Maher v DPP

• Jurisdiction: Ireland
• Judge: Mr. Justice Binchy
• Judgment Date: 22 January 2019
• Neutral Citation: [2019] IEHC 58
• Court: High Court
• Docket Number: Record No. 2016/1198 SS
• Date: 22 January 2019

[2019] IEHC 58

THE HIGH COURT

Binchy J.

Record No. 2016/1198 SS

IN THE MATTER OF SECTION 2 OF THE SUMMARY JURISDICTION ACT, 1857, AS EXTENDED BY SECTION 51 OF THE COURTS (SUPPLEMENTAL PROVISIONS) ACT, 1961

BETWEEN

THE DIRECTOR OF PUBLIC PROSECUTIONS (AT THE SUIT OF GARDA MARIUS STONES)

RESPONDENT

AND

GERARD MAHER

APPELLANT

Case stated – Admissibility – Road Traffic Act 2010 (s. 13) (prescribed form and manner of statements) Regulations 2015 – Appellant seeking to appeal by way of case stated – Whether the provisions of the Road Traffic Act 2010 (s. 13) (prescribed form and manner of statements) Regulations 2015 had been complied with

Facts: The appellant, Mr Maher, was convicted of the offence under ss. 4(4)(a) and (5) of the Road Traffic Act 2010 of driving a mechanically propelled vehicle while under the influence of an intoxicant or while there was present in his body, alcohol, in excess of the prescribed limits. The appellant appealed by way of case stated, and requested that the District Judge should state a case to the High Court on the following questions of law: (I) On the facts as found by the District Judge, have the provisions of S.I. No. 398/2015, namely the Road Traffic Act 2010 (s. 13) (prescribed form and manner of statements) Regulations 2015 been complied with? (II) On the facts so found, is the certificate automatically produced by the apparatus under s. 13 of the Road Traffic Act 2010, indicating the concentration of alcohol in the breath of the appellant, admissible in evidence? The appellant contended that the respondent, the DPP, was under an implied statutory duty to inform the appellant that he was entitled to receive the statements required by s. 13(2) of the 2010 Act, which were generated by the breathalyser apparatus, in the Irish language, and that having failed to so inform the appellant, the respondent had failed to comply with an essential proof. The appellant submitted that since the statutory regime is penal, it must be strictly construed, and the court should answer both questions posed by the District Judge in the case stated in the negative.

Held by the High Court that the appellant’s arguments must fail, firstly because there was no obligation on the respondent to inquire of the appellant as to the language in which he required the statements to be produced, and secondly it was clear that the failure on the part of the respondent to do so did not result in any unfairness, prejudice or detriment.

The Court held that each of the questions posed by the District Judge in the case stated should be answered in the affirmative i.e. there had been compliance with the 2015 Regulations and the statements produced by the apparatus pursuant to s. 13 of the 2010 Act were admissible in evidence.

Case stated.

JUDGMENT of Mr. Justice Binchy delivered on the 22nd day of January, 2019

1 This is a judgment on an appeal by way of case stated by District Judge Seamus Hughes arising out of the prosecution and conviction of the appellant of an offence under ss. 4(4)(a) and (5) of the Road Traffic Act 2010 (the ‘Act of 2010’) (the offence of driving a mechanically propelled vehicle while under the influence of an intoxicant or while there was present in his body, alcohol, in excess of the prescribed limits).

Background

2 Keen followers of the law in this area will recall that in the case of Director of Public Prosecutions v. Avadenei [2015] IEHC 580, this Court (Noonan J.) held that the regulations then applicable to the form of statement to be provided to persons after undergoing a breathalyser test (Road Traffic Act 2010 (Section 13) (Prescribed) Form and Manner of Statements Regulations 2011 ( S.I. No. 541 of 2011)) (the ‘2011 Regulations’) required that a person who had provided breath specimens should be given the prescribed statements in both the Irish and the English languages. Since the statements had been provided in English only, Noonan J. held that it was not admissible in evidence. On appeal to the Supreme Court, that Court agreed that it was a requirement of the 2011 Regulations that the statements should be provided in both languages, but did not agree as to the consequences of supplying it in one language only. I will come back to this decision later, but I mention it now in order to explain that immediately following the delivery of the decision of Noonan J. in Avadenei, the Oireachtas amended the 2011 Regulations so that instead of requiring that a person who had provided breath specimens should be provided with statements as to the results of the tests in both the Irish and the English languages, such persons could be provided with statements in either the Irish or the English language. The central issue in these proceedings is whether or not a person who is being required to provide breath specimens should first be informed of his or her right to have the statements required by s. 13(2) of the Act of 2010, and which are generated by the breathalyser apparatus (the ‘Statements’), provided in either language and afforded the opportunity asked to exercise a choice in this regard.

3 So far as is relevant to these proceedings, the statutory and regulatory framework applicable to the circumstances giving rise to the prosecution of the appellant in this case is contained in s. 13(2) of the Road Traffic Act 2010 and article 4 of the 2015 Regulations. Sections 13(2), (3) and (4) of the Act of 2010 provide as follows:-

‘Where the apparatus referred to in section 12 (1) determines that in respect of the specimen of breath to be taken into account as aforesaid the person may have contravened section 4 (4) or section 5 (4), he or she shall be supplied immediately by a member of the Garda Síochána with 2 identical statements, automatically produced by that apparatus in the prescribed form (my emphasis) and duly completed by the member in the prescribed manner, stating the concentration of alcohol in that specimen determined by that apparatus.

(3) On receipt of those statements, the person shall on being requested so to do by the member—

(a) immediately acknowledge such receipt by placing his or her signature on each statement, and

(b) thereupon return either of the statements to the member.

(4) A person who refuses or fails to comply with subsection (3) commits an offence and is liable on summary conviction to a fine not exceeding €5,000 or to imprisonment for a term not exceeding 3 months or to both.’

4 Articles 3 and 4 of the Road Traffic Act 2010 (Prescribed Form and Manner of Statements) Regulations 2015 ( S.I. No. 398 of 2015) (the ‘2015 Regulations’) provide:-

‘(3) the form set out in the Schedule is prescribed for the purposes of s. 13(2) of the Act of 2010 as the form of the statements to be automatically produced being either –

(a) in the English language, form A, or

(b) in the Irish language, form B,

by an apparatus referred to in section 12(1)(a) of that Act.

(4) For the purposes of completing the statements referred to in section 13(2) of the Act of 2010 in the prescribed manner the member of the Garda Síochána supplying the statements shall—

(a) before the person provides a specimen of his or her breath in accordance with section 12(1)(a) of the Act of 2010, input into the apparatus referred to in that section—

(i) the member's name and number,

(ii) whether the statements are to be produced either—

(I) in the English language, or

(II) in the Irish language…’

5 The combined effect of s. 13(2) of the Act of 2010 and article 4 of the 2015 Regulations is that before a breath sample is provided the garda concerned must input certain information into the breathalyser apparatus, including a direction as to whether the Statements that are to be generated by the apparatus are to be produced in the English language or the Irish language. Following upon the provision of the breath specimen, if it appears that there has been a contravention of either s. 4(4) or s. 5(4) of the Act of 2010, the garda is obliged to provide to the person who has provided the sample with two identical Statements automatically produced by the apparatus in the prescribed form, the form of which is prescribed in the 2015 Regulations. That form is substantially the same as the 2011 Regulations, save that in the 2011 Regulations the form was in both the Irish and English languages, but in the 2015 Regulations it is to be generated in whichever language the garda has input into the apparatus.

Background facts of this case

6 On 25th October, 2015, at 1.10 a.m., the appellant was arrested by the respondent having been observed driving erratically by the respondent. The respondent formed the opinion that the appellant 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 and arrested the appellant pursuant to s. 4(a) of the Act of 2010. The appellant was then brought to Mullingar garda station and the procedures required by the Act of 2010 were followed. After an observation period of 20 minutes or more to ensure that the appellant had nil by mouth prior to providing specimens of breath, the respondent then required the appellant to provide two specimens of breath by exhaling into a breathalyser apparatus. The penalties for failing or refusing to comply with the requirement to provide breath specimens were outlined to the appellant. The respondent stated in evidence that he explained this to the appellant in ordinary language and asked him if he understood this and the appellant confirmed that he did understand. The respondent gave evidence that all of this conversation took place in the English language.

7 The respondent then entered the details required to be entered in the apparatus pursuant to article 4 of the 2015 Regulations. The respondent provided the breath specimens and the apparatus then printed two identical Statements for...