Oates -v- District Judge Browne & another,  IESC 7 (2016)
|Party Name:||Oates, District Judge Browne & another|
THE SUPREME COURT
[Appeal No: 420/10]
DISTRICT JUDGE GEOFFREY BROWNERespondent
THE DIRECTOR OF PUBLIC PROSECUTIONS
Judgment of Mr. Justice Hardiman delivered the 29
day of February, 2016.
This is the appeal of the applicant/appellant from the judgment and order of the High Court (Mr. Justice Charleton) of 11th November, 2010. The High Court dismissed the applicant’s application for an order quashing his conviction dated the 5th June, 2009 for an offence contrary to s. 49(4) and (6)(a) of the Road Traffic Act, 1961 as inserted by s.10 of the Road Traffic Act 1994.
Nature of the offence alleged and the defendant’s application.
The applicant was charged that, on the 21st July, 2008 at Elphin, Roscommon, “he drove a mechanically propelled vehicle in a public place while there was present in his body a quantity of alcohol such that within three hours after so driving the concentration of alcohol in his breath exceeded a concentration of 35 microgrammes of alcohol per 100 millilitres of breath”, contrary to the statutory provisions set out above.
This offence is sometimes referred to as “drunken driving”, and is so described in the judgment of the learned trial judge. But it is not now (or for nearly forty years) necessary to prove that the person charged with it was in any ordinary sense of the term “drunk” or “incapable of having proper control” of his or her vehicle. This latter proof was required by s.49 of the Road Traffic Act 1961, as originally enacted. This latter Section has been repealed by s.33 of the Road Traffic Act 2010 but its effect is re-enacted, with modernisations, by s.4 of that same Act. However, the old offence of driving while “incapable of having proper control” of a vehicle is rarely or never used, having been superseded, first in 1968, by provision for blood or urine testing and in 1994 by an additional provision for evidential breath testing.
A note on Statutes.
The statutory provisions about drink driving offences are needlessly complex and confusing. There are a number of reasons for this. One is the tendency to repeal a provision in a statute by a later Act, which later Act however contains elsewhere a provision substantially re-enacting the repealed provision in the same words or in substance. This happened in relation to the old s.49 offence, repealed and re-enacted by Sections 33 and 4 of the Act of 2010 respectively. Another reason for needless complexity and confusion is the draftsman’s fondness for introducing an entirely new provision by amendment or substitution of a previous provision rather than starting afresh with a new Section. There is also a tendency to repeal or amend a provision by a later provision, but not to bring the later provision into force. This makes the Statute book positively misleading.
The effect of all this is to make statutory provisions extremely difficult for a layman to access, and to understand which of the myriad statutory provisions on any particular subject represent the present law or the law as it was at any particular past time. This tends to make a nonsense of the important legal principle that everyone is deemed to know the law. For example, it would be best tolerably easy for a dedicated lay person to establish that s.49 of the 1961 Act, after a number of substitutions, has been definitively repealed by the Road Traffic Act, 2010. But this exercise would not inform him that it has been in substance re-enacted and modernised by a different Section of the same Act.
This complexity is by no means limited to Road Traffic Statutes but is to be found, notoriously, in Planning and Tax statutes. As we shall see later in this judgment, it is also to be found in Freedom of Information legislation.
In an attempt to mitigate the confusion caused by these arcane drafting practices, I have set out in Appendix A to this judgment the evolution of the statutory formulations in the Road Traffic Acts of the offence originally constituted by s.49 of the Road Traffic Act 1961 and of the offence originally constituted by s.29 of the Road Traffic Act 1968 (the original excess alcohol in blood or urine offence)
In Appendix B I have set out the evolution of the statutory right to be given a portion of a sample of blood or urine where required under the Road Traffic Acts. This right has existed continuously since the introduction of the mandatory provision of bodily substances for testing in 1968.
In Appendix C I have set out some of the important statutory provisions, applicable in 2008, which are cited in this judgment.
In constructing these appendices I have concentrated narrowly on the subjects indicated above and have left out, accordingly, all mention of other topics and any amendments which are irrelevant to the main point, for example because they relate merely to penalties or to matters of evidence.
As Appendix A shows, the original form of the charge has long been very largely superseded, first by the Road Traffic Act, 1968 (by the creation of an offence of driving with more than a certain quantity of alcohol in the blood or urine). More recently this once novel system was itself largely superseded (by the Road Traffic Act 1994, not widely used for some years thereafter) by the creation of an offence of driving with an excessive quantity of alcohol in the breath. The gardaí retain the power, at their exclusive option. to require a specimen of blood or urine, rather than breath, but this is seldom exercised, and in practice is exercised only where there is some problem with the analysis of breath specimens, from the point of view of the gardaí.
The breath specimen used in court is called an “evidential breath specimen” and is taken and analysed in a Garda Station, and must be distinguished from the “preliminary” or roadside breath specimen, which is used for screening purposes only.
When blood or urine testing were in vogue with the legislature, and with the gardaí, it was required by law that any sample of blood or urine be divided and one portion given to the defendant who could then carry out his or her own analysis. This obligation still exists: s.s. 10, 12 and 15 of the Road Traffic Act 2010.
But the possibility of independent analysis ceased to exist in the very large majority of cases, without any express legislative provision abolishing it, when the legislature decided to replace the procedure based on laboratory analysis of blood or urine with a procedure based on analysis, by an automatic process carried out in a garda station, of a breath specimen. Unlike blood or urine, the breath specimen is said to be transitory and not to admit of the possibility of preserving a part of it for subsequent analysis by or on behalf of the defendant. That this is so was recognised (on the evidence provided) by this Court, as it had been by the High Court, in McGonnell v. Attorney General  1 I.R. 400 at 409.
Chief Justice Murray said, in a passage of great significance for the present case:
“It is… abundantly clear that where the preferred method of testing is breath and breath only, the person in question is in a significantly different position from an individual who has been requested to give blood. Whether the sample should be blood or urine is immaterial in this context.
Such a person has an opportunity of having a portion of a single specimen independently assessed if he so wishes. That portion must have the same properties as the retained portion, which the Medical Bureau has analysed. It is entirely irrelevant whether he should avail of his entitlement or not, or whether, if analysed, the results should be corroborative of guilt. It is the opportunity which is critical to fair procedures and constitutional justice”. (Emphasis added)
This matter has not been addressed by the legislature in any way. Statute law has not noticed at all the unilateral abolition, in most cases, of the opportunity for independent analysis, which this Court held to be “critical to fair procedures and constitutional justice”. The law has simply provided an alternative test. This new test, in practice, has almost entirely displaced the old one in practice and thus ended the opportunity for independent testing which was held to be “critical” to fair procedures and constitutional justice.
As noted above, the opportunity of a separate analysis which might confirm or might contradict the result of the official analysis simply does not arise in the context of a breath specimen. Where a person has been arrested and brought to a garda station for evidential alcohol testing, a member of the gardaí, at his sole discretion, may determine whether the person is to be required to produce (a) an evidential breath specimen or (b) a blood or urine specimen. This is the effect of s.12,13 and 15 of the Road Traffic Act 1994 as amended. According to the leading modern work, Staunton Drunken Driving (2015), both breath and blood or urine may be demanded. But only breath was required in the present case.
Accordingly, the present system of evidential testing for the concentration of alcohol in the body of a driver is now operated in the great majority of cases by the automatic analysis of a breath specimen. It is “automatic” in the sense that the analysis is performed by the Intoxilyser machine, without any laboratory analysis or any human input. When the evidence was provided by analysis of blood or urine it was obligatory to offer to the driver a portion of the sample for his own analysis. It was this opportunity independently to test the sample that this Court in 2007 held to be “critical to fair procedures and constitutional justice”. Now this “critical” opportunity has been abolished in practice. This case raises the question: what are the legal consequences of that abolition?
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