The Director of Public Prosecutions v Stephen Burke
| Jurisdiction | Ireland |
| Judge | Mr. Justice Patrick McCarthy |
| Judgment Date | 22 July 2019 |
| Neutral Citation | [2019] IECA 239 |
| Court | Court of Appeal (Ireland) |
| Docket Number | Record Number: 2019/37,[C.A. No. 37 of 2019] |
| Date | 22 July 2019 |
[2019] IECA 239
THE COURT OF APPEAL
Birmingham P.
Whelan J.
McCarthy J.
Record Number: 2019/37
IN THE MATTER OF SECTION 52(1) OF THE COURTS
(SUPPLEMENTAL PROVISIONS) ACT 1961
Crime & sentencing – Road traffic – Dangerous driving – Case stated – Appeal against answers provided by High Court – S 107 Road Traffic Act 161
Facts: The appellant had been charged with two counts of dangerous driving and had been asked to confirm he was the driver. After initially denying it, he contacted the Garda and confirmed he was driving and then was subjected to a caution. The District Court had stated questions for the High Court, inter alia, concerning whether an answer under s 107 of the Road Traffic Act 1961 was admissible as evidence in a prosecution. The High Court had affirmed this, and the matter now came on appeal.
Held by the Court, that the appeal would be dismissed. Having reviewed the jurisprudence on the matter, it was clear that a right to silence and against self-incrimination existed, but that right could be subject to limits provided they were proportionate to the intended aim. In this case, the matter was proportionate and therefore answers under s 107 were admissible.
This is an appeal against the judgment and Order of Binchy J. of the 3rd October, 2018 whereby he answered certain questions posed in a consultative case stated by District Judge David Kennedy dated the 7th November, 2017. The facts as they appear from the case are that the accused/appellant (‘the accused’) was prosecuted on two charges of dangerous driving arising from events on the 13th January, 2016. In the course of investigation of the offence, a Garda Reynolds attended at the accused”s home on the 16th of January and made a lawful request for information from him pursuant to s.107(4) (‘Section 107’) of the Road Traffic Act, 1961 (‘the 1961 Act’). Section 107 of the 1961 Act provides inter alia as follows: -
‘(4) Where a member of the Garda Síochána has reasonable grounds for believing that there has been an offence under this Act involving the use of a mechanically propelled vehicle F213 [or a pedal cycle] —
(a) the owner of the vehicle shall, if required by the member, state whether he or she was or was not actually using the vehicle at the material time and, if he or she fails to do so, commits an offence,
And:-
(5) A person who commits an offence under this section is liable on summary conviction to a fine not exceeding €2,000.’
It is not in dispute but that when asking the accused whether or not he was the user of the motorcycle on the occasion in question he did so by reference to the Act and informed the accused that he would be committing an offence if he did not answer. However, on a number of occasions, Garda Reynolds was told by the accused that he was not the user of the vehicle on the day in question. Some hours later he telephoned Garda Reynolds and then told him that he was using it. Thereafter he was cautioned in the usual terms, and what he said thereafter is not relevant in the present context. It is not in debate but that the information given to the effect that the accused was ‘driving’ the vehicle on the date in question was so given under compulsion of law and was not a voluntary statement or admission as that is ordinarily understood.
Whilst a number of questions were addressed to the High Court by the learned District Court Judge, two are now irrelevant and the third was reformulated by the High Court by consent of the parties and is as follows: -
‘Whether an answer given by an accused person provided pursuant to a question put to him under Section 107 [of the Road Traffic Act, 1961 as amended] may be admitted in evidence against him in a prosecution for an offence under the Act of 1961?’
The learned High Court judge answered that question in the affirmative and whether or not he was correct is the sole issue before this Court.
Nobody doubts the general position as to the inadmissibility of involuntary admissions as outlined by Walsh J. in The Attorney General v. Cummins [1972] I.R. 312 where he said (at pg. 322) –
‘It should be said at once that a trial judge has no discretion to admit an inculpatory or an exculpatory confession, or statement, made by an accused person which is inadmissible in law because it was not voluntary. It is a matter for the trial judge to decide, when he has heard the evidence on the point, whether or not he will admit a statement, but if he is satisfied that it was not voluntary then his decision can be only to exclude it.’
That judgment was thereafter considered in The Attorney General v. Gilbert [1973] I.R. 383. There, the accused had been convicted of receiving stolen property (a motor car) contrary to s.33(1) of the Larceny Act, 1916 and in the course of the trial evidence of the fact that the accused admitted that he was using the car at the relevant time was introduced, a request having been made of him pursuant to s.107 of the 1961 Act. The Court of Criminal Appeal (per Pringle J. at pg. 387) dealt with the matter thus: -
‘As in the present case the statement in question was made after the sergeant had stated that a failure or refusal to answer would constitute an offence involving serious penalties, in our opinion it could not be said in any sense to be a voluntary statement and so the trial judge should not have admitted it in evidence on the trial of the offences with which the appellant was charged under the Larceny Act, 1916. We express no opinion on the position which would have existed if the charges had been for offences under the Road Traffic Acts.’ [My emphasis].
In Re. National Irish Bank Limited (No. 1) [1999] 3 I.R. 145 the Supreme Court addressed the issue of whether or not when information (including answers to questions) was obtained under compulsion of law (and hence involuntarily) it was admissible in evidence against a party in a criminal trial. Under Part 2 of the Companies (Amendment) Act, 1990, inspectors might be appointed to investigate the affairs of a company inter alia where there were circumstances suggesting that it”s affairs were being conducted in an unlawful manner or for a fraudulent or unlawful purpose. S.10 imposed extensive obligations on officers of a company and others to cooperate with inspectors, including the provision of books or documents and to subject themselves to examination under oath, and, pursuant to s.10 (5) of that Act, in default of inter alia answering any question put by the inspectors to him or her with respect inter alia to the affairs to the company the High Court might ultimately (effectively at the instance of the inspectors) require the individual in question to answer a particular question. By s. 18 of the same Act, any answer to a question put under s.10 might be used in evidence against that person. Ultimately, the Supreme Court (per Barrington J. who gave the judgment of the court) held that the latter provision permitted admission in civil cases but that in the light of the so-called double construction rule elaborated in East Donegal Co-Operative v. Attorney General [1970] I.R. 317 (whereby an interpretation or construction conformable to the Constitution should be given to a Statute) it did not mean that any answer (or admission) was admissible against the person who gave or made it, in a criminal trial. He put the matter thus: -
‘Accordingly, the better interpretation of s.18 [of the Companies Act, 1990] in light of the Constitution is that it does not authorise the admission of forced or involuntary confessions against an accused person in a criminal trial, and it can be stated, the general principle is that a confession, to be admissible at criminal trial must be voluntary.
Whether however a confession is voluntary or not must in every case in which the matter is disputed be a question to be decided, in the first instance, by the trial judge.’
Earlier in the judgment (at p.183) he had commented upon the judgment of Pringle J. aforesaid ( ‘… we express no opinion on the position which would have existed if the charges had been for offences under the Road Traffic Acts …’) saying: -
‘ The reference to the Road Traffic Acts in the last sentence is puzzling. Presumably the Court did not wish to cast any doubt on the powers of the police to collect information under the Road Traffic Acts. But, in principle, confessions, once involuntary would appear to be equally objectionable no matter what the nature of the criminal prosecution.’
It may be that these observations can be read as indicating the view of Barrington J. that any involuntary answers given under compulsion of law pursuant to the Road Traffic Acts are inadmissible, though I think that this is doubtful; however, since he was not dealing with the Road Traffic Acts there, the observations are obiter and not binding in the present context.
Heaney v. Ireland [1994] 3 I.R. 593 concerned the obligation upon a person under compulsion of law pursuant to s.52 of the Offence Against the State Act, 1939, in certain circumstances, to give an account of his movements or actions and all information in his possession in relation to the commission or intended commission of specified offences, a failure to do so giving rise to an offence with a potential penalty of imprisonment. In this jurisdiction it was held that it was legitimate for a legislative measure such as that to infringe a constitutional right (the right to silence, or against self-incrimination) if it passed a test of proportionality.
However, the European Court of Human Rights condemned the provision because, as referred to by Binchy J., it ‘in effect destroyed the very essence of...
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