DPP v Smith

• Jurisdiction: Ireland
• Judge: Mr. Justice Charles Meenan
• Judgment Date: 02 November 2022
• Neutral Citation: [2022] IEHC 601
• Court: High Court
• Docket Number: [2021 1036 SS]

In the Matter of a Case Stated Pursuant to Section 52 of the Courts (Supplemental Provisions) Act, 1961

Between

Director of Public Prosecutions (At the Suit of Garda John Hayes)

Prosecutor

and

Sophie Smith

Defendant

[2022] IEHC 601

[2021 1036 SS]

THE HIGH COURT

Case stated – Drunk driving – Unlawful detention – District Judge referring questions for determination by the High Court – Whether there was an obligation on the Gardaí to inform the defendant of the reason for the delay at the roadside after arrest

Facts: The defendant, Ms Smith, at a hearing in the Dublin Metropolitan District Court, held in Dún Laoghaire Courthouse on 11 November 2020, was facing a charge of driving a mechanically propelled vehicle while there was present in her body a quantity of alcohol such that, within three hours after so driving, the concentration of alcohol in her breath exceeded a concentration of 22 micrograms of alcohol per 100 millilitres of breath contrary to s. 4 (4) (a) and (5) of the Road Traffic Act 2020. The District Judge held that: (i) the defendant had been lawfully arrested and the reason for the arrest had been properly explained to her; (ii) the defendant was entitled to be brought to the garda station within a reasonable time; (iii) the defendant was required to wait after arrest for a discreet purpose, namely the arrival of a van to transport her safely; (iv) not every delay needs to be objectively justified but that a delay for such a discreet purpose must be objectively justified; (v) the delay was not unreasonable and had been objectively justified by the need for minimising risk of exposure to Covid-19 in the transporting of arrested persons; (vi) whilst an arrest might be rendered unlawful if a person was kept at the side of the road for a long unexplained period or was left obviously and unnecessarily confused by the process not every part of the process of arrest and detention needs to be set out in detail; and (vii) the delay was only about nine minutes, the defendant knew she had been arrested for a drunk driving offence, there was no evidence of any confusion on her part whilst she waited for the van or that the garda refused to answer any queries raised by her and the purpose of the delay was for her own safety. The District Judge was of the opinion that questions of law arose and referred the following questions for determination by the High Court: (1) In the circumstances of this case was there an obligation on the Gardaí to inform the defendant of the reason for the delay at the roadside after arrest? (2) If the answer to the above is yes, did this failure render the detention unlawful?

Held by the Court that the District Judge correctly applied the law. The Court held that the delay, and the reasons for it, were fully considered by the District Judge. The Court held that it was reasonable for steps to be taken so as to ensure that when a person, such as the defendant, was being transferred to a garda station measures would be taken to ensure social distancing; the use of a van for transport rather than a garda patrol car was one such measure. The Court held that the delay of nine minutes was not in the circumstances an inordinate amount of time. The Court was satisfied that the delay was an intrinsic part of the defendant’s detention. The Court found that even if there had been no Covid-19 changes to procedures, some delay in the defendant getting into a patrol car for conveyance to the Garda Station would have happened; it would not have been instantaneous.

The Court answered the questions as follows: (1) no; and (2) the detention was not unlawful. The Court’s provisional view was that the prosecution was entitled to costs.

Questions determined.

JUDGMENT of Mr. Justice Charles Meenan delivered on the 2 ^nd day of November, 2022

Background

1 . This is a case stated by a judge of the District Court pursuant to s. 52 (1) of the Courts (Supplemental Provisions) Act, 1961.

2 . At a hearing in the Dublin Metropolitan District Court held in Dún Laoghaire Courthouse on 11 November 2020 the defendant was facing a charge that:

“On the 30/ 5/2020 at Kill Lane, Foxrock, Dublin, a public place in the said District Court area of Dublin Metropolitan District, did drive a mechanically propelled vehicle registration number while there was present in your body a quantity of alcohol such that, within three hours after so driving, the concentration of alcohol in your breath did exceed a concentration of 22 micrograms of alcohol per 100 millilitres of breath, to wit 59 micrograms of alcohol per 100 ml of breath contrary to s. 4 (4) (a) and (5) of the Road Traffic Act, 2020”.

The hearing in the District Court

3 . Garda John Hayes, the first prosecution witness, gave evidence that on 30 May 2020 at 2.30 am he observed a motor vehicle registration weave from side to side and drive on the wrong side of the road on Foxrock Avenue. Garda Hayes stopped this vehicle on Kill Lane and ascertained that it was being driven by the defendant. Garda Hayes gave evidence that he noticed a strong smell of alcohol from the defendant's breath and that her eyes were glazed.

4 . Garda Hayes exercised his statutory entitlement to conduct a roadside breath test under s. 9 of the Road Traffic Act, 2010, the result of which was a failure. Garda Hayes gave evidence that he formed the opinion that the defendant was under the influence of an intoxicant to such an extent as to be incapable of having proper control of a mechanically propelled vehicle in a public place.

5 . Garda Hayes gave further evidence that the defendant was subsequently conveyed to Dún Laoghaire garda station where the Criminal Justice (Treatment of Persons in Custody) Regulations 1987 were complied with. Garda Hayes stated that the defendant was taken to the interview room at 3.09 am for the purposes of conducting a twenty-minute observation period pending an evidential breath test, during which Garda Hayes confirmed that the defendant took nil by mouth. Having completed an evidential breath test the defendant was charged as above.

6 . On cross examination Garda Hayes stated that he could not recall the defendant's time of arrival at Dún Laoghaire garda station, but it should take approximately...