THE COURT OF APPEAL
Birmingham J.
Mahon J.
Edwards J.Record No. 2015/526
IN THE MATTER OF SECTION 52 OF THE COURTS
(SUPPLEMENTAL PROVISIONS) ACT 1961
BETWEEN/
THE DIRECTOR OF PUBLIC PROSECUTIONS
(at the suit of Garda Francis McMahon)
Appellant
Respondent
Judgment of Mr. Justice Edwards delivered on the 10th day of May, 2016
Introduction
1. This is an appeal by the Director of Public Prosecutions against a judgment of the High Court (Noonan J.) delivered on the 21st of September, 2015, and the orders of the High Court made on foot of that judgment, dealing with a consultative case stated referred to it by Judge Conal Gibbons of the District Court on the 2nd of October, 2014, pursuant to section 52 of the Courts (Supplemental Provisions) Act 1961.
2. The case, which had come before the Dublin Metropolitan District Court where Judge Gibbons was sitting, concerned the prosecution of the respondent for drink driving contrary to s. 4(4)(a) and (5) of the Road Traffic Act 2010 (“the Act of 2010”). This had resulted from the earlier arrest and detention of the respondent in circumstances where he, having failed a roadside breath test, had been required - at the Garda Síochána station to which he had been taken - to provide a sample of his breath for analysis by an Evidenzer Irl apparatus, and had duly done so. The Evidenzer Irl apparatus is designed to produce a printout which, once signed, is intended to comprise a duly completed statement for the purposes of s. 13 of the Road Traffic Act 2010, which statement is required to be produced in evidence as an essential proof in support of any prosecution for an offence under s. 4 (4) and (5) of the Road Traffic Act 2010.
3. In the course of the respondent’s prosecution in the District Court, it was argued on his behalf that the prosecution had failed to produce in evidence a duly completed statement within the meaning of s. 13 of the Road Traffic Act 2010 because the Evidenzer Irl apparatus used to analyse the respondent’s breath had only generated a printout in the English language whereas, it was contended, the Road Traffic Act 2010 (Section 13) (Prescribed Form and Manner of Statements) Regulations 2011, S.I. 541/2011 (“the Regulations of 2011”) required that the relevant statement should be produced in both the English and Irish languages.
4. The question referred by the District Judge for determination by the High Court asked whether, on the facts of the case as found by him, he had been “entitled to hold that the document purporting to show the concentration of alcohol in the breath of the accused is not a ‘duly completed’ certificate within the meaning of s. 13 of the Road Traffic Act 2010 and S.I. 541/2011, namely the Road Traffic Act 2010 (s.13) (Prescribed Form and Manner of Statements) Regulation 2011?”
5. The High Court answered the District Judge’s question in the affirmative.
The Facts as found by the District Judge
6. On the 21st of April, 2014, a Garda McMahon was operating a speed check on Wolf Tone Quay, Dublin 7, a public place. At about 12:50 am, he detected a vehicle bearing registration no. 01 KE 11842 driving at a speed of 80 kph in a 50 kph zone. He stepped out onto the road and signalled the vehicle to stop.
7. The vehicle came to a halt very late and pulled into the left hand side of Ellis Quay as directed by Garda McMahon. The driver was the respondent. He gave his name and date of birth to Garda McMahon. He gave Garda McMahon his driving licence and address. Garda McMahon got a strong smell of alcohol from the respondent’s breath.
8. Garda McMahon made a demand under s. 9 of the Road Traffic Act 2010 to the respondent to provide a specimen of his breath to indicate the presence of alcohol. He outlined the penalties of failing to comply with the demand. The respondent provided a breath specimen in the Drager Alcotest approved apparatus for the taking of such specimens. The result of the test was “fail”. Garda McMahon formed the opinion that the respondent had committed an offence contrary to s. 4 of the Road Traffic Act 2010. He arrested the respondent under s. 4(a) of the Act of 2010. He cautioned the respondent and informed him of the reason for his arrest in ordinary language.
9. The respondent was conveyed to Store Street Garda Station. There he was given his notice of rights which were read over to him. The respondent was observed for twenty minutes “nil by mouth” by Garda McMahon. The respondent had a good grasp of the English language but an interpreter was obtained nonetheless.
10. Garda McCluskey was trained in the use of the Evidenzer Irl evidential breath testing apparatus. He made a demand of the respondent under s. 12(1)(a) of the Road Traffic Act 2010 to provide a specimen of his breath. He informed the respondent of the penal consequences of failure to provide a sample. The respondent confirmed to Garda McCluskey that there was no medical reason for him not providing a specimen. The respondent provided a specimen.
11. Garda McCluskey complied with s. 13 of the Road Traffic Act 2010. The Evidenzer Irl produced a document which described a concentration of 54 micrograms per 100 millilitres of breath in the specimen produced by the respondent. The document was signed by both the respondent and Garda McCluskey as required.
12. The respondent was subsequently charged before the Dublin Metropolitan District Court on foot of National Charge Sheet Number 144692042 that he “on the 21/04/2014 at Ellis Quay Dublin 7 a public place in the said District Court Area of Dublin Metropolitan District, did drive a mechanically propelled vehicle registration number 0 IKE11842 while there was present in your body a quantity of alcohol such that, within 3 hours after so driving, the concentration of alcohol in your breath did exceed a concentration of 22 microgrammes of alcohol per 100 millilitres of breath, to wit 54 microgrammes, contrary to section 4(4)(a) and (5) of the Road Traffic Act 2010”.
13. At the respondent’s trial before the Dublin Metropolitan District Court on the 2nd of July, 2014, the completed document that had been produced by the Evidenzer Irl apparatus was tendered to the court by the prosecution as a purported statement under s. 13 of the Road Traffic Act 2010. A copy of that document is annexed to this judgment.
14. Under cross examination, Garda McCluskey stated that prior to the provision of the breath specimens, he inputted his details and that of the respondent into the Evidenzer Irl apparatus in English. Garda McCluskey stated that the only document which was produced from the machine was in English. He stated that the Evidenzer apparatus was also capable of producing the printout in Irish.
15. At the conclusion of the prosecution case, the respondent’s solicitor applied for a “direction” of no case to answer on the grounds that the document submitted to the court was not a duly completed statement within the meaning of s. 13 of the Road Traffic Act 2010 because it did not comply with the requirements of the Regulations of 2011, which require that the relevant statement should be produced in both the English and Irish languages. Accordingly, the defence submitted that the document was not a duly completed statement and thus not admissible in evidence.
16. The case was adjourned to allow for written submissions and on the 2nd of October, 2014, the District Judge delivered a written judgment in which he acceded to the defence application and held that the document which purported to show the concentration of alcohol in the breath of the respondent was not a “duly completed” certificate within the meaning of the relevant section.
The Relevant Legislation
17. The relevant legislation is comprehensively reviewed in paragraphs 14 to 20 inclusive of the High Court’s judgment, and it is proposed to repeat that section of the High Court judgment verbatim:-
The High Court’s Judgment
18. In the course of his judgment, Noonan J. conducted an extensive review of relevant case law including The Director of Public Prosecutions v. Kemmy [1980] I.R. 160; The Director of Public Prosecutions v. Collins [1981] I.L.R.M. 447; The Director of Public Prosecutions v. O’Neill (Unreported, Supreme Court, 30th July, 1984); The Director of Public Prosecutions v. Greely [1985] I.L.R.M. 320; The Director of Public Prosecutions v. Somers [1999] 1 I.R. 115; McCarron v. Groarke (High Court, ex tempore, Kelly J., 4th April, 2000); The Director of Public Prosecutions v. Keogh (High Court, ex tempore, Murphy J, 9th February, 2004); The Director of Public Prosecutions (O’Reilly) v. Barnes [2005] 4 IR 176; Ruttledge v. Clyne [2006] IEHC 146 (Unreported High Court, Dunne J., 7th April, 2006); The Director of Public Prosecutions v. Freeman [2009] IEHC 179 (Unreported High Court, MacMenamin J., 21st April, 2009); The Director of Public Prosecutions v. Kennedy [2009] IEHC 361 (Unreported High Court, McMahon J,, 17th July, 2009); Power v. Hunt [2013] 3 I.R. 709; and The Director of Public Prosecutions (Moyles) v. Cullen [2014] IESC 7 (Unreported Supreme Court, Fennelly J., 18th February, 2014).
19. He concluded that the case law established in effect two lines of authority. The first could be said to arise in cases where certificate evidence is sought to be adduced in circumstances where there has been a technical error in the completion of the relevant certificate which does not breach a mandatory statutory provision, does not result in any misleading, and thus does not result in prejudice to the accused. He considered that, although each case turned to a significant extent on its own facts, it was probably nonetheless true to say that such a technical flaw did not normally invalidate the certificate or deprive it of the evidential presumption it otherwise enjoyed.
20. The second line of authority appeared to Noonan J. to suggest that where the relevant statute mandates the adoption of a particular procedure, a failure to adhere to that procedure will deprive the relevant certificate of any evidential value irrespective of whether or not the accused has been in any way misled or has suffered any prejudice as a result.
21. In Noonan J.’s view:-
“42. The language of s. 13(2) of the 2010 Act is clearly mandatory. Once the breath specimen has been given which indicates a possible contravention of s. 4(4) or 5(4), the person providing the specimen ‘shall be supplied immediately by a member of the Garda Síochána with 2 identical statements, automatically produced by that apparatus in the prescribed form and duly completed by the member in the prescribed manner…’ (my emphasis).
43. There is no ambiguity about this. The garda must supply the two statements, they must be in the prescribed form and they must be duly completed in the prescribed manner.
44. The prescribed form is to be found in the 2011 Regulations. Again mandatory language is used in Regulation 3 - ‘the form set out in the Schedule is prescribed…’.
45. It is to be noted that ‘form’ singular is referred to as is ‘the Schedule’. The Regulations make no provision for alternative forms in Irish and English to be produced by the Evidenzer machine. The Regulations make no provision for the person providing the breath specimen opting to receive the relevant statements in English or alternatively in Irish. Accordingly, it seems to me that the Schedule to the Regulations can only be construed as the entirety of the form that appears at pp. 3-6 inclusive of the Regulations after the word ‘SCHEDULE’. Even if there were any ambiguity about this, and I do not believe there is, the section is penal or associated with a penal section in the manner described by MacMenamin J. in Freeman and therefore must be construed strictly. Accordingly, it is not in my view permissible to speculate that it may have been intended by the draftsman to simply reproduce the same form in both Irish and English or perhaps infer that the accused may opt for either. That would be to adopt a purposive approach for which there is no warrant in either the Act or the Regulations and would amount to judicial legislation of the type disapproved in Freeman.
46. I do not think any assistance in this regard can be gained from s. 12 of the Interpretation Act 2005, as urged by the prosecutor, which provides:
‘12. - Where a form is prescribed in or under an enactment, a deviation from the form which does not materially effect the substance of the form or is not misleading in content or effect does not invalidate the form used.’
47. In my view, what arises in this case, being a failure to reproduce an entire half of the prescribed form, could not be regarded as a mere “deviation” from the form prescribed.
48. It must follow that if the form produced by the Evidenzer in this case is not the prescribed form within the meaning of s. 1(2) of the 2010 Act, neither can it be a “duly completed” form.”
”The High Court judge therefore concluded that the document relied upon by the prosecution in the case against the respondent did not comply with the requirements of s. 13(2), and thus it enjoyed no evidential presumption by virtue of section 20(1). It was therefore not admissible.
The Appellant’s Case on this Appeal
22. In the first instance the appellant seeks to engage directly with the respondent's contention that there is a single schedule to the Regulations of 2011 which provides for a statement that is partly in English and partly in Irish. Proceeding on the basis of that interpretation, the respondent contends that the failure of the Evidenzer Irl apparatus to produce a document in this form means that that which the statute mandates cannot be complied with. The statute requires that the person whose breath is being tested by the Evidenzer Irl apparatus should be supplied immediately by a member of An Garda Síochána with “2 identical statements, automatically produced by that apparatus in the prescribed form and duly completed by the member in the prescribed manner” (this Court’s emphasis). The respondent’s case is that only the form prescribed by the regulations is capable of being “duly completed” for the purposes of the section. Since the Evidenzer Irl apparatus does not produce statements in the prescribed form, i.e., in both Irish and English within the same document, they can never be “duly completed” statements for the purposes of s. 20 of the Act of 2010. The appellant’s response to this is to contend that the schedule to the Regulations of 2011, rather than prescribing one form comprised of two parts in different languages, both of which must be present for the form to have validity, instead prescribes a single “form” and provides both Irish and English versions of it with the intention that either may be used and that both should have equal validity.
23. The appellant submits that a careful reading of the regulations exposes the first difficulty with the respondent's argument. At the top of page three is a heading: 'SCHEDULE'. A form in English then follows immediately thereafter on the remainder of page 3 and continuing on to page 4. Then, at the top of page five is a further heading: 'AN SCEIDEAL'. A form in Irish then follows immediately thereafter on the remainder of page 5 and continuing on to page 6. This layout, the appellant submits, clearly demonstrates that the legislator intended, from page 5 onwards, merely to reiterate in the Irish language the schedule which up to that point had been in English, but not to continue it. If the respondent’s contention is correct, the phrase 'AN SCEIDEAL' (meaning 'SCHEDULE' or 'THE SCHEDULE') should appear in the middle of every s. 13 statement printed out by the evidential breath testing apparatus.
24. Counsel for the appellant suggests that the point is further illustrated by the title appearing underneath the word ‘SCHEDULE’ in English, which reads: "Road Traffic Act, 2010, section 13 — statement.” It can be further observed that under the phrase 'AN SCEIDEAL', the same title is repeated in Irish: "An tAcht um Thrácht ar Bhóithre, 2010, Alt 13 — ráiteas.” This clearly demonstrates that the Irish language text is not a continuation of the form but rather merely the reiteration of what has gone before in the Irish language.
25. The second difficulty identified by the appellant with the respondent’s argument is that any printout containing both the ‘SCHEDULE’ and 'AN SCEIDEAL' provides for two places within the document (one in the English section, and one in the Irish section) where the person giving the sample must sign it. Section 13(3) of the Act of 2010 provides that the person must place his signature on the statement. Counsel for the appellant suggests that since two places provided for the placement of the required signature (one in the English section, and one in the Irish section), one would have expected to find a provision in the Act of 2010 either requiring signature in both places or allowing for election between the two. There is no such provision in the parent Act.
26. It was submitted that the appellant’s point is further illustrated by s. 13(3)(b) of the Act of 2010 which provides that following the signature of the statements by the person concerned, he or she “shall on being requested to do so” by the Garda "thereupon return either of the statements to the member' (this Court’s emphasis). This clearly envisages two statements (one of which must be returned) in either the Irish or English language, rather than four (two in Irish and two in English, with one in each language being returned) which, according to the appellant, is the effect of the respondent's submission.
27. It was submitted that a third difficulty with the respondent’s argument identified by the appellant is that a printout containing both the ‘SCHEDULE’ and 'AN SCEIDEAL' also provides for two places within the document (one in the English section, and one in the Irish section) where the garda must sign the statements. Under regulation 4(b) of the Regulations of 2011, the garda must "sign the statements". Again, there is no provision either requiring him to sign in both places provided or electing between them as to where to sign.
28. It was further submitted that the reference by the trial judge to ‘“form” singular’ does not have the significance attributed to it by him in paragraph 45 of his judgment and is not determinative of the issue, in circumstances where s. 18(a) of the Interpretation Act 2005 (“the Act of 2005”) applies. That subsection provides:-
“(a) Singular and plural. A word importing the singular shall be read as also importing the plural and a word importing the plural shall be read as also importing the singular.”
29. The appellant contends that the use by the legislature of the number “2” in s. 13(2), and the word ‘either’ in s. 13(3)(b), respectively, of the Act of 2010, clearly envisages the production and signing of two identical statements rather than four. If there is any tension between the statutory instrument and the parent legislation, that must be resolved in favour of the primary legislation. Section 19 of the Act of 2005 provides that “[a] word or expression used in a statutory instrument has the same meaning in the statutory instrument as it has in the enactment under which the instrument is made.”
30. Counsel for the appellant has sought to distinguish the facts of the present case from those in The Director of Public Prosecutions v. Freeman [2009] IEHC 179 (Unreported High Court, MacMenamin J., 21st April, 2009) on the basis that, in Freeman, the error was a failure to follow a statutory procedure concerning the manner in which a form was to be filled out. The relevant statutory provision, s. 17 of the Road Traffic Act 1994, required the Garda administering a breath test utilising an intoxylizer apparatus to first sign the statements automatically produced by that apparatus before tendering it to the person being tested for his/her signature. The signings had in fact taken place in the reverse order. Here, it is the layout of the form that is in issue. It was submitted that the factual matrix of the present case is in fact closer to that in The Director of Public Prosecutions (O’Reilly) v. Barnes [2005] 4 IR 176, where a Garda, again engaged in administering a breath test for the purposes of s. 17 of the Road Traffic Act 1994 (“the Act of 1994”), using an intoxilyzer apparatus, had not properly followed the Road Traffic Act 1994 (Section 17) Regulations 1999 which required him to input certain information into the apparatus, including the section of the Road Traffic Act 1961 which it was alleged the person concerned had contravened. The Garda had inputted the wrong section, and thus the statements produced automatically by the apparatus once the person concerned had provided his breath sample for analysis recited the wrong section and were therefore not in the prescribed form. In the course of the subsequent prosecution of Mr. Barnes, the District Judge hearing the matter stated a case for the opinion of the High Court concerning whether the error in question had been fatal to his successful prosecution. In his judgment in the Barnes case, O’Neill J. applied a prejudice test rather than the stricter approach that was applied in the Freeman case. It was submitted that if a prejudice test such as that applied by O’Neill J. in the Barnes case is applied to the circumstances of the present case, it will be seen that there was no prejudice to the respondent who appears not to have been an Irish speaker.
31. Counsel for the appellant contends that even if there was a deviation from the prescribed statutory form, the defect was not fatal in any event by virtue of s. 12 of the Act of 2005, which states:-
“12.—Where a form is prescribed in or under an enactment, a deviation from the form which does not materially affect the substance of the form or is not misleading in content or effect does not invalidate the form used.”
32. It was submitted that in the present case the failure to reproduce the Irish language part of the form had no material effect on the substance of the document, as the form in Irish is merely a translation of the English and does not change its substance in any way. Furthermore, there was no potential to mislead. There is no suggestion that the respondent had any knowledge of, or proficiency in, the Irish language. However, even if he did have some such knowledge or proficiency, it has not been indicated how the absence of a translation of the form could in any way have misled him. Nothing went unrecorded, and nothing was misrecorded.
33. In the context of the potential to mislead, this Court has been referred to a number of authorities involving instances where forms have not been completed in full. In The Director of Public Prosecutions v. Somers [1999] 1 I.R. 115, the doctor taking a blood sample failed to identify in the statutory form he completed whether the sample was blood or urine. O’Flaherty J. remarked (at p.119) that it was obvious on reading the documents that it was a blood sample:-
“It seems to me that at most what happened here was that the doctor made a technical slip by not filling out the second paragraph of the prescribed form. There could be no confusion in anyone's mind, on reading the document as completed, but that it was a blood sample that was to be forwarded to the Medical Bureau of Road Safety.”
34. In The Director of Public Prosecutions v. Collins [1981] I.L.R.M. 447, the defendant claimed the doctor’s form was not duly completed. The doctor had affixed his signature to the last line of the form but had not inserted his name as required in the section of the form. The Supreme Court held the form was incomplete but held that it was nonetheless ‘duly completed’. Henchy J. delivering the judgment of the court remarked as follows (at p.449):-
“I find neither force nor merit in this submission. The blank line was probably intended to have inserted in it the name (but not necessarily the signature) of the designated medical practitioner. But it was an optional entry. In terms of syntax, clarity of meaning and verification of conduct, nothing would have been gained if Dr. Lundon’s name had been inserted in the blank line. If it had been inserted, the form would have looked more complete, but the insertion would have made only a visual difference. What was required to complete (i.e. to make whole) this part of the form was for the designated medical practitioner to verify, by signing his name at the end line, that he had done the several things recited in the printed form as having been done by him. The opening words "I, the undersigned designated medical practitioner" and the signature at the end identify one and the same person, and the signature purports to aver that Dr. Lundon did the acts which the intervening part of the from attributes to him. It is therefore, in the words of s. 23(1) ‘a duly completed form under section 21’ and enjoys the probative value ascribed to it by s. 23(1).”
He later observed (at p.449):-
“The purpose of this form was to identify the particular blood sample and to show that the set procedures were followed in regard to it. Once Dr. Lundon affixed his signature to the form as filled in, the failure to delete in full the line referring to a specimen of urine was no more than a technical slip. It left the true content of the filled in and signed form unaffected. So it cannot be said that this slip meant that the form was not duly completed.”
35. In The Director of Public Prosecutions v. O’Neill (Unreported Supreme Court, 30th July, 1984) the doctor’s form did not specify whether the sample had been taken ante or post meridian but merely said ’12:30’. The Supreme Court held that other evidence in the case could establish the time the specimen was provided. Hederman J. delivering the judgment of the court noted that there could have been no misapprehension on the part of the defendant, and there was therefore no prejudice (at p.6):-
“Different considerations might well arise under other parts of the Road Traffic Acts if there was not precise evidence from which it must be inferred that an accused had notice of the time of the happening of any particular event, e.g. a driver might otherwise be at a disadvantage in meeting an allegation that at a given time, in a given place, he was alleged to have driven at an excessive speed or dangerously, because he was not apprehended and there and then informed of such alleged breaches.”
36. Other examples of errors or deviations from form or procedure which were forgiven on the basis that they had no potential to mislead include instances where the incorrect defendant’s address was inserted on a relevant form (The Director of Public Prosecutions v. McPartland [1983] I.L.R.M. 411); where a Garda’s name was placed on a form rather than the defendant’s name (Ruttledge v. Clyne [2006] IEHC 146; (Unreported High Court, Dunne J., 7th April, 2006)); and where the date was not recorded on the label affixed to a sample bottle (The Director of Public Prosecutions (O’Brien) v. Hopkins [2009] IEHC 337; (Unreported High Court, Hedigan J., 7th July, 2009)).
37. Further, the Court’s attention was also drawn to Ó Gríofáin v. Éire [2009] IEHC 188 (Unreported High Court, Charleton J., 23rd April, 2009) in which the applicant, a native Irish speaker, refused to sign a statement produced by an evidential breath testing apparatus as it was only produced in English. Under the then regulations (The Road Traffic Act 1994 (Section 17) Regulations 1999, S.I. No. 326/1999), there was no provision for such a statement to be produced in Irish. The applicant sought declaratory relief to the effect that the machine should have produced the statement in Irish. Charleton J. refused to hold there was an entitlement to have the statement produced in Irish or that there was any risk of an unfair trial.
38. It was submitted that the trial judge was incorrect in ruling that “a failure to reproduce an entire half of the prescribed form, could not be regarded as a mere "deviation" from the form prescribed”. It was submitted that s. 12 of the Act of 2005 does not place any limit upon the extent to which there may be a deviation in the form from that which is prescribed. In any event, it is submitted that while the absence of the Irish language would suggest that half of the words are missing, there is in fact nothing at all of substance missing in circumstances where the Irish language part is merely a repetition, albeit in a different language, of what has already been provided for in English.
The Respondent’s Case on this Appeal
39. The respondent relies on the decision of the High Court in The Director of Public Prosecutions v. Freeman [2009] IEHC 179 (Unreported High Court, MacMenamin J., 21st April, 2009). In the course of his judgment in that case, MacMenamin J. was at pains to point out that although the technical defect resulted in no prejudice or confusion to the accused, the nature and effect of the error meant that the statutory provisions could not be ignored. Although MacMenamin J. described the legal point raised on behalf of the accused as “wafer thin”, he nevertheless noted (at para. 22):-
“Taken in isolation from its statutory context, this would not necessarily indicate that, the sequencing of the signature procedure was an essential aspect of a statutory intent, or a fundamental requirement for the protection of the rights of the citizen as evinced by the intent of the Oireachtas in the text of the Act. But the proviso is that these cases must be judged in their procedural, statutory, and evidential context.”
40. MacMenamin J. held that as the provisions under s. 17 of the Act of 1994 were “penal” or “related to a penal provision”, the provisions of the scheme as a whole, both those of the statute and those of the regulations, required to be strictly construed. In dismissing submissions by the prosecution that the provisions should be read in a “purposive” manner, he noted (at para. 39):-
“I have not been persuaded that the provision should be interpreted in the manner considered in the decision of the Supreme Court in D.P.P. v. Moorehouse [2006] 1 IR 421. To interpret these provisions in question in a ‘purposive’ way would to my mind constitute judicial legislation. A court should lean against the creation or extension of penal liability by extension. I do not think s. 17 (3) which creates the offence can be divorced or looked at in isolation from the strict procedures for compliance laid down in s. 17 as a whole, or from the regulations to which reference has been made. The imposition of a penal liability for failure of compliance by an accused to my mind renders the provision penal. The duty is to be construed mutually, - it cannot be ‘penal’ for an accused, but not “penal” for a member of An Garda Síochána who administers the test. Section 17(3) cannot be legitimately divorced or ‘ringfenced’ from s. 17 (1) and (2). The ‘statement aforesaid’ referred to in subs (3) is linked to the ‘duly completed’ statement produced by the apparatus under s. 17(2). All the subsections and the regulation are to my mind so interlinked in their statutory context, that to seek to divorce one from the other, to say one subsection is penal and one is not, would be an impermissible exercise in linguistic analysis.”
41. It was submitted that as subs. (4) of s. 13 of the Act of 2010 makes it an offence to refuse or fail to comply with the requirements of subs. 3 of s. 13, there is a penal sanction attached to s. 13 and the Regulations of 2011 are therefore “related” to a penal provision. The respondent suggests that, in the circumstances, this Court should uphold the High Court judge’s adoption in this case of a similar approach to that adopted by MacMenamin J. in the Freeman case.
42. Counsel for the respondent has drawn this Court’s attention to the following additional authorities which he says lend further support to his contention that the provision at issue must be strictly construed and applied: McCarron v. Groarke (High Court, ex tempore, Kelly J., 4th April, 2000); The Director of Public Prosecutions v. Reville (Unreported High Court, O’Caoimh J., 21st December, 2000); The Director of Public Prosecutions v. Greeley [1985] I.L.R.M. 320; and Maguire v Ardagh [2002] 1 IR 385. It was submitted that non-compliance with the strict terms of the legislation vitiates any evidential presumption created by that legislation.
43. Concerning the requirement of strict statutory interpretation of penal statutes generally, this Court has also been further referred by the respondent to the cases of Howard v Commissioners of Public Works [1994] 1 I.R. 101; The Director of Public Prosecutions v. Corcoran [1995] 2 I.R. 259; The Director of Public Prosecutions v. Moorehouse [2006] 1 IR 421; The Director of Public Prosecutions v. Egan [2010] IEHC 233 (Unreported High Court, Kearns P., 11th June, 2010); The Director of Public Prosecutions v. McDonagh [2009] 1 IR 767; and O’Keeffe v. Mangan [2015] IECA 31 (Unreported, Court of Appeal, 21st May, 2015).
44. The respondent has submitted that a great many of the cases relied upon by the appellant are not in fact in point because they relate to errors in the completion of the statutory form rather than use of a form other than the prescribed form.
45. The respondent has further submitted that the trial Judge was correct in his interpretation of the Regulations of 2011 in the context of s. 12 of the Act of 2005: the omission of the Irish portion of the form was not simply a “deviation” from the prescribed form.
46. It was further submitted that the omission concerned was not insignificant.
47. Finally, it was submitted a statement automatically produced by the intoxylizer apparatus must be in the “prescribed form” and “duly completed” by the member in the prescribed manner. In the Regulations of 2011, the schedule is required to be in both Irish and English. There appears to have been a clear intent on the part of the Oireachtas in relation to the form. It must be presumed that the Oireachtas did this for a reason and was not engaged in a pointless or futile exercise in imposing this requirement. In this case, the authorities failed to comply with the statutory provisions, as the certificate is not in the “prescribed form”, and accordingly, the respondent submits, this appeal should be dismissed.
Discussion and Analysis
48. I am disposed to allow this appeal. However, in so deciding I should state that I find myself in complete agreement with the trial judge, save in one respect. I disagree with his view as to the implications for this case of s. 12 of the Act of 2005.
49. Before elaborating further on this point of disagreement, it is necessary to make a number of further comments. I endorse and approve of completely, as did the trial judge, the statement of general principle articulated by O’Higgins C.J. in his dissenting judgment in The Director of Public Prosecutions v. Kemmy [1980] I.R.160, where he stated (at p.164):-
“Where a statute provides for a particular form of proof or evidence on compliance with certain provisions, in my view it is essential that the precise statutory provisions be complied with. The Courts cannot accept something other than that which is laid down by the statute, or overlook the absence of what the statute requires. To do so would be to trespass into the legislative field. This applies to all statutory requirements; but it applies with greater general understanding to penal statutes which create particular offences and then provide a particular method for their proof.”
50. I consider that the trial judge was entirely correct to follow the approach of MacMenamin J. in The Director of Public Prosecutions v. Freeman. Moreover, as there is a penal sanction created by subs. (4) of s. 13 of the Act of 2010, I agree that the remainder of the said s. 13, and the Regulations of 2011, are properly to be characterised as being “related” to a penal provision. The consequence of this is that these provisions must be strictly and narrowly construed in accordance with the long established common law jurisprudence concerning the interpretation of penal provisions in statutes. Furthermore, s. 5 of the Act of 2005, which allows for a purposive interpretation in the case of a provision in an enactment or statutory instrument which is obscure or ambiguous, or which on a literal interpretation would be absurd or would fail to reflect the plain intention of the Oireachtas (or the maker of the relevant statutory instrument, as the case may be) contains a qualifier which expressly disapplies that section, and precludes its use, in the construction of “a provision that relates to the imposition of a penal or other sanction”.
51. In any case, I do not consider that subs. (2) and subs. (3) of s. 13 of the Act of 2010 are in any way obscure or ambiguous, or that a literal interpretation of them would give rise to an absurdity. On the contrary, affording the words used their ordinary and usual meanings the effect of these subsections is entirely clear. They mean exactly what they say.
52. In the case of subs. (2) of s. 13, the clear meaning is that once the intoxylizer apparatus has tested a breath sample and determined that the person providing the sample may have contravened s. 4(4) or s. 5(4) of the Act of 2010, “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 and duly completed by the member in the prescribed manner, stating the concentration of alcohol in that specimen determined by that apparatus.” It is clear from this wording that the subsection imposes a number of conjunctive requirements with respect to the statements referred to, which must be strictly complied with if it is intended to use s. 20 of the Act of 2010 to have one of them admitted in evidence in support of a subsequent prosecution. These requirements are:
• there must be 2 (two) statements;
• they must have been be automatically produced by the apparatus;
• both statements must be identical;
• both statements must be in the prescribed form;
• both statements must state the concentration of alcohol as determined by the apparatus in the specimen of breath analysed;
• following their automatic production by the apparatus, both statements must have been duly completed by a member of An Garda Síochána in the prescribed manner;
• following their due completion, both statements must be supplied immediately by the member of An Garda Síochána to the person concerned.
53. In the case of subs. (3) of s. 13 the meaning is again clear. This subsection specifies what is to happen next after subs. (2) has been complied with, and it imposes a number of requirements, which are again conjunctive, on the person concerned. These require the person concerned on receipt of the statements referred to in subs. (2), and upon being requested so to do by the member (of An Garda Síochána), to:
54. The issue that has arisen in this case does not result from any lack of clarity or uncertainty as to the correct interpretation of the provisions of s. 13 of the Act of 2010. Rather, it is concerned with whether or not, in the circumstances of this case, the requirement in subs. (2) of s. 13 that the statements automatically produced by the intoxylizer apparatus should be “in the prescribed form” has been satisfied.
55. The prescribed form is to be found in the Regulations of 2011. This instrument prescribes a form for the statements that is partly in English and partly in Irish. Moreover, it has been correctly observed that both the English and Irish components of the prescribed form of the statements are identical in substance; they are merely in different languages. The instrument is not happily drafted in that no explanation is provided as to why this particular format has been prescribed, nor does it provide any guidance or instructions concerning whether one or other or both parts of the form are to be signed, either by the member of An Garda Síochána when attempting to fulfil the requirement under regulation 4(b) of the Regulations of 2011, or by the person concerned in attempting to acknowledge receipt of the statements in the manner specified in s. 13(3) of the Act of 2010.
56. The Court notes in passing that the Regulations of 2011 have since been replaced by the Road Traffic Act 2010 (Section 13) (Prescribed Form and Manner of Statements) Regulations 2015, S.I. 398/2015 which, inter alia, addresses the issues identified by prescribing two forms, A and B, respectively, one of which is in the English language and one of which is in the Irish language, either of which may be used in the alternative. However, be that as it may, the earlier Regulations of 2011 are those applicable to the present case.
57. The Regulations of 2011 require to be strictly interpreted. A purposive interpretation is not permitted in the circumstances of this case. That being so they must be given their literal meaning, and if there is ambiguity any such ambiguity must be resolved in favour of the respondent. Regulation 3 provides that “[t]he form set out in the Schedule is prescribed as the form of the statements to be automatically produced for the purposes of section 13(2) of the Act of 2010 by an apparatus referred to in section 12(1)(a) of that Act.” Interpreted literally, this suggests there is only one Schedule and that everything that follows the heading “SCHEDULE” comprises the prescribed form, including the Irish component. However, a degree of ambiguity arises because the Irish component is headed 'AN SCEIDEAL', which translates as “SCHEDULE” or “THE SCHEDULE”, thereby suggesting two versions of one form, one in Irish and one in English, and inviting the inference that they were intended to be used in the alternative. However, and as previously stated, a purposive interpretation is not permissible in this instance, and the identified ambiguity must be resolved in the respondent’s favour, which brings us back to the literal interpretation, namely, that everything that follows the heading “SCHEDULE” comprises the prescribed form, including the Irish component. The trial judge also arrived at the same conclusion, and up to that point I consider that he was entirely correct in his approach.
58. The consequence of interpreting the Regulations of 2011 as prescribing that the form of any statements to be automatically produced by the intoxylizer apparatus should be comprised of two substantively identical components, as specified in the Schedule to the regulations, one of which is in the English language and one of which is in the Irish language, is that it raises the issue as to whether the actual statements that were in fact produced by the apparatus in this case were in fact “in the prescribed form”.
59. It is readily to be seen from a comparison of the statements actually produced with the specified format for such statements as provided for in the regulations that they deviate from the specified format to the extent of omitting the portion in the Irish language. This deviation has no substantive or qualitative effect on the information intended to be communicated or conveyed, certainly in the case of a non-Irish speaker, but quantitatively speaking it represents the omission of half of the specified text.
60. Because the plain and ordinary meaning of the words “prescribed form” as they appear in s. 13(2) of the Act of 2010, and indeed in innumerable other statutes, is that a format to be adhered to has been imposed authoritatively and laid down by the relevant statute or instrument as a mandatory requirement, one would expect a deviation or omission from the prescribed form to be fatal in the normal course of events unless otherwise provided for in law.
61. It is in considering this aspect of matters that s. 12 of the Act of 2005 is relevant. Section 12 applies to the construction of all statutes and statutory instruments, whether they are penal or not. It is not qualified or restricted in terms of the type of enactment it can apply to. It operates with respect to any enactment in or under which a form is prescribed, and allows a margin of appreciation in terms of the extent to which a deviation from the form so prescribed will operate to invalidate the document for not being in the prescribed form. It provides that “[w]here a form is prescribed in or under an enactment, a deviation from the form which does not materially affect the substance of the form or is not misleading in content or effect does not invalidate the form used.” In terms of its potential application, the only qualifiers or pre-conditions set are those requiring that the deviation should neither materially affect the substance of the form, nor be misleading in content or effect.
62. Contrary to the view taken by the trial judge, I do not consider that the deviation from the format prescribed in the present case materially affected the substance of the form. There was no information that the statement actually produced in this case failed to record or communicate as a result of the omission of the Irish part of the form. Moreover, the essential information was communicated in precisely the format and layout specified in the Regulations of 2011. What was omitted was merely the repetition of that information in Irish. That Irish part, even if it had been included, would not have added anything of substance to the document. Moreover, the omission of the Irish part could not have operated to mislead as to the contents of the document, or as to its effect.
63. A prescribed form does nothing more than provide a means of presenting and communicating specified information in an orderly and structured way. The information required to be presented and communicated represents the substance of the document. The structured format represents its form. The deviation in this case was purely one of form, rather than one of substance. In finding that “a failure to reproduce an entire half of the prescribed form, could not be regarded as a mere "deviation" from the form prescribed”, the trial judge seems to have conflated form and substance. Section 12 does not talk about “mere” deviations. It covers any deviation providing it is not a deviation of substance or is not misleading in content or effect. In this case there was a substantial deviation from the specified format, but it did not materially affect the substance of the document.
64. In conclusion, therefore, I am of the view that the trial judge erred in holding that s. 12 of the Act of 2005 had no application in the present case. On the contrary, I consider that s. 12, when applied to the facts of the present case, would have entitled the District Judge, as the relevant tribunal of fact, to conclude that the statements automatically produced by the intoxylizer apparatus, which had been used to analyze the respondent’s breath sample on the 21st of April, 2014, at Store Street Garda Station, were nonetheless in the prescribed form notwithstanding the deviation identified in the case stated, and that consequently when they were completed by the member of An Garda Síochána in the prescribed manner they were “duly completed”.
65. In the circumstances, I would allow the appeal and answer the question posed by the District Judge in the negative.
