1. This
is a Consultative Case Stated by Judge Hamill seeking the opinion of the High
Court on a very net question, namely:-
2. The
Accused was a driver of a motor vehicle involved in an accident in which he
suffered a head injury. At the scene of the accident, Garda Moran observed
that the Accused smelled of intoxicating liquor and he accompanied the Accused
in an ambulance to Cavan General Hospital where the Accused was to be treated.
The Accused admitted to being the driver of the vehicle and Garda Moran formed
the view that the Accused had consumed an intoxicant. At the hospital, he
required the Accused to permit a designated doctor to take a specimen of his
blood or, at his option, his urine, and the Accused gave a specimen of his
blood which, on analysis, showed a concentration of alcohol above the legal
limit. Section 15(1) of the Road Traffic Act, 1994 provides as follows:-
3. I
should emphasise that there is no challenge by the Accused to the actions of
Garda Moran in stating his requirement under Section 15, and I must assume that
he gave the Accused all necessary information and warnings with regard to the
giving of a specimen.
4. What
is alleged here is that, before stating his requirement under Section 15, Garda
Moran ought to have informed the Accused that he was not under arrest, but was
at liberty, and that he was free to go. Mr. De Blacam, on behalf of the
Accused, submitted that Garda Moran was obliged to so inform the Accused
because there was at law a general privilege against self-incrimination, and
that as a matter of fair procedures, the Accused ought to have been told that
he was at liberty.
5. I
certainly accept that there is a general principle that a person shall not be
obliged to incriminate themselves, but it is not an absolute principle.
Section 15 itself is a clear violation of that principle, as is Section 12 of
the 1994 Act which relates to the giving of breath samples. Indeed, Mr. De
Blacam is not arguing that the Accused was entitled to refuse to incriminate
himself by refusing to give a specimen when required to do so, but rather that,
before being required to do so, he ought to have been told what his legal
position was.
6. There
is no doubt that it is correct to say that, at the time the request was made by
Garda Moran, the Accused was not under arrest, and was at liberty. The moment
before the arrest was made, the Accused, assuming he was physically fit to do
so, could have walked out of the hospital. The argument appears to be that, by
not doing so, the Accused in effect incriminated himself because he put himself
in a position where Garda Moran could require a specimen. What actually
incriminated him, of course, was not the fact he remained in the hospital but
the presence of an unlawful concentration of alcohol in his blood.
7. I
have been referred to a number of authorities relating to self-incrimination.
While these may be of some assistance, none of them are directly on the point.
In
Heaney
-v- Ireland
(1994) 2 I.L.R.M. 420, it was held that the right to silence was part of the
right to protection against self-incrimination, and further was protected by
Article 38.1 of the Constitution. Significantly, it was also held that this
was not a right protected by Article 40 of the Constitution. Article 38.1
provides that "
no
person shall be tried on any criminal charge save in due course of law
",
and Costello J., as he then was, recognised that it was perfectly valid to
impose a restriction on the right to silence, provided that the means of doing
so passed what he called a proportionality test. As I have said, there is in
fact no challenge in these proceedings to Section 15 itself and, in my view,
that Section clearly passes the proportionality test.
8. This
indeed seems to me to be the kernel of the case. Garda Moran had a statutory
right, once the Accused arrived at the hospital, to require him to permit a
specimen to be taken, which amounts to a right to require him to incriminate
himself. Once the Garda decides he is going to exercise his powers under
Section 15, while it is correct to say that the Accused is not under arrest, it
is somewhat misleading to suggest that he is free to leave the hospital. While
he may be free to leave in the moment before the Garda makes the request, once
the request is made, the Accused is not in fact free to leave the hospital, and
will commit an offence if he does so without giving a specimen. Furthermore,
if he did manage to get outside the doors of the hospital, and thereby evade
Section 15, the guard could immediately exercise his rights under Section 14,
and request the Accused to accompany him to the station, or indeed could arrest
him. If Mr. De Blacam is correct, his argument really appears to be that the
Accused must be given an opportunity to avoid or evade the exercise by Garda
Moran of his statutory right to require a specimen. To my mind, this is quite
illogical. If the Oireachtas imposes an obligation on a person to perform some
act which may be self-incriminating, I do not think either the constitution or
the common law can dilute that obligation by requiring the person to be given
an opportunity to avoid complying with the obligation.
9. Finally,
I should also mention the case of
The
Director of Public Prosecutions -v- Daly
,
which unfortunately appears to have been an ex tempore judgment and no copy is
available. However, I have been furnished with a copy of the Case Stated and
what appears to be accepted as an account of the hearing. In that case, the
Accused was required to take a breath test following an accident, and was
brought by the guard to the squad car to enable the test to be taken. He was
not arrested until after the test. However, what was held in that case appears
to have been, not that the Accused ought to have been told he was not under
arrest, but that he had in fact been deprived of his liberty, and that this
amounted to an unlawful arrest and, accordingly, the breath test was taken
while the Accused was in unlawful custody. The Case Stated to me states that:-
10. This
is very different from the finding of fact by the District Justice in
D.P.P.
-v- Daly
where he found that the Accused had been "
deprived
of his liberty when brought by Garda Clarke to the patrol car
".
There is no such finding of fact in this case, nor is the result of the test
being challenged on the grounds that the specimen was taken while the Accused
was in unlawful custody.
11. Accordingly,
I do not think there was any requirement to caution or inform the Accused that
he remained at liberty and was free to go from the hospital, and I would answer
the question in the Case Stated "No".