DPP v Redmond Cabot

• Jurisdiction: Ireland
• Judge: Mr. Justice Aindrias Ó Caoimh
• Judgment Date: 20 April 2004
• Neutral Citation: [2004] IEHC 79
• Date: 20 April 2004
• Docket Number: HC 153\04
• Court: High Court

[2004] IEHC 79

THE HIGH COURT

HC 153\04

68 SS/2002

DPP v. CABOT

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

Between:

THE DIRECTOR OF PUBLIC PROSECUTIONS

Prosecutor

-and-

REDMOND CABOT

Accused

Citations:

COURTS (SUPPPLEMENTAL PROVISIONS) ACT 1961 S52

ROAD TRAFFIC ACT 1961 S49(8)

ROAD TRAFFIC ACT 1994 S13

ROAD TRAFFIC ACT 1994 S13(2)

ROAD TRAFFIC ACT 1961 S49(1)

ROAD TRAFFIC ACT 1961 S49(2)

ROAD TRAFFIC ACT 1961 S49(3)

ROAD TRAFFIC ACT 1994 S13(1)(A)

ROAD TRAFFIC ACT 1961 S3(2)

ROAD TRAFFIC ACT 1994 S23

ROAD TRAFFIC ACT 1994 S23(1)

DPP V MCGARRIGLE 1996 1 ILRM 271

ROAD TRAFFIC ACT 1994 S13(3)

ROAD TRAFFIC ACT 1994 S13(3)(B)

ROAD TRAFFIC ACT 1994 S13(1)(B)

ROAD TRAFFIC ACT 1994 S23(1)(A)

ROAD TRAFFIC ACT 1994 S23(1)(B)

Abstract:

Case stated- Consultative - Drunken driving - Whether the accused was entitled to be informed by An Garda Siochana of the possible defences to a prosecution for failure to provide two breath samples - Courts (Supplemental Provisions) Act, 1961 section 52 - Road Traffic Act, 1961 section 49(8) - Road Traffic Act, 1994

The accused was arrested pursuant to s.49(8) of the 1961 Act on suspicion of having committed an offence under subsections 1, 2 or 3 of that section. The accused provided one specimen of his breath but declined to provide a second specimen and accordingly was charged with an offence under s. 13(2) of the 1994 Act. The matter came before this court by way of a consultative case stated from the District Court requesting the opinion of this court as to whether it was incumbent on the Garda Siochana to inform an arrested person who refused to provide two samples of breath that a special and substantial reason for such refusal would not of itself afford a defence to a prosecution unless (i) the person should as soon as practicable after such refusal comply with a requirement under s. 13 in relation to the raking of a specimen of blood or the provision of a specimen of urine or (ii) the person shall offer to so comply even if not so required to do so.

Held by O Caoimh J in answering the question in the negative: That An Garda Siochana were not obliged to inform an arrested person that a special and substantial reason for his refusal to provide a sample would not of itself afford a defence to a prosecution for refusing or failing to provide such specimens. There was no obligation on An Garda Siochana to advise an arrested person as to what defence or defences might be open to him in the event of a subsequent prosecution.

Reporter: L.O’S.

Notice: The page breaks may not correspond with the hard copy. These will be introduced later.

Mr. Justice Aindrias Ó Caoimh

1 This is a consultative case stated dated the 3^rd December, 2001 signed by William Hamill, a judge of the District Court assigned to the Dublin Metropolitan District, pursuant to the provisions of s. 52 of the Courts (Supplemental Provisions) Act,1961in a prosecution against the defendant on a charge of being a person arrested under s. 49 (8) of the Road Traffic Act,1961(as amended), having been required by Michael Quinn, a member of An Garda Síochána at Pearse Street Garda Station, pursuant to s. 13 of the Road Traffic Act,1994to provide two specimens of his breath did refuse to comply forthwith with the said requirements contrary to s.13 (2) of the Road Traffic Act,1994(hereinafter referred to as “the Act of 1994”)

2 The case stated recites that the prosecutor (hereinafter referred to as “the Director”) was represented by Seamus Cassidy, a solicitor of the Office of the Chief State Solicitor and the accused was represented by Paul Burns of counsel instructed by Garrett Sheehan & Co., solicitors.

3 The case stated recites the facts as proved in evidence in the District Court. On 28^th day of March, 2000 the accused was arrested pursuant to s. 49(8) of the Road Traffic Act,1961on suspicion of having committed an offence under subsections 1, 2 or 3 of that section. He was brought to Pearse Street Garda Station, where he was introduced to the member in charge and sought to contact a lawyer whose name he provided. However, despite the efforts of the Garda Síochána to contact the named lawyer such contact could not be made. The accused was provided with a Form C72 dealing with his rights while in custody. The accused was brought to the doctor's examination room and required by a member of An Garda Síochána, pursuant to s. 13(1)(a) of the Road Traffic Act,1994to provide two specimens of his breath by exhaling into an apparatus designed for determining the concentration of alcohol in his breath and was informed that failure or refusal to comply with the requirement was an offence under s. 3(2) of the Road Traffic Act and the penalties on summary conviction for such an offence were outlined to him. The accused provided one specimen of his breath but declined to provide a second specimen. He was reminded that such refusal was an offence and the penalties were outlined again to him, but he continued to decline to do so. The garda then took it that the accused was refusing to give the specimens and the accused was charged accordingly. Throughout his time in the garda station, the accused repeated his request to make contact with the named lawyer, although such contact could not be established despite the efforts of An Garda Síochána and the accused to do so.

4 At the close of the prosecution case, counsel on behalf of the accused sought a direction on the grounds that in a case of an alleged refusal, such as that at issue in this case, it is incumbent on the member of the garda station to inform the arrested person that a special or substantial reason for a refusal or a failure to give a sample would not in itself afford a defence to a prosecution for refusing or failing to provide a breath specimen unless (i) the person should as soon as practicable after such refusal or failure comply with a requirement under s. 13 in relation to the taking of a specimen of blood or the provision of a specimen of urine or (ii) the person shall offer to so comply but was not required to do so.

5 Counsel on behalf of the accused submitted as follows to the District Court:

6 (a) That s. 13(2) is expressly stated to be subject to the provisions of s. 23. He submitted that s. 23 represents a new and radical change from what had been the law prior to 1994. Prior to 1994, a person who, for a special and substantial reason, refused or failed to comply with the requirement to provide a blood or urine specimen had a complete defence to a prosecution under the equivalent of s. 13(2). The 1994 Act introduced a new dimension to the defence of special and substantial reason in respect of breath specimens by placing an onus upon the arrested person to comply with the requirement in respect of blood/urine if so required or to offer to do so if not so required. The prisoner is therefore placed in a position whereby having refused or failed to provide a specimen for a special and substantial reason, he will nevertheless be guilty of an offence under s. 13(2) where no requirement to provide blood/urine was made of him and he did not offer to provide blood/urine as soon as practicable after his refusal to provide breath specimens.

7 (b) That whether a reason for refusing or failing to comply with the requirement was or is a special and substantial reason is and always has been a matter for the court to determine and not a matter for the Garda Síochána to determine.

8 (c) That by incorporating the concept of the arrested person having to comply with a requirement in respect of blood/urine or to offer to do so, s. 23(1) implies that the arrested person should be made aware of his obligation to comply with a requirement in respect of blood/urine and his obligation to offer to do so where no such requirement is made.

9 (d) That in order to provide substantive and procedural fairness to the arrested person who refuses or fails to comply with a requirement under s. 13(1)(a), the arrested person should be informed by a member of An Garda Síochána not only that he is under an obligation to comply with the requirement subject to penal sanction, but also that if he is refusing or failing to comply with the requirement to provide two specimens of breath for a special and substantive reason, then he must comply with a requirement in respect of blood/urine if so required or offer to so comply even if not required to do so. It was submitted by counsel on behalf of the accused that any other interpretation placed upon s. 23 would result in significant unfairness, both substantive and procedural to the arrested person.

10 (e) That it would place an undue onus upon the arrested person to be required to offer to comply with a requirement in respect of blood/urine in circumstances where no reference or mention had been made to blood/urine by the Garda Síochána and the arrested person should not be expected to appreciate the necessity to do so or the significance of a failure to make such an offer.

11 It was submitted by Mr. Cassidy on behalf of the Director to the District Court

12 (a) that the Act did not expressly require the arrested person to be so informed;

13 (b) that this would place an undue onus on the garda making the requirement of the accused;

14 (c) that it was sufficient for the court to look after the accused's interest in this regard in appropriate cases.

15 Judge Hamill indicated to the parties that on his interpretation of s. 23 it would appear that a person who for special and substantial reason appears to have failed to give a breath specimen could nevertheless be guilty of an offence if he did not comply with the requirement to give blood or urine or offer to do so where no such requirement was made of him. Judge Hamill indicated that the requirement to offer to give a blood or urine sample where no such requirement was made...