Hobbs v Hurley

• Jurisdiction: Ireland
• Court: High Court
• Judge: Mr. Justice Costello
• Judgment Date: 10 June 1980
• Neutral Citation: 1980 WJSC-HC 1106
• Date: 10 June 1980

1980 WJSC-HC 1106

THE HIGH COURT

No. 165 SS./1980

HOBBS v. HURLEY

IN THE MATTER OF A CASE STATED PURSUANT OF SECTION 52 OF THE COURTS (SUPPLEMENTAL PROVISION) ACT, 1961 IN PROCEEDINGS IN THE DUBLIN DISTRICT COURT

BETWEEN :

GARDA DEREOT HOBBS

COMPLAINANT

AND

KEVIN HURLEY

DEFENDANT

1 Judgment of Mr. Justice Costello delivered the 10th June, 1980.

2 These proceedings relate to a prosecution brought against the Defendant in the Dublin District Court in which it is alleged that he drove a motor car at a time when the concentration of alcohol in his urine exceeded the statutory limit, and that he h ad committed in offence contrary to section 49 (3) of the Road Traffic Act, 1961. The Road Traffic Act, 1968("the Act of 1968") provides for the establishment of a body known as the Medical Bureau of Road Safety ("the Bureau") and the Road Traffic (Amendment) Act, 1978("the Act of 1978") provides that a certificate issued by the Bureau as to the concentration of alcohol in a specimen of urine forwarded to it for analysis is to be sufficient evidence of the facts certified in it until the contrary is shown (see section 23). In the present case the evidence for the prosecution in the District Court consisted of the evidence of Garda Hobbs (the Complainant) who had arrested the Defendant, the evidence of Sergeant Young who had arranged for a specimen of urine to be taken from the Defendant and sent to the Bureau and the Bureau's Certificate which showed that at the relevant time the concentration of alcohol in the Defendant's urine exceeded the concentration permitted by the section 49 (3). At the close of the prosecution's cane an application to dismiss the prosecution based on an alleged invalidity of the arrest was refused and evidence was then called on the Defendant's behalf. This evidence was that of Miss Grainne Harrington an analyst attached to the Bureau and whose signature appeared on the Certificate issued by it. After hearing this evidence and further submissions by the Defendant's counsel the learned district Justice referred by way of Case Stated three questions of law for determination by this Court pursuant to the provisions of section 52 of the Courts (Supplemental Provisions) Act, 1961. I propose to answer these questions in the order in which they appear in the Case.

3 The first question relates to the validity of the Defendant's arrest. The facts concerning the arrest are stated in the Case as follows:

4 2 "2. Evidence was given by Garda Dermot Hobbs that at 12.10 a.m. on the 19th September 1979, he stopped motor car, 4400 ZD. which was being driven by the Defendant, who gave his name and address. The Defendant's breath swelled of intoxicating liquor and his eyes were bloodshot and witness formed the opinion that he had consumed intoxicating liquor.

5 Witness assembled an alkalyser and requested the Defendant to blow into it, which he did, and the result was positive. Witness formed the opinion that an offence was committed under Section 49 of the Road Traffic net, 1961, and he arrested the Defendant under Section 49 (6) of that Act and conveyed him to Pearse Street Garda Station.

6 3. Evidence was given by Sergeant Michael Young that at 12.50 a.m. Garda Hobbs came to Pearse Street Station with the Defendant whom he said he had arrested shortly before under Section 49. Dr. Patton arrived and witness designated him as a registered medical practitioner and required the Defendant to furnish him a specimen of his blood or urine. The Defendant agreed to give urine and at 12.55 a.m. he gave a specimen.

7 The specimen was sent to the Medical Bureau on the 19th September, 1979 and a Certificate was received from the Bureau on the 15th October, 1979 which showed that at the relevant time the concentration of alcohol in the Defendant's urine exceeded the concentration permitted by the Act".

8 The question raised by the learned District Justice on this evidence is framed in the following terms:

"(1) Was Garda Hobbs, upon the evidence he gave, entitled to form an opinion which justified a lawful arrest under Section 49 (6)?"

9 If the question is answered in the negative (as the Defendant's counsel urged it should be) then it is submitted on the Defendant's behalf that the Defendant was not an arrested person within the meaning of section 13 of the Act of 1978 and the prosecution could not therefore rely on the Bureau's Certificate as evidence against the Defendant (in which connection see R. V. Veevers (1971) R.T.R. 47, and R.V. Weir (1972) 3 All E.R. 906).

10 In support of the Defendant's submission it was urged that Garda Hobbs could not hive reached the conclusion he said he reached and was not entitled to make the arrest he in fact effected because the alkalyser testt added nothing to the information he had before the teat was made. It was pointed out that the test by means of the alkalyser merely established the presence of alcohol in the Defendant” breath and gave no indication of the quantity of alcohol present in it; that Garda Hobbs was already aware that the Defendant had alcohol in his breath from his previous observations and that accordingly the test could not be relied on to support the conclusion that Garda Hobbs says he had reached and the subsequent arrest of the Defendant.

11 This submission would appear to be based on the view that as the Defendant was subsequently charged with having a concentration of alcohol in his urine above the limit permitted by statute the arrest under the section to be valid must be based on a conclusion reached at the time of arrest as to the amount of alcohol in the arrested person's urine. But this is not what the section 49 says. A lawful arrest can be made when a member of the Garda Siochana is of the opinion that "an offence under the section" has been committed. There are three distinct offences created by section 49 and it is quite clear that at the time of arrest it would not be possible for the Garda then to know under which sub-section a suspect would subsequently be charged. The Oireachtas has therefore permitted an arrest to be made when an opinion is arrived at that an offence under the section has been committed - an opinion which does not depend on a conscious determination based on scientific evidence that the statutory limit of alcohol in the blood or urine of the arrested person has been exceeded. The opinion arrived at must, of course, be a reasonable one, and must be one which results from an honest belief come to after facts have been ascertained and considered. In the present case Garda Hobbs smelled alcohol in the Defendant's breath and he noticed that the Defendant's eyes were bloodshot. The alkalyser test confirmed the existence of alcohol in the Defendant's breath. In reaching a conclusion that an offence under the section hid been committed Garda Hobbs was entitled to rely on his own observations alone, or on his own observations aided by the postive finding on the alkalyser test. The fact that he had no positive scientific knowledge as to the extent of the concentration of alcohol in the suspect's urine does not in any way vitiate the opinion which otherwise he had reached. Obviously Garda Hobbs observed definite facts about the Defendants condition on which he could base the opinion referred in Section 49 and there is no suggestion that he did not act in a bona-fide manner in considering and evaluating them. It seems to me that upon the evidence he gave he was entitled to conclude, as he did, that an offence under the section had been committed and that being so the arrest was a lawful one. The answer to question (a) in the case must be in the affirmative

12 The second question raised in the Case relates to the validity of the Bureau's Certificate.

13 When the Bureau receives a specimen of urine for analysis it is required "as soon as practicable" to analyse it and determine the concentration of alcohol in the specimen (see subsection (1) of section 22 of the Act of 1978). Its further obligations under Subsection (3) of section 2.2 are as follows:

"As soon as practicable after compliance with subsection (1), the Bureau shall forward to the Garda Station from which the specimen analysed was forwarded a completed certificate in the form prescribed for the purpose of this section and shall forward a copy of the completed certificate to the person named on the relevant form under section 21 as the person from whom the specimen way provided".

14 The Defendant submits that in the present case the Bureau's Certificate was not sent "as soon as practicable" as the subsection requires, and that therefore the prosecution cannot rely on it in the proceedings against him. The question (question (b)) raised in the Case is formulated as follows:

"Did the Bureau carry out its duties under Section 22 (3) of the Act as soon as practicable?".

15 The facts relevant to the issue raised in this question are as follows:

"5. Evidence was given by Miss Grainne Harrington an analyst attached to the Medical Bureau of Road Safety.

She explained that the analysis of any specimen involved the carrying out of two tests, the calculation of a mean of the results of those two tests, and the deduction of 6% from that mean, to give the figure shown in the Certificate. In the case of the specimen received from Mr. Hurley the first test had been done on the 20th September, 1979, by herself, the second test had been done on the 21st September 1979 "by a colleague" and the final result known on the 24th September, 1979.

She further explained that the final result once known is then sent to the typing office of the Bureau where the Certificate and four other documents required for the internal use of the Bureau are typed. The typing office deals...