DPP v Stack

• Jurisdiction: Ireland
• Judge: Mr Justice Max Barrett
• Judgment Date: 05 April 2016
• Neutral Citation: [2016] IEHC 159
• Docket Number: Record Nos.2015/522 SS, 2015/624 SS
• Court: High Court
• Date: 05 April 2016

[2016] IEHC 159

THE HIGH COURT

CONSULTATIVE CASE STATED

Barrett J.

Record Nos.2015/522 SS, 2015/624 SS

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

(1) DIRECTOR OF PUBLIC PROSECUTIONS

Prosecutor

AND

RONAN STACK

Accused

(2) DIRECTOR OF PUBLIC PROSECUTIONS

Prosecutor

AND

JOHN FOLEY

Accused

Crime & Sentencing – S. 4 (8) of the Road Traffic Act, 2010 – S. 52 of the Courts (Supplemental (Provisions) Act 1961 (as amended) – Breath test – Evidenzer breathalyser – Post-detention delay

Facts: Following the arrest of the accused persons in both the proceedings for drunken driving on separate occasions and the administration of Evidenzer breathalyser, the District Court referred the following question for the opinion of the Court by way of case stated: whether the requirement of continuous observation for 20 minutes prior to the administration of the Evidenzer would constitute an unnecessary prolongation of detention; thus, rendering the detention unlawful.

Mr. Justice Max Barrett answered the question raised by the District Court in the negative and held that the detention of the accused persons would not be rendered unlawful merely by following the requirement of a 20-minute observation period notwithstanding the acknowledgment in the manufacturer's manual for the guidance of the operator of the Evidenzer machine saying that the fulfilment of that requirement was no longer necessary. The Court observed that it was an obligation of a Gardia to seek specimen as early as possible and a 20-minute observation would not amount to be a culpable delay in the absence of special circumstances causing grave prejudice to the accused persons. The Court held that statutory authorization was not needed for fulfilling the procedural formalities if it was objectively justified. The Court observed that if the procedure for observation of certain period of time was justified, it must be justified by a competent witness who was able to give an appropriate evidence.

JUDGMENT of Mr Justice Max Barrett delivered on 5th April, 2016.

Part 1

Overview

1 For some years now it has been the practice of the Gardaí to precede a breath-alcohol test with a 20-minute observation period. The practical object of this standard observation period, the court understands, is to ensure that there is a sufficient period before the breath-test within which an arrested person does not introduce alcohol to his mouth by drinking, or re-introduce alcohol to his mouth by vomiting. Avoiding such a visitation or re-visitation of alcohol to the mouth during the 20-minute period is considered necessary to ensure that the breath test which follows that period is a true breath test and not contaminated by the presence of alcohol in the mouth. At least it was considered necessary when the Gardaí used the “Intoxilyser”, a particular brand of what is popularly known as a “breathalyser”. The two cases stated for the court and considered hereafter are essentially concerned with whether this 20-minute precautionary period continues to be necessary and lawful now that Gardaí use a type of breathalyser known as the “Evidenzer”.

Part 2

The Case of Mr Stack

2 Following the arrest of Mr Stack on 4th August, 2013, pursuant to s.4(8) of the Road Traffic Act, 2010, he was brought to Bandon Garda Station at 9.25a.m. There he was informed by Sergeant Thomas Lehane that he would be assessed by use of an Evidenzer and that he would be observed for a period of twenty minutes beforehand. A demand was subsequently made of Mr Stack at 9.47a.m., pursuant to s.12(1)(a) of the Road Traffic Act 2010, to provide two specimens of his breath by exhaling into anEvidenzer. Mr Stack complied with this requirement and provided two specimens of his breath at 9.50a.m. and 9.53a.m. The result of the analysis was 33ìg of alcohol per 100ml of breath, a reading in excess of that allowed under the road traffic legislation.

3 At Mr Stack's later trial for what is commonly referred to as “drunk driving”, Sergeant Lehane gave evidence that he was a trained operator of the Evidenzer breathalyser and that he had undergone an Intoxilyser training course and a later Evidenzer “conversion course”, both arranged by the Medical Bureau of Road Safety. (This is the body with responsibility under the Road Traffic Acts for, inter alia, the approval and supply of breathalysers). Sergeant Lehane indicated that he was instructed at the later Evidenzer course that a 20-minute observation period was necessary to eliminate the presence of mouth alcohol and to give an accurate reading of the machine. Under cross-examination, it was put to Sergeant Lehane that the manufacturer guidelines for the Evidenzer (unlike those, it seems, for the Intoxilyser) do not include a requirement for a 20-minute observation period. Sergeant Lehane reiterated that the continuing need for a 20-minute observation period was a matter that had been instilled in him during the conversion course.

4 Arising from the foregoing, Judge McNulty of the Macroom District Court has referred the following question to the court:

‘In circumstances where it is acknowledged that the Manufacturer's Manual for guidance of the Operator of the Evidenzer machine for breath testing does not require an observation period of twenty minutes prior to a test, and evidence has been heard that the Accused was detained for a period of twenty minutes prior to the formal requirement being communicated to him, pursuant to Section 12(1)(a) of the Road Traffic Act 2010 for the provision of breath specimens, did this constitute an unnecessary and unreasonable prolongation of his detention, thus rendering his detention unlawful and leaving the evidence, obtained by way of breath sample provided during such detention, tainted and inadmissible evidence against the Accused?’

Part 3

The Case of Mr Foley

5 Following the arrest of Mr Foley on 27th October, 2014, pursuant to s.4(8) of the Road Traffic Act, 2010, he was brought to Bandon Garda Station at 3.32a.m. There he was informed by Garda Kieran Hayes that he would be assessed by use of an Evidenzer and that he would be observed for a period of twenty minutes beforehand. A demand was subsequently made of Mr Foley at 4.15a.m., pursuant to s.12(1)(a) of the Road Traffic Act 2010 to provide two specimens of his breath by exhaling into an Evidenzer. Mr Foley complied with this requirement and provided two specimens of his breath at 4.18a.m. and 4.21a.m. respectively. The result of the analysis was 66ìg of alcohol per 100ml of breath, a reading in excess of that allowed under the road traffic legislation.

6 At Mr Stack's later trial for what is commonly referred to as “drunk driving”, Garda Hayes gave evidence that he was a trained operator of the Evidenzer breathalyser. Garda Hayes said that he had undergone an Intoxilyser training course and a later Evidenzer course, both arranged by the Medical Bureau of Road Safety. Garda Hayes indicated that he was instructed at the later Evidenzer course that it was best international practice that a 20-minute observation period should precede the administration of a breath-test with the Evidenzer.Under cross-examination, it was put to Garda Hayes that the manufacturer guidelines for the Evidenzer do not include a requirement for a 20-minute observation period. Sergeant Lehane reiterated that the continuing need for a 20-minute observation period was a matter that had been instilled in him during the Evidenzer course. It was also put to Garda Hayes that the Evidenzer is specifically manufactured with five filters to eliminate any possibility of mouth alcohol contamination. To this, Garda Hayes reiterated that the continuing need for the 20-minute observation period had been instilled in him as part of his Evidenzer training. When it was then put to Garda Hayes that the Evidenzer had been designed by its manufacturer with the intention of eliminating or reducing the need for the 20-minute observation period, Garda Hayes indicated that he was not competent to answer such specific technical questions.

7 Arising from the foregoing Judge McNulty of the Macroom District Court has referred to the court effectively the same question as is mentioned above in the context of Mr Stack's case.

Some Applicable Law

i. A Harmonious Quintet.

Part 4

Some Applicable Law

8 The court has been referred by counsel to a quintet of cases relevant to the consultative cases stated. These are DPP v. Finn [2003] 1 I.R. 372, DPP v. McNiece [2003] 2 I.R. 614, DPP(Curran) v. Foley [2006] IEHC 11, DPP v. O'Sullivan [2015] IEHC 693 and DPP v. Dardis [2015] IECA 284, all of which chime neatly on the points of law arising, and each of which is considered below.

ii. DPP v. Finn.

9 Mr Finn was arrested pursuant to the Road Traffic Act 1961 and conveyed to a Garda station. He was then brought to an interview room where he remained for a period of 20 minutes. A Garda observed Mr Finn for this period and verified that he (Mr Finn) consumed nothing during this period. The Garda then made a requirement of Mr Finn, pursuant to the Road Traffic Act 1994, to provide two specimens of his breath. Mr Finn refused to comply with this requirement and was charged with an offence arising from this refusal. Pursuant to a consultative case stated from the Circuit Court, the Supreme Court deemed the period of Mr Finn's detention to be unlawful, in effect because there was no justification given for the detention other than a hazy reference to “Garda guidelines”, a justification which did not suffice to explain and justify the period of Mr Finn's detention.

10 Counsel for Messrs Stack and Foley in the within proceedings placed great reliance on Finn, suggesting that it is a case on “all fours” with those now presenting, in that there (as here, it is claimed) there was, to borrow from ordinary parlance, a...