DPP v McTigue

• Jurisdiction: Ireland
• Judge: Ms. Justice Faherty
• Judgment Date: 06 October 2017
• Neutral Citation: [2017] IEHC 628
• Docket Number: [2016 No. 824 S.S.]
• Court: High Court
• Date: 06 October 2017

[2017] IEHC 628

THE HIGH COURT

Faherty J.

[2016 No. 824 S.S.]

IN THE MATTER OF SECTION 52(1) OF THE COURTS (SUPPLEMENTAL PROVISIONS) ACTS 1961

BETWEEN

THE DIRECTOR OF PUBLIC PROSECUTIONS

PROSECUTOR

AND

ANDREW MCTIGUE

ACCUSED

Practice & Procedure – S. 52(1) of the Courts (Supplemental Provisions) Acts 1961 – Consultative case – S. 12 of the Road Traffic Act 2010 – Refusal of accused to provide sample – Obligation of garda to give warning in Road Traffic Acts – S. 23 of the Road Traffic Act, 1994

Facts: The present case came by way of case stated by the District Court Judge for the opinion of the High Court. The District Court had formulated a question for the High Court which was whether the learned Judge was correct in law to dismiss the charge on the basis of his finding that an incorrect warning was given to the accused by the garda on the consequences of failing to provide a urine or blood sample. The issue before the Court was whether a prosecution in a drunk-driving case should be dismissed merely because the prosecuting garda did not warn the accused with precision of the period of disqualification from driving upon refusal of the accused to provide his specimen. The accused argued that such a failure had affected his right of defence available to him under s. 23 of the Road Traffic Act, 1994. The prosecution argued that the garda had warned the accused about the penal consequences of not complying with the direction to provide the specimen; however, there was a slight error for providing the actual period of disqualification, which was not fatal to the case.

Ms. Justice Faherty answered the question posed by the learned District Judge in negative. The Court held that there was no obligation on an investigating garda to warn the accused of any consequential disqualification upon conviction. The Court observed that it was sufficient that the accused was given a warning that in case he would refuse to provide the specimen, penal sanctions would be imposed on him. The Court applied the principles laid down in DPP v McGarrigle [1996] 1ILRM 271 and DPP v Mangan [2001] IR 373. The Court further held that once the accused had been informed of possible penal consequences for his refusal to provide the required samples, the garda had no obligation to further advise the accused that such a refusal would impact his right to defence under s. 23 of the Road Traffic Act, 1994. The Court opined that Clarke J. too endorsed the jurisprudence of McGarrigle in DPP v Cagney [2013] IESC 13 wherein it was laid down that the garda had an obligation to warn the accused that in order to rely on the defence provided under s. 23 of the 1994 Act, the accused must offer a blood or urine sample.

JUDGMENT of Ms. Justice Faherty delivered on the 6th day of October, 2017

1 This matter comes before the court by way of Consultative Case Stated by Judge Mary Devins, Judge of the District Court.

2 The relevant background giving rise to the Consultative Case Stated is as follows:

3 On 9th November, 2014, the accused was arrested on suspicion of drunk driving by Garda Colin Murrin of Ballinrobe Garda Station and was conveyed to the Garda Station. A lawful requirement was made for the accused to provide a sample of urine or blood. The accused opted to provide a urine sample, but was unable to do so. He was then required to supply a blood sample and he refused, citing fear of needles. Garda Murrin warned the accused that failure to comply with the requirement was an offence and warned him of the penalties if he refused to give a sample. Garda Murrin correctly advised the accused of the potential prison term and fine for such refusal. Garda Murrin also stated that the refusal could result in 'a disqualification of up to 4 years'. The accused was then charged with refusal to provide a specimen pursuant to s. 12(3)(a) and 12(4) of the Road Traffic Act 2010 (hereinafter referred to as 'the 2010 Act'), as amended by s. 9 of the Road Traffic Act 2011.

4 The accused appeared before Castlebar District Court on 20th October, 2015, to answer, inter alia, the aforesaid charge. At the close of the prosecution case, a submission was made by the defence that the case should be dismissed because the Garda had not stated the proper period of disqualification when he was warning the accused of potential penalties. The Garda had stated that the period was 'not exceeding four years' when the potential disqualification period was actually 'not less than four years'. The defence solicitor submitted to the District Judge that the accused had been incorrectly advised and relied on the judgment of the Supreme Court in Director of Public Prosecutions v. McCrea [2010] IESC 60 to say that in the absence of solicitor's advice, then the next best advice was to be from the Gardaí. The submission made to the District Judge was that the advice given by Garda Murrin was incorrect and that if the accused had been correctly advised he would have been fully informed as to the consequences of any intended actions.

5 Judge Devins adjourned the case to 17th November, 2015, in order for submissions to be prepared by the prosecution. On that date, Superintendent Cryan for the prosecution submitted that the accused was not prejudiced by the slight error and that the accused was not relieved of his obligation to give a sample. He also submitted that disqualification is not a punishment and cited Conroy v. Attorney General [1965] I.R. 411. He also referred to a passage from the text book 'Drunk Driving' by Mark deBlacam when submitting that disqualification was not an additional punishment. Reference was also made to DPP (Deegan) v. Murphy [2002] IEHC 79 in aid of the submission that there was no obligation on Garda Murrin to inform the accused of the consequential disqualification order that would be made in the event of a conviction.

6 The solicitor for the accused cited DPP v. McCrea [2010] IESC 60, namely Hardiman J.'s commentary that 'in the absence of access to a solicitor, the Gardaí themselves were the only source of legal advice'. It was submitted that if the accused had been correctly advised as to the potential consequences of his actions, he would have been clearly and fully informed as to his subsequent actions. The District Judge was asked to consider matters in the accused's case as analogous to strict provisions applicable to (what was then) s. 17 certificates and the defence solicitor referred to DPP v. Freeman [2009] IEHC 179 in that regard.

7 The question posed by Judge Devins was in the following terms:

'Am I correct in law to dismiss the charge on the basis of my finding that an incorrect warning was given to the accused on the consequences of failing or refusing to provide a sample of blood or urine'.

The issues before the Court

8 Before the Court, the issue between the parties is whether a prosecution for a refusal to provide a specimen in a drunk-driving case should be dismissed because the prosecuting Garda did not warn the accused with enough precision of the period of disqualification from driving that could ensue from a conviction for that offence. It is accepted by counsel for the Director of Public Prosecutions (DPP) that in making the requirement of the accused for a specimen, Garda Murrin understated the adverse consequences of a failure or refusal by telling the accused that he could be disqualified from holding a driving licence for up to four years when, in fact, the actual potential exposure to adverse disqualification consequences in the event of a refusal was greater than four years.

The DPP's submissions

9 Counsel for the DPP submits that while the requirement made of the accused for a specimen is an exception to the constitutional right not to self incriminate (and a long standing principle of the criminal code), it is not the law that an accused has to be told with exactitude of the specific penalties or periods of disqualification that can ensue from a failure or refusal to provide a specimen. Counsel contends that the case law on the issues sets out the general principle that what is necessary when an accused is requested to provide a specimen of blood or urine is that he or she is made aware that refusal or failure to provide that sample is a criminal offence. In this regard, counsel relies, inter alia, on DPP v. McGarrigle [1996] 1 ILRM 271, DPP v. Mangan [2001] IR 373, DPP (Deegan) v. Murphy [2002] IEHC 79 and DPP v. Canavan (Unreported, High Court, 1st August, 2007, Birmigham J.) It is submitted that in the instant case the accused was warned in more voluble terms than either of the individuals in Murphy or Canavan.

10 It is also submitted that while the defence solicitor relied in the District Court on DPP v. McCrea [2010] IESC 60, that case is not relevant to the circumstances of the accused in the present case.

11 Counsel contends that for the Court to hold that the accused's rights were infringed upon by the mis-statement concerning the period of disqualification, would be to turn the Gardaí into quasi-legal advisors. While it is accepted that there might be instances where a garda could completely mislead an accused in terms of information provided, the present case was not such an instance.

The accused's submissions

12 Counsel for the accused submits that the accused's position is a novel one. The question is whether a District Judge is entitled to dismiss the charge in circumstances where wrong legal advice was provided to the accused regarding the period of disqualification, as opposed to no reference being made to the issue of disqualification upon conviction. While counsel raises no issue in the latter regard, it is submitted that the provision of wrong information to the accused encroached upon his constitutional rights.

13 Counsel submits that on constitutional rather than statutory grounds, and recognising and...