively, it is contended that, by reason of Garda Murrin' s misstatement of the position with respect to the potential length of the consequential disqualification, the requirement that he made of the accused under s 12(1)(b). of the Act of 2010 to provide a sample of his blood or urine was not valid, alternatively it was vitiated by virtue of the incorrect statement of the garda as to the potential period of disqualification.
What is or is not a valid requirement or what information ought to be given by the garda making it to an arrested person has been addressed in a number of cases. Before proceeding to review them it is material to say that a disqualification is not of course a penalty but merely a consequence of a conviction, as held in the well-known case of Conroy v. the Attorney General [1965] JR 411.
I turn now to the authorities on the core issue. In DPP v. McGarrigle [1996] 1ILRM 271 the Supreme Court in dealing with an analogous provision to that here in the Road Traffic (Amendment) Act 1978 (‘the Act of 1978’) held ( per Finlay CJ.) that the accused had:-
'“a right to be informed of his legal obligation subject to penal sanction to comply with the requirement and this on the facts as found he was afforded.’
however,
‘The obligation to give a specimen which may establish the committing of a serious offence is a significant though not unique exception to the general principles of our criminal code which protect accused persons against involuntary self-incrimination. “The enforcement of it on the terms of s. 13 of the Act of 1978 depends completely on proof that the requirement refused was made under that section. Such a basic requirement in a serious matter must, it seems to me, be affirmatively proved and not left to be inferred. I would accordingly dismiss the appeal.’
The latter part of the decision concerned whether or not an express reference to the section was necessary in as much as not merely s. 13 but s. 14 also of that Act permitted the imposition of such a requirement. The relevant portion of the decision for the present purpose is the fact that it was held that the accused has a right to be informed of his legal obligation subject to penal sanction.
Brennan v. Director of Public Prosecutions [1996] 1 ILRM 267 concerned the efficacy of a requirement to provide a specimen of urine, purportedly under the same section as that at issue in the McGarrigle case. However in making the requirement the garda concerned had not referred in terms to the statutory provision. It was clear from the case stated (for such it was) that the garda who made the requirement had:
‘quoted almost verbatim the wording of s. 13 of the Act, and that in setting out the consequences of a failure or refusal to Mr Brennan [he] had made it clear to the accused that failure to comply carried penal consequences.’
The issue for determination on the case stated concerned whether that had been sufficient, or whether the garda should have gone further and referred specifically to s. 13 of the Act of 1978. Relying upon McGarrigle it was submitted on behalf of the accused that explicit reference ought to have been made to s. 13 of the Act. The issue had arisen in circumstances where the sample was provided in compliance with the Act. On this basis Brennan was distinguished from McGarrigle and it was held that there was no encroachment on any constitutional right of the accused above and beyond that authorised by the legislation and that:
‘No policy purpose is served by requiring members of the gardai to invoke the actual section on which the requirement is based in these circumstances. The requirements for a valid arrest are different since the deprivation of the person's liberty is involved and, in general, it will be necessary for a garda to invoke the operative section when he makes an arrest.’
Although nothing turns on it, that latter point is perhaps no longer the law in respect of an arrest. However, the point relevant to the present case is that there is an obligation, at least, to inform the arrested person of the fact that a refusal or failure could carry penal consequences or was an offence attracting penalties. It might be noted in this respect that the Act of 2010 imposes no express obligation to inform the accused of these or any other matters when the requirement is made but it is not in doubt that, having regard...
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