DPP v Spratt

• Jurisdiction: Ireland
• Judgment Date: 08 February 1995
• Date: 08 February 1995
• Docket Number: [1995 No. 16 SS]
• Court: High Court

High Court

[1995 No. 16 SS]

Director of Public Prosecutions v. Spratt

In the matter of s. 52 of the Courts (Supplemental Provisions) Act, 1961,The Director of Public Prosecutions

Prosecutor

and

Eric Spratt

Accused

Cases mentioned in this report:—

Walsh v. District Justice Ó Buachalla ó buachalla [1991] 1 I.R. 56.

Criminal law - Arrest - Detention in Garda station - Road traffic offence - Driving with excessive quantity of alcohol in the body - Whether statutory procedure for treatment of persons in custody applies to road traffic offences - Whether burden on prosecution to prove compliance with such procedures - Whether failure to comply or failure to prove compliance fatal to prosecution case - Whether subsequent evidence inadmissible - Criminal Justice Act, 1984 (Treatment of Persons in Custody in Garda Síochána Stations) Regulations, 1987 (S.I. No. 119), Articles 2, 8, 9 & 11 - Road Traffic Act, 1961 (No. 24), s. 49, sub-s. 6 - Road Traffic (Amendment) Act, 1978 (No. 19), s. 13, sub-s. 1, (b) - Criminal Justice Act, 1984 (No. 22) ss. 4, 5, 6 & 7.

Constitution - Personal rights - Detention - Treatment of persons in custody - Right to information regarding reasons for detention and right of access to solicitor - Whether failure to provide such information amounts to breach of constitutional rights - Constitution of Ireland, 1937.

Case stated.

The facts have been summarised in the headnote and are set out in the judgment of O'Hanlon J. infra.

By a consultative case stated dated the 21st December, 1994, the opinion of the High Court was sought in respect of the following questions:—

• 1. Whether the Criminal Justice Act, 1984 (Treatment of Persons in Custody in Garda Síochána Stations) Regulations, 1987, apply to persons arrested under s. 49, sub-s. 6 of the Road Traffic Act, 1961 as amended.

• 2. Is it a requisite proof in a prosecution under s. 49, sub-s. 6 of the Road Traffic Act, 1961, as amended, that there be compliance with the Regulations of 1987 and evidence adduced by the prosecution to found such proof?

• 3. Whether where there has been a non-compliance with the Regulations of 1987 and in particular art. 8 thereof that renders the custody of the accused unlawful notwithstanding s. 7, sub-s. 3 of the Criminal Justice Act, 1984.

• 4. Whether evidence (other than any statement made by the accused and governed by s. 7, sub-s. 3 of the Criminal Justice Act, 1984) such as the evidence of a designated registered medical practitioner tendered in court on foot of that practitioner's certificate is admissible against the accused in circumstances of the failure on the part of any member of the Garda Síochána to observe the provisions of the Regulations of 1987.

• 5. Whether, where there is no evidence of compliance with art. 8 of the Regulations of 1987 that renders:—

• (i) the custody of the accused unlawful and in breach of the accused's constitutional rights, and,

• (ii) accordingly, the evidence obtained on foot of a requirement under s. 13, sub-s. 1 (b) of the Road Traffic (Amendment) Act, 1978, inadmissible at law notwithstanding s. 7, sub-s. 3 of the Criminal Justice Act, 1984.

  • 6 Whether it is a requisite proof in a prosecution under s. 49, sub-s. 6 of the Road Traffic Act, 1961, as amended, to show that the accused's constitutional rights have been vindicated or is this a matter which forms part of a defence and for which the prosecution is entitled to call evidence in rebuttal.

The case stated was heard by the High Court (O'Hanlon J.) on the 8th February, 1995.

Section 7 of the Criminal Justice Act, 1984, provides that the Minister for Justice shall make regulations providing for the treatment of persons in Garda custody but that when such regulations have been enacted failure to comply with them shall not "of itself" affect the lawfulness of the custody of such person or the admissibility in evidence of any statement made by him.

Article 8 of the Criminal Justice Act, 1984 (Treatment of Persons in Custody in Garda Síochána Stations) Regulations, 1987, provides inter alia, that an arrested person shall without delay be informed in ordinary language of the offence or other matter in respect of which he has been arrested and of his entitlement to consult with a solicitor.

Article 9 of the regulations imposes an obligation on the Gardai to notify the solicitor as soon as practicable if an arrested person has asked for a solicitor.

Article 11 of the regulations provides that an arrested person shall have reasonable access to a solicitor of his choice and be enabled to communicate with him privately.

The accused was charged before the District Court with an offence of drunken driving contrary to s. 49 of the Road Traffic Act, 1961. Evidence was given by the prosecution as to the circumstances of the arrest and detention of the accused and of compliance with the requirements of s. 13, sub-s. 1 (b) of the Road Traffic (Amendment) Act, 1978, in relation to obtaining a sample of urine. The certificate from the Medical Bureau of Road Safety was proved in evidence and also the service of the certificate on the accused. However, there was no evidence that the accused had been informed of his rights or of his being furnished with a notice of his rights in accordance with the Regulations of 1987. It was argued on behalf of the accused that compliance or proof of compliance with the Regulations of 1987 was a necessary...